<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1994
Commission File No. 1-8283
CITICASTERS INC.
Incorporated under the laws of Florida
IRS Employer Identification No. 59-2054850
One East Fourth Street, Cincinnati, Ohio 45202
Phone: (513) 562-8000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark whether the registrant has filed all documents
and reports required to be filed by Section 12, 13, or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes X No
--- ---
As of November 1, 1994, there were 9,699,881 shares of Common Stock
outstanding.
EXHIBIT INDEX Page 13
Page 1 of 15
<PAGE> 2
<TABLE>
CITICASTERS INC. - 10-Q
PART I
FINANCIAL INFORMATION
CITICASTERS INC. AND SUBSIDIARIES
BALANCE SHEET
(Dollars in Thousands)
<CAPTION>
September 30, December 31,
1994 1993
------------- ------------
<S> <C> <C>
ASSETS
------
Current assets:
Cash and short-term investments $ 46,679 $ 4,789
Trade receivables, less allowance for
doubtful accounts of $1,969 and $2,010 46,468 48,294
Broadcast program rights 10,430 15,910
Prepaid and other current assets 2,336 3,355
-------- --------
Total current assets 105,913 72,348
Broadcast program rights, less current portion 1,720 11,368
Property and equipment, net 30,297 60,660
Contracts, broadcasting licenses and other
intangibles, less accumulated amortization
of $8,545 and $0 349,487 574,878
Deferred charges and other assets 10,326 315
-------- --------
$497,743 $719,569
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
Current liabilities:
Current maturities of long-term debt $ - $ 23,500
Accounts payable, accrued expenses and
other current liabilities 46,868 31,924
Broadcast program rights fees payable 9,772 15,439
-------- --------
Total current liabilities 56,640 70,863
Broadcast program rights fees payable,
less current portion 1,000 8,468
Deferred income taxes 42,964 77,152
Long-term debt, less current maturities 195,501 409,068
Other liabilities 31,326 15,430
-------- --------
Total liabilities 327,431 580,981
Shareholders' equity:
Common Stock, $.01 par value, including additional
paid-in capital; 500,000,000 shares authorized;
10,553,696 and 11,317,196 shares outstanding 122,052 138,588
Retained earnings from January 1, 1994 48,260 -
-------- --------
Total shareholders' equity 170,312 138,588
-------- --------
$497,743 $719,569
======== ========
<FN>
See notes to financial statements.
</TABLE>
Page 2
<PAGE> 3
<TABLE>
CITICASTERS INC. - 10-Q
CITICASTERS INC. AND SUBSIDIARIES
STATEMENT OF OPERATIONS
(In Thousands, Except Per Share Amounts)
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
-------------------------- ---------------------------
Predecessor Predecessor
1994 1993 1994 1993
---- | ---- ---- | ----
<S> <C> | <C> <C> | <C>
Net Revenues: | |
Television broadcasting $33,583 | $32,212 $110,487 | $100,539
Radio broadcasting 17,325 | 17,940 49,293 | 49,078
------- | -------- -------- | ---------
50,908 | 50,152 159,780 | 149,617
------- | -------- -------- | ---------
| |
Costs and expenses: | |
Operating expenses 16,231 | 18,645 51,291 | 54,082
Selling, general and | |
administrative 14,303 | 14,734 46,148 | 45,492
Corporate general and | |
administrative expenses 1,187 | 1,029 3,649 | 3,020
Depreciation and amortization 5,801 | 7,130 19,792 | 21,329
------- | -------- -------- | ---------
37,522 | 41,538 120,880 | 123,923
------- | -------- -------- | ---------
| |
Operating income 13,386 | 8,614 38,900 | 25,694
| |
Other income (expense): | |
Interest expense (8,598) | (17,804) (28,012) | (51,223)
Minority interest - | (7,901) - | (23,703)
Investment income 186 | 86 400 | 285
Miscellaneous, net 70,077 | 333 69,572 | 2,421
------- | -------- -------- | ---------
61,665 | (25,286) 41,960 | (72,220)
------- | -------- -------- | ---------
| |
Earnings (loss) before | |
income taxes 75,051 | (16,672) 80,860 | (46,526)
| |
Income tax provision 30,200 | - 32,600 | -
------- | -------- -------- | ---------
| |
Earnings (loss) before | |
extraordinary items 44,851 | (16,672) 48,260 | (46,526)
| |
Extraordinary items, net of tax - | (3,208) - | (6,344)
------- | -------- -------- | ---------
| |
NET EARNINGS (LOSS) $44,851 | ($19,880) $ 48,260 | ($ 52,870)
======= | ======== ======== | =========
| |
NET EARNINGS PER SHARE $3.93 | * $4.23 | *
| |
Average common shares 11,404 | * 11,407 | *
<FN>
* Share amounts are not presented due to the effects of the reorganization.
See notes to financial statements.
</TABLE>
Page 3
<PAGE> 4
<TABLE>
CITICASTERS INC. - 10-Q
CITICASTERS INC. AND SUBSIDIARIES
STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY (DEFICIT)
(in Thousands)
<CAPTION>
Common Stock,
Including Total
Additional Shareholders'
Paid-In Accumulated Equity
Capital Deficit (Deficit)
------------ ----------- -------------
<S> <C> <C> <C>
PREDECESSOR:
- ------------
Balances, December 31, 1992 $270,891 ($609,920) ($339,029)
Net loss - (52,870) (52,870)
-------- --------- ---------
Balances September 30, 1993 $270,891 ($662,790) ($391,899)
======== ========= =========
- ------------------------------------------------------------------------------------------------------------------------
REORGANIZED COMPANY:
- -------------------
Balances, December 31, 1993 $138,588 $ - $138,588
Stock bonus awarded 297 - 297
Net earnings - 48,260 48,260
Common shares repurchased and retired (16,833) - (16,833)
-------- --------- ---------
Balances, September 30, 1994 $122,052 $ 48,260 $170,312
======== ========= =========
<FN>
See notes to financial statements.
</TABLE>
Page 4
<PAGE> 5
CITICASTERS INC. - 10-Q
CITICASTERS INC. AND SUBSIDIARIES
STATEMENT OF CASH FLOWS
(In Thousands)
<TABLE>
<CAPTION>
Nine months ended
September 30,
-------------------------
Predecessor
1994 1993
---- | ----
<S> <C> | <C>
OPERATING ACTIVITIES: |
Net earnings (loss) $ 48,260 | ($52,870)
Adjustments: |
Depreciation and amortization 19,792 | 21,329
Non-cash interest expense 152 | 7,674
Other non-cash adjustments (primarily non-cash dividends |
on the preferred stock of a former subsidiary) - | 23,822
Realized gains on investing activities (42,120) | (1,871)
Extraordinary loss related to the restructuring - | 6,344
Decrease in trade receivables 1,826 | 2,141
Increase (decrease) in accounts payable, accrued expenses |
and other liabilities (2,663) | 15,804
Decrease in deferred income taxes (1,002) | -
Other 4,270 | 180
--------- | -------
28,515 | 22,553
--------- | -------
|
INVESTING ACTIVITIES: |
Purchases of: |
Broadcast stations (16,380) | -
Real estate, property and equipment (4,689) | (4,299)
Sales of broadcast stations 287,499 | 1,600
Other 699 | (4,905)
--------- | -------
267,129 | (7,604)
--------- | -------
FINANCING ACTIVITIES: |
Retirements and refinancing of long-term debt (432,568) | (27,397)
Additional long-term borrowings 195,350 | -
Repurchases of The Company's Common Stock (16,833) | -
Other 297 | -
--------- | -------
(253,754) | (27,397)
--------- | -------
|
NET INCREASE (DECREASE) IN CASH AND SHORT-TERM INVESTMENTS 41,890 | (12,448)
--------- | -------
|
Cash and short-term investments at beginning of period 4,789 | 25,076
--------- | -------
|
Cash and short-term investments at end of period $ 46,679 | $12,628
========= | =======
<FN> |
See notes to financial statements.
</TABLE>
Page 5
<PAGE> 6
CITICASTERS INC. - 10-Q
NOTES TO FINANCIAL STATEMENTS
A. ACCOUNTING POLICIES
-------------------
BASIS OF PRESENTATION The accompanying financial statements for
Citicasters Inc. (formerly Great American Communications Company) are
unaudited, but Citicasters believes that all adjustments (consisting
only of normal recurring accruals, unless otherwise disclosed herein)
necessary for fair presentation have been made. The results of
operations for interim periods are not necessarily indicative of
results to be expected for the year. The financial statements have
been prepared in accordance with the instructions to Form 10-Q and
therefore do not include all information and footnotes necessary to be
in conformity with generally accepted accounting principles.
Significant intercompany balances and transactions have been
eliminated. Certain reclassifications have been made to conform to
the current year's presentation.
As a result of the Company's emergence from Bankruptcy and its
adoption of fresh-start reporting as of December 31, 1993,
Citicasters' statements of operations, changes in shareholders' equity
(deficit) and cash flows for periods subsequent to December 31, 1993
are generally not comparable to prior periods and are separated by a
line. For purposes of the financial statements, the term
"Predecessor" refers to the Company prior to its reorganization.
All acquisitions have been treated as purchases. The accounts and
results of operations of companies since their formation or
acquisition are included in the consolidated financial statements.
At November 1, 1994, American Financial Corporation (including a
subsidiary) and its principal shareholder, Carl H. Lindner; owned an
aggregate of 4,923,525 shares (50.8%) of Citicasters' outstanding
Common Stock.
BROADCAST PROGRAM RIGHTS The rights to broadcast non-network programs
on Citicasters' television stations are stated at cost, less
accumulated amortization. These costs are charged to operations on a
straight-line basis over the contract period or on a per showing
basis, whichever results in the greater aggregate amortization.
PROPERTY AND EQUIPMENT Property and equipment are based on cost and
depreciation is calculated primarily using the straight-line method.
Depreciable lives are: land improvements, 8-20 years; buildings and
improvements, 8-20 years; operating and other equipment, 3-20 years;
and leasehold improvements, over the life of the lease.
CONTRACTS, BROADCASTING LICENSES AND OTHER INTANGIBLES Contracts,
broadcasting licenses and other intangibles represent the excess of
the value of the broadcast stations over the values of their net
tangible assets, and is attributable to FCC licenses, network
affiliation agreements and other contractual or market related
factors. Reorganization value in excess of amounts allocable to
identifiable assets represents the excess of the estimated fair value
of the Company at the time of the reorganization over the estimated
fair value allocated to its net identifiable assets. Intangible
assets are being amortized on a straight-line basis over an average of
34 years. On an ongoing basis, Citicasters reviews the carrying value
of its intangible assets. If this review indicates that intangible
assets will not be recoverable, as determined based on undiscounted
cash flows of the Company's broadcast stations over the remaining
amortization period, Citicasters' carrying values of intangible assets
are reduced by the amount of the estimated shortfall of cash flows.
DEBT DISCOUNT AND EXPENSE Debt discount is being amortized over the
life of the related debt obligations primarily by the interest method.
Costs of issuance are capitalized and are amortized over the life of
the related debt obligations primarily on the straight-line method.
Page 6
<PAGE> 7
CITICASTERS INC. 10-Q
NOTES TO FINANCIAL STATEMENTS - CONTINUED
INCOME TAXES Citicasters files a consolidated Federal income tax
return which includes all 80% or more owned subsidiaries. Deferred
income tax assets and liabilities are determined based on differences
between financial reporting and tax bases and are measured using
enacted tax rates. Deferred tax assets are recognized if it is more
likely than not that a benefit will be realized.
EARNINGS (LOSS) PER SHARE Primary and fully-diluted earnings (loss)
per share are based upon the weighted average number of common shares
and give effect to common equivalent shares (dilutive options)
outstanding during the respective periods. As a result of the effects
of the reorganization, per share data for periods ending on or prior
to December 31, 1993 have been rendered meaningless and, therefore,
omitted from the accompanying Financial Statements.
STATEMENT OF CASH FLOWS For cash flow purposes, "investing
activities" are defined as making and collecting loans and acquiring
and disposing of debt or equity instruments and property and
equipment. "Financing activities" include obtaining resources from
owners and providing them with a return on their investments,
borrowing money and repaying amounts borrowed. All other activities
are considered "operating". Short-term investments for purposes of
the Financial Statements are those which had a maturity of three
months or less when acquired.
B. ACQUISITIONS AND DISPOSITIONS During the second quarter of 1994,
Citicasters acquired its second FM radio station in Sacramento for $16
million and sold its AM and FM radio stations in Milwaukee for $7
million. During the third quarter Citicasters completed the sale of
its FM radio stations in Denver and Detroit for $8 million and
$11.5 million, respectively. No gain or loss was recognized on the
sales. The acquisition of Citicasters' second FM radio station in
Cincinnati for $15 million is expected to be completed during the
first quarter of 1995. In the aggregate, these purchases and sales of
radio stations will not have a material effect on Citicasters' results.
On May 4, 1994, Citicasters entered into agreements for the sale of
four of its network affiliated television stations to entities
affiliated with New World Communications Group Incorporated ("New
World"). On September 9, Citicasters completed the sale of three of
the four television stations, including KSAZ in Phoenix, WGHP in
Greensboro/Highpoint and WDAF in Kansas City. The sale of the fourth
station, WBRC in Birmingham, was completed October 12. Citicasters
received $355.4 million in cash and a warrant to purchase, for five
years, 5,000,000 shares of New World common stock at $15 per share.
Citicasters estimates that it will record a net gain totaling
approximately $54 million on these sales, $41.7 million of such gain
was recorded in the third quarter. Proceeds from the sales were used
to retire long-term debt and to repurchase shares of the Company's
Common Stock.
The following proforma financial information is based on the
historical financial statements of Citicasters, adjusted to reflect
the television station sales and the use of the proceeds therefrom,
the effects of the reorganization completed in December 1993, and the
refinancing of subordinated debt completed in February 1994.
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
---------------------- ---------------------
1994 1993 1994 1993
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenues $31,730 $30,394 $92,055 $88,083
======= ======= ======= =======
Operating income $ 7,638 $ 4,962 $18,335 $13,541
======= ======= ======= =======
Net earnings $ 2,773 $ 1,171 $ 4,749 $ 3,446
======= ======= ======= =======
Net earnings per share $ .24 $ .10 $ .42 $ .30
======= ======= ======= =======
</TABLE>
Page 7
<PAGE> 8
CITICASTERS INC. 10-Q
NOTES TO FINANCIAL STATEMENTS - CONTINUED
C. LONG-TERM DEBT Long-term debt consisted of the following (in thousands):
<TABLE>
<CAPTION>
September 30, December 31,
1994 1993
------------ ------------
<S> <C> <C>
Citicasters:
9-3/4% Senior Subordinated Notes
due February 2004, less unamortized
discount of $4,499 (imputed interest
rate 10.13%) $195,501 $ -
14% Senior Extendable Notes due June 2001 - 77,568
Subsidiaries:
Guaranteed by Citicasters:
Bank credit facility - 220,000
Other:
13% Senior Subordinated Notes of Citicasters
Corp. due May 2001 - 111,500
9-1/2% Notes due December 1999 (secured) - 17,500
Other obligations - 6,000
-------- --------
Total long-term debt 195,501 432,568
Less current maturities - (23,500)
-------- --------
$195,501 $409,068
======== ========
</TABLE>
On February 18, 1994, Citicasters refinanced the 14% Senior Extendable
Notes initially due 2001 and Citicasters Corp.'s 13% Senior
Subordinated Notes due 2001 through the issuance of $200 million
principal amount of 9-3/4% Notes due 2004. No gain or loss was
recognized by Citicasters on the transaction.
In conjunction with the third quarter sale of three television
stations, Citicasters retired long term debt as follows: senior bank
debt $210.5 million; 9-1/2% Notes - $17.5 million principal amount;
and other obligations - $2 million. Upon completion of the sale of
the fourth television station in October, Citicasters retired $75
million principal amount of its 9-3/4% Notes.
On October 5, 1994 Citicasters entered into a new bank credit
agreement with a group of banks providing two revolving credit
facilities: a $125 million facility to fund future acquisitions and a
$25 million facility for general corporate purposes. As of November
1, 1994, Citicasters had no amounts outstanding under either facility.
D. SHAREHOLDERS' EQUITY Citicasters is authorized to issue 500 million
shares of Class A Common Stock, $.01 par value, 125 million shares of
Class B Common Stock, $.01 par value and 9.5 million shares of Serial
Preferred Stock, $.01 par value. The preferred stock may have such
preferences and other rights and limitations as the Board of
Directors may designate with respect to each series.
During September and October of 1994 Citicasters acquired 1,633,815
shares of its common stock for $35.5 million from several unaffiliated
institutions; of this total, 780,000 shares were acquired in September
for $16.8 million.
E. EXTRAORDINARY ITEMS Extraordinary items for the first nine months of
1993 consisted of expenses incurred in connection with the
restructuring.
Page 8
<PAGE> 9
CITICASTERS INC. 10-Q
ITEM 2
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
The following is a discussion of certain factors affecting Citicasters' results
of operations for the three and nine month periods ended September 30, 1994 and
its liquidity and capital resources. This discussion should be read in
conjunction with Citicasters' Financial Statements beginning on page 2. For
purposes of the following discussion, the term "Predecessor" refers to the
Company prior to its emergence from Chapter 11 bankruptcy.
As a result of the Company's emergence from Bankruptcy and its adoption of
fresh-start reporting as of December 31, 1993, Citicasters' results of
operations for periods ending after December 31, 1993 will not be comparable to
prior periods.
LIQUIDITY AND CAPITAL RESOURCES
Citicasters is a holding company and depends on advances, dividends and tax
allocation payments from its operating subsidiary, Citicasters Co., to meet its
expenditures for administrative expenses and debt service obligations. Based
upon current levels of Citicasters Co.'s operations and anticipated growth, it
is expected that operating cash flow will be sufficient to meet expenditures
for operations (including capital expenditures), administrative expenses and
debt service. Citicasters has entered into a new credit agreement that
provides two credit facilities: an acquisition facility of $125 million and a
working capital facility of $25 million. Restrictions in this credit agreement
limit the amount of distributions its subsidiary may make to Citicasters under
certain circumstances. No funds have been drawn under these facilities as of
November 1, 1994.
Four of Citicasters television stations were sold to entities affiliated with
New World Communications Group Incorporated in September and early October
1994. The cash proceeds from the sale together with the collection of the
working capital of the stations will provide Citicasters with approximately
$370 million in cash. Citicasters has retired $305 million of long-term debt
and repurchased 1.6 million shares of its common stock at an aggregate price of
$35.5 million with the proceeds. Citicasters expects to use its excess
operating cash flow and a new $125 million revolving credit facility to fund
future acquisitions of radio stations. Citicasters expects to pursue the
acquisition of additional stations in its present markets and stations in
markets where it does not currently own stations. Citicasters has a $15
million acquisition pending for WWNK-FM in Cincinnati, and expects to complete
the purchase during the first quarter of 1995.
Page 9
<PAGE> 10
CITICASTERS INC. 10-Q
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
RESULTS OF OPERATIONS
The financial results of Citicasters' business are seasonal. Broadcast
revenues are generally higher in the second and fourth calendar quarters than
in the first and third quarters.
The amount of broadcast advertising time available for sale by Citicasters'
stations is relatively fixed, and by its nature cannot be stockpiled for later
sale. Therefore, the primary variables affecting revenue levels are the demand
for advertising time, the viewing or listening audience of the station and the
entry of new stations in the marketplace. The major variable costs of
operation are programming (entertainment, news and sports), sales costs related
to revenues and promotional costs. The success of the programming determines
the audience levels and therefore affects revenue.
Citicasters' management believes that operating income before depreciation and
amortization is helpful in understanding cash flow generated from its
broadcasting operations that is available for debt service, capital
expenditures and taxes, and in comparing operating performance of Citicasters'
broadcast stations to other broadcast stations. Operating income before
depreciation and amortization should not be considered an alternative to net
income as an indicator of Citicasters' overall performance.
Net revenues and operating income are shown below (in thousands):
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
--------------------------- ----------------------------
Predecessor Predecessor
1994 1993 1994 1993
---- | ---- ---- | ----
<S> <C> | <C> <C> | <C>
Net revenues: | |
Television broadcasting: | |
Local $17,033 | $16,848 $ 57,698 | $ 52,584
National 14,787 | 13,705 47,299 | 43,048
Other 1,763 | 1,659 5,490 | 4,907
------- | ------- -------- | --------
Total 33,583 | 32,212 110,487 | 100,539
| |
Radio broadcasting: | |
Local 13,852 | 14,825 40,572 | 40,418
National 3,278 | 2,888 8,234 | 7,820
Other 195 | 227 487 | 840
------- | ------- -------- | --------
Total 17,325 | 17,940 49,293 | 49,078
| |
Total net revenues 50,908 | 50,152 159,780 | 149,617
| |
Operating, selling, general | |
and administrative expenses (30,534) | (33,379) (97,439) | (99,574)
Corporate general and | |
administrative expenses (1,187) | (1,029) (3,649) | (3,020)
------- | ------- -------- | --------
Operating income before | |
depreciation and | |
amortization 19,187 | 15,744 58,692 | 47,023
| |
Depreciation and amortization (5,801) | (7,130) (19,792) | (21,329)
------- | ------- -------- | --------
| |
Operating income $13,386 | $ 8,614 $ 38,900 | $ 25,694
======= | ======= ======== | ========
</TABLE>
Page 10
<PAGE> 11
CITICASTERS, INC. 10-Q
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
Net revenues and operating income adjusted to reflect the sale of the four
television stations as of January 1, 1993, but not the reorganization, are
shown below (in thousands):
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
--------------------------- ----------------------------
Predecessor Predecessor
1994 1993 1994 1993
---- | ---- ---- | ----
<S> <C> | <C> <C> | <C>
Net revenues: | |
Television broadcasting $ 14,405 | $ 12,454 $ 42,762 | $ 39,005
Radio broadcasting 17,325 | 17,940 49,293 | 49,078
-------- | -------- -------- | --------
Total net revenues 31,730 | 30,394 92,055 | 88,083
| |
Operating, selling, general | |
and administrative expenses (19,887) | (20,681) (60,149) | (60,417)
Corporate general and | |
administrative expenses (1,187) | (1,029) (3,649) | (3,020)
-------- | -------- -------- | --------
Operating income before | |
depreciation and | |
amortization 10,656 | 8,684 28,257 | 24,646
| |
Depreciation and amortization (3,018) | (3,597) (9,922) | (10,729)
-------- | -------- -------- | --------
Operating income $ 7,638 | $ 5,087 $ 18,335 | $ 13,917
======== | ======== ======== | ========
</TABLE>
THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1994 COMPARED TO SEPTEMBER 30, 1993
Television revenues increased 4% and 10% respectively, during the three and
nine months ended September 30, 1994 compared to the same periods a year ago
despite the sale of three of Citicasters' television stations in September
1994. Citicasters completed the sale of a fourth television station in October
1994. Excluding the results of the four television stations sold, television
revenues increased 16% and 10% respectively, during the three and nine months
ended September 30, 1994 compared to the same periods a year ago. Revenue
increases were due to several factors including: the expanding economy's effect
on advertising expenditures; improved ratings at several stations; and sales
efforts. Radio revenues decreased 3% during the third quarter and radio
revenues increased marginally compared to the first nine months of last year.
Radio revenues for the second and third quarter of 1994 included revenues from
10 FM stations; radio revenues for the three and nine months ended September
30, 1993 included revenues from 11 FM stations. The completed sales and
pending acquisition of radio stations are not expected to have a material
effect on Citicasters' results for the year ended December 31, 1994.
Costs and expenses decreased 8% and 1% respectively, during the quarter and
nine months ended September 30, 1994 compared to the same period a year ago as
a result of the sale of the television stations, cost controls and the decrease
in the number of FM radio stations.
Operating income increased from comparable periods in 1993 by 55% and 51% for
the three and nine months, respectively, due to the combination of revenue
increases and expense controls.
Page 11
<PAGE> 12
CITICASTERS INC. 10-Q
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
OUTLOOK - FOURTH QUARTER 1994
Due to the sale of the four television stations in 1994, fourth quarter results
will not be comparable to last year's fourth quarter. The demand for
advertising time at Citicasters' remaining television and radio stations
continues to outpace last year's levels.
OTHER INCOME (EXPENSE) INFORMATION
- ----------------------------------
Interest expense decreased 52% and 45% during the three and nine months ended
September 30, 1994, respectively, compared to the same periods a year ago due
primarily to reduced debt levels resulting from the reorganization in
December 1993.
The increase in miscellaneous, net during the third quarter and nine months
ended September 30, 1994 is due to the pre-tax gain of $69.9 million recorded
during the third quarter related to the sale of three network affiliated
television stations.
INCOME TAXES
- ------------
Citicasters has substantial net operating loss carryforwards, a substantial
portion of which are presently unavailable to offset future taxable income.
Citicasters' ability to utilize operating loss carryforwards has been
substantially restricted by tax rules governing availability of such
carryforwards following certain changes in ownership. Citicasters anticipates,
however, that it will be able to offset a substantial portion of the taxable
gains generated by the sale of its four television stations with its remaining
net operating loss carryforwards.
Page 12
<PAGE> 13
CITICASTERS INC. 10-Q
PART II
OTHER INFORMATION
ITEM 1
Legal Proceedings
-----------------
On December 21, 1993, Coronet Insurance Company and its affiliate, Casualty
Insurance Company of Florida, filed an appeal from the decision of the U.S.
Bankruptcy Court for the Southern District of Ohio confirming The Company's
prepackaged plan of reorganization. On August 18, 1994, the U.S. District
Court for the Southern District of Ohio affirmed the Bankruptcy Court's
confirmation of the prepackaged plan of reorganization and no further appeal by
Coronet is being pursued.
ITEM 4
Submission of Matters to a Vote of Security Holders
---------------------------------------------------
At Citicasters' annual meeting of shareholders held July 28, 1994, the
following actions were taken by shareholders:
4.1 All Persons nominated as Class I Directors were elected with the votes for
each person being:
<TABLE>
<CAPTION>
Shares - Withheld
Name Shares For Authority
---- ---------- -----------------
<S> <C> <C>
Carl H. Lindner 6,734,030 5,113
John P. Zanotti 6,734,069 5,074
Theodore H. Emmerich 6,734,018 5,125
</TABLE>
4.2 Approval of the 1993 Stock Option Plan.
<TABLE>
<CAPTION>
Shares For Shares Against Shares Abstained Broker Non-Votes
---------- -------------- ---------------- ----------------
<S> <C> <C> <C>
4,508,786 1,179,604 4,763 1,045,990
</TABLE>
ITEM 6
Exhibits and Reports on Form 8-K
--------------------------------
a) Exhibits: 4.1 Loan agreement dated as of October 5, 1994 between
Citicasters Co., Citicasters Inc. and certain banks.
*11.1 Computation of Earnings Per Common Share
*27.1 Financial Data Schedule
*Previously Filed.
b) Reports on Form 8-K:
Date of Event Event Reported
------------- --------------
October 12, 1994 Sale of Citicasters network affiliated television
stations to entities affiliated with New World
Communications Group, Incorporated.
Page 13
<PAGE> 14
CITICASTERS, INC. 10-Q
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CITICASTERS INC.
November 11, 1994 BY: GREGORY C. THOMAS
-------------------------------
Gregory C. Thomas
Executive Vice President and
Chief Financial Officer
Page 14
<PAGE> 1
CREDIT AGREEMENT
dated as of October 5, 1994
Among
CITICASTERS CO.,
as the Borrower
CITICASTERS INC.,
as the Parent Company
VARIOUS FINANCIAL INSTITUTIONS
NOW OR HEREAFTER PARTIES HERETO,
as Lenders
THE FIRST NATIONAL BANK OF BOSTON,
as Administrative Agent
BANK OF AMERICA ILLINOIS,
as Collateral Agent
THE FIRST NATIONAL BANK OF BOSTON
and
BANK OF AMERICA ILLINOIS,
as Managing Agents
and
THE FIRST NATIONAL BANK OF BOSTON
BANK OF AMERICA ILLINOIS
THE CHASE MANHATTAN BANK, N.A.
and
THE BANK OF NEW YORK,
as Co-agents
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
----
<S> <C> <C>
I. DEFINITIONS
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 38
1.3. Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . 38
1.4. Accounting and Financial Determinations . . . . . . . . . . . . . . . 38
1.5. General Provisions Relating to
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
II. COMMITMENTS
2.1. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2.2. Commitment Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.2.1. Facility A Commitment Amount . . . . . . . . . . . . . . . 40
2.2.2. Facility B Commitment Amount . . . . . . . . . . . . . . . 41
2.3. Commitments Several . . . . . . . . . . . . . . . . . . . . . . . . . 42
III. LOANS AND NOTES
3.1. Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.1.1. Requests for Borrowing . . . . . . . . . . . . . . . . . . 42
3.1.2. Funding Reliance for Loans . . . . . . . . . . . . . . . . 43
3.2. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.3. Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.3.1. Repayments . . . . . . . . . . . . . . . . . . . . . . . . 44
3.3.2. Facility A Revolving Loan Prepayments . . . . . . . . . . . 45
3.3.3. Facility B Revolving Loan Prepayments . . . . . . . . . . . 48
3.4. Interest Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 49
3.4.1. Interest Rates . . . . . . . . . . . . . . . . . . . . . . 49
3.4.2. Interest on Overdue Amounts . . . . . . . . . . . . . . . . 50
3.4.3. Payment Dates . . . . . . . . . . . . . . . . . . . . . . . 50
3.5. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3.5.1. Closing Fees . . . . . . . . . . . . . . . . . . . . . . . 50
3.5.2. Commitment Fees . . . . . . . . . . . . . . . . . . . . . . 51
3.5.3. Agents Fee . . . . . . . . . . . . . . . . . . . . . . . . 51
3.6. Making and Proration of Payments;
Computations; etc. . . . . . . . . . . . . . . . . . . . . . . . 51
3.6.1. Making of Payments . . . . . . . . . . . . . . . . . . . . 51
3.6.2. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3.6.3. Proration of Payments . . . . . . . . . . . . . . . . . . . 52
3.6.4. Due Date Extension . . . . . . . . . . . . . . . . . . . . 52
3.6.5. Notice of Changes in Alternate Base
Rate; Notice of Eurodollar Rates . . . . . . . . . . . 52
3.6.6. Computations . . . . . . . . . . . . . . . . . . . . . . . 53
3.6.7. Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
3.7. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
3.8. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
IV. FUNDING OPTIONS
4.1. Pricing Tranches of Each Loan . . . . . . . . . . . . . . . . . . . . 55
4.2. Conversion Procedures . . . . . . . . . . . . . . . . . . . . . . . . 55
4.3. Continuation Procedures . . . . . . . . . . . . . . . . . . . . . . . 55
4.4. Limitations on Interest Periods and
Continuation and Conversion Elections . . . . . . . . . . . . . . 56
4.4.1. Interest Periods . . . . . . . . . . . . . . . . . . . . . 56
4.4.2. Conditions Precedent . . . . . . . . . . . . . . . . . . . 56
4.4.3. Other Limitations . . . . . . . . . . . . . . . . . . . . . 56
4.5. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.6. Interest Rate Inadequate or Unfair . . . . . . . . . . . . . . . . . 58
4.7. Changes in Law Rendering Eurodollar
Tranches Unlawful . . . . . . . . . . . . . . . . . . . . . . . . 59
4.8. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4.9. Right of Lenders to Fund Through
Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4.10. Discretion of Lenders as to
Manner of Funding . . . . . . . . . . . . . . . . . . . . . . . . 60
4.11. Conclusiveness of Statements;
Survival of Provisions . . . . . . . . . . . . . . . . . . . . . 60
V. GUARANTIES
5.1. Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.1.1. Guaranty of Payment . . . . . . . . . . . . . . . . . . . . 60
5.1.2. Guaranty of Performance . . . . . . . . . . . . . . . . . . 61
5.2. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . 61
5.3. Reinstatement, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.4. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.5. Subordination of Subrogation Rights . . . . . . . . . . . . . . . . . 63
VI. CONDITIONS TO CREDIT EXTENSIONS
6.1. Conditions to Making First Loans . . . . . . . . . . . . . . . . . . 64
6.1.1. Completion of Certain Sales, etc. . . . . . . . . . . . . . 64
6.1.2. Execution and Delivery of this
Agreement and Notes. . . . . . . . . . . . . . . . . . 65
6.1.3. Pledge Agreement . . . . . . . . . . . . . . . . . . . . . 65
6.1.4. Security Agreement; UCC Filings, etc. . . . . . . . . . . . 65
6.1.5. Collateral Assignment . . . . . . . . . . . . . . . . . . . 66
6.1.6. Loan Documents and Ancillary Documents . . . . . . . . . . 66
6.1.7. Compliance Certificate . . . . . . . . . . . . . . . . . . 67
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
6.1.8. Solvency Certificate . . . . . . . . . . . . . . . . . . . 67
6.1.9. Perfection Certificate . . . . . . . . . . . . . . . . . . 67
6.1.10. Resolutions, etc. . . . . . . . . . . . . . . . . . . . . . 67
6.1.11. Certificates of Good Standing . . . . . . . . . . . . . . . 68
6.1.12. Opinions of Counsel . . . . . . . . . . . . . . . . . . . . 68
6.1.13. Financial Statements . . . . . . . . . . . . . . . . . . . 68
6.1.14. No Materially Adverse Effect . . . . . . . . . . . . . . . 68
6.1.15. Restricted Payments; Affiliate
Transactions; Other Corporate
Transactions . . . . . . . . . . . . . . . . . . . . . 69
6.1.16. Tax Sharing Agreement . . . . . . . . . . . . . . . . . . . 69
6.1.17 Compliance with Warranties; Absence of
Litigation; No Default . . . . . . . . . . . . . . . . 69
6.1.18. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 69
6.2. All Credit Extensions . . . . . . . . . . . . . . . . . . . . . . . . 69
6.2.1. Compliance with Warranties;
Absence of Litigation; No
Default; etc. . . . . . . . . . . . . . . . . . . . . 69
6.2.2. Loan Request; Continuation/Conversion
Notice . . . . . . . . . . . . . . . . . . . . . . . . 70
6.2.3. Legality of Transactions . . . . . . . . . . . . . . . . . 70
6.2.4. Satisfactory Legal Form, etc. . . . . . . . . . . . . . . . 70
VII. WARRANTIES, ETC.
7.1. Organization, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.2. Power, Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.3. Validity, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.4. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . 72
7.5. Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
7.6. Materially Adverse Effect . . . . . . . . . . . . . . . . . . . . . . 73
7.7. Existing Indebtedness; Absence of
Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.8. Litigation, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.9. Regulations G, U and X . . . . . . . . . . . . . . . . . . . . . . . 73
7.10. Government Regulation . . . . . . . . . . . . . . . . . . . . . . . . 74
7.11. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.12. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . 74
7.13. Labor Controversies . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.14. Corporate Structure . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.15. Ownership of Properties; Liens . . . . . . . . . . . . . . . . . . . 76
7.16. Patents and Trademarks, etc. . . . . . . . . . . . . . . . . . . . . 76
7.17. Collateral Documents . . . . . . . . . . . . . . . . . . . . . . . . 77
7.18. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . 77
7.19. Licenses and Approvals . . . . . . . . . . . . . . . . . . . . . . . 78
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
7.20. Existing Investments . . . . . . . . . . . . . . . . . . . . . . . . 80
7.21. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . 80
7.22. Ownership of Borrower, etc. . . . . . . . . . . . . . . . . . . . . . 80
7.23. Representations in Loan Documents
and Ancillary Documents . . . . . . . . . . . . . . . . . . . . . 81
VIII. COVENANTS
8.1. Certain Affirmative Covenants . . . . . . . . . . . . . . . . . . . . 81
8.1.1. Financial Information, etc. . . . . . . . . . . . . . . . . 82
8.1.2. Maintenance of Corporate
Existence, etc. . . . . . . . . . . . . . . . . . . . 84
8.1.3. Foreign Qualification . . . . . . . . . . . . . . . . . . . 84
8.1.4. Payment of Taxes, etc. . . . . . . . . . . . . . . . . . . 84
8.1.5. Maintenance of Property . . . . . . . . . . . . . . . . . . 85
8.1.6. Notice of Default, etc. . . . . . . . . . . . . . . . . . . 85
8.1.7. Books and Records . . . . . . . . . . . . . . . . . . . . . 85
8.1.8. Compliance with Laws, etc. . . . . . . . . . . . . . . . . 86
8.1.9. Identification of Subsidiaries;
Provision of Collateral . . . . . . . . . . . . . . . 87
8.1.10. ERISA Notices . . . . . . . . . . . . . . . . . . . . . . . 88
8.1.11. Environmental Compliance . . . . . . . . . . . . . . . . . 89
8.2. Certain Negative Covenants . . . . . . . . . . . . . . . . . . . . . 90
8.2.1. Limitation on Nature
of Business . . . . . . . . . . . . . . . . . . . . . 90
8.2.2. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 90
8.2.3. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.2.4. Financial Covenants . . . . . . . . . . . . . . . . . . . . 94
8.2.5. Investments . . . . . . . . . . . . . . . . . . . . . . . . 95
8.2.6. Restricted Payments . . . . . . . . . . . . . . . . . . . . 95
8.2.7. Mergers; Sales of Property . . . . . . . . . . . . . . . . 98
8.2.8. Acquisitions . . . . . . . . . . . . . . . . . . . . . . . 101
8.2.9. Modification of Certain Documents and
Governing Documents . . . . . . . . . . . . . . . . . 103
8.2.10. Transactions with Affiliates . . . . . . . . . . . . . . . 103
8.2.11. Sale of Capital Stock, etc. . . . . . . . . . . . . . . . . 104
8.2.12. Change of Control . . . . . . . . . . . . . . . . . . . . . 106
8.2.13. Change of Location or Name . . . . . . . . . . . . . . . . 106
8.2.14. ERISA Compliance . . . . . . . . . . . . . . . . . . . . . 106
IX. EVENTS OF DEFAULT
9.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 106
9.1.1. Non-Payment of Obligations . . . . . . . . . . . . . . . . 106
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
9.1.2. Non-Performance of Certain
Obligations . . . . . . . . . . . . . . . . . . . . . 107
9.1.3. Non-Performance of Other
Obligations . . . . . . . . . . . . . . . . . . . . . 107
9.1.4. Breach of Warranty . . . . . . . . . . . . . . . . . . . . 107
9.1.5. Default Under Other
Debt Documents . . . . . . . . . . . . . . . . . . . . 107
9.1.6. Default Under Other Instruments . . . . . . . . . . . . . . 108
9.1.7. Bankruptcy, Insolvency, etc. . . . . . . . . . . . . . . . 108
9.1.8. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . 109
9.1.9. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
9.1.10. Broadcasting Stations . . . . . . . . . . . . . . . . . . . 110
9.1.11. Impairment of Security, etc. . . . . . . . . . . . . . . . 110
9.1.12. Change of Control . . . . . . . . . . . . . . . . . . . . . 111
9.1.13. Materially Adverse Effect . . . . . . . . . . . . . . . . . 111
9.2. Action if Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . 111
9.3. Action if Other Event of Default . . . . . . . . . . . . . . . . . . 112
9.4. Commitment Termination Event . . . . . . . . . . . . . . . . . . . . 112
X. THE AGENTS
10.1. Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
10.2. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
10.3. Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
10.4. Collateral Documents, etc. . . . . . . . . . . . . . . . . . . . . . 114
10.5. Loans by Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
10.6. Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . 115
10.7. Notices, etc., to the Administrative
Agent and Collateral Agent . . . . . . . . . . . . . . . . . . . 115
XI. ADDITIONAL LENDERS AND PARTICIPANTS
11.1. Participations by Lenders . . . . . . . . . . . . . . . . . . . . . . 115
11.1.1. Participations . . . . . . . . . . . . . . . . . . . . . . 115
11.1.2. Participant's Rights of Set-off
in Certain Cases . . . . . . . . . . . . . . . . . . . 116
11.1.3. Rights of Participants . . . . . . . . . . . . . . . . . . 116
11.2. Assignments by Lenders . . . . . . . . . . . . . . . . . . . . . . . 116
11.2.1. Assignments . . . . . . . . . . . . . . . . . . . . . . . . 116
11.2.2. Effect of Assignment and
Acceptance Agreement . . . . . . . . . . . . . . . . . 117
11.2.3. Delivery of New Notes By
Borrower Following Assignments . . . . . . . . . . . . 117
11.2.4. Administrative Agent's
Maintenance of Register . . . . . . . . . . . . . . . 118
-v-
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
11.2.5. Actions of Administrative
Agent; Fees . . . . . . . . . . . . . . . . . . . . . 118
11.2.6. Assigning Lender, Purchasing
Lender and Other Parties;
Confirmations and Agreements . . . . . . . . . . . . . 118
11.3. Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . 119
11.4. Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
11.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
11.6. Federal Reserve Bank . . . . . . . . . . . . . . . . . . . . . . . . 120
XII. MISCELLANEOUS
12.1. Waivers, Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . 121
12.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
12.3. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 122
12.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
12.5. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
12.6. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
12.7. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
12.8. Counterparts; Entire Agreement . . . . . . . . . . . . . . . . . . . 124
12.9. Choice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
12.10. Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . 125
12.11. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 125
12.12. Other Transactions; Consent to
Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . 126
12.13. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . 126
12.14. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
12.15. Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . 127
12.16. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . 127
</TABLE>
-vi-
<PAGE> 8
LIST OF SCHEDULES
SCHEDULE I - Agents and Lenders
SCHEDULE II - Disclosure Schedule
LIST OF EXHIBITS
EXHIBIT A - Form of Facility A Revolving Note
EXHIBIT B - Form of Facility B Revolving Note
EXHIBIT C Form of Loan Request
EXHIBIT D - Form of Compliance Certificate
EXHIBIT E - Form of Pledge Agreement
EXHIBIT F - Form of Perfection Certificate
EXHIBIT G - Form of Security Agreement
EXHIBIT H - Form of Collateral Assignment of
Hanna-Barbera LC Documents
EXHIBIT I - Form of Subsidiary Guaranty
EXHIBIT J-1 - Form of Legal Opinion of Keating,
Muething & Klekamp
EXHIBIT J-2 - Form of Legal Opinion of FCC Counsel
EXHIBIT J-3 - Form of Legal Opinion of Bingham Dana & Gould
EXHIBIT K - Form of Intercompany Subordination Agreement
EXHIBIT L - Form of Solvency Certificate
EXHIBIT M - Form of Closing Date Certificate
EXHIBIT N - Form of Assignment and Acceptance Agreement
-vii-
<PAGE> 9
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of October 5, 1994, among (i) CITICASTERS
CO., an Ohio Corporation ("BORROWER"), (ii) CITICASTERS INC., a Florida
corporation ("CITICASTERS" or "PARENT COMPANY"), (iii) the financial
institutions which are now, or in accordance with SECTION 11.2 hereafter
become, parties hereto (collectively, "LENDERS"), (iv) THE FIRST NATIONAL BANK
OF BOSTON ("BANK OF BOSTON"), as Administrative Agent for the Lenders, (v) BANK
OF AMERICA ILLINOIS ("BANK OF AMERICA"), as Collateral Agent for the Secured
Parties, (vi) Bank of Boston and Bank of America, as Managing Agents for the
Lenders, and (vii) Bank of Boston, Bank of America, The Chase Manhattan Bank,
N.A. and The Bank of New York, as Co-agents for the Lenders.
RECITALS
The Borrower has requested the Lenders to make two revolving credit
facilities available to the Borrower and to make loans to the Borrower under
the facilities. The proceeds of the loans are to be used by the Borrower for
general corporate purposes, to acquire radio Broadcasting Stations and for the
other purposes described in and permitted by SECTION 3.8.
The Lenders are willing to make the two revolving credit facilities
available to the Borrower and to make loans to the Borrower thereunder, all
upon the terms and subject to the conditions contained herein.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINED TERMS. The following terms, when used in this
Agreement, including the introductory paragraph and RECITALS above, shall,
except where the context otherwise requires, have the following meanings:
"ACQUISITION" means any transaction, or any series of related
transactions, in which Citicasters or any of its Subsidiaries (a) acquires any
Broadcasting Station, any business or all or substantially all of the Property
of any Person or any division or business unit thereof, whether through
purchase of assets, merger or otherwise, (b) directly or indirectly acquires
control of at least a majority (in number of votes) of the Securities of any
corporation, partnership or other Person having ordinary voting power for the
election of directors or managers of such corporation, partnership or other
Person,
<PAGE> 10
-2-
or (c) directly or indirectly acquires control of a majority of the
equity interests in any Person.
"ADMINISTRATIVE AGENT" means:
(a) Bank of Boston;
(b) any branch, agency or Subsidiary of Bank of Boston
within the United States of which the Lenders and the Borrower are
notified and
(i) to which the rights and responsibilities of
the Administrative Agent hereunder may be transferred from
time to time, or
(ii) which may, from time to time on behalf of
Bank of Boston or any such transferee, act as Administrative
Agent for the Lenders; or
(c) such other Lender or financial institution as shall
have subsequently been appointed as the successor Administrative
Agent pursuant to SECTION 10.3.
"AFC" means American Financial Corporation, an Ohio corporation.
"AFFECTED TRANCHE" is defined in SECTION 4.7.
"AFFILIATE" of any Person means (a) any other Person which, directly
or indirectly, controls or is controlled by or is under common control with
such Person, or (b) any other Person who is a Relative, director or officer of
such Person or of any Person described in CLAUSE (a). For purposes of this
definition, control of a Person shall mean the power, whether direct or
indirect, to direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise. For purposes of this Agreement
and the other Loan Documents, (i) none of the Subsidiaries of Citicasters shall
be or be deemed to be Affiliates of Citicasters or of any other Subsidiaries of
Citicasters, and (ii) none of the Lenders or the Agents shall be or be deemed
to be Affiliates of any of the Principal Companies or their Subsidiaries.
"AFFILIATE TRANSACTION" means any of the following transactions or
arrangements:
(a) the making by Citicasters or by any Citicasters
Subsidiary of any payment or prepayment (whether of principal,
premium, interest or any other sum) of or on account of, or any
payment or other distribution on account of the redemption,
repurchase, defeasance or other acquisition for value of, any
Indebtedness of any kind whatsoever (i) of Citicasters to any other
Citicasters Affiliate, or (ii) of any Citicasters Subsidiary to any
Citicasters Affiliate;
(b) the making of any loans, advances or other
Investments of any kind whatsoever by Citicasters to or in any other
Citicasters Affiliate or by any Citicasters Subsidiary to or in any
Citicasters Affiliate;
(c) the Sale by Citicasters of all or any part of its
Property to, or for the direct or indirect benefit of, any other
Citicasters Affiliate, or the Sale by any
<PAGE> 11
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Citicasters Subsidiary of all or any part of its Property to, or
for the direct or indirect benefit of, any Citicasters Affiliate;
(d) the creation, incurrence or assumption by
Citicasters or by any Citicasters Subsidiary of any Indebtedness of
Citicasters to any other Citicasters Affiliate or of any Citicasters
Subsidiary to any Citicasters Affiliate;
(e) the making by Citicasters or by any Citicasters
Subsidiary of any payment of or on account of, or any payment or other
distribution on account of the purchase, repurchase, redemption or
other acquisition for value of, any Indebtedness of any Citicasters
Affiliate;
(f) the declaration or payment by Citicasters or by any
Citicasters Subsidiary of any dividends or other distributions on
account of, or the making by Citicasters or by any Citicasters
Subsidiary of any payment or other distribution on account of the
purchase, repurchase, redemption or other acquisition for value of,
any shares of Capital Stock of any Citicasters Affiliate; or
(g) any other transaction or Contractual Obligation
between any Affiliate of Citicasters and Citicasters or between any
Citicasters Affiliate and any Citicasters Subsidiary.
"AGENTS" means, collectively, the Managing Agents, the
Administrative Agent, the Collateral Agent, and the Co-agents.
"AGENTS FEES" is defined in SECTION 3.5.3.
"AGENTS FEE LETTER" means the Fee Letter, dated as of October 5,
1994, between the Borrower and certain of the Agents.
"AGREEMENT" means this Credit Agreement. "ALTERNATE BASE RATE" means,
at any time, the greater of (a) the Federal Funds Rate, PLUS one-half of one
percent (.5%), and (b) the Bank of Boston Base Rate.
"ALTERNATE BASE RATE MARGIN" means, for any fiscal quarter of
Citicasters, the rate per annum determined in accordance with the schedule set
forth below based upon the Leverage Ratio for the Reference Period ending on
the day immediately preceding the commencement of the fiscal quarter
immediately prior to such fiscal quarter:
<TABLE>
<CAPTION>
ALTERNATE BASE
LEVERAGE RATIO RATE MARGIN
-------------- -----------
<S> <C>
Greater than 5.00:1.00 0.75%
Greater than 4.50:1.00, but equal to or 0.50%
less than 5.00:1.00
Greater than 4.00:1.00, but equal to or 0.25%
less than 4.50:1.00
</TABLE>
<PAGE> 12
-4-
<TABLE>
<S> <C>
Equal to or less than 4.00:1.00 0.00%
</TABLE>
"ANCILLARY DOCUMENTS" means, collectively, the Other Debt Documents,
the Tax Sharing Agreement, the Hanna-Barbera LC Documents, the New World
Purchase Agreement, and all other Instruments that shall from time to time be
identified by the Principal Companies and the Managing Agents as "ANCILLARY
DOCUMENTS" for purposes of this Agreement.
"APPLICABLE COMMITMENT FEE RATE" means, for any fiscal quarter of
Citicasters, the rate per annum determined in accordance with the schedule set
forth below based upon the Leverage Ratio for the Reference Period ending on
the day immediately preceding the commencement of the fiscal quarter
immediately prior to such fiscal quarter:
<TABLE>
<CAPTION>
APPLICABLE COMMITMENT FEE RATE
------------------------------
LEVERAGE RATIO
--------------
<S> <C>
Greater than 5.00:1.00 0.50%
Greater than 4.00:100, but equal to or less
than 5.00:1.00 0.375%
Equal to or less than 4.00:1.00 0.25%
</TABLE>
"APPLICABLE LAW" means and includes statutes and rules and regulations
thereunder and interpretations thereof by any Governmental Authority charged
with the administration or the interpretation thereof, and orders, requests,
directives, instructions and notices of any Governmental Authority.
"APPROVAL" means, relative to each Transaction Party, each approval,
consent, filing or registration by or with any Governmental Authority or any
creditor or shareholder of such Transaction Party necessary to authorize or
permit the execution, delivery or performance by such Transaction Party of this
Agreement or any of the other Loan Documents or Ancillary Documents to which it
is a party or the validity or enforceability of any of such Loan Documents or
Ancillary Documents against such Transaction Party.
"ASSIGNING LENDER" is defined in SECTION 11.2.1.
"ASSIGNMENT" is defined in SECTION 11.2.1.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" is defined in SECTION 11.2.1.
"ASSIGNOR" is defined in SECTION 11.2.1.
"AUTHORIZED OFFICERS" is defined in SECTION 6.1(a).
"BANK OF AMERICA" is defined in the introductory paragraph hereto.
<PAGE> 13
-5-
"BANK OF BOSTON" is defined in the introductory paragraph hereto.
"BANK OF BOSTON BASE RATE" means the rate of interest announced from
time to time by Bank of Boston at its Domestic Office as its "base rate".
"BANKRUPTCY CODE" means Title 11 of the United States Code.
"BANKRUPTCY OR INSOLVENCY PROCEEDING" means, with respect to any
Person, any insolvency or bankruptcy proceeding, or any receivership,
liquidation, reorganization or other similar proceeding in connection
therewith, relative to such Person or its creditors, as such, or to its
Property, or any proceeding for voluntary liquidation, dissolution, or other
winding up of such Person, whether or not involving insolvency or bankruptcy.
"BASE RATE TRANCHE" means any Tranche bearing interest at a
fluctuating rate determined by reference to the Alternate Base Rate.
"BORROWER" is defined in the introductory paragraph hereto.
"BORROWING" means any Credit Extension under SECTION 3.1 consisting of
simultaneous Loans made by Lenders to the Borrower on a single
Drawdown Date.
"BROADCASTING STATION" means all licenses, franchises and permits
(including all FCC Licenses) issued under federal, state or local laws from
time to time which authorize a Person to receive or distribute, or both, over
the airwaves, audio and visual, radio or microwave signals within a geographic
area for the purpose of providing commercial broadcasting of television or
radio entertainment, together with all Property owned or used in connection
with the entertainment provided pursuant to, and all interests of such Person
to receive revenues from any other Person which derives revenues from or
pursuant to, said licenses, franchises and permits.
"BUSINESS DAY" means a day on which banks are open for business in
Boston, Massachusetts and New York City, New York.
"CAPITALIZED LEASE OBLIGATIONS" means, with respect to any Person,
all monetary obligations of such Person under any leasing or other
similar arrangement which in accordance with GAAP is required to be classified
on the balance sheet of such Person as a capitalized lease.
"CAPITAL STOCK" means any shares, interests, participations or other
equivalents (howsoever designated) of corporate capital stock or
any options, warrants or other rights to subscribe for, or to purchase, or to
convert any Property into, or to exchange any Property for, any such corporate
capital stock, options, warrants or other rights.
"CASH DEBT SERVICE" means, in relation to Citicasters and its
Subsidiaries for any period, the sum of:
(a) all Consolidated Cash Interest Charges of Citicasters
and its Subsidiaries for such period; and
<PAGE> 14
-6-
(b) all amounts for which Citicasters or its Subsidiaries
shall be obligated (without regard to any applicable
subordination provisions or other similar prohibitions) to make
payments in cash during such period (i) in respect of principal of
Indebtedness for Borrowed Money or on account of the redemption or
repurchase of Securities evidencing Indebtedness for Borrowed Money,
and (ii) in accordance with the payment, redemption or repurchase
schedule fixed by the terms of the Instruments governing such
Indebtedness for Borrowed Money; PROVIDED that the Cash Debt Service
for any period shall not include any principal of Indebtedness for
Borrowed Money required to be paid, or any principal of any Securities
required to be redeemed or repurchased, (A) otherwise than on specific
dates fixed by governing Instruments for such payment, redemption or
repurchase, and (B) only out of or with Proceeds or excess cash flow
available to Citicasters and its Subsidiaries.
For purposes of determining Cash Debt Service for any period, any portion of
which falls prior to the Closing Date, (1) Consolidated Cash Interest Charges
for the portion of such period prior to the Closing Date shall be calculated by
excluding all interest accrued during such period prior to the Closing Date (X)
on any principal of Indebtedness for Borrowed Money repaid or prepaid prior to
the Closing Date, or (Y) under any Securities redeemed or repurchased prior to
the Closing Date, and (2) it shall be assumed that no principal was payable
during such period prior to the Closing Date with respect to any of the
Indebtedness for Borrowed Money of Citicasters or its Subsidiaries.
"CASH EQUIVALENTS" means
(a) marketable obligations issued or unconditionally
guaranteed by the United States government, in each case maturing
within one (1) year after the date of acquisition thereof;
(b) marketable direct obligations issued by any State of
the United States or any political subdivision of any such State or
any public instrumentality thereof maturing within one (1) year after
the date of acquisition thereof and, at the time of acquisition,
having the highest rating obtainable from either Standard & Poor's
Ratings Group or Moody's Investors Service, Inc.;
(c) commercial paper maturing less than one (1) year
after the date of acquisition thereof, issued by a corporation
organized under the laws of any State of the United States or of the
District of Columbia and, at the time of acquisition, having the
highest rating obtainable from either Standard & Poor's Ratings Group
or Moody's Investors Service, Inc.;
(d) shares of a money market fund which:
(i) is a registered investment company under the
Investment Company Act of 1940 ("1940 ACT"); and
(ii)
complies with Rule 270.2a7 of the 1940 Act (the
"RULE"); and EITHER
<PAGE> 15
-7-
(A) is rated in one of the two highest
rating categories by Standard & Poor's Ratings
Group or Moody's Investors Service, Inc.; or
(B) (1) has assets of at least
$200,000,000 at all times upon and after the date of
acquisition of such shares, and (2) will limit its
portfolio investments to instruments that are, at the
time of acquisition, "FIRST TIER SECURITIES" or
"GOVERNMENT SECURITIES" as such terms are defined in
the Rule.
(e) certificates of deposit maturing within one (1) year
after the date of acquisition thereof, issued by any commercial bank
that is either (i) a member of the Federal Reserve System that has
capital, surplus and undivided profits (as shown on its most recent
statement of condition) aggregating not less than $100,000,000 and is
rated A or better by Moody's Investors Service, Inc. or Standard &
Poor's Ratings Group, or (ii) a Lender; and
(f) repurchase agreements entered into with any Lender or
any commercial bank of the nature referred to in CLAUSE (e), secured
by a fully-perfected first-priority Lien on any obligation of the type
described in any of CLAUSES (a) through (e), having a fair market value
at the time such repurchase agreement is entered into of not less than
100% of the repurchase obligation thereunder of such Lender or other
commercial bank.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CITICASTERS" and "PARENT COMPANY" are defined in the introductory
paragraph hereto.
"CITICASTERS AFFILIATE" means the Parent Company or any of its
Affiliates.
"CITICASTERS CORP." means Citicasters Corp., a Delaware corporation.
"CITICASTERS FIRST SUPPLEMENTAL INDENTURE" means the First
Supplemental Indenture, dated as of August 22, 1994, between Citicasters and
Shawmut Bank Connecticut, National Association, as Trustee, upon the terms of
which the Citicasters 9-3/4% Note Indenture was amended.
"CITICASTERS" 9-3/4% NOTE INDENTURE" means the Indenture, dated as
of February 18, 1994, between Great American Communications Company
(now known as Citicasters Inc.) and Shawmut Bank Connecticut, National
Association, as Trustee, with respect to the 9-3/4/% Senior Subordinated Notes
due February 15, 2004 of Citicasters, as amended by the Citicasters First
Supplemental Indenture.
<PAGE> 16
-8-
"CITICASTERS 9-3/4% NOTES" means the 9-3/4% Senior Subordinated Notes
due February 15, 2004 of Citicasters issued by Citicasters pursuant to the
Citicasters 9-3/4% Note Indenture.
"CITICASTERS SUBSIDIARIES" means, collectively, the Borrower and each
of the other Subsidiaries of the Parent Company.
"CLOSING DATE" means the date on which the first Loans are made or to
be made by the Lenders to the Borrower hereunder.
"CLOSING DATE CERTIFICATE" means certificate, in or substantially
in the form of EXHIBIT M attached hereto, to be executed and delivered to
the Agents and the Lenders by an Authorized Officer of each of the Principal
Companies on the Closing Date.
"CLOSING FEES" is defined in SECTION 3.5.1.
"CO-AGENTS" means, collectively, Bank of Boston, Bank of America
and The Chase Manhattan Bank, N.A. as co-agents for the Lenders under
this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"COLLATERAL" means, collectively, the collateral provided by the
Transaction Parties to the Secured Parties under the Collateral Documents.
"COLLATERAL AGENT" means Bank of America, in its capacity as
collateral agent for the Secured Parties under the Collateral Documents, any
Affiliate (including any branch or agency) thereof to which the rights and
responsibilities thereof may be transferred, and such other Lender or financial
institution as shall have been subsequently appointed as successor Collateral
Agent pursuant to SECTION 10.3.
"COLLATERAL ASSIGNMENT OF HANNA-BARBERA LC DOCUMENTS" means the
Collateral Assignment, substantially in the form of EXHIBIT H attached hereto,
to be executed and delivered by the Borrower on or prior to the Closing Date in
favor of the Collateral Agent for the benefit of the Secured Parties.
"COLLATERAL DOCUMENTS" means, collectively, the Security Agreement,
the Pledge Agreement, the Collateral Assignment of Hanna-Barbera LC Documents,
all other Instruments executed and delivered to the Collateral Agent pursuant
to SECTION 6.1.3 or 6.1.4, all Instruments executed and delivered to the
Collateral Agent pursuant to SECTION 8.1.9 from time to time after the date
hereof, and all other Instruments that shall from time to time after the date
hereof be identified by the Managing Agents and any of the Principal Companies
as "COLLATERAL DOCUMENTS" for purposes of this Agreement.
"COMMITMENTS" means the Facility A Commitments and the Facility B
Commitments.
"COMMITMENT FEES" is defined in SECTION 3.5.2.
<PAGE> 17
-9-
"COMMITMENT PERIOD" is defined in SECTION 2.2.1.
"COMMITMENT TERMINATION EVENT" means:
(a) automatically and without any notice or further
action, the occurrence of any Default under SECTION 9.1.7; or
(b) the occurrence and continuation of any other Event of
Default and the declaration of all or any portion of the
outstanding principal amount of any Loans to be due and payable
pursuant to CLAUSE (b) of SECTION 9.3 or, in the absence of such
declaration, a direction from the Required Lenders to the
Administrative Agent to give notice of termination of all of the
Commitments pursuant to CLAUSE(a) of SECTION 9.3.
"COMMUNICATIONS ACT" means the Federal Communications Act of 1934,
as amended, and the rules and regulations of the FCC thereunder as
in effect from time to time.
"COMMUNICATIONS REGULATORY AUTHORITY" means any communications
regulatory commission, agency, department, board or authority (including,
without limitation, the FCC).
"COMPLIANCE CERTIFICATE" means a certificate duly executed by an
Authorized Officer of each Principal Company, substantially in the form of
EXHIBIT D attached hereto (with such changes thereto as may be agreed upon from
time to time by the Managing Agents and the Principal Companies), for purposes
of monitoring the compliance of the Principal Companies and their Subsidiaries
with the Loan Documents.
"CONSOLIDATED BROADCAST CASH FLOW" means, in relation
to Citicasters and its Subsidiaries for any period, the sum of (a) the
Consolidated EBITDA of Citicasters and its Subsidiaries for such period, and
(b) the Consolidated Corporate Overhead of Citicasters and its Subsidiaries for
such period, to the extent, but only to the extent, that such Consolidated
Corporate Overhead was deducted in determining Consolidated Operating Income
and Consolidated EBITDA of Citicasters and its Subsidiaries for such period.
For all purposes of this Agreement, the "broadcast cash flow"
attributable to any Person or attributable to any Property (including any
Broadcasting Station) for any period shall be determined in a manner consistent
in all relevant respects with the method used to determine Consolidated
Broadcast Cash Flow, but on a non-consolidated basis. The determination of the
"broadcast cash flow" of any Broadcasting Station shall account for only those
items included in the definition of Consolidated Broadcast Cash Flow that are
directly attributable to such Broadcasting Station and the operation thereof.
"CONSOLIDATED CAPITAL EXPENDITURES" means, in relation to any Person
and its Subsidiaries for any period, all expenditures by such Person and its
Subsidiaries paid or accrued for the lease, purchase, construction or use of
any Property the value or cost of which, in accordance with GAAP, is required
to be (or is permitted to be, and such Person so elects) capitalized on the
consolidated balance sheet of such Person and its
<PAGE> 18
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Subsidiaries as of the end of such period, including, without limitation, all
amounts paid or accrued by such Person and its Subsidiaries for such period
with respect to Capitalized Lease Obligations (excluding the interest component
thereof). For purposes of this Agreement, Consolidated Capital Expenditures
shall not in any event include expenditures by any Transaction Party in respect
of any Permitted Acquisitions.
"CONSOLIDATED CASH INTEREST CHARGES" means, in relation to Citicasters
and its Subsidiaries for any period, all amounts for which Citicasters or its
Subsidiaries shall be obligated (without regard to any applicable subordination
provisions or other similar prohibitions) to make payments in cash during such
period in respect of interest payable on outstanding Indebtedness for Borrowed
Money or in respect of commitment fees, facility fees, agency fees or other
similar fees or charges payable at any time during such period in respect of
outstanding Indebtedness for Borrowed Money, all as consolidated in accordance
with GAAP.
"CONSOLIDATED CORPORATE OVERHEAD" means, in relation to Citicasters
and its Subsidiaries for any period, that portion of the overhead expense,
including legal, audit, accounting and insurance expense, of Citicasters and
its Subsidiaries not directly allocable to the operation of the Broadcasting
Stations or other operating assets of Citicasters and its Subsidiaries, all as
consolidated in accordance with GAAP. Consolidated Corporate Overhead shall
include salaries of employees of Citicasters and its Subsidiaries to the extent
that such salaries are not directly allocable to the operation of the
Broadcasting Stations or other operating assets of Citicasters and its
Subsidiaries.
"CONSOLIDATED EBITDA" means, in relation to Citicasters and its
Subsidiaries for any period, the sum of (a) the Consolidated Operating Income
of Citicasters and its Subsidiaries for such period, PLUS (b) the aggregate
amount of all depreciation and non-cash amortization of intangibles accrued by
Citicasters and its Subsidiaries for such period to the extent, but only to the
extent, that such aggregate amount was deducted in determining Consolidated
Operating Income of Citicasters and its Subsidiaries for such period, PLUS (c)
the amount set forth opposite the line item "Investment Income" on the
consolidated statement of income of Citicasters and its Subsidiaries for such
period.
For purposes of determining the Consolidated EBITDA of Citicasters and
its Subsidiaries for any period, (i) there shall be excluded from such
Consolidated EBITDA all operating income and all related depreciation and
non-cash amortization of intangibles attributable to any Property sold or
disposed of by Citicasters or its Subsidiaries other than in the ordinary
course of business during such period as if such Property were not owned at any
time by Citicasters or its Subsidiaries during such period, and (ii) there
shall be included in such Consolidated EBITDA all operating income and all
related depreciation and non-cash amortization of intangibles attributable to
any Property acquired by Citicasters or its Subsidiaries other than in the
ordinary course of business during such period as if such Property were owned
by Citicasters or its Subsidiaries at all times during such period.
For all purposes of this Agreement, the "operating income" and related
"depreciation" and "non-cash amortization of intangibles" attributable to any
Person or attributable to any Property (including any Broadcasting Station) for
any period shall be
<PAGE> 19
-11-
determined in a manner consistent in all relevant respects with the method used
to determine Consolidated Operating Income and Consolidated EBITDA, but on a
non-consolidated basis. The determination of the "operating income" and
related "depreciation" and "non-cash amortization of intangibles" of any
Broadcasting Station shall account for only those items included in the
definition of Consolidated Operating Income and Consolidated EBITDA that are
directly attributable to such Broadcasting Station and the operation thereof.
"CONSOLIDATED OPERATING INCOME" means, in relation to any Person and
its Subsidiaries for any period, the amount set forth opposite the line item
"Operating Income" on the consolidated statement of income of such Person and
its Subsidiaries for such period, all as prepared and consolidated in
accordance with GAAP, consistent with past practices. "Consolidated Operating
Income" shall in any event not include any of the following: (a) any gains in
excess of losses resulting from the Sale of capital assets, (b) any gains
resulting from the write-up of assets, (c) any earnings of a Subsidiary of such
Person which are not available for the payment of dividends, (d) any proceeds
of life insurance policies, (e) any equity of such Person and its Subsidiaries
in the undistributed earnings (losses) of any corporation, partnership or other
Person which is not a Subsidiary of such Person, (f) any earnings (losses) of
any corporation, partnership or other Person acquired by such Person or any of
its Subsidiaries in a pooling of interests transaction for any year prior to
the year of acquisition, (g) deferred credits representing the excess of equity
in any other Person at the date of acquisition over the amount of such Person's
or any of its Subsidiaries' Investment in such other Person, (h) the reversal
of any reserve, except to the extent that provision for such reserve is made
during such period, (i) gains resulting from the purchase by such Person or any
of its Subsidiaries of outstanding Indebtedness for Borrowed Money of such
Person or any such Subsidiary at a price less than the principal amount
thereof, and (j) any other extraordinary nonrecurring items of earnings of such
Person or any of its Subsidiaries for such period.
"CONSOLIDATED SENIOR DEBT" means, in relation to any Person and its
Subsidiaries as at any date, (a) all of the Indebtedness for Borrowed Money of
such Person or any of its Subsidiaries as at such date under this Agreement or
any of the other Loan Documents, and (b) all of the other Indebtedness for
Borrowed Money of such Person or any of its Subsidiaries as at such date (i)
the payment or performance of which is secured by any Lien or Liens on any
Property of such Person or any of its Subsidiaries, or (ii) the payment or
performance of which is not subordinated or made junior in right of payment, on
terms and conditions reasonably satisfactory to the Managing Agents and the
Required Lenders, to the payment and performance of all of the Obligations, in
each case, all as consolidated in accordance with GAAP.
"CONSOLIDATED SENIOR DEBT TO CONSOLIDATED EBITDA RATIO" is defined in
SECTION 8.2.4(a).
"CONSOLIDATED TOTAL DEBT" means, in relation to any Person and its
Subsidiaries as at any date, all of the Indebtedness for Borrowed
Money of such Person or any of its Subsidiaries as at such date, all as
consolidated in accordance with GAAP.
<PAGE> 20
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"CONTINGENT OBLIGATION" means, in relation to any Person, any direct
or indirect liability, contingent or otherwise, of that Person with respect to
any Indebtedness, lease, dividend, letter of credit or other obligation of
another if the primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of such obligation
that such obligation will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof.
Contingent Obligations shall include:
(a) any direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or Sale with recourse
by such Person of the obligation of another; and
(b) any Indebtedness of such Person of the type described
in CLAUSE (a) of the definition of the term "INDEBTEDNESS".
The amount of any Contingent Obligation shall be equal to the amount of the
obligation so guaranteed or otherwise supported.
"CONTINUATION/CONVERSION NOTICE" means a notice, signed by an
Authorized Officer of the Borrower, complying with the requirements of SECTION
4.2 or 4.3, as applicable, and otherwise in form and substance reasonably
satisfactory to the Administrative Agent.
"CONTRACTUAL OBLIGATION" means, in relation to any Person, any
provision of any Security issued by such Person or of any Instrument or
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"CORPORATE STRUCTURE" is defined in SECTION 7.14(A).
"CORPORATION" means any corporation, company, association, joint stock
company, business trust or other similar organization or business enterprise.
"COUNTERPARTY" means, in relation to any Rate Protection Agreement,
any Lender that is from time to time a party to and bound by such Rate
Protection Agreement.
"CREDIT EXTENSION" means and includes the advancing of Loans by
Lenders pursuant to ARTICLE II, and the continuation or conversion of any Base
Rate Tranches or Eurodollar Tranches by the Lenders pursuant to ARTICLE IV.
"DEFAULT" means any Event of Default or any condition or event which,
after notice or lapse of time or both, would become an Event of Default.
"DISCLOSURE SCHEDULE" means the schedule attached hereto as SCHEDULE
II.
"DOLLARS" and the sign "$" mean lawful money of the United States.
<PAGE> 21
-13-
"DOMESTIC OFFICE" means, in relation to any Agent or any Lender, the
office thereof designated as such in SCHEDULE I attached hereto (or designated
as such pursuant to an Assignment and Acceptance Agreement), or such other
office of such Agent or Lender within the United States as may be designated
from time to time by notice from such Agent or Lender to the Borrower and the
Administrative Agent.
"DRAWDOWN DATE" means any date (which must be a Business Day) on which
any Credit Extension is made or to be made to the Borrower pursuant to SECTION
3.1.
"ENVIRONMENTAL LAWS" means all Applicable Laws relating to health and
safety matters or protection of the environment or relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance, material or pollutant, in each case as in effect from time to
time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed to also refer to any
successor sections.
"ERISA AFFILIATE" means any Person (including each trade or business
(whether or not incorporated)) which together with any of the Principal
Companies would be deemed to be a "single employer" or a member of the same
"controlled group" as a "contributing sponsor" with respect to a Plan, in each
case within the meaning of Section 4001 of ERISA.
"EURODOLLAR OFFICE" means, in relation to any Lender, the office
thereof designated as such by such Lender to the Administrative Agent (or
designated as such pursuant to an Assignment and Acceptance Agreement), or such
other office, whether or not outside the United States, of such Lender as may
be designated from time to time by notice from such Lender to the Borrower and
the Administrative Agent as the office from which such Lender shall be making
or maintaining Eurodollar Tranches of such Lender hereunder and through which
such Lender, if it is a Reference Lender, shall determine the Eurodollar Rate.
"EURODOLLAR RATE" means, in relation to each Interest Period
applicable to any Eurodollar Tranche, the rate of interest determined by the
Administrative Agent to be the arithmetic average (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates per annum notified to the
Administrative Agent by the Reference Lenders as the rates per annum at which
Dollar deposits in immediately available funds are offered to the Eurodollar
Offices of the Reference Lenders two (2) Business Days prior to the beginning
of such Interest Period by prime banks in the interbank eurodollar market as at
or about 10:00 a.m., Boston time, for delivery on the first day of such
Interest Period, for the number of days comprised therein and in an amount
equal to the amount of the Eurodollar Tranche of such Reference Lender for such
Interest Period.
"EURODOLLAR RATE MARGIN" means, for any fiscal quarter of Citicasters,
the rate per annum determined in accordance with the schedule set forth below
based upon the
<PAGE> 22
-14-
Leverage Ratio for the Reference Period ending on the day immediately preceding
the commencement of the fiscal quarter immediately prior to such fiscal
quarter:
<TABLE>
<CAPTION>
EURODOLLAR
LEVERAGE RATIO RATE MARGIN
-------------- -----------
<S> <C>
Greater than 5.00:1.00 2.00%
Greater than 4.50:1.00, but equal to or less 1.75%
than 5.00:1.00
Greater than 4.00:1.00, but equal to or less 1.50%
than 4.50:1.00
Greater than 3.50:1.00, but equal to or less 1.25%
than 4.00:1.00
Equal to or less than 3.50:1.00 1.00%
</TABLE>
"EURODOLLAR RATE (RESERVE ADJUSTED)" means, with respect to any
Eurodollar Tranche for any Interest Period, a rate per annum (rounded upwards,
if necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:
Eurodollar Rate = EURODOLLAR RATE
--------------------------------------------
(Reserve Adjusted) 1 - Eurodollar Reserve Percentage
"EURODOLLAR RESERVE PERCENTAGE" means, with respect to any Eurodollar
Tranche for any Interest Period, a percentage (expressed as a decimal) equal to
the daily average during such Interest Period of the maximum percentages in
effect on each day of such Interest Period, as prescribed by the F.R.S. Board,
for determining the maximum reserve requirements applicable to "Eurocurrency
Liabilities" pursuant to Regulation D or any other applicable regulation of the
F.R.S. Board that prescribes reserve requirements applicable to "Eurocurrency
Liabilities" as currently defined in Regulation D.
"EURODOLLAR TRANCHE" means any Tranche which bears interest at a rate
determined by reference to the Eurodollar Rate (Reserve Adjusted).
"EVENT OF DEFAULT" is defined in SECTION 9.1.
"EXCESS CASH FLOW" means, for any fiscal year of Citicasters, the excess (if
any) of
(a) the sum of
(i) Consolidated EBITDA of Citicasters and its
Subsidiaries for such fiscal year,
(ii) the aggregate amount of all Hanna-Barbera
Proceeds that become payable to or receivable by any of the
Principal Companies during
<PAGE> 23
-15-
such fiscal year under or in respect of the Hanna-Barbera
LC Documents, and
(iii) the aggregate amount of all cash dividends or
other cash distributions received by Citicasters or any of its
Subsidiaries during such period in respect of the equity of
Citicasters or any of its Subsidiaries in the earnings of any
corporation, partnership or other Person, the equity in whose
earnings has not been included in the Consolidated Operating
Income of Citicasters and its Subsidiaries for such period,
LESS
(b) the sum of
(i) the Cash Debt Service of Citicasters and its
Subsidiaries for such fiscal year,
(ii) the Consolidated Capital Expenditures of
Citicasters and its Subsidiaries for such fiscal year,
(iii) the aggregate amount of all cash dividends
paid or other cash distributions made by Citicasters during
such fiscal year on or in respect of any shares of its Capital
Stock of any class,
(iv) the aggregate amount of federal, state and
local income taxes paid by Citicasters and its Subsidiaries
for such fiscal year (but excluding all taxes paid for such
fiscal year as a result of gain realized from any Sale of
Property other than in the ordinary course of business), and
(v) $5,000,000.
"FCC" means the United States Federal Communications Commission (or
any successor agency, commission, bureau, department or other political
subdivision of the United States).
"FCC LICENSE" means any radio, television or other license, permit,
certificate of compliance, franchise, approval or authorization granted or
issued by the FCC.
"FACILITY A COMMITMENT" means, with respect to each Lender, such
Lender's obligation pursuant to CLAUSE (A) of SECTION 2.1 to make Facility A
Revolving Loans.
"FACILITY A COMMITMENT AMOUNT" is defined in SECTION 2.2.1.
"FACILITY A COMMITMENT TERMINATION DATE" means the earliest to occur
of:
(a) December 31, 2001;
<PAGE> 24
-16-
(b) the fifth day after notice is given by the Borrower
to the Administrative Agent for purposes of designating a Facility A
Commitment Termination Date pursuant to this CLAUSE (B), PROVIDED that
such notice may only be given at any time when no Facility A Revolving
Loans are outstanding and if no Facility A Revolving Loans have been
requested within such five-day period; and
(c) automatically, immediately and without any further
notice or action, any Commitment Termination Event.
"FACILITY A REVOLVING LOANS" is defined in CLAUSE (A) of SECTION 2.1.
"FACILITY A REVOLVING NOTE" is defined in CLAUSE (A) of SECTION 3.2
and shall also mean and refer to all other promissory notes accepted from time
to time in substitution therefor, replacement or renewal thereof or refunding
thereof, including any such notes issued pursuant to CLAUSE (B) of SECTION
11.4.
"FACILITY B COMMITMENT" means, with respect to each Lender, such
Lender's obligation pursuant to CLAUSE (B) of SECTION 2.1 to make Facility B
Revolving Loans.
"FACILITY B COMMITMENT AMOUNT" is defined in SECTION 2.2.2.
"FACILITY B COMMITMENT TERMINATION DATE" means the earliest to occur
of:
(a) December 31, 1997;
(b) the fifth day after notice is given by the Borrower
to the Administrative Agent for purposes of designating a Facility B
Commitment Termination Date pursuant to this CLAUSE (B), PROVIDED that
such notice may only be given at any time when no Facility B Revolving
Loans are outstanding and if no Facility B Revolving Loans have been
requested within such five-day period; and
(c) automatically, immediately and without any further
notice or action, any Commitment Termination Event.
"FACILITY B REVOLVING LOANS" is defined in CLAUSE (B) of SECTION 2.1.
"FACILITY B REVOLVING NOTE" is defined in CLAUSE (B) of SECTION 3.2
and shall also mean and refer to all other promissory notes accepted from time
to time in substitution therefor, replacement or renewal thereof or refunding
thereof, including any such notes issued pursuant to CLAUSE (B) of SECTION
11.4.
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in the
daily statistical release designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor publication, the
"COMPOSITE 3:30 P.M. QUOTATIONS") for such day under the caption "Federal Funds
Effective Rate". If such rate is not
<PAGE> 25
-17-
published in the Composite 3:30 p.m. Quotations for any Business Day, the rate
for such day will be the arithmetic mean of the rates for the last transaction
in overnight federal funds arranged prior to 9:00 a.m., Boston time, on such
day by each of three leading brokers of federal funds transactions in New York
City, selected by the Administrative Agent. The Federal Funds Rate for any day
which is not a Business Day shall be the rate for the immediately preceding
Business Day.
"FEES" means collectively, the Closing Fees, Commitment Fees and
Agents Fees.
"FIXED CHARGE COVERAGE RATIO" means, in relation to any Reference
Period, the ratio of
(a) the sum of (i) the Consolidated EBITDA of
Citicasters and its Subsidiaries for such Reference Period, PLUS
(ii) the amount by which all cash and Cash Equivalents owned by
Citicasters and its Subsidiaries at the end of such Reference Period
exceed (all as determined on a consolidated basis in accordance with
GAAP) the sum of $10,000,000,
TO
(b) the sum of (i) the Cash Debt Service of Citicasters
and its Subsidiaries for such Reference Period, PLUS (ii) the
Consolidated Capital Expenditures of Citicasters and its Subsidiaries
for such Reference Period,PLUS (iii) the aggregate amount of all
federal, state and local income taxes paid by Citicasters and its
Subsidiaries for such Reference Period (but excluding all taxes paid
for such Reference Period as a result of gain realized from the Sale
of Property other than in the ordinary course of business), PLUS (iv)
the aggregate amount of all cash dividends paid by Citicasters during
such Reference Period on or in respect of any shares of its Capital
Stock of any class.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System.
"GAAP" is defined in SECTION 1.4.
"GOVERNING DOCUMENTS" means, relative to any Person, its certificate
or articles of incorporation, its by-laws and all shareholder agreements,
voting trusts or other similar arrangements applicable to any shares of its
Capital Stock.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state,
regional, local, municipal or other government, or any department,
commission, board, bureau, agency, public authority or instrumentality
thereof, or any court or arbitrator.
"GROUP" is defined in SECTION 4.1.
"GUARANTIES" means, collectively, the guaranties of each of the
Guarantors to the Agents and the Lenders contained in ARTICLE V, as
such Guaranties are originally given, or, if varied or supplemented from time
to time, as so varied or supplemented.
"GUARANTORS" is defined in SECTION 5.1.
<PAGE> 26
-18-
"HANNA-BARBERA LC DOCUMENTS" means "LC Documents", as such term is
defined in the Collateral Assignment of Hanna Barbera LC Documents.
"HANNA-BARBERA PROCEEDS" means any cash or other Property which
becomes payable to or receivable by any of the Principal Companies under or in
respect of any of the Hanna-Barbera LC Documents.
"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined in CERCLA;
(b) any "hazardous waste", as defined in the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within the
meaning of any other applicable Environmental Laws.
"HISTORICAL FINANCIALS" is defined in SECTION 7.4.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of the Independent Public Accountant as to any financial
statement of Citicasters or any of its Subsidiaries, any qualification or
exception to such opinion or certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification
of any item in such financial statement and which, as a condition to
its removal, would require an adjustment to such item the effect of
which would be to cause any of the Principal Companies or their
Subsidiaries to be in default of any of their obligations under SECTION
8.2.4.
"INACTIVE SUBSIDIARY" means any direct or indirect Subsidiary of
the Principal Companies that is (a) identified as "Inactive" in
SECTION 7.14(A) of the Disclosure Schedule, or (b) identified by the Principal
Companies as "Inactive" in a written notice furnished by the Principal
Companies to the Administrative Agent at any time after the date hereof
pursuant to SECTION 8.1.9 or otherwise.
"INDEBTEDNESS" means, in relation to any Person at any time, all of
the obligations of such Person which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of such
Person prepared as at such time, and in any event shall include:
(a) all indebtedness of such Person arising or incurred
under or in respect of any agreement, contingent or otherwise, made by
such Person
<PAGE> 27
-19-
(i) to purchase any indebtedness of any other
Person or to advance or supply funds for the payment or
purchase of any indebtedness of any other Person, or
(ii) to purchase, sell or lease (as lessee or
lessor) any Property, or to purchase or sell transportation or
services, primarily for the purpose of enabling any other
Person to make payment of any indebtedness of such other
Person or to assure the owner of such other Person's
indebtedness against loss, regardless of the delivery or
non-delivery of the Property or the furnishing or
non-furnishing of the transportation or services, or
(iii) to make any Investment in any other Person
for the purpose of assuring a minimum equity, asset base,
working capital or other balance sheet condition for or as at
any date or to provide funds for the payment of any liability,
dividend or stock liquidation payment or otherwise to supply
funds to or in any manner invest in any other Person;
(b) all indebtedness of such Person of any kind
(including all Capitalized Lease Obligations of such Person) arising or
incurred under or in respect of any lease or other similar agreement
or contract (whether written or oral) pursuant to which such Person
shall (as lessee) lease or hire from any other Person or Persons any
Property;
(c) all indebtedness, obligations and liabilities secured
by or arising under or in respect of any Liens upon or in any Property
owned by such Person, even though such Person has not assumed or
become liable for the payment of such indebtedness, obligations and
liabilities;PROVIDED, HOWEVEr, that for purposes of determining the
amount of any Indebtedness of the type described in this clause, if
recourse with respect to such Indebtedness is limited to such
Property, the amount of such Indebtedness shall be limited to the fair
market value of such Property;
(d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
Property acquired by such Person, even though recourse with respect to
such indebtedness is limited to such Property;
(e) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn, and
bankers' acceptances issued for the account of such Person;
(f) net obligations of such Person under any interest
rate swap, cap, collar or other similar agreements or arrangements;
(g) any asserted withdrawal liability of such Person
(or any other Person which together with such Person would be a
"single employer" or a member of the same "controlled group" as a
"contributing sponsor" with respect to a Plan, in each case within the
meaning of Section 4001 of ERISA) to a Plan;
<PAGE> 28
-20-
(h) all dividends declared but not yet paid by such
Person on any of its Capital Stock; and
(i) all indebtedness of such Person arising or incurred
under or in respect of any Contingent Obligations.
"INDEBTEDNESS FOR BORROWED MONEY" means, in relation to any Person at
any time, all Indebtedness of such Person for borrowed money (including all
notes payable and drafts accepted representing extensions of credit and all
obligations evidenced by bonds, debentures, notes or other similar Instruments
on which interest charges are customarily paid), all Contingent Obligations of
such Person in respect of any such Indebtedness of any other Person, all
obligations of such Person constituting Capitalized Lease Obligations and all
obligations of such Person for the deferred purchase price of Property or
services (except, in any event, trade payables and payment obligations in
respect of film license contracts of any Broadcasting Station, in each case
arising in the ordinary course of business).
"INDEMNIFIED COSTS" is defined in SECTION 10.1.
"INDEMNIFIED LIABILITIES" is defined in SECTION 12.4.
"INDEMNIFIED PARTY" is defined in SECTION 12.4.
"INDEPENDENT PUBLIC ACCOUNTANT" means Ernst & Young or any other firm
of certified public accountants of recognized national standing selected by the
Parent Company and acceptable to the Managing Agents.
"INSTRUMENT" means any contract, agreement, indenture, mortgage or
other document or writing (whether a formal agreement, letter or otherwise)
under which any obligation is evidenced, assumed or undertaken, or any right to
any Lien is granted or perfected.
"INTERCOMPANY SUBORDINATION AGREEMENT" means the Intercompany
Subordination Agreement, in or substantially in the form of EXHIBIT K attached
hereto, to be executed and delivered by Citicasters and its Subsidiaries on or
prior to the Closing Date in favor of the Collateral Agent and for the benefit
of the Secured Parties.
"INTEREST COVERAGE RATIO" means, in relation to any Reference Period,
the ratio of (a) the Consolidated EBITDA of Citicasters and its Subsidiaries
for such Reference Period, to (b) the Consolidated Cash Interest Charges of
Citicasters and its Subsidiaries for such Reference Period.
"INTEREST PERIOD" means, relative to any Eurodollar Tranche, the
period, selected in accordance with SECTION 4.4.1, for which such Tranche bears
interest at a rate determined with reference to the Eurodollar Rate (Reserve
Adjusted).
<PAGE> 29
-21-
"INVESTMENT" means, in relation to any Person,
(a) any loan, advance or other extension of credit made
by such Person to any other Person;
(b) the creation of any Contingent Obligation of such
Person to support any of the Indebtedness of any other Person;
(c) any capital contribution by such Person to, or
purchase of Capital Stock or other Securities or partnership interests
by such Person in, any other Person, or any other investment
evidencing an ownership or similar interest of such Person in any
other Person; or
(d) any Sale of Property by such Person to any other
Person other than upon full payment, in cash, of not less than the
agreed Sale price or the fair value of such Property, whichever is
higher.
"LENDERS" is defined in the introductory paragraph hereto.
"LEVERAGE RATIO" means, in relation to any period, the ratio of (a)
the Consolidated Total Debt of Citicasters and its Subsidiaries at
the end of such period, to (b) the Consolidated EBITDA of Citicasters and its
Subsidiaries for such period.
"LEVERAGE RATIO ADJUSTMENT" means, in relation to any period for
which the Leverage Ratio is greater than 4.75:1.00, the aggregate
principal amount of the Consolidated Total Debt of Citicasters and its
Subsidiaries that would have to have been paid immediately prior to the end of
such period in order to cause the Leverage Ratio for such period to be exactly
4.75:1.00.
"LIEN" means any mortgage, security interest, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory, judgment or
otherwise), preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any financing lease involving substantially
the same economic effect as any of the foregoing and the filing of any
financing statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
"LOAN" means a Facility A Revolving Loan or a Facility B Revolving
Loan; and "LOANS" means, collectively, the Facility A Revolving Loans and the
Facility B Revolving Loans.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Collateral Documents, the Agents Fee Letter, the Intercompany Subordination
Agreement, each Assignment and Acceptance Agreement, and each other Instrument
executed and delivered pursuant to or in connection with any thereof.
"LOAN REQUEST" means a loan request and certificate duly executed and
delivered to the Administrative Agent by the chief financial, accounting or
executive Authorized Officer of the Borrower, in or substantially in the form
of EXHIBIT C attached hereto, with
<PAGE> 30
-22-
such changes thereto as may be agreed upon between the Principal Companies and
the Administrative Agent.
"MANAGING AGENTS" means, collectively, Bank of America and Bank of
Boston, acting in the capacity as Managing Agents for the Lenders
under this Agreement and the other Loan Documents, and such other Lenders or
financial institutions as shall have been subsequently appointed as successor
Managing Agents pursuant to SECTION 10.3.
"MATERIALLY ADVERSE EFFECT" means, in relation to any event,
occurrence or development of whatever nature (including any adverse
determination in any litigation, arbitration or governmental investigation or
proceeding),
(a) a materially adverse effect on the business,
Property, operations, prospects or condition, financial or otherwise,
of (i) the Borrower, (ii) the Citicasters Subsidiaries, taken as a
whole, or (iii) Citicasters and its Subsidiaries, taken as a whole;
(b) a materially adverse effect on the ability of any
Transaction Party to perform any of its payment or other material
Obligations under any Loan Document to which it is a party; or
(c) a material impairment of the validity or
enforceability of any Loan Document or any material impairment of the
rights, remedies or benefits available to any Secured Party under any
Loan Document.
"MATERIAL SUBSIDIARIES" means, collectively, each Subsidiary of any
Principal Company that, at the time of determination, has (a) assets greater
than or equal to two percent (2%) of all assets of Citicasters and its
Subsidiaries, computed and consolidated in accordance with GAAP, (b)
stockholders' equity greater than or equal to two percent (2%) of the
stockholders' equity of Citicasters and its Subsidiaries, computed and
consolidated in accordance with GAAP, or (c) generated two percent (2%) or more
of the gross revenues of Citicasters and its Subsidiaries during the most
recently completed period of four (4) consecutive fiscal quarters.
"MATURITY" means, relative to any Loan, the date on which such Loan is
stated to be due and payable in whole or in part (in accordance with the Note
evidencing such Loan, this Agreement or otherwise) or such earlier date when
such Loan (or any portion thereof) shall be or become due and payable in whole
or in part in accordance with the terms of this Agreement, whether by required
prepayment, declaration, acceleration or otherwise.
"MULTIEMPLOYER PLAN" means a Plan which is a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA.
"NET DEBT PROCEEDS" means, with respect to the issuance of any
Securities evidencing Indebtedness of Citicasters or any of its
Subsidiaries, the gross amount of cash proceeds received by Citicasters or any
of its Subsidiaries in respect of such issuance, less (to the extent applicable
and without duplication) reasonable sales and underwriting commissions,
investment banking, accounting and legal fees and
<PAGE> 31
-23-
disbursements, and printing expenses and governmental fees incurred in
connection with such issuance and payable by the issuer of such Securities.
"NET DISPOSITION PROCEEDS" means, with respect to any Sale of any
Property by Citicasters or any Citicasters Subsidiary (other than any Permitted
Disposition), the gross amount of cash consideration payable to or receivable
by Citicasters or any of its Subsidiaries from such Sale, less (to the extent
applicable and without duplication)
(a) the amount, if any, of all estimated taxes payable as
a result of gain realized from such Sale,
(b) reasonable expenses that are incurred in connection
with such Sale and that are payable by the seller or the transferor of
the Property to which such Sale relates, and
(c) the amount of any Indebtedness for Borrowed Money
that is secured by perfected Liens ranking prior (whether by virtue of
time of perfection or by contract) to all (if any) Liens of the
Collateral Agent in such Property at the time of such Sale and that is
required to be repaid or prepaid and is in fact repaid or prepaid with
such cash consideration substantially contemporaneously with such
Sale.
If Citicasters or any of its Subsidiaries receives any Property (other than
cash) as part of the consideration for any Sale, Net Disposition Proceeds from
such Sale shall be deemed to include any cash payments in respect of such
Property when and to the extent received by such Person.
"NET SECURITIES PROCEEDS" means, with respect to the issuance by
Citicasters of any Capital Stock, the gross amount of cash consideration
payable to or receivable by Citicasters in respect of such issuance, less (to
the extent applicable and without duplication) reasonable sales and
underwriting commissions, investment banking, accounting and legal fees and
disbursements, and printing expenses and any governmental fees incurred in
connection with such issuance and payable by the issuer of such Capital Stock.
If Citicasters receives any Property (other than cash) as part of the
consideration for any such issuance, Net Securities Proceeds shall be deemed to
include any cash payments in respect of such Property when and to the extent
received by Citicasters.
"NEW WORLD COMMUNICATIONS" means New World Communications Group
Incorporated, a Delaware corporation.
"NEW WORLD PURCHASE AGREEMENT" means the Asset Purchase Agreement,
dated as of May 4, 1994, between the Borrower and New World Communications.
"NEW WORLD TV STATIONS" means, collectively, the following television
stations: (a) KSAZ-TV (formerly KTSP-TV) Channel 10, Phoenix, Arizona
("KSAZ"); (b) WDAF-TV, Channel 4, Kansas City, Missouri ("WDAF"); (c) WBRC-TV,
Channel 6, Birmingham, Alabama ("WBRC"); and (d) WGHP- TV, Channel 8,
Greensboro-High Point-Winston-Salem, North Carolina ("WGHP").
<PAGE> 32
-24-
"NEW WORLD TV STATION SALES" means, collectively, the Sale of the four
New World TV Stations by the Borrower to New World Communications upon the
terms contained in the New World Purchase Agreement.
"NONCONTROLLED ENTITY" means any Person (a) that owns or operates one
or more radio Broadcasting Stations, and (b) (i) in which any of the Principal
Companies or their Subsidiaries owns or controls, with power to vote, shares of
Capital Stock representing less than fifty percent (50%) of the total voting
power or total value of all of the issued and outstanding Capital Stock of such
Person (or its equivalent in the case of Persons other than corporations), or
(ii) the day-to-day operations and management of which are not controlled by
any of the Principal Companies or their Subsidiaries.
"NON-RADIO ACQUISITION" means, in relation to any of the Principal
Companies or their Subsidiaries (other than any Inactive Subsidiaries), any
Acquisition by such Person, in a single transaction (or in a series of related
transactions) of any television Broadcasting Stations or any other business
(other than any radio Broadcasting Stations) in the media or communications
field, the cost of which to such Person does not exceed $5,000,000.
"NOTES" means, collectively, the Facility A Revolving Notes and the
Facility B Revolving Notes.
"OBLIGATIONS" means, collectively, all of the indebtedness,
obligations and liabilities existing on the date of this Agreement or
arising from time to time thereafter, whether direct or indirect, joint or
several, actual, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, of any Transaction Party to any Agent, any Lender or any other
Secured Party (a) in respect of any of the Loans made to the Borrower by the
Lenders pursuant to this Agreement, or (b) under or in respect of any one or
more of the Loan Documents.
"OTHER DEBT DOCUMENTS" means, collectively, (a) the Citicasters 9-3/4%
Notes and the Citicasters 9-3/4% Note Indenture, and (b) all other Instruments
evidencing, guarantying or securing any Indebtedness permitted by CLAUSE (c),
(d) or (e) of SECTION 8.2.2.
"OTHER TV STATION SALES" means, collectively, the Sale by the
Borrower, whether in a single transaction or in separate transactions, of (a)
WTSP-TV in Tampa, Florida ("WTSP"), and (b) WKRC-TV in Cincinnati, Ohio
("WKRC").
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any and all of its functions under ERISA.
"PAID (OR PAYMENT) IN FULL" means paid (or payment) in full in cash.
"PARENT COMPANY" and "CITICASTERS" are defined in the introductory
paragraph hereto.
"PARTICIPANTS" is defined in SECTION 11.1.1.
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"PERCENTAGE" of any Lender means, at any time, the percentage set
forth opposite such Lender's name on SCHEDULE I hereto (or, if such Lender has
executed an Assignment and Acceptance Agreement, opposite such Lender's
signature on the most recent Assignment and Acceptance Agreement then executed
by it).
"PERFECTION CERTIFICATE" means a certificate duly executed by an
Authorized Officer of each Principal Company, in or substantially in the form
of EXHIBIT F attached hereto.
"PERMITTED ACQUISITION" means any Acquisition by any of the Principal
Companies or their Subsidiaries that is permitted by SECTION 8.2.8.
"PERMITTED CAPITAL STOCK" means any Capital Stock of any Person with
respect to which such Person has no obligation to (a) declare or pay any
dividend, (b) make any redemption, repurchase, retirement or acquisition,
whether through a Subsidiary of such Person or otherwise, (c) make any return
of capital to the holder thereof, or (d) make any other distribution of any
kind.
"PERMITTED DISPOSITION" means:
(a) any Sale by any of the Principal Companies or their
Subsidiaries of its inventory in the ordinary course of its business;
(b) any Sale by any of the Principal Companies or their
Subsidiaries in the ordinary course of its business of its equipment
or other tangible personal Property that is obsolete or no longer
useful or necessary to its business;
(c) any Sale by any of the Principal Companies or their
Subsidiaries in the ordinary course of its business, and in a manner
consistent with its customary and usual cash management practices, of
its Permitted Investments; or
(d) the creation or incurrence by any of the Principal
Companies or their Subsidiaries of any Liens permitted by SECTION
8.2.3.
"PERMITTED INDEBTEDNESS" means any of the following Indebtedness:
(a) Indebtedness of any of the Principal Companies or
their Subsidiaries in respect of taxes, assessments, levies or other
governmental charges, and Indebtedness of any such Person in respect
of accounts payable incurred in the ordinary course of business or in
respect of claims against it for labor, materials or supplies, to the
extent that (in each case) the payment thereof shall not at the time
be required to be made in accordance with the provisions of SECTION
8.1.4;
(b) Indebtedness of any of the Principal Companies or
their Subsidiaries secured by Liens of carriers, warehousemen,
mechanics, landlords or materialmen that constitute Permitted Liens
under CLAUSE (c) or (e) of the definition thereof;
<PAGE> 34
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(c) Indebtedness of any of the Principal Companies or
their Subsidiaries in respect of judgments or awards which have been
in force for less than the applicable appeal period so long as (i) (in
each case) such Person shall at the time in good faith be prosecuting
an appeal or proceedings for review and execution thereof shall have
been stayed pending such appeal or review, and (ii) the aggregate
amount of all such Indebtedness of any of the Principal Companies or
their Subsidiaries outstanding at any time (determined on a
consolidated basis in accordance with GAAP) does not exceed
$2,000,000;
(d) Indebtedness incurred by any of the Principal
Companies or their Subsidiaries in connection with the acquisition,
construction or improvement by such Person of equipment used or to be
used in the ordinary course of business of such Person;PROVIDED,
HOWEVE, that (i) the aggregate amount of all such Indebtedness of any
of the Principal Companies or their Subsidiaries outstanding at any
time (determined on a consolidated basis in accordance with GAAP) does
not exceed $4,000,000, and (ii) any Liens on such equipment securing
such Indebtedness constitute Permitted Liens under CLAUSE (g) of the
definition thereof;
(e) Indebtedness under or in respect of Contingent
Obligations of any of the Principal Companies or their Subsidiaries as
sublessor or assignor under subleases entered into in the ordinary
course of business of such Person;
(f) Indebtedness under or in respect of Contingent
Obligations of any of the Principal Companies or their Subsidiaries in
respect of letters of credit or surety or other bonds issued in the
ordinary course of business of such Person in connection with Liens
that constitute Permitted Liens under CLAUSE (c) of the definition
thereof;
(g) Indebtedness arising in the ordinary course of
business of any of the Principal Companies or their Subsidiaries
representing payment obligations in respect of film license contracts
of any of such Person's Broadcasting Stations;
(h) Indebtedness of any of the Principal Companies or
their Subsidiaries that (i) is existing on the date of this Agreement
and is not otherwise expressly permitted by this Agreement, and (ii)
is identified and described in SECTION 7.7 of the Disclosure Schedule;
and
(i) any extension, refunding, replacement or renewal of
any Indebtedness referred to in PARAGRAPH (h), so long as (i) such
Indebtedness is not increased or secured by additional Property, (ii)
the maturity date of any such refunded, replaced or renewed
Indebtedness is not earlier than the maturity date of the Indebtedness
so refunded, replaced or renewed, (iii) the mandatory repayment,
prepayment, redemption, repurchase, defeasance, sinking fund and other
similar obligations in respect of such extended, refunded or renewed
Indebtedness shall not exceed or be more burdensome than similar such
obligations in respect of the Indebtedness so extended, refunded,
replaced or renewed, and (iv) the covenants, events of default and
other provisions contained in the Securities or other Instruments
governing such extended, refunded, replaced or renewed
<PAGE> 35
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Indebtedness, individually and taken as a whole, are not more
restrictive or burdensome than those contained in the Instruments
governing the Indebtedness so extended, refunded, replaced or renewed.
"PERMITTED INVESTMENTS" means any of the following Investments by any
of the Principal Companies or their Subsidiaries:
(a) Investments that (i) are owned or held (whether
legally or beneficially) or are outstanding or are in effect on the
date of this Agreement, and (ii) are identified and described
in SECTION 7.20 of the Disclosure Schedule;
(b) Investments in cash and Cash Equivalents;
(c) Investments in the form of accounts receivable
arising from Sales of goods or services in the ordinary course of
business;
(d) Investments in the form of advances or prepayments to
suppliers in the ordinary course of business; and
(e) Investments in the form of loans or advances to
employees in the ordinary course of business for travel expenses,
drawing accounts or other similar business related expenses.
"PERMITTED LIENS" means any of the following Liens:
(a) Liens that (i) are in existence on the date of this
Agreement, (ii) are identified and described in SECTION 7.15 of the
Disclosure Schedule, and (iii) secure Indebtedness of any of the
Principal Companies or their Subsidiaries constituting Permitted
Indebtedness underCLAUSE (H) of the definition thereof;
(b) Liens to secure taxes, assessments, levies or other
governmental charges imposed upon any of the Principal Companies or
their Subsidiaries, and Liens to secure claims against any of the
Principal Companies or their Subsidiaries for labor, materials or
supplies, to the extent (in each case) that the payment thereof shall
not at the time be required to be made in accordance with the
provisions of SECTION 8.1.4;
(c) deposits or pledges made by any of the Principal
Companies or their Subsidiaries in the ordinary course of its business
(i) in connection with, or to secure payment of, workers'
compensation, unemployment insurance or other forms of governmental
insurance or benefits, (ii) to secure the performance of bids,
tenders, statutory obligations, leases or contracts (other than
contracts relating to borrowed money), or (iii) to secure surety,
appeal, indemnity or performance bonds, in each case in the ordinary
course of the business of such Person, and in each case only to the
extent that payment thereof shall not at the time be required to be
made in accordance with the provisions of SECTION 8.1.4;
<PAGE> 36
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(d) Liens in respect of judgments or awards against any
of the Principal Companies or their Subsidiaries to the extent that
such judgments or awards constitute Permitted Indebtedness under
CLAUSE (c) of the definition thereof;
(e) Liens of carriers, warehousemen, mechanics, landlords
or materialmen incurred in the ordinary course of the business of any
of the Principal Companies or their Subsidiaries, in each case, for
sums not overdue or being contested in good faith by appropriate
proceedings, and for which appropriate reserves with respect thereto
have been established and maintained on the consolidated books of
Citicasters and its Subsidiaries in accordance with GAAP to the extent
required under such principles;
(f) easements, rights-of-way, zoning and other similar
restrictions and other similar encumbrances or title defects which, in
the aggregate, are not substantial in amount, and which do not in any
case materially detract from the value of the Property subject thereto
or interfere with the ordinary conduct of the business of any of the
Principal Companies or their Subsidiaries;
(g) Liens created by any of the Principal Companies or
their Subsidiaries to secure the payment of the cost of equipment
acquired, constructed or improved by such Person after the date of
this Agreement and which Liens are created substantially
contemporaneously with or within 360 days after the acquisition,
construction or improvement of the equipment subject thereto (all
Liens of the type described in thisCLAUSE (G) being hereinafter called
"PURCHASE MONEY LIENS"); PROVIDED, HOWEVER, that:
(i) any equipment subject to any such Purchase
Money Lien created by any of the Principal Companies or their
Subsidiaries is used or to be used in the ordinary course of
business of such Person;
(ii) no such Purchase Money Lien on any such
equipment shall extend to or cover any Property of such Person
other than such equipment; and
(iii) the aggregate amount of all Indebtedness of
any of the Principal Companies or their Subsidiaries
outstanding at any time and secured by all such Purchase Money
Liens on equipment (determined on a consolidated basis in
accordance with GAAP) shall at no time exceed $4,000,000; and
(h) extensions, renewals and replacements of Liens
described in CLAUSES (a) and (g) of this definition, PROVIDED
that each such extension, renewal or replacement Lien is limited to
the Property covered by the Lien so extended, renewed or replaced
and does not secure any Indebtedness that is different from or in
excess of that secured immediately prior to such extension, renewal
or replacement.
<PAGE> 37
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"PERSON" means any natural person, corporation, partnership, joint
venture, association, Governmental Authority or any other entity, whether
acting in an individual, fiduciary or other capacity.
"PLAN" means any employee pension benefit plan within the meaning of
Section 3(2) of ERISA which is subject to Title IV of ERISA, and is maintained
or contributed to by any of the Principal Companies or their Subsidiaries or
by any ERISA Affiliate for any employees of any such Person.
"PLEDGE AGREEMENT" means the Pledge Agreement, in or substantially in
the form of EXHIBIT E attached hereto, to be executed and delivered by the
Principal Companies on or prior to the Closing Date in favor of the Collateral
Agent and for the benefit of the Secured Parties.
"PRINCIPAL COMPANIES" means, collectively, the Parent Company, the
Borrower and each of the other Citicasters Subsidiaries that shall from time to
time after the date hereof be identified by the Managing Agents and any of the
Principal Companies as "PRINCIPAL COMPANIES" for purposes of this Agreement.
"PROCEEDS" means Net Debt Proceeds, Net Disposition Proceeds or Net
Securities Proceeds.
"PROJECTIONS" is defined in SECTION 7.5.
"PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible.
"PURCHASING LENDER" is defined in SECTION 11.2.1.
"QUARTERLY PAYMENT DATE" means the last day of each March, June,
September and December of each year or, if any such day is not a
Business Day, the next succeeding Business Day.
"RATABLE" or "RATABLY" means, with respect to any Lender vis-a-vis all
other Lenders, such Lender's Percentage of the amount in question.
"RATE PROTECTION AGREEMENT" means any interest rate swap, cap, collar
or similar agreement or arrangement by which any Lender is from time to time
bound and which is entered into from time to time by any of the Principal
Companies or their Subsidiaries in order to protect any of the Principal
Companies or their Subsidiaries against fluctuations in interest rates on
Indebtedness of any such Person.
"REFERENCE LENDERS" means, collectively, for purposes of determining
the Eurodollar Rate and in connection with other matters pertaining to
Eurodollar Rate Tranches, Bank of America, Bank of Boston and all other Lenders
designated in a notice to the Principal Companies and all Lenders by the
Administrative Agent (after consultation with the Principal Companies and with
the prior approval of the Required Lenders) to be Reference Lenders.
<PAGE> 38
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"REFERENCE PERIOD" means each period of four (4) consecutive fiscal
quarters of the Principal Companies and their Subsidiaries.
"REGISTER" is defined in SECTION 11.2.4. "REINVESTMENT PERIOD" means,
in relation to the receipt of any Proceeds by any of the Principal Companies
or their Subsidiaries, the period beginning on the date of the receipt of
such Proceeds by such Person and ending upon the later to occur of:
(a) in the case of Net Debt Proceeds or Net Securities
Proceeds, the 180th day following the date of the receipt of such
Proceeds, and, in the case of Net Disposition Proceeds, the 270th day
following the date of the receipt of such Proceeds (such period of 180
days or 270 days, as the case may be, being hereinafter referred to as
the "APPLICABLE INITIAL PERIOD"); or
(b) if any of the Principal Companies or their
Subsidiaries shall, within such Applicable Initial Period, (i) enter
into a binding agreement upon the terms of which such Person shall
undertake to implement a Permitted Acquisition, and (ii) seek all such
consents or approvals by, and make all such filings or registrations
with, Governmental Authorities (including the FCC) as are necessary to
authorize or permit the implementation of such Permitted Acquisition,
the earliest to occur of:
(i) the implementation of such Permitted
Acquisition;
(ii) the termination, prior to implementation of
such Permitted Acquisition, of the binding agreement setting
forth the terms thereof;
(iii) the issue by any Governmental Authority of
any final, non-appealable order restraining, prohibiting or
enjoining the implementation of the Permitted Acquisition; or
(iv) the receipt by any of the Principal Companies
or their Subsidiaries of a written notice from any
Governmental Authority denying the request for any necessary
consent or approval for the implementation of such Permitted
Acquisition.
"RELATED PARTIES" is defined in SECTION 10.2.
"RELATIVE" means, in relation to any Person, any spouse, parent,
grandparent, child, grandchild, brother or sister of such Person, or the spouse
of any of the foregoing.
"RELEASE" means a "release," as such term is defined in CERCLA.
"REPRESENTATIVE" means, with respect to any holders of any
Indebtedness of Citicasters or any of its Subsidiaries, any agent, trustee or
other similar representative of such holders.
<PAGE> 39
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"REQUIRED LENDERS" means, at the time any determination thereof is to
be made, (a) if no Loans are then outstanding, Lenders then having in the
aggregate more than 66-2/3% of the aggregate Commitments, and (b) if any Loans
are then outstanding, Lenders then holding in the aggregate more than 66-2/3%
of the aggregate outstanding principal amount of all of the Loans.
"RESTRICTED PAYMENTS" means, in relation to Citicasters and its
Subsidiaries:
(a) any payment, prepayment, distribution, loan, advance,
Investment or Sale by Citicasters or by any Citicasters Subsidiary in
connection with or pursuant to any Affiliate Transaction described
in CLAUSE (a), (b), (c), (e) or (f) of the definition "AFFILIATE
TRANSACTION";
(b) any declaration or payment by Citicasters or its
Subsidiaries of any dividends or other distributions on account of, or
any payment or other distribution by Citicasters or its Subsidiaries
on account of the purchase, repurchase, redemption, retirement or
other acquisition for value of, any shares of Capital Stock of
Citicasters or its Subsidiaries or any shares of Capital Stock of any
other Citicasters Affiliate;
(c) any payment or prepayment by Citicasters or its
Subsidiaries (whether of principal, premium, interest or any other
sum) of or on account of, or any payment or other distribution on
account of the redemption, repurchase, defeasance or other acquisition
for value of, (i) any Indebtedness of Citicasters (whether or not such
Indebtedness is subordinated to the Obligations) or of any other
Citicasters Affiliate, (ii) any Indebtedness of any Citicasters
Subsidiary which is subordinated to the Obligations, or (iii) any
Indebtedness of any Citicasters Subsidiary to any Citicasters
Affiliate;
(d) any loan or advance by Citicasters or its
Subsidiaries to, or any other Investment by Citicasters or its
Subsidiaries in, Citicasters, any other Citicasters Affiliate or any
holder of any Indebtedness described inCLAUSE (C) of this definition;
and
(e) any Sale by Citicasters or its Subsidiaries of all or
any part of its Property to, or for the direct or indirect benefit of,
Citicasters or any other Citicasters Affiliate.
For the purposes of this Agreement and the other Loan Documents, the term
"RESTRICTED PAYMENTS" shall not include any salaries, bonuses or advances to
employees made by any of the Principal Companies or their Subsidiaries in the
ordinary course of its business.
"SEC" means the Securities and Exchange Commission.
"SALE" means any sale, lease, conveyance, exchange, swap, trade,
transfer, assignment, pledge, hypothecation or other disposition of any
Property.
"SECURED PARTIES" means, collectively, the Agents and the Lenders.
<PAGE> 40
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"SECURITIES" means any Capital Stock, partnership interests, voting trust
certificates, bonds, debentures, notes or other evidences of Indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any
Instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of
the foregoing.
"SECURITY AGREEMENT" means the Security Agreement, substantially in the
form of EXHIBIT G attached hereto, to be executed and delivered by each of the
Transaction Parties on or prior to the Closing Date in favor of the Collateral
Agent for the benefit of the Secured Parties.
"SECURITY INSTRUMENT" means any security agreement, chattel mortgage,
assignment, financing or similar statement or notice, continuation statement,
or other agreement or Instrument, or any amendment or supplement to any thereof,
providing for, evidencing or perfecting any Lien.
"SINGLE EMPLOYER PLAN" means any Plan other than a Multiemployer Plan.
"SOLVENCY CERTIFICATE" is defined in SECTION 6.1.9.
"SPECIAL COVENANT CONDITIONS" means, in relation to any date on which any
Indebtedness is to be created, incurred or assumed, any Investment is to be
made, any Restricted Payment is to be made or declared, any Affiliate
Transaction is to be entered into or completed, any Sale or Acquisition is to
be made or completed, or any Capital Stock is to be issued or sold, in each
case by Citicasters or any of its Subsidiaries, each of the following
conditions:
(a) no Default shall have occurred and be continuing on or as of such
date;
(b) no Default shall occur or shall be continuing immediately after
giving effect to the creation, incurrence or assumption of such
Indebtedness, the making of any such Investment, the declaration or making
of any such Restricted Payment, the entering into or completion of any
such Affiliate Transaction, the completion of any such Sale or
Acquisition, or the issuance or Sale of any such Capital Stock; and
(c) no breach of any of the financial covenants set forth in SECTION
8.2.4 would have occurred as at the end of the Reference Period ending
immediately prior to the date of completion of such transaction had such
financial covenants been calculated for such Reference Period as if such
transaction were completed immediately prior to the beginning of such
Reference Period.
"SUBSIDIARY" means, in relation to any Person (in this paragraph called
the "parent") at any time, any corporation, partnership or other Person (a) of
which shares of Capital Stock, partnership interests or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other managers of such corporation, partnership or other Person,
or representing a majority of the equity interests in such
<PAGE> 41
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corporation, partnership or other Person, are at the time owned, controlled or
held, directly or indirectly, by the parent, or (b) the management of which is
otherwise controlled, directly or indirectly, by the parent.
"SUBSIDIARY GUARANTY" means a guaranty agreement, in or substantially in
the form of EXHIBIT I attached hereto, to be executed and delivered by
Subsidiaries of Citicasters in favor of the Collateral Agent and for the
benefit of the Secured Parties in compliance with the terms of SECTION
8.1.9(a).
"TAX SHARING AGREEMENT" means the Agreement of Allocation of Payment of
Federal Income Taxes, dated as of October 2, 1987, as supplemented as of
October 7, 1987, among Citicasters and its Subsidiaries.
"TAXES" is defined in SECTION 3.7.
"TRANCHE" is defined in SECTION 4.1.
"TRANSACTION PARTIES" means, collectively, (a) the Principal Companies and
(b) each of the other Subsidiaries of any Principal Company that shall, at the
time of determination or reference, be a party to or bound by any Subsidiary
Guaranty or any Collateral Document.
"TRANSFER EFFECTIVE DATE" is defined in SECTION 11.2.1.
"TRANSFEREE" is defined in SECTION 11.3.
"TURNAROUND STATION" means any radio Broadcasting Station (a) that is
acquired by any of the Principal Companies or their Subsidiaries at any time
after the date hereof, and (b) the broadcast cash flow of which, determined for
the 12-month period most recently ended prior to the date of Acquisition, is
$200,000 or less; PROVIDED, HOWEVER, that (i) for purposes of determining
whether a radio Broadcasting Station is a Turnaround Station at the date of the
Acquisition thereof, the broadcast cash flow of such radio Broadcasting Station
for the 12-month period most recently ended prior to the date of Acquisition
shall be adjusted to reflect the elimination of any operating, overhead or
other expenses for such Broadcasting Station which the Principal Companies
reasonably believe will not be incurred by such Broadcasting Station following
the Acquisition, (ii) if following the Acquisition of a Turnaround Station, the
broadcast cash flow of such station, for any 12-month period ending after the
date of the Acquisition, exceeds 12.5% of the aggregate value of all
Investments made by any of the Principal Companies or their Subsidiaries in
such Turnaround Station in connection with the Acquisition thereof, then such
station shall thereafter cease to be a "TURNAROUND STATION" for purposes of
this Agreement, and (iii) for purposes of determining the aggregate value of
all Investments by the Principal Companies and their Subsidiaries in all
Turnaround Stations, there shall be deducted in respect of all such Investments
all Net Disposition Proceeds received by Citicasters and its Subsidiaries from
the Sale of Turnaround Stations after the date hereof.
"TYPE" means, relative to (a) any Loan, either a Facility A Revolving Loan
or a Facility B Revolving Loan; and (b) the outstanding principal amount of all
or any portion
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of any Facility A Revolving Loan or Facility B Revolving Loan, the portions
thereof, if any, being maintained as a Base Rate Tranche or a Eurodollar
Tranche, as the case may be.
"UNUSED FACILITY A COMMITMENT AMOUNT" means, for any period (of one or more
days), the average daily amount for such period by which
(a) the Facility A Commitment Amount on each day during such period
EXCEEDS
_____
(b) the aggregate principal amount of all Facility A Revolving Loans
outstanding on each such day.
"UNUSED FACILITY B COMMITMENT AMOUNT" means, for any period (of one or more
days), the average daily amount for such period by which
(a) the Facility B Commitment Amount on each day during such period
EXCEEDS
(b) the aggregate principal amount of all Facility B Revolving Loans
outstanding on each such day. SECTION 1.2. USE OF DEFINED TERMS. Terms
for which meanings are provided in
this Agreement shall, unless otherwise defined or the context otherwise
requires, have such meanings when used in the Notes, the Disclosure Schedule,
each of the other Loan Documents and each notice or other communication
delivered from time to time in connection with this Agreement or any Instrument
executed pursuant hereto.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified, references in
this Agreement or in any of the other Loan Documents to any ARTICLE or SECTION
are references to such ARTICLE or SECTION of this Agreement or such other Loan
Document, as the case may be, and unless otherwise specified, references in any
ARTICLE, SECTION or definition to any PARAGRAPH or CLAUSE are references to
such PARAGRAPH or CLAUSE of such SECTION, ARTICLE or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Where the character
or amount of any asset or liability or item of income or expense is required to
be determined, or any accounting computation is required to be made, for the
purposes of this Agreement such determination or calculation shall, to the
extent applicable, be made in accordance with generally accepted accounting
principles ("GAAP").
SECTION 1.5. GENERAL PROVISIONS RELATING TO DEFINITIONS. Terms for which
meanings are defined in this Agreement 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 neuter forms.
The term "including" means including, without limiting the generality of any
description preceding such term.
<PAGE> 43
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Each reference herein to any Person shall include a reference to such Person's
successors and assigns. References to any Instrument defined in this Agreement
refer to such Instrument as originally executed or, if subsequently amended or
supplemented from time to time, as so amended or supplemented and in effect at
the relevant time of reference thereto.
ARTICLE II
COMMITMENTS
SECTION 2.1. COMMITMENTS. Subject to the terms and conditions of this
Agreement (including ARTICLE VI):
(a) each Lender severally and for itself alone agrees that it will,
from time to time on any Business Day occurring during the period
commencing on the Closing Date and continuing to (but not including) the
Facility A Commitment Termination Date, make loans (relative to each
Lender, its "FACILITY A REVOLVING LOANS") to the Borrower equal to such
Lender's Percentage of the aggregate principal amount of the Facility A
Revolving Loans requested by the Borrower pursuant to SECTION 3.1;
PROVIDED, HOWEVER, that no Lender shall be permitted or required to make
any Facility A Revolving Loan if, after giving effect to the making of
such Facility A Revolving Loan, the aggregate principal amount of all
Facility A Revolving Loans outstanding from
(i) all Lenders would exceed the Facility A Commitment Amount
then in effect, or
(ii) such Lender would exceed its Percentage of the Facility A
Commitment Amount then in effect; and
(b) each Lender severally and for itself alone agrees that it will,
from time to time on any Business Day occurring during the period
commencing on the Closing Date and continuing to (but not including) the
Facility B Commitment Termination Date, make loans (relative to each
Lender, its "FACILITY B REVOLVING LOANS") to the Borrower equal to such
Lender's Percentage of the aggregate principal amount of the Facility B
Revolving Loans requested by the Borrower pursuant to SECTION 3.1;
PROVIDED, HOWEVER, that no Lender shall be permitted or required to make
any Facility B Revolving Loan if, after giving effect to the making of
such Facility B Revolving Loan, the aggregate principal amount of all
Facility B Revolving Loans then outstanding from
(i) all Lenders would exceed the Facility B Commitment Amount
then in effect, or
(ii) such Lender would exceed its Percentage of the Facility B
Commitment Amount then in effect.
<PAGE> 44
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Subject always to the terms and conditions hereof, the Borrower may from time
to time borrow, prepay and reborrow Facility A Revolving Loans pursuant to the
Facility A Commitments and Facility B Revolving Loans pursuant to the Facility
B Commitments.
SECTION 2.2. COMMITMENT AMOUNTS. The aggregate amount of all of the
Commitments shall be as set forth in this Section.
SECTION 2.2.1. FACILITY A COMMITMENT AMOUNT. The maximum aggregate
principal amount ("FACILITY A COMMITMENT AMOUNT") of all Facility A Commitments
for all Lenders on any date during each period shown in the table below
("COMMITMENT PERIOD") shall be the amount shown below opposite such Commitment
Period:
<TABLE>
<CAPTION>
COMMITMENT PERIOD FACILITY A COMMITMENT AMOUNT
----------------- ----------------------------
<S> <C>
09/30/94 - 03/30/98 $125,000,000
03/31/98 - 06/29/98 $117,500,000
06/30/98 - 09/29/98 $110,000,000
09/30/98 - 12/30/98 $102,500,000
12/31/98 - 03/30/99 $95,000,000
03/31/99 - 06/29/99 $87,500,000
06/30/99 - 09/29/99 $80,000,000
09/30/99 - 12/30/99 $72,500,000
12/31/99 - 03/30/00 $65,000,000
03/31/00 - 06/29/00 $57,500,000
06/30/00 - 09/29/00 $50,000,000
09/30/00 - 12/30/00 $42,500,000
12/31/00 - 03/30/01 $35,000,000
03/31/01 - 06/29/01 $27,500,000
06/30/01 - 09/29/01 $20,000,000
09/30/01 - 12/30/01 $12,500,000
12/31/01 and thereafter -0-
</TABLE>
The Facility A Commitments shall in any event terminate in full and the
Facility A Commitment Amount shall be reduced to zero on the Facility A
Commitment Termination Date. The Facility A Commitment Amount from time to
time in effect during each Commitment Period shown in the table above shall be
subject to permanent reduction, automatically and without further action:
(a) by the aggregate principal amount of each voluntary permanent
reduction of the Facility A Commitment Amount made by the Borrower from
time to time after the Closing Date; PROVIDED, HOWEVER, that
(i) each such permanent reduction of the Facility A Commitment
Amount shall require at least three Business Days' prior notice to
the Administrative Agent and shall be permanent, and any partial
reduction of such amount shall be in a minimum amount of $2,500,000
or in an integral multiple of $500,000 in excess thereof, and
<PAGE> 45
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(ii) no such permanent reduction of the Facility A Commitment
Amount may be made by the Borrower if, after giving effect to such
reduction, the Facility A Commitment Amount would be reduced to an
amount which is less than the aggregate principal amount of all
Facility A Revolving Loans then outstanding;
(b) on any date on which the Borrower shall, pursuant to SUBCLAUSE
(I) of CLAUSE (C) of SECTION 3.3.2, be required to make a mandatory
prepayment in respect of Facility A Revolving Loans as a result of the
receipt by Citicasters or any of its Subsidiaries of any Proceeds, by an
amount equal to the amount of such prepayment so required to be made; and
(c) on any date on which the Borrower shall, pursuant to SUBCLAUSE
(II) of CLAUSE (D) of SECTION 3.3.2, be required to make a mandatory
prepayment in respect of Facility A Revolving Loans, by an amount equal to
the amount of such prepayment so required to be made.
If the Facility A Commitment Amount shall, during any Commitment Period shown
in the table above, become subject to permanent reduction pursuant to CLAUSE
(A), (B) or (C), then the Facility A Commitment Amount then in effect for such
Commitment Period and the Facility A Commitment Amount then in effect for each
subsequent Commitment Period shall, automatically and without further action,
be reduced by the amount of such permanent reduction.
SECTION 2.2.2. FACILITY B COMMITMENT AMOUNT. The maximum aggregate
principal amount ("FACILITY B COMMITMENT AMOUNT") of all Facility B Commitments
for all Lenders on any date on or prior to the Facility B Commitment
Termination Date shall be $25,000,000. The Facility B Commitments shall in any
event terminate in full and the Facility B Commitment Amount shall be reduced
to zero on the Facility B Commitment Termination Date. The Facility B
Commitment Amount from time to time in effect shall be subject to permanent
reduction, automatically and without further action, by the aggregate principal
amount of each voluntary permanent reduction of the Facility B Commitment
Amount made by the Borrower from time to time after the Closing Date; PROVIDED,
HOWEVER, that
(a) each such permanent reduction of the Facility B Commitment
Amount shall require at least three Business Days' prior notice to
the Administrative Agent and shall be permanent, and any partial
reduction of such amount shall be in a minimum amount of $1,000,000
or in an integral multiple of $500,000 in excess thereof, and
(b) no such permanent reduction of the Facility B Commitment
Amount may be made by the Borrower if, after giving effect to such
reduction, the Facility B Commitment Amount would be reduced to an
amount which is less than the aggregate principal amount of all
Facility B Revolving Loans then outstanding.
<PAGE> 46
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SECTION 2.3. COMMITMENTS SEVERAL. The failure of any Lender to make any
Loan hereunder shall not relieve any other Lender of its obligation (if any) to
make a Loan, but no Lender shall be responsible for the failure of any other
Lender to make a Loan required to be made by such other Lender.
ARTICLE III
LOANS AND NOTES
SECTION 3.1. BORROWING PROCEDURE. Loans shall be made by Lenders in
accordance with this Section.
SECTION 3.1.1. REQUESTS FOR BORROWING. By delivering to the
Administrative Agent a Loan Request on or before 10:00 a.m., Boston time, the
Borrower may
(a) from time to time request, on not less than one nor more than
five Business Days' notice for Base Rate Tranches (or not less than three
nor more than five Business Days' notice for Eurodollar Tranches), that
Facility A Revolving Loans be made by the Lenders in a minimum aggregate
original principal amount of $2,000,000, or any integral multiple of
$500,000 in excess thereof, on the Drawdown Date (which must be a Business
Day) specified in such Loan Request, and
(b) from time to time request, on not less than one nor more than
five Business Days' notice for Base Rate Tranches (or not less than three
nor more than five Business Days' notice for Eurodollar Tranches), that
Facility B Revolving Loans be made by the Lenders in a minimum amount of
$500,000, or any integral multiple of $100,000 in excess thereof, on the
Drawdown Date (which must be a Business Day) specified in such Loan
Request.
The Administrative Agent shall promptly notify the Lenders of the receipt of
any such Loan Request. Subject to the terms and conditions of this Agreement,
on or before 12:00 p.m., Boston time, on the Drawdown Date specified in the
Loan Request, each Lender shall provide the Administrative Agent with funds in
an amount equal to such Lender's Percentage of the requested Loans, by
transferring same day or immediately available funds to such account as the
Administrative Agent shall specify from time to time by notice to the Lenders.
The proceeds of each Borrowing shall be made available by the Administrative
Agent to the Borrower on the Drawdown Date specified in the Loan Request by
wire transferring such funds in such amount or causing such funds in such
amount to be wire transferred to such account of the Borrower, or to such
designees of the Borrower, as shall be designated by the Borrower to the
Administrative Agent in the Loan Request therefor. Each request for Loans made
pursuant to this SECTION 3.1.1 shall constitute the representation and warranty
of the Principal Companies made to the Agents and the Lenders that all of the
applicable conditions contained in ARTICLE VI will, after giving effect to such
Loans, be satisfied and the making available of such Loans to the Borrower
shall be subject to the satisfaction of the applicable conditions of ARTICLE
VI.
<PAGE> 47
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SECTION 3.1.2. FUNDING RELIANCE FOR LOANS. With respect to any Loans,
unless the Administrative Agent shall have been notified in writing by any
Lender prior to the date of such Loan at the Administrative Agent's address
specified pursuant to SECTION 12.2 that such Lender does not intend to make
available to the Administrative Agent all or any portion of such Lender's
Percentage of the Loans to be made by such Lender on such date, the
Administrative Agent may (but shall not be obligated to) assume that such
Lender has made such amount available to the Administrative Agent on that date,
and, in reliance on such assumption, the Administrative Agent may make
available to the Borrower a corresponding amount. If any such amount referred
to in the preceding sentence of this SECTION 3.1.2 is made available by such
Lender to the Administrative Agent on a date after the date of such Loan, such
Lender shall pay to the Administrative Agent (for its account) on demand
interest on such amount at a rate of interest equal to, for the first three
Business Days following the date on which the Administrative Agent made such
amounts available to the Borrower, the daily average Federal Funds Rate and,
thereafter, at the Alternate Base Rate plus 1-1/2%. A statement of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this SECTION 3.1.2 shall be conclusive in the absence of manifest error.
If such amount is not in fact made available to the Administrative Agent by
such Lender within three Business Days after the date of such Loan, the
Administrative Agent shall be entitled to recover such amount, with interest
thereon at the rate per annum then applicable to the Loans, upon demand, from
the Lender. Nothing in this SECTION 3.1.2 shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights which the Borrower or the Administrative Agent may have against any
Lender as a result of any default by that Lender hereunder.
SECTION 3.2. NOTES.
(a) All Facility A Revolving Loans made by each Lender shall be
evidenced by a promissory note of the Borrower, dated as of the Closing
Date, and in or substantially in the form of EXHIBIT A attached hereto (as
amended, endorsed, replaced or otherwise modified from time to time, such
Lender's "FACILITY A REVOLVING NOTE"), payable to the order of such Lender
in a face amount equal to such Lender's Percentage of the Facility A
Commitment Amount in effect on the Closing Date.
(b) All Facility B Revolving Loans made by each Lender shall be
evidenced by a promissory note of the Borrower, dated as of the Closing
Date, and in or substantially in the form of EXHIBIT B attached hereto (as
amended, endorsed, replaced or otherwise modified from time to time, such
Lender's "FACILITY B REVOLVING NOTE"), payable to the order of such Lender
in a face amount equal to such Lender's Percentage of the Facility B
Commitment Amount in effect on the Closing Date.
The Borrower hereby irrevocably authorizes each Lender to make (or cause to be
made) appropriate notations on the grid attached to such Lender's Notes (or on
a continuation of such grid attached to any such Note and made a part thereof),
which notations, if made,
<PAGE> 48
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shall evidence, among other things, the date of, the outstanding principal of,
payments on and the interest rate (including any conversions thereof pursuant
to SECTION 4.2.) and Interest Period, if any, applicable from time to time to,
the Loans evidenced thereby. Any such notations on any such grid (and on any
such continuation) indicating the outstanding principal amount of such Lender's
Loans shall be rebuttable presumptive evidence of the principal amount thereof
owing and unpaid, but the failure to record any such information on such grid
(or on such continuation) shall not, however, limit or otherwise affect the
obligations of the Borrower hereunder or under such Note to make payments of
principal of or interest on such Loans when due.
SECTION 3.3. PRINCIPAL PAYMENTS. Repayments and prepayments of principal
of the Loans shall be made in accordance with this SECTION.
SECTION 3.3.1. REPAYMENTS. The Borrower promises to make payment in full
of all of the unpaid principal of each Loan at the final Maturity thereof. All
of the Obligations evidenced by the Facility A Revolving Notes shall, if not
sooner paid, be in any event due and payable in full on The Facility A
Commitment Termination Date. All of the Obligations evidenced by the Facility
B Revolving Notes shall, if not sooner paid, be in any event due and payable in
full on The Facility B Commitment Termination Date.
SECTION 3.3.2. FACILITY A REVOLVING LOAN PREPAYMENTS. The Borrower:
(a) VOLUNTARY PREPAYMENTS. May, from time to time on any Business
Day (without premium or penalty, except as may be required by SECTION
4.8), make a voluntary prepayment, in whole or in part, of the then
aggregate outstanding principal amount of all Facility A Revolving Loans;
PROVIDED, HOWEVER, that
(i) all such voluntary prepayments shall require at least one
(and no more than five) Business Days' prior notice as to prepayments
of Base Rate Tranches, and at least three (and no more than five)
Business Days' prior notice as to prepayments of Eurodollar Tranches,
in each case to the Administrative Agent (which will promptly notify
the Lenders thereof); and
(ii) all such voluntary prepayments in part shall be in a
minimum aggregate principal amount of $2,500,000 or in an integral
multiple of $500,000 in excess thereof;
(b) CERTAIN MANDATORY PREPAYMENTS. Shall, on each Business Day when
any reduction in the Facility A Commitment Amount shall become effective
pursuant to SECTION 2.2.1, make a mandatory prepayment of the then
aggregate outstanding principal amount of all Facility A Revolving Loans
equal to the excess, if any, of
(i) the then aggregate outstanding principal amount of all
Facility A Revolving Loans,
OVER
_____
<PAGE> 49
-41-
(ii) the Facility A Commitment Amount as so reduced;
(c) APPLICATION OF PROCEEDS. Shall, in the event that Citicasters
or any of its Subsidiaries receives, at any time after the date hereof,
any Proceeds (whether Net Debt Proceeds, Net Disposition Proceeds or Net
Securities Proceeds), make a mandatory prepayment of the then aggregate
outstanding principal amount of all Facility A Revolving Loans in the
amount, at the time and on the other terms specified by:
(i) the following provisions (and a simultaneous permanent
reduction of the Facility A Commitment Amount shall be required in
connection with each such mandatory prepayment):
(A) SUBCLAUSE (ix)(c)(1) of SECTION 8.2.2(e), in the case
of the receipt of certain Net Debt Proceeds;
(B) SUBCLAUSE (ii) of SECTION 8.2.7(c), in the case of the
receipt of certain Net Disposition Proceeds from Other TV Station
Sales;
(C) SUBCLAUSE (ii)(b)(1) of SECTION 8.2.7(d), in the case
of the receipt of Net Disposition Proceeds from the Sale of
radio Broadcasting Stations;
(D) SUBCLAUSE (iii)(a) of SECTION 8.2.7(e), in the case of
the Sale of certain other Property; and
(E) SUBCLAUSE (iii)(d)(1) of SECTION 8.2.11(b), in the
case of the receipt of Net Securities Proceeds from the issue
and Sale of certain Permitted Capital Stock; and
(ii) the following provisions (no reduction of the Facility A
Commitment Amount shall be required in connection with any such
prepayment):
(A) SUBCLAUSE (ii) of SECTION 8.2.7(b), in the case of the
receipt of Net Disposition Proceeds from the Sale of WBRC in
Birmingham, Alabama;
(B) SUBCLAUSE (i) of SECTION 8.2.7(c), in the case of the
receipt of certain Net Disposition Proceeds from Other TV Station
Sales;
(C) SUBCLAUSE (i)(b)(1) of Section 8.2.7(d), in the case
of the receipt of Net Disposition Proceeds from the Sale of
radio Broadcasting Stations; and
<PAGE> 50
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(D) SUBCLAUSE (ii)(d)(1) of SECTION 8.2.11(b), in the case
of the receipt of Net Securities Proceeds from the issue and
Sale of certain Permitted Capital Stock; and
(d) EXCESS CASH FLOW. Shall, on March 31 of each fiscal year,
beginning on March 31, 1995, make a mandatory prepayment of the then
aggregate outstanding principal amount of all Facility A Revolving Loans
in an amount:
(i) in the case of prepayments required to be made on March 31
of each of 1995, 1996 and 1997, determined in accordance with the
following provisions (no reduction of the Facility A Commitment
Amount shall be required in connection with any such prepayment on
any such prepayment date):
(A) if the Leverage Ratio for the fiscal year of
Citicasters (in this SUBCLAUSE (i), called the "REFERENCE YEAR")
immediately preceding the fiscal year in which such prepayment
date falls is greater than 4.75:1.00, then the amount of such
mandatory prepayment shall be equal to the least of: (1) 100% of
the Excess Cash Flow for such Reference Year less the aggregate
principal amount of all Facility B Revolving Loans subject to
mandatory prepayment on such prepayment date pursuant to CLAUSE
(c)(i) of SECTION 3.3.3; (2) the Leverage Ratio Adjustment for
such Reference Year; or (3) the aggregate principal amount of
all Facility A Revolving Loans outstanding on such prepayment
date; and
(B) if the Leverage Ratio for such Reference Year is equal
to or less than 4.75:1.00, then no such mandatory prepayment
shall be required on such prepayment date; and
(ii) in the case of prepayments required to be made on March 31
of each year after 1997, determined in accordance with the following
provisions (and a simultaneous permanent reduction of the Facility A
Commitment Amount shall be required in connection with each such
mandatory prepayment on any such prepayment date):
(A) if the Leverage Ratio for the fiscal year of
Citicasters (in this SUBCLAUSE (ii) called the "REFERENCE YEAR")
immediately preceding the fiscal year in which such prepayment
date falls is greater than 4.75:1.00, then the amount of such
mandatory prepayment shall be equal to the least of: (1) 50% of
the Excess Cash Flow for such Reference Year; (2) the Leverage
Ratio Adjustment for such Reference Year; or (3) the aggregate
principal amount of all Facility A Revolving Loans outstanding
on such prepayment date; and
<PAGE> 51
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(B) if the Leverage Ratio for such Reference Year is equal
to or less than 4.75:1.00, then no such mandatory prepayment
shall be required on such prepayment date.
Each prepayment of any Facility A Revolving Loans made pursuant to this Section
shall be without premium or penalty, except as may be required by SECTION 4.8.
All voluntary prepayments of the Facility A Revolving Loans shall be in
addition to, and shall not constitute a credit toward, other prepayments
required to be made by the Borrower under CLAUSE (b), (c) or dD) of this
SECTION 3.3.2; and any mandatory prepayments made by the Borrower under any of
CLAUSE (b), (c) or (d) of this SECTION 3.3.2 shall be in addition to, and shall
not constitute a credit toward, prepayments required to be made by the Borrower
under any other of such CLAUSES. Voluntary prepayments of any Eurodollar
Tranches shall only be made at the end of the Interest Periods applicable
thereto, unless all losses and expenses referred to in SECTION 4.8 shall be
paid by the Borrower to the Administrative Agent concurrently with such
prepayments.
SECTION 3.3.3. FACILITY B REVOLVING LOAN PREPAYMENTS. The Borrower:
(a) VOLUNTARY PREPAYMENTS. May, from time to time on any Business
Day (without premium or penalty, except as may be required by SECTION
4.8), make a voluntary prepayment, in whole or in part, of the then
aggregate outstanding principal amount of all Facility B Revolving Loans;
PROVIDED, HOWEVER, that
(i) all such voluntary prepayments shall require at least one
(and no more than five) Business Days' prior notice as to prepayments
of Base Rate Tranches, and at least three (and no more than five)
Business Days' prior notice as to prepayments of Eurodollar Tranches,
in each case to the Administrative Agent (which will promptly notify
the Lenders thereof); and
(ii) all such voluntary prepayments in part shall be in a
minimum aggregate principal amount of $1,000,000 or in an integral
multiple of $500,000 in excess thereof;
(b) CERTAIN MANDATORY PREPAYMENTS. Shall, on each Business Day when
any reduction in the Facility B Commitment Amount shall become effective
pursuant to SECTION 2.2.2, make a mandatory prepayment of the then
aggregate outstanding principal amount of all Facility B Revolving Loans
equal to the excess, if any, of
(i) the then aggregate outstanding principal amount of all
Facility B Revolving Loans,
OVER
(ii) the Facility B Commitment Amount as so reduced; and
<PAGE> 52
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(c) EXCESS CASH FLOW. Shall, on March 31 of each of 1995, 1996 and
1997, make a mandatory prepayment of the then aggregate outstanding
principal amount of all Facility B Revolving Loans in an amount determined
in accordance with the following provisions (no reduction of the Facility
B Commitment Amount shall be required in connection with any such
prepayment on any such prepayment date):
(i) if the Leverage Ratio for the fiscal year of Citicasters
(in this CLAUSE (c) called the "REFERENCE YEAR") immediately
preceding the fiscal year in which such prepayment date falls is
greater than 4.75:1.00, then the amount of such mandatory prepayment
shall be equal to the least of: (A) 100% of the Excess Cash Flow for
such Reference Year; (B) the Leverage Ratio Adjustment for such
Reference Year; or (C) the aggregate principal amount of all Facility
B Revolving Loans outstanding on such prepayment date; and
(ii) if the Leverage Ratio for such Reference Year is equal to
or less than 4.75:1.00, then no such mandatory prepayment shall be
required on such prepayment date.
Each prepayment of any Facility B Revolving Loans made pursuant to this Section
shall be without premium or penalty, except as may be required by SECTION 4.8.
All voluntary prepayments of the Facility B Revolving Loans shall be in
addition to, and shall not constitute a credit toward, other prepayments
required to be made by the Borrower under CLAUSE (b) or (c) of this SECTION
3.3.3; and any mandatory prepayments made by the Borrower under either of
CLAUSE (b) or (c) of this SECTION 3.3.3 shall be in addition to, and shall not
constitute a credit toward, prepayments required to be made by the Borrower
under the other of such CLAUSES. Voluntary prepayments of any Eurodollar
Tranches shall only be made at the end of the Interest Periods applicable
thereto, unless all losses and expenses referred to in SECTION 4.8 shall be
paid by the Borrower to the Administrative Agent concurrently with such
prepayments.
SECTION 3.4. INTEREST PAYMENTS. The Borrower shall make payments of
interest in accordance with this Section.
SECTION 3.4.1. INTEREST RATES. The Borrower hereby absolutely and
unconditionally promises to pay interest on the unpaid principal amount of each
Loan for the period commencing on the date of such Loan until such Loan is paid
in full, as follows:
(a) on any portion of such Loan that constitutes a Base Rate
Tranche, at a rate per annum equal to the Alternate Base Rate from time to
time in effect PLUS the Alternate Base Rate Margin in effect at such time;
and
(b) on any portion of such Loan that constitutes a Eurodollar
Tranche, at a rate per annum equal to the Eurodollar Rate (Reserved
Adjusted) applicable
<PAGE> 53
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to each Interest Period for such Tranche plus the Eurodollar Rate Margin in
effect at such time;
PROVIDED, that in no event shall the rate of interest on any Tranche exceed the
maximum rate permitted by Applicable Law.
SECTION 3.4.2. INTEREST ON OVERDUE AMOUNTS. The Borrower will, on
demand, pay interest on any overdue principal of any of the Loans, and, to the
maximum extent permitted by Applicable Law, on any overdue interest, fees or
other sums owing to any Agent or any Lender at a rate per annum that is at all
times equal to the sum of (a) the highest rate per annum applicable to any
Tranche determined in accordance with SECTION 3.4.1, PLUS (b) two percent (2%).
SECTION 3.4.3. PAYMENT DATES. Interest accrued on each Loan shall be
payable, without duplication, on:
(a) the Maturity of such Loan;
(b) with respect to the outstanding principal amount of all Base Rate
Tranches, on each Quarterly Payment Date;
(c) with respect to the outstanding principal amount of all
Eurodollar Tranches, the last day of each applicable Interest Period (and,
if such Interest Period shall exceed three months, on the last day of each
three-month period occurring during such Interest Period);
(d) with respect to that portion of the outstanding principal amount
of Loans converted into Base Rate Tranches or Eurodollar Tranches on a day
when interest would not otherwise have been payable pursuant to CLAUSE (B)
or (C), the date of such conversion; and
(e) with respect to any portion of any Loans prepaid pursuant to
SECTION 3.3.2 or SECTION 3.3.3, the date of such prepayment.
Interest accrued pursuant to SECTION 3.4.2 on any overdue principal of any of
the Loans, and, to the extent permitted by Applicable Law, on any overdue
interest, fees or other sums, shall be payable upon demand and, in any event,
on the last Business Day of each month.
SECTION 3.5. FEES.
SECTION 3.5.l. CLOSING FEES. The Borrower shall pay to the
Administrative Agent on the Closing Date, for the account of each Lender,
closing fees (the "CLOSING FEES") equal to 1/4 of 1% (.25%) of the amount of
the Facility A Commitment of such Lender in effect on the Closing Date and 1/4
of 1% (.25%) of the amount of the Facility B Commitment of such Lender in
effect on the Closing Date.
SECTION 3.5.2. COMMITMENT FEES. The Borrower shall pay to the
Administrative Agent, for the account of each Lender, fees ("COMMITMENT FEES")
on (a)
<PAGE> 54
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the amount of such Lender's unused Facility A Commitment during the period
commencing on the date hereof and ending on the Facility A Commitment
Termination Date, and (b) the amount of such Lender's unused Facility B
Commitment during the period commencing on the date hereof and ending on the
Facility B Commitment Termination Date. The Commitment Fees shall be payable
by the Borrower to each Lender for each calendar quarter ending after the date
hereof and (i) shall be computed on such Lender's Percentage of each of the
Unused Facility A Commitment Amount and the Unused Facility B Commitment Amount
for such calendar quarter at the annual rate in each case equal to the
Applicable Commitment Fee Rate for such calendar quarter, and (ii) shall be
payable in arrears on each Quarterly Payment Date, and, in the case of the
Facility A Commitments, on the Facility A Commitment Termination Date, and, in
the case of the Facility B Commitments, on the Facility B Commitment
Termination Date.
SECTION 3.5.3. AGENTS FEE. The Borrower shall pay to the Administrative
Agent, for the account of the Agents on the Closing Date, agents fees ("AGENTS
FEES"), in accordance with the terms of the Agents Fee Letter. Each payment of
the Agents Fees, Commitment Fees and Closing Fees shall be non-refundable.
SECTION 3.6. MAKING AND PRORATION OF PAYMENTS; COMPUTATIONS; ETC.
SECTION 3.6.1. MAKING OF PAYMENTS. All payments of principal of and
interest on the Notes, and all payments of Fees and other sums payable under
the Loan Documents, shall be made by the Principal Companies to the
Administrative Agent in immediately available funds at its Domestic Office not
later than noon, Boston time, on the date due, and funds received after that
hour shall be deemed to have been received by the Administrative Agent on the
next following Business Day. The Administrative Agent shall promptly remit to
each Lender or Agent its share (if any) of all such payments received in
collected funds by the Administrative Agent. All payments under SECTIONS 4.5,
4.8, 12.3 and 12.4 shall be made by the Principal Companies directly to the
Agents or Lenders entitled thereto. Each payment of principal shall be applied
to such Tranches as the Borrower shall direct by notice to be received by the
Administrative Agent on or before the date of payment, or, in the absence of
such notice, as the Administrative Agent shall determine in its discretion.
Concurrently with its remittance to any Lender of its share of any such
payment, the Administrative Agent shall advise such Lender as to the
application of such payment.
SECTION 3.6.2. SETOFF. Each Principal Company agrees that each Agent and
each Lender shall have all rights of set-off and bankers' lien provided by
Applicable Law, and in addition thereto, each Principal Company agrees that if
at any time any payment or other amount owing by such Principal Company under
this Agreement is then due to any Agent or any Lender, such Agent or Lender may
apply to the payment of such payment or other amount any and all balances,
credits, deposits, accounts or moneys of such Principal Company then or
thereafter deposited or held by such Person.
SECTION 3.6.3. PRORATION OF PAYMENTS. If any Lender or other holder of a
Note shall obtain by payment or other recovery (whether voluntary, involuntary,
by application of setoff or otherwise) of principal of or interest on any Note
in excess of its Ratable
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share of payments and other recoveries obtained by all Lenders or other holders
of Notes (other than in respect of an Affected Tranche), such Lender or other
holder shall purchase from the other Lenders or holders such participations in
the Notes held by them as shall be necessary to cause such purchasing Lender or
other holder to share the excess payment or other recovery Ratably with each of
them; PROVIDED, HOWEVER, that if all or any portion of the excess payment or
other recovery is thereafter recovered from such purchasing Lender or holder,
the purchase of such participation shall be rescinded and the purchase price
restored to the extent of such recovery. Each of the Principal Companies
agrees that any Lender or other holder of a Note so purchasing a participation
from another Lender or holder pursuant to this SECTION shall be entitled to all
rights of set-off and bankers' lien with respect to such participation as fully
as if such Lender were a direct holder of Loans in the amount of such
participation.
SECTION 3.6.4. DUE DATE EXTENSION. If any payment of principal of or
interest on any of the Notes, or any payment of any Fees or other sums payable
under the Loan Documents, falls due on a day which is not a Business Day, then
such due date shall be extended to the next following Business Day (unless, in
the case of interest due on the principal amount of any Eurodollar Tranche,
such next following Business Day is the first day of a calendar month, in which
case such due date shall be the immediately preceding Business Day), and
additional interest and Commitment Fees shall accrue and be payable for the
period of such extension.
SECTION 3.6.5. NOTICE OF CHANGES IN ALTERNATE BASE RATE; NOTICE OF
EURODOLLAR RATES. Changes in the rate of interest on any Base Rate Tranches
shall take effect simultaneously with each change in the Alternate Base Rate.
The Administrative Agent shall give notice promptly to the Borrower and the
Lenders of changes in the Alternate Base Rate. The applicable Eurodollar Rate
for each Interest Period shall be determined by the Administrative Agent, and
notice thereof shall be given by the Administrative Agent promptly to the
Borrower and each Lender. Each determination of the Alternate Base Rate and
the applicable Eurodollar Rate by the Administrative Agent shall be conclusive
and binding upon the parties hereto, in the absence of manifest error. The
Administrative Agent shall, upon written request of the Borrower or any Lender,
deliver to the Borrower or such Lender a statement showing the computations
used by the Administrative Agent in determining any applicable Eurodollar Rate
hereunder. Each Reference Lender agrees to furnish to the Administrative Agent
timely information for determining the applicable Eurodollar Rate. If any one
or more of the Reference Lenders shall fail to timely furnish such information
to the Administrative Agent for any such interest rate, the Administrative
Agent shall determine such interest rate on the basis of the information
furnished by the remaining Reference Lenders.
SECTION 3.6.6. COMPUTATIONS. Interest and Commitment Fees shall be
computed based on the actual number of days elapsed and a year of 360 days.
SECTION 3.6.7. RECORDKEEPING. Each Lender shall record in its records,
or at its option on the grid attached to each of its Notes, the date and amount
of each of the Loans made by such Lender, each repayment and prepayment thereof
and, in the case of each Eurodollar Tranche, the principal amount thereof and
the dates on which each Interest Period for such Tranche shall begin and end.
The aggregate unpaid principal amount so
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recorded shall be rebuttable presumptive evidence of the principal amount owing
and unpaid on such Note. The failure to so record any such amount or any error
in so recording any such amount shall not, however, limit or otherwise affect
the obligations of the Borrower or any Guarantor hereunder or under any Note to
repay the principal amount of the Loans evidenced by such Note together with
all interest accruing thereon.
SECTION 3.7. TAXES. All payments of principal of and interest on the
Notes and of all Fees and other sums payable hereunder or under any of the
other Loan Documents shall be made free and clear of and without deduction for
any present or future income, excise, stamp or franchise taxes or other taxes,
fees, duties, withholdings or charges of any nature whatsoever imposed by any
Governmental Authority, but excluding franchise taxes imposed on any Lender and
taxes imposed on any Lender measured by such Lender's net income or receipts
imposed by the jurisdiction where such Lender's principal lending office is
located (all non-excluded items being called "TAXES"). If any withholding or
deduction from any such payment to be made hereunder or under any of the other
Loan Documents is required in respect of any Taxes pursuant to any Applicable
Law, then the Borrower or other Transaction Party obligated to make such
payment will:
(a) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent and each affected
Lender an official receipt or other documentation satisfactory to the
Administrative Agent evidencing that the Borrower or other Transaction
Party obligated to make such payment has made such payment to such
Governmental Authority; and
(c) pay to the Administrative Agent such additional amounts as are
necessary to ensure that the net amount actually received by each Secured
Party will equal the full amount such Secured Party would have received
had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Secured Party
with respect to any payment received by such Secured Party hereunder or under
any of the other Loan Documents, such Secured Party may pay such Taxes and the
Borrower or other Transaction Party obligated to make such payment will
promptly pay such additional amounts (including any penalty, interest or
expense) as are necessary in order that the net amount received by such Secured
Party after the payment of such Taxes (including any Taxes on such additional
amount) shall equal the amount such Secured Party would have received had such
Taxes not been asserted.
If any Transaction Party fails to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to the Administrative
Agent when due any payments required by this SECTION 3.7 or any required
receipts or other required documentary evidence, the Borrower or other
Transaction Party shall indemnify the Secured Parties for any incremental
Taxes, interest or penalties that may become payable by any Secured Party as a
result of any such failure and shall promptly pay to the
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Administrative Agent any amounts not paid when due to the Administrative Agent
as required by this SECTION 3.7.
SECTION 3.8. USE OF PROCEEDS. The Borrower covenants and agrees that the
proceeds of all Loans made pursuant hereto will be applied:
(a) in the case of Facility A Revolving Loans, towards (i) the
implementation of Permitted Acquisitions, and (ii) the payment of cash
dividends or the making of loans or advances, all of the proceeds of each
of which are to be used and applied by Citicasters only for the purpose of
making a payment or prepayment of or on account of, or a payment or
distribution on account of the redemption, repurchase or other acquisition
for value of, Citicasters 9-3/4% Notes in the aggregate face amount of
$75,000,000; and
(b) in the case of Facility B Revolving Loans, for general corporate
purposes (including the purchase, redemption or other acquisition for
value by Citicasters of Permitted Capital Stock of Citicasters, to the
extent permitted by SECTION 8.2.6), and to pay costs and expenses incurred
by the Principal Companies in connection with the transactions
contemplated hereby.
ARTICLE IV
FUNDING OPTIONS
SECTION 4.1. PRICING TRANCHES OF EACH LOAN. The outstanding principal
amount of each Loan made by each Lender may be allocated among pricing tranches
(individually, a "TRANCHE" and collectively, "TRANCHES") selected by the
Borrower from time to time in accordance with SECTIONS 3.1, 4.2 and 4.3. Each
Tranche shall be either a Base Rate Tranche or a Eurodollar Tranche (each a
"TYPE" of Tranche), as the Borrower shall specify in the initial notice of
borrowing pursuant to SECTION 3.1, or any Continuation/Conversion Notice
pursuant to SECTION 4.2 or 4.3. All Base Rate Tranches, and all Eurodollar
Tranches having the same Interest Period, may sometimes be referred to as a
"GROUP" of Tranches.
SECTION 4.2. CONVERSION PROCEDURES. Subject to the provisions of SECTION
4.4, the Borrower may convert all or any part of any outstanding Group of
Tranches into a Group of Tranches of a different type by delivering a
Continuation/Conversion Notice to the Administrative Agent not later than (a)
in the case of conversion into a Base Rate Tranche, 9:30 A.M., Boston time, on
the proposed date of such conversion, and (b) in the case of a conversion into
a Eurodollar Tranche, 9:30 A.M., Boston time, at least three (3) Business Days
prior to the proposed date of such conversion. Each such notice shall be
irrevocable upon receipt by the Administrative Agent and shall specify the date
and amount of such conversion, the Group of Tranches (or portion thereof) to be
so converted, the type of Tranche to be converted into and, in the case of a
conversion into a Eurodollar Tranche, the initial Interest Period therefor;
PROVIDED, HOWEVER, that no Eurodollar Tranche shall be converted on any day
other than the last day of its Interest Period. Promptly upon receipt of such
notice, the Administrative Agent shall advise
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each Lender thereof. Subject to the provisions of this SECTION 4.2 and SECTION
4.4, each Tranche shall be so converted on the requested date of conversion.
SECTION 4.3. CONTINUATION PROCEDURES. Subject to the provisions of
SECTION 4.4, the Borrower may continue all or any part of any outstanding Group
of Eurodollar Tranches for an additional Interest Period commencing upon the
conclusion of the Interest Period then in effect for such Group of Eurodollar
Tranches, by delivering a Continuation/Conversion Notice to the Administrative
Agent not later than 9:30 A.M., Boston time, at least three (3) Business Days
prior to the end of such then-current Interest Period. Each such notice shall
be irrevocable upon receipt by the Administrative Agent and shall specify the
amount to be so continued, the date of such continuation and the Interest
Period therefor that is to commence upon the termination of the then-current
Interest Period. Promptly upon receipt of such notice, the Administrative
Agent shall advise each Lender thereof.
SECTION 4.4. LIMITATIONS ON INTEREST PERIODS AND CONTINUATION AND
CONVERSION ELECTIONS. The Borrower's rights under SECTIONS 3.1, 4.2 and 4.3
shall be subject to the following limitations.
SECTION 4.4.1. INTEREST PERIODS. Each Interest Period for a Eurodollar
Tranche shall commence on the date the Loan is made, if applicable, or on the
date such Tranche is converted from a Base Rate Tranche, or, in the case of a
continuation, on the expiration of the immediately preceding Interest Period
for such Eurodollar Tranche, and shall end on the date which is one, two, three
or six months thereafter, as the Borrower may specify in the related notice of
borrowing pursuant to SECTION 3.1, or Continuation/Conversion Notice pursuant
to SECTION 4.2 or 4.3; PROVIDED, HOWEVER, that:
(a) each Interest Period for a Eurodollar Tranche that would
otherwise end on a day which is not a Business Day shall end on the
immediately succeeding Business Day (unless such immediately succeeding
Business Day is the first Business Day of a calendar month, in which case
such Interest Period shall end on the immediately preceding Business Day);
(b) the Borrower may not select any Interest Period for any
principal of any Loan which would end after the Maturity of such
principal;
(c) absent the timely selection of a new Interest Period for a then
outstanding Eurodollar Tranche, or any part thereof, such Eurodollar
Tranche or such part, as the case may be, shall, immediately upon the
expiration of such Interest Period, automatically and without further
action, be converted into a Base Rate Tranche.
SECTION 4.4.2. CONDITIONS PRECEDENT. No portion of the outstanding
principal amount of any Loan may be continued as, or converted into, one or
more Eurodollar Tranches unless, on and as of the requested date of
continuation or conversion, all of the conditions precedent set forth in
SECTION 6.2 have been satisfied.
SECTION 4.4.3. OTHER LIMITATIONS. At all times:
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(a) the aggregate principal amount of all Tranches of each Lender's
Loans shall equal the aggregate outstanding principal amount of such
Lender's Loans;
(b) the aggregate principal amount of each Group of Eurodollar
Tranches shall be in a minimum amount of $1,000,000 or in an integral
multiple of $500,000 in excess thereof;
(c) the total number of Eurodollar Tranches in effect at any time
shall not exceed twelve (12); and
(d) each Lender shall at all times have a Ratable share of each
Group of Tranches, EXCEPT for any Group of Base Rate Tranches that
includes an Affected Tranche.
SECTION 4.5. INCREASED COSTS.
(a) If (i) Regulation D of the F.R.S. Board, or (ii) after the date
hereof, the adoption of any Applicable Law, or any change therein or in
any existing Applicable Law, or any change in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or
any Eurodollar Office of such Lender) with any request or directive
(whether or not having the force of law) of any such Governmental
Authority:
(A) shall subject any Lender (or any Eurodollar Office of such
Lender) to any tax, duty or other charge with respect to its
Eurodollar Tranches, its Notes or its obligation to make Eurodollar
Tranches available, or shall change the basis of taxation of payments
to any Lender of the principal of or interest on its Eurodollar
Tranches or any other amounts due under this Agreement in respect of
its Eurodollar Tranches or its obligation to make Eurodollar Tranches
available (except for changes in the rate of tax on the overall net
income of such Lender or its Eurodollar Office imposed by the
jurisdiction in which such Lender's principal executive office or
Eurodollar Office is located); or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the F.R.S.
Board), special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Lender (or any Eurodollar Office of such Lender); or
(C) shall impose on any Lender (or its Eurodollar Office) any
other condition affecting its Eurodollar Tranches, its Notes or its
obligation to make Eurodollar Tranches available;
and the result of any of the foregoing is to increase the cost to (or in
the case of Regulation D referred to above, to impose a cost on) such
Lender (or any Eurodollar Office of such Lender) of making or maintaining
any Eurodollar
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Tranche, or to reduce the amount of any sum received or receivable by such
Lender (or its Eurodollar Office) under this Agreement or under its Notes
with respect thereto, then upon demand by such Lender, the Borrower shall
pay directly to such Lender such additional amount as will compensate such
Lender for such increased cost or such reduction.
(b) If any Lender shall reasonably determine that the adoption or
phase-in of any Applicable Law regarding capital adequacy, or any change
therein or in any existing Applicable Law, or any change in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof, or compliance
by any Lender (or its Eurodollar Office) or any Person controlling such
Lender with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such Governmental Authority, has or
would have the effect of reducing the rate of return on such Lender's or
such controlling Person's capital as a consequence of such Lender's
obligations hereunder (including, without limitation, such Lender's
Commitments) to a level below that which such Lender or such controlling
Person could have achieved but for such adoption, phase-in, change or
compliance (taking into consideration such Lender's or such controlling
Person's policies with respect to capital adequacy) by an amount deemed by
such Lender or such controlling Person to be material, then from time to
time, upon demand by such Lender, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
controlling Person for such reduction.
SECTION 4.6. INTEREST RATE INADEQUATE OR UNFAIR. If with respect to any
Interest Period:
(a) deposits in Dollars (in the applicable amounts) are not being
offered to one or more Lenders in the relevant market for such Interest
Period, or the Administrative Agent otherwise determines (which
determination shall be binding and conclusive on the Borrower) that by
reason of circumstances affecting the interbank eurodollar market,
adequate and reasonable means do not exist for ascertaining the applicable
Eurodollar Rate; or
(b) the Required Lenders advise the Administrative Agent that the
Eurodollar Rate (Reserve Adjusted) as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Lenders of
maintaining or funding Eurodollar Tranches for such Interest Period, or
that the maintaining or funding of Eurodollar Tranches has become
impracticable as a result of an event occurring after the date of this
Agreement which in the opinion of such Lenders materially affects
Eurodollar Tranches;
THEN the Administrative Agent shall promptly notify the Borrower and the
Lenders thereof and, so long as such circumstances shall continue, (i) no
Lender shall thereafter have any obligation to fund or make available
Eurodollar Tranches and (ii) on the last day of the current Interest Period for
any Eurodollar Tranche, such Tranche shall, unless then repaid in full,
automatically convert to a Base Rate Tranche.
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SECTION 4.7. CHANGES IN LAW RENDERING EURODOLLAR TRANCHES UNLAWFUL. In
the event that the adoption or phase-in of any Applicable Law, or any change
therein or in any existing Applicable Law or any change in the interpretation
thereof by any Governmental Authority charged with the interpretation or
administration thereof, shall make it (or in the good faith judgment of any
Lender cause a substantial question as to whether it is) unlawful for any
Lender to maintain or fund Eurodollar Tranches, then such Lender shall promptly
notify the Borrower, the other Lenders and the Administrative Agent and, so
long as such circumstances shall continue, (a) such Lender shall thereafter
have no obligation to fund or make available Eurodollar Tranches (but shall
fund Base Rate Tranches concurrently with the making of the Loans, or the
continuation or conversion into Eurodollar Tranches by the Lenders which are
not so affected, in each case in an amount equal to such Lender's Ratable share
of all Eurodollar Tranches that would be funded at such time in the absence of
such circumstances) and (b) on the last day of the current Interest Period for
any Eurodollar Tranche of such Lender (or, in any event, if such Lender so
requests, on such earlier date as may be required by the relevant Applicable
Law), such Eurodollar Tranche shall, unless then repaid in full, automatically
convert to a Base Rate Tranche. Each Base Rate Tranche funded by a Lender
which, but for the circumstances described in the foregoing sentence, would
have been a Eurodollar Tranche (an "AFFECTED TRANCHE") shall, notwithstanding
any other provision of this Agreement, remain outstanding for the same period
as the Group of Eurodollar Tranches of which such Affected Tranche would have
been part absent such circumstances.
SECTION 4.8. FUNDING LOSSES. The Borrower hereby agrees that, upon
demand by any Lender, the Borrower will indemnify such Lender against any net
loss or expense which such Lender may sustain or incur (including, without
limitation, any net loss or expense incurred by reason of the liquidation or
employment of deposits or other funds acquired by such Lender to maintain or
fund any Eurodollar Tranche), as reasonably determined by such Lender, as a
result of (a) any payment, repayment, prepayment or conversion of any
Eurodollar Tranche of such Lender on a date other than the last day of an
Interest Period for such Tranche (including any conversion pursuant to SECTION
4.7) or (b) any failure of the Borrower to borrow, continue or convert any
Tranche on a date specified therefor in a notice of borrowing pursuant to
SECTION 3.1 or in any Continuation/Conversion Notice pursuant to SECTION 4.2 or
4.3.
SECTION 4.9. RIGHT OF LENDERS TO FUND THROUGH OTHER OFFICES. Each Lender
may, if it so elects, fulfill its commitment as to any Eurodollar Tranche by
causing the Eurodollar Office of such Lender to fund such Eurodollar Tranche,
PROVIDED that in such event for the purposes of this Agreement such Tranche
shall be deemed to have been funded by such Lender and the obligation of the
Borrower to repay such Tranche shall nevertheless be to such Lender and shall
be deemed held by it, to the extent of such Tranche, for the account of such
Eurodollar Office.
SECTION 4.10. DISCRETION OF LENDERS AS TO MANNER OF FUNDING.
Notwithstanding any provision of this Agreement to the contrary, each Lender
shall be entitled to maintain and fund all or any part of any of its Loans in
any manner it sees fit, it being understood, however, that for purposes of this
Agreement all determinations hereunder (including determinations of any net
loss or expense under SECTION 4.8) shall
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be made as if such Lender had actually funded and maintained each Eurodollar
Tranche during each Interest Period for such Tranche actually funded or
requested by the Borrower to be funded through the purchase of a deposit on the
first day of such Interest Period having a principal amount equal to the
principal amount of such Tranche, having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Eurodollar Rate for
such Interest Period.
SECTION 4.11. CONCLUSIVENESS OF STATEMENTS; SURVIVAL OF PROVISIONS.
Demands made by any Lender to the Borrower under SECTION 4.5 or 4.8 shall be
accompanied by a statement setting forth the basis for the calculations of the
amounts being claimed, and a copy of such statement shall be furnished to the
Administrative Agent. Such statements, and all other determinations and
statements of any Lender pursuant to SECTION 4.5, 4.6, 4.7 or 4.8, shall be
conclusive absent manifest error. Lenders may use reasonable averaging and
attribution methods in determining compensation under SECTIONS 4.5 and 4.8, and
the provisions of such sections shall survive repayment or prepayment of any of
the Loans, cancellation of the Notes and any termination of this Agreement.
ARTICLE V
GUARANTIES
SECTION 5.1. GUARANTY.
SECTION 5.1.1. GUARANTY OF PAYMENT. Each of the Principal Companies (in
their capacities as guarantors under this ARTICLE V, the "GUARANTORS") hereby
absolutely, unconditionally and irrevocably guaranties to the Agents and the
Lenders the full and punctual payment when due, whether at stated maturity, by
scheduled repayment, required prepayment, declaration, acceleration, demand or
otherwise (including, without limitation, all amounts which would have become
due but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. 362(a)), of each of the Obligations, in accordance
with its terms, whether such Obligations are outstanding on the date of this
Agreement or arise or are incurred at any time or times thereafter. The
Guaranties hereby made constitute guaranties of payment when due and not of
collection, and each of the Guarantors individually agrees that it shall not be
necessary or required that any Secured Party or any holder of any Note exercise
any rights, assert any claim or demand or enforce any remedy whatsoever against
any Transaction Party before or as a condition to the obligations of the
Guarantors hereunder. The liabilities and obligations of each of the
Guarantors to the Agents and the Lenders under its respective Guaranty made
hereunder shall be unlimited, and such liabilities and obligations are joint
and several.
SECTION 5.1.2. GUARANTY OF PERFORMANCE. Without prejudice to any of the
obligations of the Guarantors to the Agents and the Lenders under SECTION
5.1.1, which obligations are absolute and unconditional, but as a separate
undertaking on the part of the Guarantors, each of the Guarantors hereby
absolutely, unconditionally and irrevocably, and jointly and severally,
covenants and agrees to cause each of the other Transaction Parties to perform
and comply with all of the covenants, agreements and
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conditions to be complied with by any such Transaction Party under the Loan
Documents, and each of the Guarantors hereby agrees, jointly and severally, to
take or to cause to be taken, promptly and without any expense to any of the
Secured Parties, all such measures as may be appropriate and can be lawfully
effected by such Guarantor to prevent the occurrence of any Default and to cure
or make good promptly any Default which may occur at any time or times.
SECTION 5.2. GUARANTY ABSOLUTE. The obligations of the Guarantors under
SECTION 5.1.1 are and shall be construed as continuing, absolute, irrevocable
and unconditional guaranties of payment, and shall remain in full force and
effect, until all of the Obligations shall have been paid in full in cash. The
Guarantors guarantee that each of the Obligations will be paid strictly in
accordance with the terms of this Agreement and the other Loan Documents,
regardless of any Applicable Law now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party with respect
thereto. The liabilities and obligations of the Guarantors under the
Guaranties hereby made shall be absolute, unconditional and irrevocable, and
also joint and several, irrespective of:
(a) any lack of validity or enforceability of this Agreement or any
other Loan Document or any other agreement or Instrument relating to any
thereof or to any of the Obligations;
(b) any change in the corporate existence, structure or ownership of
any of the Principal Companies or their Subsidiaries, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting any such
Person or any Property of any such Person or any resulting release or
discharge of any Obligation contained in this Agreement or any other Loan
Document;
(c) the failure of any Secured Party
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Guarantor, any other
Transaction Party or any other Person under the provisions of this
Agreement or any other Loan Document or any other agreement or
Instrument relating to any thereof or under any Applicable Law, or
(ii) to exercise any right or remedy against any Collateral;
(d) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other compromise,
renewal, extension, acceleration or release with respect thereto or with
respect to the Collateral, or any other amendment to, rescission, waiver
or other modification of, or any consent to departure from, any of the
terms of this Agreement or any other Loan Document or any other Instrument
relating to any thereof;
(e) any increase, reduction, limitation, impairment or termination
of any of the Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and any defense or set-off,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality,
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nongenuineness, irregularity, compromise, or unenforceability of, or any
other event or occurrence affecting, any of the Obligations (and the
Guarantors hereby waive any right to or claim of any such defense or
set-off, counterclaim, recoupment or termination);
(f) any exchange, release or non-perfection of any Collateral, or
any amendment to or waiver or release of, or consent to departure from,
any other guaranties held by any Secured Party securing all or any of the
Obligations;
(g) any defense, set-off or counterclaim which may at any time be
available to or be asserted by the Borrower or any other Transaction Party
against any other Transaction Party or against any Secured Party; or
(h) any other circumstance which might otherwise constitute a
suretyship or other defense available to, or a legal or equitable
discharge of, the Borrower, any other Guarantor or any other Transaction
Party.
SECTION 5.3. REINSTATEMENT, ETC. The Guarantors agree that the
Guaranties hereby made shall continue to be effective or be reinstated, as the
case may be, if at any time any payment (in whole or in part) of any of the
Obligations is rescinded or must otherwise be restored by any Secured Party
upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise,
all as though such payment had not been made.
SECTION 5.4. WAIVER. Each of the Guarantors hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations or its Guaranty and any requirement that the Collateral Agent or
any other Secured Party protect, secure, perfect or insure any Lien or any
Property subject thereto or exhaust any right or take any action against the
Borrower, any other Guarantor, any other Transaction Party or any other Person
or entity or any Collateral.
SECTION 5.5. SUBORDINATION OF SUBROGATION RIGHTS. The rights which any
Guarantor shall acquire against any of the other Transaction Parties as a
consequence of making any payment under its Guaranty are, in this SECTION 5.5,
collectively called the "SUBROGATION RIGHTS." In the event of any proceeding
for the distribution, division or application of all or any part of the
Property of any of the other Transaction Parties, whether such proceeding be
for the liquidation, dissolution or winding up of any of the other Transaction
Parties, a receivership, insolvency or bankruptcy proceeding, an assignment for
the benefit of creditors, or a proceeding by or against any of the other
Transaction Parties for relief under any bankruptcy, reorganization or
insolvency law, if all of the Obligations have not been paid and satisfied in
full at the time, the Administrative Agent is hereby irrevocably authorized by
such Guarantor at any such proceeding:
(a) to enforce all of the Subrogation Rights of such Guarantor, in
the name of the Administrative Agent or in the names of the Lenders or in
the name of such Guarantor, by proof of debt, proof of claim, suit or
otherwise;
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(b) to collect any Property of any of the other Transaction Parties
distributed or applied by way of dividend or payment on account of such
Subrogation Rights, and to apply the same, or the proceeds of any
realization thereof, towards the payment of the Obligations until all the
Obligations have been paid and satisfied in full in cash; and
(c) to vote all claims arising under or in respect of all such
Subrogation Rights.
So long as any Obligations remain unpaid, no Guarantor shall take any
action of any kind to enforce any of its Subrogation Rights, and no Guarantor
shall receive or accept from any Person any payments or other distributions in
respect of any of its Subrogation Rights. Should any payment on account of any
of the Subrogation Rights be received by any Guarantor, such payment shall be
delivered by such Guarantor forthwith to the Administrative Agent or Collateral
Agent for the benefit of the Secured Parties in the form received by such
Guarantor, except for the addition of any endorsement or assignment necessary
to effect transfer of all rights therein to the Collateral Agent. Until so
delivered, each such payment shall be held by such Guarantor in trust for the
benefit of the Collateral Agent and the Secured Parties and shall not be
commingled with any other funds of such Guarantor.
ARTICLE VI
CONDITIONS TO CREDIT EXTENSIONS
SECTION 6.1. CONDITIONS TO MAKING FIRST LOANS. The obligations of each
Lender to make its first Loans hereunder on the Closing Date are subject to the
fulfillment of the following conditions precedent prior to or simultaneously
with the making of the first Loans on the Closing Date.
SECTION 6.1.1. COMPLETION OF CERTAIN SALES, ETC. The Administrative
Agent shall have received evidence (in the form of copies of Instruments,
certificates or otherwise as it shall reasonably require) reasonably
satisfactory to the Managing Agents that the following events and transactions
have occurred or have been completed:
(a) NEW WORLD TV STATION SALES. The Principal Companies shall have
completed the Sale of each of the following New World TV Stations:
KSAZ-TV in Phoenix, Arizona; WDAF-TV in Kansas City, Missouri; and WGHP-TV
in Greensboro- High Point-Winston-Salem, North Carolina. Such three
television Broadcasting Stations shall have been sold upon the terms
contained in the New World Purchase Agreement for not less than
$255,000,000 cash, and the Net Disposition Proceeds received by the
Borrower from such Sale shall be not less than $225,000,000.
(b) TERMINATION OF CERTAIN FINANCING ARRANGEMENTS. All the
obligations of the Principal Companies under each of (i) the Loan
Agreement, dated as of August 20, 1993, as amended and restated as of
November 30, 1993, and as further amended from time to time, and the other
Instruments executed and
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delivered in connection therewith, and (ii) the Securities Purchase
Agreement, dated as of December 28, 1993, between the Borrower and certain
Persons party thereto as Purchasers thereunder, the Indenture, dated as of
December 28, 1993, between the Borrower and Star Bank, N.A., and the other
Instruments executed and delivered in connection therewith, shall have
been paid in full in cash.
(c) CLOSING DATE CERTIFICATE. The Administrative Agent shall have
received the Closing Date Certificate, dated as of the Closing Date, duly
executed and delivered by an Authorized Officer of each Principal Company.
SECTION 6.1.2. EXECUTION AND DELIVERY OF THIS AGREEMENT AND NOTES. The
Administrative Agent shall have received (a) counterparts of this Agreement
duly executed and delivered by the Principal Companies, the Agents and the
Lenders, and (b) for the account of each Lender, such Lender's Facility A
Revolving Note and Facility B Revolving Note, each dated as of the Closing
Date, duly executed and delivered by the Borrower and containing appropriate
insertions and conforming to the requirements of SECTION 3.2.
SECTION 6.1.3. PLEDGE AGREEMENT. The Administrative Agent shall have
received counterparts of the Pledge Agreement, dated as of the Closing Date,
duly executed and delivered by the Principal Companies and the Collateral
Agent, together with stock certificates evidencing the so-called Initial
Pledged Shares identified in ATTACHMENT 1 attached thereto (accompanied by
undated stock powers duly executed in blank). The Administrative Agent shall
have received counterparts of a pledge agreement, in or substantially in the
form of the Pledge Agreement, dated as of the Closing Date, duly executed and
delivered by Citicasters Corp. and the Collateral Agent, together with stock
certificates evidencing the so-called Initial Pledged Shares identified in
ATTACHMENT 1 attached thereto (accompanied by undated stock powers duly
executed in blank).
SECTION 6.1.4. SECURITY AGREEMENT; UCC FILINGS, ETC. The Administrative
Agent shall have received counterparts of each of the Security Agreement, dated
as of the Closing Date, duly executed and delivered by the Principal Companies
and the Collateral Agent, and a security agreement, in or substantially in the
form of the Security Agreement, dated as of the Closing Date, duly executed and
delivered by Citicasters Corp. and the Collateral Agent, together (in each
case) with
(a) acknowledgment copies of proper Financing Statements (Form
UCC-1), or such other evidence of filing or the making of arrangements for
filing as may be reasonably acceptable to the Collateral Agent, naming the
applicable Transaction Party as the debtor, and the Collateral Agent as
the secured party for the benefit of the Secured Parties, and other
similar Instruments or documents, filed under the Uniform Commercial Code
in the States listed on ATTACHMENT 1 to the applicable security agreement;
(b) executed copies of proper Financing Statements (Form UCC-3)
necessary to release all Liens and other rights of any other Persons in
the collateral described in any security agreement previously granted by
any
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Transaction Party (or an undertaking satisfactory to the Collateral Agent
by the secured party under any such security agreement to execute and
deliver all Financing Statements (Form UCC-3) required by the Collateral
Agent to release all such Liens), except for any Lien that constitutes a
Permitted Lien under CLAUSE (a) of the definition thereof; and
(c) certified copies of search reports, dated a date reasonably near
(but prior to) the Closing Date, listing all effective financing
statements which name any Transaction Party (under its present name or any
previous name) as debtor and which are filed in the jurisdictions in which
filings were made pursuant to CLAUSE (a), together with copies of such
financing statements.
Any other action, including the taking of possession of specific Collateral by
the Collateral Agent, reasonably required by the Collateral Agent to create in
favor of the Collateral Agent for the benefit of the Secured Parties a
perfected first- priority Lien on the Collateral described in the Security
Instruments referred to in this SECTION 6.1.4 shall have been properly taken in
order to create such a perfected first-priority Lien. The Administrative Agent
shall also have received counterparts of a guaranty agreement, in or
substantially in the form of the Subsidiary Guaranty, dated as of the Closing
Date, duly executed and delivered by Citicasters Corp. and the Collateral
Agent.
SECTION 6.1.5. COLLATERAL ASSIGNMENT. The Administrative Agent shall
have received counterparts of the Collateral Assignment of Hanna-Barbera LC
Documents, dated as of the Closing Date, duly executed and delivered by the
Borrower and the Collateral Agent, together with acknowledgment copies of
proper Financing Statements (Form UCC-1), or such other evidence of filing or
the making of arrangements for filing as may be reasonably acceptable to the
Collateral Agent, naming the Borrower as debtor and the Collateral Agent as
secured party for the benefit of the Secured Parties, and other similar
Instruments filed under the Uniform Commercial Code in the States listed as the
location of the Borrower's principal business offices on ATTACHMENT 1 to the
Security Agreement.
SECTION 6.1.6. LOAN DOCUMENTS AND ANCILLARY DOCUMENTS.
(a) Each of the Loan Documents and each of the Ancillary Documents
shall have been duly and properly authorized, executed and delivered by
the respective party or parties thereto and shall be in full force and
effect.
(b) The Administrative Agent shall have received counterparts of
each Loan Document (other than the Notes) in sufficient number for
distribution to each Lender, and true and complete copies of each
Ancillary Document. Each Loan Document and Ancillary Document shall,
where applicable, be substantially in the form of an EXHIBIT attached
hereto, and all other Loan Documents and Ancillary Documents shall be in
form and substance reasonably satisfactory to the Required Lenders and the
Managing Agents. All exhibits, schedules or other attachments to any of
the Collateral Documents shall be in form and substance reasonably
satisfactory to the Required Lenders and the Managing Agents.
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SECTION 6.1.7. COMPLIANCE CERTIFICATE. The Administrative Agent shall
have received a duly executed and completed Compliance Certificate, dated as of
the Closing Date, in or substantially in the form of EXHIBIT D attached hereto,
duly executed by an Authorized Officer of each Principal Company.
SECTION 6.1.8. SOLVENCY CERTIFICATE. The Administrative Agent shall have
received a duly executed and completed certificate, dated as of the Closing
Date, in or substantially in the form of EXHIBIT L attached hereto ("SOLVENCY
CERTIFICATE"), duly executed by an Authorized Officer of each Principal
Company.
SECTION 6.1.9. PERFECTION CERTIFICATE. The Administrative Agent shall
have received a duly executed and completed Perfection Certificate, dated as of
the Closing Date, in or substantially in the form of EXHIBIT F attached hereto,
duly executed by an Authorized Officer of each Principal Company.
SECTION 6.1.10. RESOLUTIONS, ETC. The Administrative Agent shall have
received:
(a) from each of the Transaction Parties, a certificate, dated as of
the Closing Date, of its Secretary or any Assistant Secretary as to
(i) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of, in each
case, to the extent such Transaction Party is a party thereto, this
Agreement and each of the other Loan Documents;
(ii) the incumbency and signatures of the officers of each such
Transaction Party (the "AUTHORIZED OFFICERS") authorized to act with
respect to (in each case, to the extent such Transaction Party is a
party thereto) this Agreement and each of the other Loan Documents,
(upon which certificate the Agents and the Lenders may conclusively
rely until the Administrative Agent shall have received a further
certificate of such Transaction Party canceling or amending such
prior certificate, which further certificate shall be reasonably
satisfactory to the Administrative Agent);
(iii) each Governing Document of such Transaction Party; and
(iv) any shareholder agreement, stock subscription agreement,
voting trust agreement, securities purchase agreement or similar
agreement to which it is a party; and
(b) such other documents (certified as of the Closing Date) as the
Managing Agents may reasonably request with respect to any matter relevant
to this Agreement, the other Loan Documents, the Ancillary Documents or
the transactions contemplated hereby or thereby.
Each of such documents shall be in form and substance reasonably satisfactory
to the Managing Agents and the Required Lenders.
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SECTION 6.1.11. CERTIFICATES OF GOOD STANDING. The Administrative Agent
shall have received a certificate signed by the Secretary of State of the State
of incorporation of each Transaction Party, dated a date reasonably near (but
prior to) the Closing Date, stating that such Transaction Party is a
corporation duly organized, validly existing and in good standing under the
laws of such State.
SECTION 6.1.12. OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions, dated the Closing Date (a) addressed to each of the Agents
and Lenders, from (i) Keating, Muething & Klekamp, general counsel to the
Transaction Parties, in or substantially in the form of EXHIBIT J-1 attached
hereto, and otherwise in form and substance reasonably satisfactory to the
Managing Agents, and (ii) Koteen & Naftalin, special FCC counsel to the
Transaction Parties, in or substantially in the form of EXHIBIT J-2 attached
hereto, and otherwise in form and substance reasonably satisfactory to the
Managing Agents, and (b) addressed to each of the Lenders, from Bingham, Dana &
Gould, special counsel to the Managing Agents, in or substantially in the form
of EXHIBIT J-3 attached hereto.
SECTION 6.1.13. FINANCIAL STATEMENTS. The Principal Companies shall have
furnished to each of the Agents and the Lenders the Historical Financials and
the Projections.
SECTION 6.1.14. NO MATERIALLY ADVERSE EFFECT. No events or developments
shall have occurred since January 1, 1994 which, individually or in the
aggregate, have had or are reasonably likely to have a Materially Adverse
Effect.
SECTION 6.1.15. RESTRICTED PAYMENTS; AFFILIATE TRANSACTIONS; OTHER
CORPORATE TRANSACTIONS.
(a) RESTRICTED PAYMENTS; AFFILIATE TRANSACTIONS. Since July 1, 1994,
no Transaction Party shall have made any Restricted Payments or entered
into, performed or completed any Affiliate Transactions, except the
payments and transactions described in SECTION 7.21(a), 7.21(b), 7.21(c)
or 7.21(d) of the Disclosure Schedule.
(b) OTHER CORPORATE TRANSACTIONS. Since July 1, 1994, neither
Citicasters nor any of its Subsidiaries shall have (i) merged or
consolidated with any other Person, or (ii) sold, transferred or otherwise
disposed of any Broadcasting Station, except the mergers, sales and other
dispositions described in SECTION 7.21(d) of the Disclosure Schedule.
SECTION 6.1.16. TAX SHARING AGREEMENT. The Administrative Agent shall
have received true and complete copies of the Tax Sharing Agreement, and all
amendments and supplements thereto. The Tax Sharing Agreement, as amended and
supplemented and in effect on the Closing Date, shall be in form and substance
reasonably satisfactory to the Managing Agents.
SECTION 6.1.17. COMPLIANCE WITH WARRANTIES; ABSENCE OF LITIGATION; NO
DEFAULT. The Administrative Agent shall have received, with counterparts for
each of the Agents and the Lenders, a duly executed and completed certificate,
dated as of the
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Closing Date, duly executed by an Authorized Officer of each Principal Company,
to the effect provided in SECTION 6.2.1.
SECTION 6.1.18. FEES AND EXPENSES. The Administrative Agent shall have
received from the Principal Companies payment in full of all of the Fees
required to be paid on or prior to the Closing Date in accordance with SECTION
3.5, and each of the Agents shall have received from the Principal Companies
payment in full of its reasonable out-of-pocket costs and expenses (including
counsel fees and disbursements) payable in accordance with SECTION 12.3 for
which invoices have been submitted on or prior to the Closing Date.
SECTION 6.2. ALL CREDIT EXTENSIONS. The obligations of each Lender to
make each of its Loans hereunder (including its first Loans to be made on the
Closing Date) shall also be subject to the satisfaction of each of the
conditions precedent set forth in this Section.
SECTION 6.2.1. COMPLIANCE WITH WARRANTIES; ABSENCE OF LITIGATION; NO
DEFAULT; ETC. The representations and warranties set forth in ARTICLE VII, in
the Collateral Documents and in the other Loan Documents shall have been true
and correct in all material respects as of the date made; and, both immediately
before and immediately after giving effect to each of such Credit Extensions,
(a) such representations and warranties shall be true and correct in
all material respects with the same effect as if then made (except for any
such representation or warranty that relates solely to a prior date);
(b) (i) no litigation, arbitration or governmental
investigation or proceeding shall be pending or, to the best
knowledge of the Principal Companies (after due inquiry),
threatened against Citicasters or any of its Subsidiaries or
affecting the business, operations or prospects of any thereof
which was not disclosed by the Principal Companies to the
Lenders in SECTION 7.8 of the Disclosure Schedule, and
(ii) no development shall have occurred in any litigation,
arbitration or governmental investigation or proceeding so
disclosed,
which, in either event, in the reasonable opinion of the Required Lenders
or the Managing Agents, has a reasonable likelihood of having a Materially
Adverse Effect, or relates to the validity or enforceability of this
Agreement, the Notes or any other Loan Documents or of any Obligations
existing under or, if such Credit Extension is made, would be existing
under any thereof; and
(c) no Default shall have occurred and then be continuing.
SECTION 6.2.2. LOAN REQUEST; CONTINUATION/CONVERSION NOTICE. The
Administrative Agent shall have received a Loan Request in compliance with
SECTION 3.1 or a Continuation/Conversion Notice, as the case may be, for such
Credit Extension. The
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delivery of such Loan Request or such Continuation/Conversion Notice shall
constitute a representation and warranty by each of the Principal Companies
that on and as of the requested Drawdown Date of such Credit Extension, and
before and after giving effect to such Credit Extension, all representations
and warranties required by SECTION 6.2.1 are true and correct.
SECTION 6.2.3. LEGALITY OF TRANSACTIONS. It shall not be unlawful (a)
for any Agent or Lender to perform any of its obligations under any of the Loan
Documents, or (b) for any Transaction Party to perform any of its obligations
under any of the Loan Documents.
SECTION 6.2.4. SATISFACTORY LEGAL FORM, ETC. All documents executed and
delivered or submitted pursuant hereto by or on behalf of any of the Principal
Companies or their Subsidiaries shall be reasonably satisfactory in form and
substance to the Managing Agents and their special counsel; the Managing Agents
and their special counsel shall have received all such information, and such
counterpart originals or such certified or other copies of such materials, as
the Managing Agents or their special counsel or any Lender may request; and all
legal matters incident to the transactions contemplated by this Agreement shall
be reasonably satisfactory to special counsel to the Managing Agents.
ARTICLE VII
WARRANTIES, ETC.
In order to induce the Agents and the Lenders to enter into this Agreement
and in order to induce the Lenders to make Loans and other Credit Extensions
hereunder, each of the Principal Companies represents and warrants to each
Agent and Lender as set forth in this ARTICLE.
SECTION 7.1. ORGANIZATION, ETC. Each of the Transaction Parties is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction where the
nature of its business makes such qualification necessary and where the failure
to so qualify could reasonably be expected to have a Materially Adverse Effect,
and has full power and authority and holds all requisite governmental licenses,
permits and other approvals to own or hold under lease its Property and to
conduct its business substantially as currently conducted by it and as proposed
to be conducted by it, and to execute, deliver and perform the Loan Documents
and Ancillary Documents to be executed by it.
SECTION 7.2. POWER, AUTHORITY. Each of the Transaction Parties has taken
all necessary action, corporate or otherwise, to authorize the execution,
delivery and performance of the Loan Documents and Ancillary Documents executed
or to be executed by it. The execution, delivery and performance of each of
the Loan Documents and Ancillary Documents to which any Transaction Party is or
is to be a party will not (except for Approvals which will have been already
given or obtained) require any Approval, will not conflict with, result in any
violation of, or constitute any default
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under, (a) any provision of any Governing Document of any Transaction Party,
(b) any Contractual Obligation of any of the Principal Companies or their
Subsidiaries, or (c) any Applicable Law, and will not result in or require the
creation or imposition of any Lien on any of the Property of any of the
Transaction Parties pursuant to the provisions of any agreement (EXCLUDING,
HOWEVER, the Liens created by the Collateral Documents) or other Instrument
binding upon or applicable to any of the Transaction Parties or any of their
Property.
SECTION 7.3. VALIDITY, ETC. This Agreement has been duly executed and
delivered by the Principal Companies and constitutes the legal, valid, and
binding obligation of the Principal Companies, enforceable in accordance with
its terms. Each of the other Loan Documents to which any of the Transaction
Parties is or is to be a party does or will constitute the legal, valid and
binding obligation of such Transaction Party, enforceable in accordance with
its terms. The enforceability of this Agreement and the other Loan Documents
against the Transaction Parties shall be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws at the time in effect
affecting the enforceability of the rights of creditors generally.
SECTION 7.4. FINANCIAL INFORMATION. All balance sheets, all statements
of income and of cash flows, and all other financial statements which have been
furnished by or on behalf of any of the Principal Companies to any of the
Agents or the Lenders for the purposes of or in connection with this Agreement
or any transaction contemplated hereby, including:
(a) the audited consolidated balance sheet at December 31, 1993 and
the related audited consolidated statements of income, of shareholders'
equity and of cash flows, for the fiscal years then ended, of Citicasters
and its Subsidiaries, certified by the Independent Public Accountant; and
(b) the unaudited consolidated balance sheet at June 30, 1994 and
the related unaudited consolidated statements of income and of cash flows,
for the six-month period then ended of Citicasters and its Subsidiaries
(the financial statements referred to in CLAUSES (a) and (b) being herein
referred to, collectively, as the "HISTORICAL FINANCIALS");
have been prepared in accordance with GAAP consistently applied throughout the
periods involved (except as disclosed therein) and present fairly (subject to
normal year-end adjustments in the case of the financial statements referred to
in CLAUSE (b)) the consolidated financial condition of the corporations covered
thereby as at the dates thereof and the results of their operations for the
periods then ended. Neither Citicasters nor any of its Subsidiaries has any
material contingent liability or liabilities for taxes, long-term leases or
unusual forward or long-term commitments which are not reflected in the
Historical Financials or in the notes thereto.
SECTION 7.5. PROJECTIONS. The projected consolidated statements of cash
flows of Citicasters and its Subsidiaries for each of the fiscal years of
Citicasters 1994 through 2001, all of which have been delivered to the Agents
and the Lenders prior to the date of this Agreement (collectively, the
"PROJECTIONS"), have been prepared on the basis of the
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assumptions accompanying them and reflect the best good faith estimates by the
Principal Companies of the performance of the Principal Companies and their
Subsidiaries for the periods covered thereby based on such assumptions.
SECTION 7.6. MATERIALLY ADVERSE EFFECT.
(a) For purposes of the Credit Extensions to be made on the Closing
Date, no events or developments have occurred since January 1, 1994 which,
individually or in the aggregate, have had or are reasonably likely to
have, a Materially Adverse Effect.
(b) For purposes of each Credit Extension requested to be made after
the Closing Date, no events or developments have occurred since the
Closing Date which, individually or in the aggregate, have had or are
reasonably likely to have a Materially Adverse Effect.
SECTION 7.7. EXISTING INDEBTEDNESS; ABSENCE OF DEFAULTS. With respect to
each item of Indebtedness identified and described in SECTION 7.7 of the
Disclosure Schedule, the Principal Companies have delivered to the
Administrative Agent a true and complete copy of each Instrument evidencing
such Indebtedness or pursuant to which such Indebtedness was issued or secured
(including each amendment, consent, waiver or other similar Instrument executed
and/or delivered in respect thereof), as the same is in effect on the Closing
Date. Except as set forth in SECTION 7.7 of the Disclosure Schedule, none of
the Principal Companies or their Subsidiaries is in default in the payment of
any such Indebtedness or in the performance of any other material obligation
under any Instrument evidencing such Indebtedness or pursuant to which such
Indebtedness was issued or secured.
SECTION 7.8. LITIGATION, ETC. Except as to matters identified in SECTION
7.8 of the Disclosure Schedule, there is no pending or, to the best knowledge
of the Principal Companies (after due inquiry), threatened litigation,
arbitration or governmental investigation or proceeding against any of the
Principal Companies or their Subsidiaries or to which any of the Property of
any thereof is subject which
(a) if adversely determined, could have a Materially Adverse Effect;
(b) relates to this Agreement or any of the other Loan Documents; or
(c) seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, any of the
transactions contemplated by or in connection with this Agreement or any
of the other Loan Documents.
None of such pending or threatened proceedings has a reasonable likelihood of
having a Materially Adverse Effect.
SECTION 7.9. REGULATIONS G, U AND X. None of the Principal Companies or
their Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying margin stock.
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None of the proceeds of any of the Loans or other Credit Extensions will be
used for the purpose of, or be made available by the Borrower in any manner to
any other Person to enable or assist such Person in, directly or indirectly
purchasing or carrying margin stock. Terms for which meanings are provided in
F.R.S. Board Regulation G, U or X or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings.
SECTION 7.10. GOVERNMENT REGULATION. None of the Principal Companies or
their Subsidiaries is an "investment company" or a "company controlled by an
investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding
Company Act of 1935, as amended. No Transaction Party is a Person prohibited
from acquiring or holding a Broadcasting Station by the Communications Act.
Each Transaction Party is in compliance with the Communications Act with regard
to alien control or ownership. None of the Transaction Parties is subject to
any Applicable Law that regulates the incurring of Indebtedness for Borrowed
Money.
SECTION 7.11. TAXES. Each of the Principal Companies and their
Subsidiaries has filed all tax returns and reports required by Applicable Law
to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books. No
tax Liens have been filed with respect to any of the Principal Companies or
their Subsidiaries and, to the best knowledge of the Principal Companies (after
due inquiry), no claims are being asserted with respect to any such taxes or
charges (and no basis exists for any such claims), which Liens and claims,
individually or in the aggregate, could have a Materially Adverse Effect. All
tax liabilities are adequately provided for on the books of the Principal
Companies and their Subsidiaries. The federal income tax liabilities of the
Principal Companies and their Subsidiaries have been finally determined by the
Internal Revenue Service for all fiscal years of Citicasters up to and
including its 1987 fiscal year.
SECTION 7.12. COMPLIANCE WITH ERISA. All Single Employer Plans are in
substantial compliance with ERISA; no Multiemployer Plan is insolvent or in
reorganization (each such term as defined for purposes of Title IV of ERISA) or
has notified any Principal Company or any ERISA Affiliate that it intends to
terminate or has been terminated; no Single Employer Plan has an accumulated or
waived funding deficiency or has applied for an extension of any amortization
period within the meaning of Section 412 of the Code; none of the Principal
Companies or their Subsidiaries and no ERISA Affiliate has incurred any
liability to or on account of a Single Employer Plan pursuant to Section 4062,
4063 or 4064 of ERISA or a Multiemployer Plan pursuant to Section 515, 4201 or
4204 of ERISA; no proceedings have been instituted to terminate any Plan; and
no condition exists which presents a material risk to any of the Principal
Companies or their Subsidiaries of incurring a liability to or on account of a
Plan pursuant to any of the foregoing Sections of ERISA or the Code. Except as
set forth in SECTION 7.12 of the Disclosure Schedule, the aggregate present
value of all benefit
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liabilities (within the meaning of Section 4001 of ERISA) of each Single
Employer Plan does not exceed the aggregate current value of all assets of such
Plan based upon the most recent estimated actuarial data that has been provided
to the Principal Companies by the consulting actuaries of such Plan, and there
is no withdrawal liability (and would be no withdrawal liability assuming a
complete withdrawal from all such Plans) to any Multiemployer Plan. Each
employee welfare benefit plan (within the meaning of Section 3(a) or 3(2)(B) of
ERISA) maintained or contributed to by any of the Principal Companies or their
Subsidiaries requires that no benefits are due unless the event giving rise to
the benefit entitlement occurs prior to plan termination (except as required by
Title I, Part 6 of ERISA or applicable state insurance laws). Each Principal
Company or Subsidiary thereof, as appropriate, may terminate each such employee
welfare benefit plan at any time (or at any time subsequent to the expiration
of any applicable bargaining agreement) in the discretion of such Principal
Company or Subsidiary, without liability to any Person.
SECTION 7.13. LABOR CONTROVERSIES. Except as disclosed in SECTION 7.13
of the Disclosure Schedule, there are no labor controversies pending or, to the
best knowledge of the Principal Companies (after due inquiry), threatened
against any of the Principal Companies or their Subsidiaries, which, if
adversely determined, could have a Materially Adverse Effect.
SECTION 7.14. CORPORATE STRUCTURE.
(a) SECTION 7.14(a) of the Disclosure Schedule accurately and
completely sets forth, as of the date hereof and as of the Closing Date,
the corporate structure of Citicasters and its Subsidiaries ("CORPORATE
STRUCTURE"). Each of the Subsidiaries indicated as "Inactive" in the
Corporate Structure is inactive and will remain inactive from and after
the Closing Date, meaning that each such company has and will have no
Property other than its nominal capitalization, has and will have no
liabilities, and is and will be conducting no business.
(b) SECTION 7.14(b) of the Disclosure Schedule accurately and
completely lists, with respect to each of the Principal Companies and
their Subsidiaries identified in the Corporate Structure, as of the
Closing Date, (i) the State of incorporation of each such corporation,
(ii) the classes and number of authorized and outstanding shares of
Capital Stock of each such corporation, and the owners of such outstanding
shares of Capital Stock (PROVIDED, that only those Persons who hold ten
percent (10%) or more of the outstanding shares of any class of Capital
Stock of the Parent Company as of the Closing Date are listed), and (iii)
the businesses in which each such corporation is engaged.
(c) From and after the Closing Date, all issued and outstanding
shares of Capital Stock of each of the Principal Companies (other than the
Parent Company) and their Subsidiaries will have been duly and validly
issued, will be fully-paid and non-assessable, and will be owned as set
forth in SECTION 7.14(b) of the Disclosure Schedule free and clear of any
Liens or restrictions on transfer (except such as are permitted by SECTION
8.2.3(a)).
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(d) From and after the Closing Date, there will be no outstanding
warrants, options, contracts or commitments of any kind entitling any
Person to purchase or otherwise acquire any Capital Stock of any of the
Principal Companies (other than the Parent Company) or their Subsidiaries
nor will there be outstanding any Securities which are convertible into or
exchangeable for any Capital Stock of any of the Principal Companies
(other than the Parent Company) or their Subsidiaries. From and after the
Closing Date, there will be no outstanding commitments, options, warrants,
calls or other agreements (whether written or oral) binding on any of the
Principal Companies or their Subsidiaries to issue, sell, grant, transfer,
assign, mortgage, pledge or otherwise dispose of any Capital Stock of any
of the Principal Companies (other than the Parent Company) or their
Subsidiaries (except such as are permitted by SECTION 8.2.3(a)).
SECTION 7.15. OWNERSHIP OF PROPERTIES; LIENS. SECTION 7.15 of the
Disclosure Schedule sets forth a true, correct and complete description of all
of the real Property owned or leased by Citicasters or any of its Subsidiaries
as of the Closing Date. Each of the Principal Companies and its Subsidiaries
has valid fee or leasehold interests in all of its real Property and good and
marketable title to all of its material personal Property, and none of such
Property will be subject to any Liens, except Liens identified and described in
SECTION 7.15 of the Disclosure Schedule, and except such other Liens as are
permitted by SECTION 8.2.3.
SECTION 7.16. PATENTS AND TRADEMARKS, ETC. Each Transaction Party owns
and possesses all such patents, patent rights, trademarks, trademark rights,
trade names, trade name rights, service marks, service mark rights and
copyrights material to the conduct of the businesses of such Transaction Party
as now conducted without, individually or in the aggregate, any infringement
upon any proprietary or other rights of any other Person. None of the
Transaction Parties owns or possesses any patents or patent rights or any
federally registered copyrights.
SECTION 7.17. COLLATERAL DOCUMENTS. The provisions of the Collateral
Documents will be, from and after the Closing Date, effective to create, in
favor of the Collateral Agent for the benefit of the Secured Parties, legal,
valid and enforceable Liens in all right, title and interest of the Transaction
Parties in any and all of the Collateral described therein, securing the
Obligations from time to time outstanding. Each of the Collateral Documents
will create a fully perfected Lien in all right, title and interest of the
Transaction Parties in the Collateral described therein superior in right to
any Liens, existing or future, which any Transaction Party, any creditor of or
purchaser from any Transaction Party or any other Person, may have against such
Collateral therein, except to the extent otherwise provided herein and in the
other Loan Documents.
SECTION 7.18. ENVIRONMENTAL MATTERS. Except as identified in SECTION
7.18 of the Disclosure Schedule:
(a) all Property (including underlying groundwater) owned or leased
by any of the Principal Companies or their Subsidiaries has been, and
continues to be, owned or leased by such Person in compliance with all
Environmental Laws;
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(b) there have been no past, and there are no pending or, to the
knowledge of the Principal Companies, threatened
(i) claims, complaints, notices or requests for information
received by any of the Principal Companies or their Subsidiaries from
any Governmental Authority with respect to any alleged violation of
any Environmental Laws, or
(ii) complaints, notices or inquiries to any of the Principal
Companies or their Subsidiaries from any Governmental Authority
alleging liability under any Environmental Laws;
(c) there have been no Releases of Hazardous Materials at, on or
under Property now or (to the best knowledge of the Principal Companies)
previously owned or leased by any of the Principal Companies or their
Subsidiaries, the costs to address which would reasonably be expected,
individually or in the aggregate, to have a Materially Adverse Effect;
(d) each of the Principal Companies and their Subsidiaries has been
issued and is in material compliance with all permits, certificates,
approvals, licenses and other authorizations relating to environmental
matters and required under Environmental Laws for its businesses;
(e) no Property now or, to the knowledge of the Principal Companies,
previously owned or leased by any of the Principal Companies or their
Subsidiaries is listed or proposed for listing (with respect to owned
Property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar State list of sites requiring investigation or
clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any Property now owned or
leased by any of the Principal Companies or their Subsidiaries;
(g) none of the Principal Companies or their Subsidiaries has
transported or arranged for the transportation of any Hazardous Material
to any location (i) which is listed or proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar State list, or (ii) which is the subject of federal, state or
local enforcement actions or other investigations which would reasonably
be expected to lead to material claims against any of the Principal
Companies or their Subsidiaries for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or asbestos present at any
Property now owned or leased by any of the Principal Companies or their
Subsidiaries; and
(i) no conditions exist at, on or under any Property now or
previously owned or leased by any of the Principal Companies or their
Subsidiaries which, with the passage of time, or the giving of notice, or
both, would reasonably be
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expected to give rise to liability under any Environmental Laws and to
have, individually or in the aggregate, a Materially Adverse Effect.
SECTION 7.19. LICENSES AND APPROVALS.
(a) Each of the Transaction Parties is in compliance in all material
respects with all Applicable Laws, including the Communications Act and
all other Applicable Laws relating to the transmission of radio,
television, cable and microwave signals.
(b) Each of the Transaction Parties has all requisite power and
authority and all necessary licenses and permits, including all FCC
Licenses, to own and operate its Property (including all Broadcasting
Stations owned or operated by it) and to carry on its businesses as now
conducted.
(c) Set forth in SECTION 7.19 of the Disclosure Schedule is a true
and complete description of all FCC Licenses material to the operation of
each of the Broadcasting Stations owned by any of the Transaction Parties
and the dates on which such FCC Licenses expire. Each such FCC License
was validly issued and is in full force and effect. Each Transaction Party
has fulfilled and performed all of its obligations with respect to each
such FCC License owned by it. No event has occurred which: (i) has
resulted in, or after notice or lapse of time or both would result in, or
would permit, revocation or termination of any such FCC License, or (ii)
materially and adversely affects or in the future may materially adversely
affect any of the rights of any Transaction Party thereunder. No license
or franchise, other than the FCC Licenses described in SECTION 7.19 of the
Disclosure Schedule, is material to the operation of any of the
Broadcasting Stations owned by any of the Transaction Parties or to the
conduct of the business of Citicasters or any of its Subsidiaries. No FCC
Licenses or other franchises or licenses require that any present employee
of any Transaction Party remain an employee of such Transaction Party, or
that any transfer of control of such Transaction Party must be approved by
any Governmental Authority other than the FCC.
(d) No Transaction Party is a party to and no Transaction Party has
knowledge of any investigation, notice of violation, order or complaint
issued by or before any Governmental Authority, including the FCC, or of
any other proceedings (other than proceedings relating to the radio
industry generally) which could in any manner threaten or adversely affect
the validity or continued effectiveness of any of the FCC Licenses
identified in SECTION 7.19 of the Disclosure Schedule. No Principal
Company has reason to believe that any of the FCC Licenses described in
SECTION 7.19 of the Disclosure Schedule will not be renewed in the
ordinary course. Each Transaction Party has filed all material reports,
applications, documents, instruments or other information required to be
filed by it pursuant to applicable rules and regulations or requests of
every regulatory body having jurisdiction over any of its FCC Licenses or
the activities of such Transaction Party with respect thereto.
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SECTION 7.20. EXISTING INVESTMENTS. Set forth in SECTION 7.20 of the
Disclosure Schedule is a description of each Investment by any of the Principal
Companies or their Subsidiaries that is owned or held (whether legally or
beneficially) or is outstanding or in effect on the date of this Agreement,
other than Investments of the kind described in CLAUSE (b), (c), (d) or (e) of
the definition of the term "PERMITTED INVESTMENTS".
SECTION 7.21. TRANSACTIONS WITH AFFILIATES.
(a) SECTION 7.21(a) of the Disclosure Schedule sets forth a true,
correct and complete description of all (if any) Indebtedness (i) of any
Citicasters Subsidiary to any Citicasters Affiliate, and (ii) of
Citicasters to any other Citicasters Affiliate or any Citicasters
Subsidiary.
(b) SECTION 7.21(b) of the Disclosure Schedule sets forth a true,
correct and complete description of all (if any) Contractual Obligations
(other than contracts between Citicasters or any Citicasters Subsidiary,
on the one hand, and any Citicasters Affiliate, on the other hand, that
would be permitted by SECTION 8.2.10(e)) between (i) any Citicasters
Subsidiary, on the one hand, and any Citicasters Affiliate, on the other
hand, or (ii) Citicasters, on the one hand, and any other Citicasters
Affiliate, on the other hand.
(c) Except as disclosed in SECTION 7.21(a), SECTION 7.21(b) or
SECTION 7.21(c) of the Disclosure Schedule, during the period from July 1,
1994 through the Closing Date, no Restricted Payment has been made by any
of the Principal Companies or their Subsidiaries (other than Restricted
Payments that would in any event have been permitted by SECTION 8.2.6),
and no Affiliate Transaction has been entered into, performed or completed
(other than Affiliate Transactions that would in any event have been
permitted by SECTION 8.2.10(e)).
(d) Except as disclosed in SECTION 7.21(D) of the Disclosure
Schedule, during the period from July 1, 1994 through the Closing Date,
none of the Principal Companies or their Subsidiaries has merged or
consolidated with any other Person or sold, transferred or otherwise
disposed of any Broadcasting Stations.
SECTION 7.22. OWNERSHIP OF BORROWER, ETC.
(a) On the Closing Date, the Parent Company owns and controls, both
legally and beneficially, with full power to vote, one hundred percent
(100%) of the issued and outstanding shares of Capital Stock of
Citicasters Corp. of every class. On the Closing Date, Citicasters Corp.
owns and controls, both legally and beneficially, with full power to vote,
one hundred percent (100%) of the issued and outstanding shares of Capital
Stock of the Borrower of every class.
(b) AFC and its Affiliates own and control, both legally and
beneficially, with full power to vote, not less, in the aggregate, than
twenty-five percent (25%) of all of the issued and outstanding shares of
voting Capital Stock
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of the Parent Company. AFC and its Affiliates possess, through ownership
of Capital Stock, contract, proxy or otherwise, the power to elect or to
cause the election of a majority of the members of the Board of Directors
of the Parent Company. A majority of the members of the Board of
Directors of the Parent Company has been nominated or otherwise approved
by AFC or its Affiliates.
(c) The aggregate number of issued and outstanding shares of voting
Capital Stock of the Parent Company owned and controlled, both legally and
beneficially, with full power to vote, by AFC and its Affiliates (i)
exceeds the aggregate number of issued and outstanding shares of voting
Capital Stock of the Parent Company owned or controlled, whether legally
or beneficially, by any Person or Persons (other than by any Open-end
Company described below in CLAUSE (II)) and any Affiliates of any such
Person or Persons acting in concert by an amount representing ten percent
(10%) or more of the total number of issued and outstanding shares of
voting Capital Stock of the Parent Company, and (ii) exceeds the aggregate
number of issued and outstanding shares of voting Capital Stock of the
Parent Company owned or controlled, whether legally or beneficially, by
any Open-end Company (as defined in the Investment Company Act of 1940, as
amended), whether directly or, indirectly, through one or more of the
Affiliates of such Open-end Company.
SECTION 7.23. REPRESENTATIONS IN LOAN DOCUMENTS AND ANCILLARY DOCUMENTS.
Each of the representations and warranties made by the Principal Companies in
the Loan Documents is true and correct. Each of the representations and
warranties made by the Principal Companies in the Ancillary Documents is true
and correct, and each Principal Company makes to each of the Agents and Lenders
each such representation and warranty made therein to the same extent and with
the same full force and effect as if such representation or warranty were set
forth herein in full.
ARTICLE VIII
COVENANTS
SECTION 8.1. CERTAIN AFFIRMATIVE COVENANTS. Each Principal Company
agrees with the Agents and the Lenders and warrants that, from and after the
Closing Date and until all of the Commitments have terminated and all of the
Obligations have been paid in full, each Principal Company will, and will cause
each of its Subsidiaries to:
SECTION 8.1.1. FINANCIAL INFORMATION, ETC. Furnish to each Agent and to
each Lender copies of the following financial statements, reports and
information:
(a) promptly when available and in any event within ninety (90) days
after the close of each fiscal year of the Parent Company,
(i) a consolidated balance sheet as at the close of such fiscal
year, and related consolidated statements of income, shareholders'
equity and cash flows for such fiscal year, of Citicasters and its
Subsidiaries (with comparable information as at the close of and for
the prior fiscal
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year), such statements for such fiscal year to be audited and
accompanied by an audit report issued without Impermissible
Qualification by the Independent Public Accountant,
(ii) consolidating balance sheets as at the close of such fiscal
year, and related consolidating statements of income for such fiscal
year (including the internal earnings report of each Broadcasting
Station of each Citicasters Subsidiary for such fiscal year), of
Citicasters and its Subsidiaries (with comparable information as at
the close of and for the prior fiscal year) certified as to fairness
of presentation by the principal accounting or financial Authorized
Officer of the Parent Company,
(iii) a Compliance Certificate calculated as at the close of such
fiscal year, and
(iv) a written statement of the Independent Public Accountant
(A) stating that in making the examination necessary to make the
audit report on the financial statements delivered pursuant to CLAUSE
(i), they obtained no knowledge of any default by Citicasters or any
of its Subsidiaries in the performance or observance of any of the
covenants contained in ARTICLE VIII, or, if the Independent Public
Accountant shall have obtained knowledge of any such default,
specifying all such defaults and the nature and status thereof, and
(B) setting forth in reasonable detail the calculations made to
determine compliance with SECTIONS 8.2.2, 8.2.4, 8.2.5, 8.2.6, 8.2.7
and 8.2.8;
(b) promptly when available and in any event within sixty (60) days
after the close of each of the first three fiscal quarters of each fiscal
year of the Parent Company,
(i) a consolidated balance sheet as at the close of each such
fiscal quarter, and related consolidated statements of income,
shareholders' equity and cash flows for such fiscal quarter and for
the portion of the fiscal year then ended, of Citicasters and its
Subsidiaries (with comparable information as at the close of and for
the corresponding fiscal quarter of the prior fiscal year and for the
corresponding portion of such prior fiscal year) certified as to
fairness of presentation by the principal accounting or financial
Authorized Officer of the Parent Company,
(ii) consolidating balance sheets as at the close of such fiscal
quarter, and related consolidating statements of income for such
fiscal quarter and for the portion of the fiscal year then ended
(including the internal earnings report of each Broadcasting Station
of each Citicasters Subsidiary for such fiscal quarter and portion of
such fiscal year), of Citicasters and its Subsidiaries (with
comparable information as at the close of and for the corresponding
fiscal quarter of the prior fiscal year and for the corresponding
portion of such prior fiscal year) certified as to
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fairness of presentation by the principal accounting or financial
Authorized Officer of the Parent Company, and
(iii) a Compliance Certificate calculated as at the close of such
fiscal quarter;
(c) promptly upon receipt thereof, copies of all detailed financial
and management reports, if any, submitted to Citicasters or any of its
Subsidiaries by any independent public accountant in connection with any
annual or interim audit made by any such independent public accountant of
the books of Citicasters or any of its Subsidiaries;
(d) promptly upon completion thereof and in any event not later than
the first day of February of each fiscal year of the Parent Company, a
copy of the annual consolidated budget for such fiscal year and the annual
budget for each Broadcasting Station of each Citicasters Subsidiary for
such fiscal year, including, in each case, budgeted results for each
fiscal quarter and for the fiscal year as a whole, together with an
explanation of any differences between the sum of the individual
Broadcasting Station budgets and the consolidated totals, and upon the
delivery of any financial statements relating to a period included in such
budget, a summary comparing the actual financial performance of
Citicasters and its Subsidiaries during such period to that provided for
in such budget;
(e) promptly upon any filing thereof by Citicasters or any of its
Subsidiaries with the SEC, any annual, periodic or special reports or
registration statements which Citicasters or any of its Subsidiaries may
file with the SEC or with any other securities exchange and copies of any
financial statements which Citicasters or any of its Subsidiaries may file
with any Governmental Authority;
(f) promptly after the release or distribution thereof, copies of
all press releases or other written statements made available generally by
Citicasters or any of its Subsidiaries to stockholders of Citicasters or
to one or more financial news services concerning material developments in
the business of Citicasters or any of its Subsidiaries; and
(g) promptly, such additional financial and other information with
respect to Citicasters or any of its Subsidiaries as any Lender (through
the Administrative Agent) may from time to time reasonably request.
SECTION 8.1.2. MAINTENANCE OF CORPORATE EXISTENCE, ETC. In the case of
each of the Principal Companies and its Subsidiaries (other than Inactive
Subsidiaries), maintain and preserve its corporate existence, rights and
franchises; continue to own and hold, legally and beneficially, free and clear
of all Liens (except Liens permitted by SECTION 8.2.3), all of the outstanding
shares of Capital Stock of each of its Subsidiaries; and take all reasonable
steps to maintain its identity as a separate legal entity and to make it
apparent to third parties that it is a corporation with Property and
liabilities distinct from those of any of its affiliates; PROVIDED, HOWEVER,
that nothing in this SECTION 8.1.2 or in SECTION 8.2.1 or 8.2.7 shall be so
construed as to prohibit the merger of Citicasters Corp.
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into the Borrower on terms and conditions reasonably satisfactory to the
Managing Agents.
SECTION 8.1.3. FOREIGN QUALIFICATION. Cause to be done at all times all
things necessary to be duly qualified to do business and be in good standing as
a foreign corporation in each jurisdiction where the nature of its business
makes such qualification necessary and where the failure to so qualify could
reasonably be expected to have a Materially Adverse Effect.
SECTION 8.1.4. PAYMENT OF TAXES, ETC. Pay and discharge, as the same
become due and payable, all federal, state and local taxes, assessments and
other governmental charges or levies against or on any of its income, profits
or Property, as well as all claims of any kind, including all claims for labor,
materials and supplies, which, if unpaid, might become a Lien upon any of its
Property, and pay before they become delinquent (subject to any applicable
subordination provisions) all other material obligations and liabilities;
PROVIDED, HOWEVER, that the foregoing shall not require any of the Principal
Companies or their Subsidiaries to pay or discharge any such tax, assessment,
charge, levy, claim, obligation or liability (a) which is not yet due and
payable, or (b) so long as it shall contest the validity thereof in good faith
by appropriate proceedings and shall have set aside on its books adequate
reserves in accordance with GAAP with respect thereto. Nothing in this SECTION
8.1.4 shall impair the absolute and unconditional obligations of the Principal
Companies to pay all of the Obligations as and when the same shall become due
and payable.
SECTION 8.1.5. MAINTENANCE OF PROPERTY. Keep all of its Property that is
useful and necessary in its businesses in good working order and condition
(ordinary wear and tear excepted) and maintain or cause to be maintained
insurance with respect to its Property and businesses against such casualties
and contingencies and of such types, including, without limitation, replacement
cost insurance on all Property constituting a material part of any Broadcasting
Station operated by any Citicasters Subsidiaries, and in such amounts and with
such deductibles as are customary in the case of similar businesses; and, upon
request of the Administrative Agent, furnish to the Administrative Agent at
reasonable intervals a certificate of an Authorized Officer of each Principal
Company setting forth the nature and extent of all insurance maintained by the
Principal Companies and their Subsidiaries in accordance with this SECTION
8.1.5.
SECTION 8.1.6. NOTICE OF DEFAULT, ETC. Upon obtaining knowledge thereof,
give written notice (accompanied by a reasonably detailed explanation with
respect thereto) immediately to the Administrative Agent of:
(a) the occurrence of
(i) any Default, or
(ii) any default under any Ancillary Document;
(b) any litigation, arbitration or governmental investigation or
proceeding not previously disclosed by any Transaction Party to the
Administrative Agent which has been instituted or, to the best knowledge
of any
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of the Transaction Parties (after due inquiry), is threatened against any
of the Principal Companies or its Subsidiaries or to which any of their
respective Property is subject which
(i) if adversely determined, could have a Materially Adverse
Effect, or
(ii) relates to this Agreement, any other Loan Document or any
Ancillary Document;
(c) any material adverse development which shall occur in any
litigation, arbitration or governmental investigation or proceeding
previously disclosed by any Transaction Party to the Administrative Agent;
(d) any development in the business, operations, Property, financial
condition or prospects of any of the Principal Companies or its
Subsidiaries which, in the reasonable judgment of any of the Transaction
Parties, could have a Materially Adverse Effect; and
(e) any termination or any material amendment or modification of any
Governing Document of any Transaction Party or of any Ancillary Document,
or any notice, Instrument, financial statement, proxy statement or other
materials of any kind delivered or received by any Transaction Party with
respect to any Other Debt Document, which written notice shall include a
copy (if in writing) or a description (if not in writing) of any such
termination, amendment, modification, notice, Instrument, financial
statement, proxy statement or other materials.
SECTION 8.1.7. BOOKS AND RECORDS. Keep proper books and records
reflecting all of its business affairs and transactions in accordance with GAAP
and permit any Agent, any Lender or any of their respective representatives, at
reasonable times and intervals during ordinary business hours, to visit any of
its offices and Properties, discuss financial matters relating to the Principal
Companies and their Subsidiaries with its officers and the Independent Public
Accountant (and each Principal Company hereby authorizes the Independent Public
Accountant to discuss its financial matters with any Agent, any Lender or any
of their representatives) and examine and make abstracts or photocopies from
any of its books or other corporate records, all at the expense of the
Principal Companies for any charges imposed by such accountant or for making
such abstracts or photocopies.
SECTION 8.1.8. COMPLIANCE WITH LAWS, ETC.
(a) Obtain all such Approvals and take all such other action with
respect to any Governmental Authority as may be required for the
execution, delivery or performance of this Agreement, the other Loan
Documents or the Ancillary Documents, and duly perform and comply with all
of the terms and conditions of all Approvals so obtained.
(b) Comply in all material respects with all Applicable Laws.
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(c) Operate its Broadcasting Stations in accordance and in
compliance in all material respects with the Communications Act, file in a
timely manner all necessary applications for renewal of all FCC Licenses
that are material to the operation of its Broadcasting Stations, and use
its best efforts to defend any proceedings which could result in the
termination, forfeiture or non-renewal of any such FCC License.
(d) Promptly furnish or cause to be furnished to the Administrative
Agent:
(i) a copy of any order or notice of any Communications
Regulatory Authority which designates any of its FCC Licenses for a
hearing or which refuses renewal or extension thereof, or revokes or
suspends its authority to operate a Broadcasting Station;
(ii) a copy of any competing application filed with respect to
any of its franchises, licenses (including FCC Licenses), rights,
permits, consents or other authorizations pursuant to which it
operates any Broadcasting Station;
(iii) a copy of any citation, notice of violation or order to
show cause issued by any Communications Regulatory Authority in
relation to any of its Broadcasting Stations; and
(iv) a copy of any notice or application by it requesting
authority to cease broadcasting on any Broadcasting Station or to
cease operating any Broadcasting Station for any period in excess of
five (5) days.
SECTION 8.1.9. IDENTIFICATION OF SUBSIDIARIES; PROVISION OF COLLATERAL.
(a) In the case of the Principal Companies, if and whenever any
direct or indirect Subsidiary of the Principal Companies shall be created
or acquired by any of the Principal Companies or their Subsidiaries at any
time after the date hereof:
(i) furnish promptly to the Administrative Agent a written
notice identifying such Subsidiary, indicating whether such
Subsidiary is "Inactive" as that term is used in SECTION 7.14(a),
indicating whether such Subsidiary is a Material Subsidiary, and
setting forth with respect to such Subsidiary information of the kind
required by SECTION 7.14(b) with respect to Subsidiaries identified
in the Corporate Structure as of the date hereof;
(ii) promptly pledge or cause to be pledged to the Collateral
Agent, upon the terms contained in the Pledge Agreement or a pledge
agreement in or substantially in the form of the Pledge Agreement,
all of the issued and outstanding shares of Capital Stock of such
Subsidiary;
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(iii) promptly cause such Subsidiary to execute and deliver
to the Collateral Agent a guaranty agreement in or substantially in
the form of the Subsidiary Guaranty; and
(iv) promptly cause such Subsidiary to execute and deliver to
the Collateral Agent a security agreement in or substantially in the
form of the Security Agreement and all such other Security
Instruments as shall be required to create in favor of the Collateral
Agent for the benefit of the Secured Parties, as security for all of
the Obligations, perfected first- priority Liens with respect to all
of the personal Property (whether tangible or intangible) of such
Subsidiary;
PROVIDED, HOWEVER, that anything in CLAUSES (ii), (iii) or (iv) to the
contrary notwithstanding, the Principal Companies shall not be required
(A) to pledge or to cause to be pledged any shares of Capital Stock of
Inactive Subsidiaries, or (B) to cause Inactive Subsidiaries to execute
and deliver Subsidiary Guaranties, Security Agreements or other Security
Instruments.
(b) From time to time after the date hereof, upon and in accordance
with the request of the Managing Agents, and at the cost and expense of
the Principal Companies, promptly create or cause to be created in favor
of the Collateral Agent for the benefit of the Secured Parties, as
security for all of the Obligations, perfected first-priority Liens with
respect to all (if any) of its personal Property (whether tangible or
intangible) which is not then subject to perfected first-priority Liens in
favor of the Collateral Agent, all such Liens to be created under Security
Instruments in form and substance satisfactory to the Managing Agents;
deliver or cause to be delivered to the Collateral Agent (with copies to
the Managing Agents) all such instruments (including legal opinions, Lien
search results and releases and termination statements) as the Managing
Agents shall reasonably request to evidence satisfaction of the
Obligations created by this SECTION 8.1.9(b); and promptly provide such
evidence as the Managing Agents shall from time to time request as to the
perfection and priority of such Liens and any other Liens created pursuant
to any of the Collateral Documents.
SECTION 8.1.10. ERISA NOTICES. Upon the request of the Administrative
Agent, furnish or cause to be furnished to the Administrative Agent a copy of
the most recent actuarial statement required to be submitted under Section
103(d) of ERISA and Annual Reports, Form 5500, with all required attachments,
in respect of each Single Employer Plan; and, promptly upon receipt or
dispatch, furnish to the Administrative Agent any notice, report or demand sent
or received in respect of any Single Employer Plan under Section 302, 4041,
4042, 4043, 4063, 4065, 4066 or 4068 of ERISA, or in respect of any
Multiemployer Plan under Section 4041A, 4202, 4219, 4242 or 4245 of ERISA.
SECTION 8.1.11. ENVIRONMENTAL COMPLIANCE.
(a) Use and operate all of its Properties in compliance with all
Environmental Laws, keep all necessary permits, approvals, certificates,
licenses
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and other authorizations relating to environmental matters in effect and
remain in compliance therewith, and handle all Hazardous Materials in
compliance with all applicable Environmental Laws.
(b) Provide written notice to the Administrative Agent of (i) any
violation of any Environmental Law regarding any of its Property or any of
its business operations, (ii) any known Release, or threat of Release, of
any Hazardous Substances at, from or into any of its Property which it is
required to report in writing to any Governmental Authority or which could
have a Materially Adverse Effect, (iii) any written notice of violation of
any Environmental Law or of any Release or threatened Release of any
Hazardous Substance, including any notice or claim of liability or
potential responsibility from any third party (including any Governmental
Authority), and including notice of any formal inquiry, proceeding,
demand, investigation or other action with regard to (A) the operation of
any of its Property, (B) contamination on, from or into any of its
Property or (C) investigation or remediation of offsite locations at which
it or any of its predecessors are alleged to have disposed of Hazardous
Substances, or (D) any expense or loss incurred by any Governmental
Authority in connection with the assessment, containment, removal or
remediation of any Hazardous Substances with respect to which it may be
liable or for which a Lien may be imposed on any of its Property.
(c) Cause the prompt containment and removal of any Hazardous
Substances Released or disposed of on any of its Property, as necessary to
comply with all Environmental Laws and to preserve the value of such
Property.
(d) After reasonable notice by the Managing Agents, whether or not a
Default shall have occurred, permit any Managing Agent, in its reasonable
discretion for the purpose of assessing and ensuring the value of any
Property of any Transaction Party, to obtain, at the expense of the
Principal Companies, one or more environmental assessments or audits of
any such Property prepared by a hydrologist or other qualified independent
engineer, consultant or expert selected by such Managing Agent to confirm
(i) whether any Hazardous Substances are present in the soil or water at
such Property, and (ii) whether the use and operation of the Property
complies with all Environmental Laws.
SECTION 8.2. CERTAIN NEGATIVE COVENANTS. Each Principal Company agrees
with the Agents and the Lenders and warrants that, from and after the Closing
Date and until all of the Commitments have terminated and all the Obligations
have been paid in full, each Principal Company will not, and will not cause or
permit any of its Subsidiaries to:
SECTION 8.2.1. LIMITATION ON NATURE OF BUSINESS.
(a) At any time undertake, conduct or transact, directly or
indirectly, any business except the business in which it is presently
engaged as described in SECTION 7.14(b) of the Disclosure Schedule and any
other businesses reasonably incidental or related thereto, or undertake,
conduct or transact any business in a
<PAGE> 88
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manner prohibited by Applicable Law, or, in the case of the Parent Company,
undertake, conduct or transact any material business except the business of
owning Capital Stock of its Subsidiaries and activities and businesses
reasonably related thereto.
(b) In the case of the Principal Companies, (i) permit any
Subsidiary identified as "Inactive" in SECTION 7.14(a) of the Disclosure
Schedule or any Subsidiary identified by the Principal Companies as
"Inactive" in any written notice furnished by the Principal Companies to
the Administrative Agent at any time after the date hereof to conduct or
engage in any business or operations of any kind, to own any Property
other than its nominal capitalization and rights under immaterial
agreements or contracts that do not require any payments by such
Subsidiary, to incur or assume or permit to exist any Indebtedness or to
make or permit to exist any Investment (other than Investments in nominal
aggregate amounts), or (ii) create or acquire at any time after the date
hereof any direct or indirect Subsidiaries other than Subsidiaries that
are created or acquired (A) pursuant to or in connection with any
Permitted Acquisitions, and (B) in compliance with SECTION 8.1.9(a).
SECTION 8.2.2. INDEBTEDNESS. Create, incur, assume, or permit or suffer
to exist, or otherwise become or be liable in respect of or be responsible for,
any Indebtedness, EXCEPT:
(a) Indebtedness in respect of any of the Loans or any of the other
Obligations;
(b) Permitted Indebtedness of any of the Principal Companies or their
Subsidiaries;
(c) Indebtedness of Citicasters under the Citicasters 9-3/4% Notes
and the Citicasters 9-3/4% Note Indenture in the maximum aggregate
principal amount of (i) $200,000,000 until Citicasters shall complete the
redemption or repurchase of Citicasters 9-3/4% Notes in the aggregate face
amount of $75,000,000 with the proceeds of Restricted Payments made to
Citicasters out of proceeds of Facility A Revolving Loans or out of Net
Disposition Proceeds of New World TV Station Sales, and (ii) thereafter,
$125,000,000;
(d) Indebtedness of Citicasters under Securities from time to time
issued by Citicasters, all of the Net Debt Proceeds of which are used
exclusively to repay, prepay, redeem or repurchase Indebtedness under the
Citicasters 9-3/4% Notes, the Citicasters 9-3/4% Note Indenture or
Securities previously issued by Citicasters in compliance with this CLAUSE
(d); PROVIDED, HOWEVER, that (i) the aggregate principal amount of all of
the Indebtedness of Citicasters under such Securities shall not at any
time exceed the lesser of (A) the aggregate principal amount of all
Indebtedness then permitted by CLAUSE (c), or (B) the aggregate
Indebtedness of Citicasters to be repaid, prepaid, redeemed or repurchased
with the proceeds of such Securities, (ii) all Indebtedness in respect of
such Securities is expressly subordinated in right of payment and exercise
of remedies to the prior
<PAGE> 89
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exercise of remedies to the prior payment in full of all of the
Obligations (including all obligations refinancing, refunding or replacing
all or any part of the Obligations from time to time) on terms no less
favorable to the holders of any of such Obligations than the subordination
provisions contained in the Citicasters 9-3/4% Note Indenture as in effect
on the Closing Date, (ii) the aggregate outstanding principal amount of
all of such Indebtedness does not at any time exceed $125,000,000, (iii)
none of such Indebtedness is secured by any Liens on any Property of
Citicasters or any of its Subsidiaries, (iv) no Subsidiaries of
Citicasters have any Contingent Obligations of any kind in respect of any
of such Indebtedness, (v) the stated final maturity date of such
Indebtedness is not earlier than December 31, 2002, (vi) no part of the
principal of such Indebtedness, and none of the Instruments evidencing
such Indebtedness, is subject to any obligations of Citicasters in respect
of "put" rights or subject to any mandatory repayment, prepayment,
redemption, repurchase, defeasance, sinking fund or other similar
obligations of Citicasters at any time prior to December 31, 2002, (vii)
the covenants, events of default and other provisions contained in the
Securities or other Instruments governing such Indebtedness, individually
and payment in full of all Senior Indebtedness (as defined in the
Citicasters 9- 3/4% Note Indenture as in effect on the Closing Date) on
terms no less favorable to the holders of such Senior Indebtedness than
the subordination provisions contained in the Citicasters 9-3/4% Note
Indenture as in effect on the Closing Date, (iii) the stated final
maturity date of such Indebtedness is not earlier than the stated final
maturity of the Citicasters 9-3/4% Notes as in effect on the Closing Date,
(iv) all obligations in relation to "put" rights and all mandatory
repayment, prepayment, redemption, repurchase, defeasance, sinking fund
and other similar obligations in respect of such Indebtedness are not more
restrictive or more burdensome to Citicasters and its Subsidiaries than
similar such obligations in respect of the Citicasters 9-3/4% Notes or the
Citicasters 9-3/4% Note Indenture, each as in effect on the Closing Date,
(v) the contract interest rate payable on such Indebtedness is not greater
than the contract interest rate payable on the Citicasters 9-3/4% Notes,
as in effect on the Closing Date, (vi) the covenants, events of default
and other provisions contained in the Securities or other Instruments
governing such Indebtedness, individually and taken as a whole, are, in
the reasonable judgment of the Managing Agents, neither materially more
restrictive nor materially more burdensome to Citicasters and its
Subsidiaries than those contained in the Citicasters 9-3/4% Notes or the
Citicasters 9-3/4% Note Indenture, each as in effect on the Closing Date,
(vii) none of such Indebtedness is secured by any Liens on any Property of
Citicasters or any of its Subsidiaries, (viii) no Subsidiaries of
Citicasters have any Contingent Obligations of any kind in respect of any
of such Indebtedness, and (ix) immediately prior, and immediately after
giving effect, to the issuance of such Securities and the application of
the Net Debt Proceeds to be received by Citicasters from the issuance
thereof, each of the Special Covenant Conditions is satisfied;
(e) Indebtedness of Citicasters, not otherwise permitted by any of
the other CLAUSES of this SECTION 8.2.2, that is incurred by Citicasters
under Securities issued from time to time after the date hereof by
Citicasters; PROVIDED, HOWEVER, that (i) all of such Indebtedness is
expressly subordinated in right of payment and
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taken as a whole, are, in the reasonable judgment of the Managing
Agents, neither materially more restrictive nor materially more burdensome
to Citicasters and its Subsidiaries than those contained in the
Citicasters 9-3/4% Notes or the Citicasters 9-3/4% Note Indenture, each as
in effect on the Closing Date, (viii) immediately prior, and immediately
after giving effect, to the issuance of such Securities and the
application of the Net Debt Proceeds to be received by Citicasters from
the issuance thereof, each of the Special Covenant Conditions is
satisfied, and (ix) all of the Net Debt Proceeds from the issuance of such
Securities are used exclusively for the following purposes and on the
following terms: (A) to repay, prepay, redeem or repurchase, within the
applicable Reinvestment Period beginning on the date of the receipt of
such Net Debt Proceeds by Citicasters, Indebtedness of Citicasters under
Securities issued by Citicasters from time to time in compliance with this
CLAUSE (e), (B) in connection with the implementation of any Permitted
Acquisitions during the applicable Reinvestment Period beginning on the
date of the receipt of such Net Debt Proceeds by Citicasters, and (C) to
the extent that all of such Net Debt Proceeds are not used by Citicasters
for the purposes and within the periods described in SUBCLAUSES (A) and
(B), to the application of the balance of such Net Debt Proceeds remaining
after the use of such Net Debt Proceeds for the purposes and within the
periods described in SUBCLAUSES (A) and (B) (in this SUBCLAUSE (C), called
the "NET AVAILABLE PROCEEDS") in the following manner: (1) if the
Leverage Ratio for the first Reference Period ending on or prior to the
last day of such Reinvestment Period is greater than 4.75:1.00, then the
Net Available Proceeds shall be applied by the Principal Companies towards
the mandatory prepayment of Facility A Revolving Loans in an aggregate
principal amount equal to the lesser of (x) the Net Available Proceeds, or
(y) the Leverage Ratio Adjustment for such Reference Period, as required
by SECTION 3.3.2, and the balance (if any) remaining after such
application may be used by the Principal Companies for general corporate
purposes, and (2) if the Leverage Ratio for such Reference Period is equal
to or less than 4.75:1.00, then the entire Net Available Proceeds may be
used by the Principal Companies for general corporate purposes;
(f) Indebtedness of any Subsidiaries of Citicasters to Citicasters
under the Tax Sharing Agreement;
(g) Indebtedness in respect of Investments permitted by CLAUSE (c)
or (d) of SECTION 8.2.5;
(h) Indebtedness of any of the Transaction Parties under any Rate
Protection Agreements;
(i) Indebtedness of any of the Principal Companies or their
Subsidiaries consisting of dividends declared but not paid, to the extent
that such dividends are permitted by SECTION 8.2.6;
(j) Indebtedness of Citicasters under or in respect of any offer,
commitment or agreement by Citicasters to pay or prepay any Indebtedness
of Citicasters or to redeem, repurchase, defease or otherwise acquire for
value any
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Indebtedness of Citicasters, to the extent that the making of any such
payment or prepayment, and to the extent that the payment or distribution
on account of any such redemption, repurchase, defeasance or other
acquisition for value, is permitted by SECTION 8.2.6(e) or by SECTION
8.2.6(f); and
(k) Indebtedness of Citicasters under or in respect of any offer,
commitment or agreement by Citicasters to purchase, redeem or otherwise
acquire for value any shares of any Permitted Capital Stock of
Citicasters, to the extent that the making of any such purchase,
redemption or other acquisition for value is permitted by SECTION
8.2.6(i).
SECTION 8.2.3. LIENS. Create, incur, assume, or permit or suffer to
exist, any Lien upon any of its Property (including Capital Stock of any of its
Subsidiaries), whether now owned or hereafter acquired, EXCEPT:
(a) Liens in favor of the Collateral Agent securing any of the Loans
or any of the other Obligations; and
(b) Permitted Liens.
SECTION 8.2.4. FINANCIAL COVENANTS.
(a) CONSOLIDATED SENIOR DEBT TO CONSOLIDATED EBITDA RATIO. Permit
the Consolidated Senior Debt to Consolidated EBITDA Ratio (as hereinafter
defined) for any Reference Period ending in any period identified below to
be greater than the ratio specified below opposite such period:
<TABLE>
<CAPTION>
CONSOLIDATED SENIOR DEBT TO
PERIOD CONSOLIDATED EBITDA RATIO
------ -------------------------
<S> <C>
09/01/94 to 4.00:1.0
12/31/96
01/01/97 to 3.75:1.0
12/31/97
01/01/98 to 3.50:1.0
12/31/98
01/01/99 to 3.25:1.0
12/31/99
Thereafter 3.00:1.0
</TABLE>
"CONSOLIDATED SENIOR DEBT TO CONSOLIDATED EBITDA RATIO" means, in
relation to any Reference Period, the ratio of (i) the Consolidated Senior
Debt of Citicasters and its Subsidiaries at the end of such Reference
Period, to (ii) the Consolidated EBITDA of Citicasters and its
Subsidiaries for such Reference Period.
(b) LEVERAGE RATIO. Permit the Leverage Ratio for any Reference
Period ending in any period identified below to be greater than the ratio
specified below opposite such period:
<PAGE> 92
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Period Leverage Ratio
------ --------------
09/01/94 to 12/31/96 5.75:1.0
01/01/97 to 12/31/97 5.50:1.0
01/01/98 to 12/31/98 5.25:1.0
01/01/99 to 12/31/99 5.00:1.0
Thereafter 4.75:1.0
(c) INTEREST COVERAGE RATIO. Permit the Interest
Coverage Ratio for any Reference Period ending on or after the date
hereof to be less than 2.00:1.00.
(d) FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge
Coverage Ratio for any Reference Period ending on or after the date
hereof to be less than 1.15:1.0.
SECTION 8.2.5. INVESTMENTS. Make, incur, assume, or permit or suffer
to exist, or make any offer or commitment to make, or enter into any agreement
to make, any Investments in any other Person, EXCEPT:
(a) Permitted Investments;
(b) Investments in any Citicasters Affiliate permitted by
SECTION 8.2.10(f);
(c) in the case of any Citicasters Subsidiary, any
Investments by such Citicasters Subsidiary in any other Citicasters
Subsidiary that is a Transaction Party;
(d) in the case of the Parent Company, any Investments by
the Parent Company in any Citicasters Subsidiary that is a
Transaction Party made by way of (i) cash contributions to the
capital of such Subsidiary, or (ii) cash Investments in the
Permitted Capital Stock of such Subsidiary; and
(e) Investments by any of the Principal Companies or their
Subsidiaries (other than Inactive Subsidiaries) that constitute
Permitted Acquisitions.
SECTION 8.2.6. RESTRICTED PAYMENTS. Make, extend or enter into any
offer or commitment to make, or enter into any agreement to make, any
Restricted Payments, EXCEPT:
(a) the declaration and payment of cash dividends by any
Citicasters Subsidiary to any other Citicasters Subsidiary that is a
Transaction Party;
(b) the payment of cash dividends by any Citicasters
Subsidiary to Citicasters and the making of loans or advances by any
Citicasters Subsidiary to Citicasters, in each case only in amounts
necessary:
(i) to permit Citicasters to make (and Citicasters
shall be obligated to use all proceeds of such Restricted
Payments to make)
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Restricted Payments by Citicasters permitted by CLAUSE (c),
(e), (g), (h), (i) or (k); and
(ii) to permit Citicasters to make (and Citicasters
shall be obligated to use all proceeds of such Restricted
Payments to make) payments of (A) obligations of Citicasters
in respect of any sublease arrangements or in respect of any
executive compensation or severance arrangements for former
employees of Citicasters or any of its Subsidiaries, and (B)
corporate overhead or other similar expenses incurred from
time to time by Citicasters;
PROVIDED, HOWEVER, that no such Restricted Payments by any Citicasters
Subsidiaries to Citicasters that would otherwise be permitted by this
CLAUSE (b) shall in any event be permitted unless:
(1) at the time of the declaration and payment of
any such cash dividends, at the time of the making of any such
loans or advances, and after giving effect thereto, each of
the Special Covenant Conditions is satisfied; and
(2) all proceeds of each of such Restricted
Payments by any Citicasters Subsidiary to Citicasters are used
and applied by Citicasters substantially contemporaneously
with the receipt of such Restricted Payments by Citicasters
for the purposes, and only for the purposes, described in
CLAUSES (i) and (ii) of this CLAUSE (b);
(c) the making by Citicasters at any time after the date
hereof of any payment or other distribution on account of the
redemption, repurchase or other acquisition for value of
Citicasters 9-3/4% Notes in the maximum aggregate face amount of
$75,000,000;
(d) the payment of cash dividends by Citicasters
Subsidiaries to Citicasters and the making of loans or advances by
Citicasters Subsidiaries to Citicasters in an aggregate amount (in
addition to the amounts permitted byCLAUSE (b) or CLAUSE (c)) not
exceeding $10,000,000 in any fiscal year of Citicasters; PROVIDED,
HOWEVER, that no such Restricted Payments by Citicasters
Subsidiaries to Citicasters shall in any event be permitted unless,
at the time of the declaration and payment of any such dividends,
at the time of the making of any such loans or advances, and after
giving effect thereto, each of the Special Covenant Conditions is
satisfied;
(e) the making by Citicasters (in addition to the
payments or distributions permitted by CLAUSE (c) of any payment or
prepayment (whether of principal, premium, interest or any other
sum) of or on account of, or any payment or other distribution on
account of the redemption, repurchase, defeasance or other
acquisition for value of, any Indebtedness of Citicasters permitted
by CLAUSE (c) or CLAUSE (d) of SECTION 8.2.2; PROVIDED, HOWEVER,
that (i) each such Restricted Payment by Citicasters shall be made
with (A) Net Debt
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Proceeds from the issuance by Citicasters of Indebtedness permitted by
CLAUSE (d) of SECTION 8.2.2; or (B) Net Securities Proceeds from the
issuance by Citicasters of Permitted Capital Stock in compliance
withSECTION 8.2.11; and (ii) no such Restricted Payment by Citicasters
shall in any event be permitted unless, at the time of the making of
such Restricted Payment, and after giving effect thereto, each of the
Special Covenant Conditions is satisfied;
(f) the making by Citicasters of any payment or
prepayment (whether of principal, premium, interest or any other sum)
of or on account of, or any payment or other distribution on account
of the redemption, repurchase, defeasance or other acquisition for
value of, any Indebtedness of Citicasters permitted by CLAUSE (e) of
SECTION 8.2.2; PROVIDED, HOWEVER, that (i) each such Restricted
Payment by Citicasters shall be made with (A) Net Debt Proceeds from
the issuance by Citicasters of Indebtedness permitted byCLAUSE (E) of
SECTION 8.2.2; or (B) Net Securities Proceeds from the issuance by
Citicasters of Permitted Capital Stock in compliance with SECTION
8.2.11; and (ii) no such Restricted Payment by Citicasters shall in
any event be permitted unless, at the time of the making of such
Restricted Payment, and after giving effect thereto, each of the
Special Covenant Conditions is satisfied;
(g) the making by Citicasters of any payment of interest,
fees, costs, expenses or any other similar sums (except principal)
payable by Citicasters under the Instruments governing Indebtedness of
Citicasters permitted by SECTION 8.2.2; PROVIDED, HOWEVE, that no such
payment by Citicasters shall in any event be permitted unless, at the
time of the making of such payment by Citicasters, the making of such
payment is not then prohibited by the applicable subordination
provisions contained in the Instruments governing or relating to such
Indebtedness of Citicasters;
(h) the declaration and payment by Citicasters of cash
dividends on any shares of its Permitted Capital Stock; PROVIDED,
HOWEVE, that (i) the aggregate amount of all of such cash dividends
declared and paid by Citicasters in any fiscal year of Citicasters
shall not exceed $2,500,000, and (ii) at the time of the declaration
of any such cash dividends, and after giving effect to the payment
thereof, each of the Special Covenant Conditions is satisfied;
(i) any cash payment by Citicasters on account of the
purchase, redemption or other acquisition for value of shares of its
Permitted Capital Stock; PROVIDED, HOWEVER, that (A) the aggregate
amount of all of such cash payments made by Citicasters during the
period beginning on September 1, 1994 and ending on December 31, 1995
shall not exceed $40,000,000; (B) the aggregate amount of all of such
cash payments made by Citicasters from time to time after December 31,
1995, shall not exceed the lesser of (1) $10,000,000, or (2)
$40,000,000 less the aggregate amount of all cash payments made by
Citicasters pursuant to SUBCLAUSE (a); and (C) at the time of the
making of each such cash payment, and after giving effect thereto,
each of the Special Covenant Conditions is satisfied;
<PAGE> 95
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(j) the payments by any Citicasters Subsidiary to
Citicasters of Indebtedness of such Subsidiary to Citicasters under
the Tax Sharing Agreement; and
(k) payments, not otherwise permitted by any of the other
CLAUSES of this SECTION 8.2.6, by any of the Principal Companies or
their Subsidiaries to any Citicasters Affiliates, in each case only to
the extent permitted byCLAUSE (e) or CLAUSE (f) of SECTION 8.2.10.
SECTION 8.2.7. MERGERS; SALES OF PROPERTY. Consolidate or merge with
any Person, engage in any Sale of any Broadcasting Station or any Sale of all
or any substantial part of its other Property (either in a single transaction
or a series of related transactions), sell and thereafter lease back all or any
part of its Property, make any offer or commitment to do so, or enter into any
agreement to do so, EXCEPT
(a) any Permitted Dispositions;
(b) the Sale by the Borrower at any time after the date
hereof of WBRC in Birmingham, Alabama upon the terms contained in the
New World Purchase Agreement; PROVIDED, HOWEVER, that the Net
Disposition Proceeds received by the Borrower from such New World TV
Station Sale shall be used and applied by the Principal Companies
substantially contemporaneously with the receipt of such Disposition
Proceeds only for the purpose of (i) making any payment or prepayment
of or on account of all of the unpaid principal of, or any payment or
other distribution on account of the redemption, repurchase or other
acquisition for value of, Citicasters 9-3/4% Notes in the aggregate
face amount of $75,000,000, or (ii) the payment of all of the
outstanding principal of Facility A Revolving Loans the proceeds of
which were used by the Principal Companies for the purpose described
in SUBCLAUSE (I);
(c) Other TV Station Sales by the Borrower from time to
time after the date hereof; PROVIDED, HOWEVER, that:
(i) if Net Disposition Proceeds are received at
any time on prior to December 31, 1997 from any such Sale,
then all of such Net Disposition Proceeds shall be used
exclusively for the purposes and subject to the terms set
forth in CLAUSE (d)(i);
(ii) if Net Disposition Proceeds are received at
any time after December 31, 1997 from any such Sale, then all
of such Net Disposition Proceeds shall be used exclusively for
the purposes and subject to the terms set forth in CLAUSE
(D)(II); and
(iii) at the time of making any offer or commitment
to engage in any such Sale, at the time of entering into any
agreement to engage in such Sale, at the time of completion of
such Sale, and after giving effect to such Sale, each of the
Special Covenant Conditions shall be satisfied;
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(d) the Sale by any of the Principal Companies or their
Subsidiaries from time to time after the date hereof of any radio
Broadcasting Station; PROVIDED, HOWEVER, that:
(i) if Net Disposition Proceeds are received at
any time on or prior to December 31, 1997 from any Sale
pursuant to CLAUSE (c) or this CLAUSE (d), then all of such
Net Disposition Proceeds shall be used exclusively for the
following purposes and subject to the following terms: (A) in
connection with the implementation of Permitted Acquisitions
within the period of sixty (60) days beginning on the date of
the receipt of such Net Disposition Proceeds; and (B) to the
extent that all of such Net Disposition Proceeds are not used
for the purposes and within the period described in SUBCLAUSE
(A), to the application of the balance of such Net Disposition
Proceeds remaining after the use of such Net Disposition
Proceeds for the purposes and within the period described in
SUBCLAUSE (A) (in this SUBCLAUSE (B), called the "NET
AVAILABLE PROCEEDS") in the following manner: (1) the Net
Available Proceeds shall be applied by the Principal
Companies, first, towards the prepayment of the principal
amount of all Facility A Revolving Loans then outstanding
until the outstanding principal amount of all Facility A
Revolving Loans is paid in full; and (2) the balance (if any)
remaining after such application may be used by the Principal
Companies for general corporate purposes;
(ii) if Net Disposition Proceeds are received at
any time after December 31, 1997 from any Sale pursuant to
CLAUSE (c) or this CLAUSE (d), then all of such Net
Disposition Proceeds shall be used exclusively for the
following purposes and subject to the following terms: (A) in
connection with the implementation of any Permitted
Acquisitions within the applicable Reinvestment Period
beginning on the date of the receipt of such Net Disposition
Proceeds, and (B) to the extent that all of such Net
Disposition Proceeds are not used for the purposes and within
the period described in SUBCLAUSE (A), to the application of
the balance of such Net Disposition Proceeds remaining after
the use of such Net Disposition Proceeds for the purposes and
within the period described in SUBCLAUSE (A) (in this
SUBCLAUSE (B), called the "NET AVAILABLE PROCEEDS") in the
following manner: (1) if the Leverage Ratio for the first
Reference Period ending on or prior to the last day of such
Reinvestment Period is greater than 4.75:1.00, then the Net
Available Proceeds shall be applied by the Principal Companies
towards the mandatory prepayment of Facility A Revolving Loans
in an aggregate principal amount equal to the lesser of (X)
the Net Available Proceeds, or (Y) the Leverage Ratio
Adjustment for such Reference Period, as required by SECTION
3.3.2, and the balance (if any) remaining after such
application may be used by the Principal Companies for general
corporate purposes, and (2) if the Leverage Ratio for such
Reference Period is equal to or less than 4.75:1.00, then the
entire Net Available Proceeds may be used by the Principal
Companies for general corporate purposes;
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(iii) the broadcast cash flow of all radio
Broadcasting Stations to be disposed of in connection with any
such Sale, as determined for the 12-month period most recently
ended prior to such Sale (the broadcast cash flow for such
12-month period for all radio Broadcasting Stations to be
disposed of in connection with any particular Sale being
referred to in this CLAUSE (d) as the "DISPOSITION PERIOD CASH
FLOW"), shall not exceed twenty percent (20%) of the
Consolidated Broadcast Cash Flow of Citicasters and its
Subsidiaries for such 12-month period attributable to radio
Broadcasting Stations;
(iv) the aggregate of the applicable Disposition
Period Cash Flow attributable to all radio Broadcasting
Stations disposed of in connection with all of the Sales
completed from time to time after the date hereof (determined
after taking account of the Disposition Period Cash Flow of
the radio Broadcasting Stations to be disposed of in
connection with such proposed Sale) shall not exceed forty
percent (40%) of the Consolidated Broadcast Cash Flow of
Citicasters and its Subsidiaries for the Reference Period
ending on December 31, 1994 attributable to radio Broadcasting
Stations; and
(v) at the time of making any offer or commitment
to engage in any such Sale, at the time of entering into any
agreement to engage in such Sale, at the time of completion of
such Sale, and after giving effect to such Sale, each of the
Special Covenant Conditions shall be satisfied; and
(e) the Sale by any of the Principal Companies or their
Subsidiaries from time to time after the date hereof of any Property;
PROVIDED, HOWEVER, that:
(i) such Property is not a radio or television
Broadcasting Station, is not owned or used primarily in
connection with the operation of any radio or television
Broadcasting Station, and is not Capital Stock of any
Citicasters Subsidiary;
(ii) the aggregate amount of all of the Net
Disposition Proceeds received by any of the Principal
Companies or their Subsidiaries in any fiscal year of
Citicasters from all Sales of Property permitted by this
CLAUSE (e) shall not exceed $5,000,000;
(iii) if the aggregate amount of all of the Net
Disposition Proceeds received by any of the Principal
Companies or their Subsidiaries in any fiscal year of
Citicasters from all Sales of Property permitted by this
CLAUSE (e) shall exceed $2,000,000, then all of such Net
Disposition Proceeds in excess of $2,000,000 (in this
SUBCLAUSE (iii), called the "EXCESS DISPOSITION PROCEEDS")
shall be used exclusively for the following purposes and
subject to the following terms: (A) the Excess Disposition
Proceeds shall be applied by the Principal Companies towards
the mandatory prepayment of the principal amount of all
Facility A Revolving
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Loans then outstanding until the outstanding principal amount
of all Facility A Revolving Loans is paid in full, and (B)
then, the balance (if any) remaining after such application
may be used by the Principal Companies for general corporate
purposes; and
(iv) at the time of making any offer or commitment
to engage in any such Sale, at the time of entering into any
agreement to engage in such Sale, at the time of completion of
such Sale, and after giving effect to such Sale, each of the
Special Covenant Conditions shall be satisfied.
SECTION 8.2.8. ACQUISITIONS. Engage in or undertake, make any offer
or commitment to engage in, or enter into any agreement to engage in, any
Acquisition, EXCEPT
(a) any Acquisition made by any of the Principal
Companies or their Subsidiaries at any time after the date hereof that
constitutes a Non-radio Acquisition by any of the Principal Companies
or their Subsidiaries; and
(b) any Acquisitions of radio Broadcasting Stations by
any of the Principal Companies or their Subsidiaries from time to time
after the date hereof; PROVIDED, HOWEVER, that:
(i) the aggregate value of all Investments by the
Principal Companies and their Subsidiaries (all as
consolidated in accordance with GAAP) in all Noncontrolled
Entities shall at no time exceed $15,000,000;
(ii) the aggregate value of all Investments by the
Principal Companies and their Subsidiaries (all as
consolidated in accordance with GAAP) in all Turnaround
Stations shall at no time exceed $25,000,000;
(iii) the aggregate value of all Investments by
Citicasters and its Subsidiaries in connection with the
Acquisition of any single radio Broadcasting Station shall not
exceed $35,000,000, PROVIDED that Citicasters and its
Subsidiaries may, at any time after the date hereof, make an
Acquisition of a single radio Broadcasting Station the
aggregate value of all Investments in which exceeds
$35,000,000 but does not exceed $50,000,000;
(iv) the broadcast cash flow of any single radio
Broadcasting Station to be acquired in connection with any
particular Acquisition, as determined for the 12-month period
most recently ended prior to such Acquisition, shall not
exceed twenty percent (20%) of the Consolidated Broadcast Cash
Flow of Citicasters and its Subsidiaries for such 12-month
period attributable to radio Broadcasting Stations and
determined as if the radio Broadcasting Station to be acquired
in connection with such Acquisition were owned by Citicasters
and its Subsidiaries at all times during such period;
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(v) the Consolidated Broadcast Cash Flow of
Citicasters and its Subsidiaries attributable to all radio
Broadcasting Stations in a single broadcasting market, as
determined for the 12-month period most recently ended prior
to such Acquisition and determined as if the radio
Broadcasting Stations to be acquired in connection with such
Acquisition were owned by Citicasters and its Subsidiaries at
all times during such period, shall not exceed thirty percent
(30%) of the Consolidated Broadcast Cash Flow of Citicasters
and its Subsidiaries for such 12-month period attributable to
radio Broadcasting Stations and determined as if all such
radio Broadcasting Stations to be acquired were owned by
Citicasters and its Subsidiaries at all times during such
period;
(vi) each radio Broadcasting Station to be
acquired in connection with each such Acquisition shall be
located in a top-50 ADI market;
(vii) upon or promptly after completion of each
such Acquisition, the Principal Companies shall be in
compliance in all material respects with the covenants
contained in SECTION 8.1.9; and
(viii) at the time any offer or commitment is made
to engage in any such Acquisition, at the time any agreement
to engage in such Acquisition is entered into, and after
giving effect to such Acquisition, each of the Special
Covenant Conditions is satisfied.
SECTION 8.2.9. MODIFICATION OF CERTAIN DOCUMENTS AND GOVERNING
DOCUMENTS. Consent to or enter into or permit any material amendment,
supplement or other modification of any Ancillary Document or any Governing
Document of any of the Principal Companies or their Subsidiaries.
SECTION 8.2.10. TRANSACTIONS WITH AFFILIATES. Enter into, engage in
or perform any Affiliate Transaction, make any offer or commitment to do so, or
enter into any agreement to do so, EXCEPT:
(a) the incurrence of Indebtedness by any
Citicasters Subsidiary to Citicasters under the Tax Sharing
Agreement and the payment of any such Indebtedness by such
Citicasters Subsidiary;
(b) Restricted Payments by any of the Principal
Companies or their Subsidiaries to the extent permitted by
SECTION 8.2.6, including, without limitation, Restricted
Payments permitted by CLAUSE (h) and CLAUSE (i) of SECTION
8.2.6;
(c) Investments by the Parent Company permitted
by CLAUSE (d) of SECTION 8.2.5, and Investments by any of the
Principal Companies or their Subsidiaries permitted by CLAUSE
(e) of SECTION 8.2.5;
(d) loans or advances to any employee of any of
the Principal Companies or their Subsidiaries made in the
ordinary course of business;
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(e) the Sale by any of the Principal Companies or their
Subsidiaries of advertising time to any Affiliate that is not resold
by such Affiliate or the purchase by any of the Principal Companies or
their Subsidiaries of insurance from any Affiliate that is an
insurance carrier or through any Affiliate that is an insurance
agency, in each case, in the ordinary course of business; PROVIDED
that the terms of each such Sale of advertising time or purchase of
insurance is no less favorable to any of the Principal Companies or
their Subsidiaries than would be the case if such Sale or purchase had
been entered into with a Person that is not an Affiliate; and
(f) any other Affiliate Transaction with any Affiliate of
Citicasters not otherwise permitted by any of the other provisions of
thisSECTION 8.2.10; PROVIDED, that (i) the terms of such Affiliate
Transaction are no less favorable to any of the Principal Companies or
their Subsidiaries than would be the case if such Affiliate
Transaction had been entered into with a Person that is not an
Affiliate of Citicasters, and (ii) the aggregate value (as determined
on a reasonable basis and in good faith by the Principal Companies) of
all Affiliate Transactions permitted by thisCLAUSE (f) (and not
otherwise permitted by any other CLAUSE of this SECTION 8.2.10) during
any fiscal year of Citicasters shall not exceed $2,000,000.
SECTION 8.2.11. SALE OF CAPITAL STOCK, ETC. Issue, sell, transfer,
pledge, mortgage, assign or otherwise dispose of any shares of any Capital
Stock of any of the Principal Companies or their Subsidiaries, EXCEPT:
(a) the pledge from time to time of Capital Stock of the
Borrower and of other Citicasters Subsidiaries to the Collateral Agent
for the benefit of the Secured Parties in accordance with the terms of
this Agreement and the Collateral Documents; and
(b) the issuance by Citicasters of shares of its
Permitted Capital Stock; PROVIDED, HOWEVER, that:
(i) such issuance of Permitted Capital Stock by
Citicasters will not result in a breach of the covenants set
forth in SECTION 8.2.12;
(ii) if Net Securities Proceeds from the issuance
of Permitted Capital Stock by Citicasters is received by
Citicasters at any time on or prior to December 31, 1997, then
all of such Net Securities Proceeds shall be used exclusively
for the following purposes and subject to the following terms:
(A) in connection with the implementation of Permitted
Acquisitions within the period of sixty (60) days beginning on
the date of the receipt of such Net Securities Proceeds; (B)
to repay, prepay, redeem or repurchase, within such period of
sixty (60) days, Indebtedness of Citicasters permitted by
SECTION 8.2.2; (C) for other general corporate purposes within
such period of sixty (60) days; and (D) to the extent that all
of such Net Securities Proceeds are not used by Citicasters
for the purposes and within the periods described in
SUBCLAUSES (A), (B) and (C),
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to the application of the balance of such Net Securities
Proceeds remaining after the use of such Net Securities
Proceeds for the purposes and within the periods described in
SUBCLAUSES (A), (B) and (C) (in this SUBCLAUSE (D), called the
"NET AVAILABLE PROCEEDS") in the following manner: (1) the
Net Available Proceeds shall be applied by the Principal
Companies, first, towards the prepayment of the principal
amount of all of the Facility A Revolving Loans then
outstanding until all of the outstanding principal amount of
all Facility A Revolving Loans is paid in full; and (2) the
balance (if any) remaining after such application may be used
by the Principal Companies for general corporate purposes;
(iii) if Net Securities Proceeds from the issuance
of Permitted Capital Stock by Citicasters is received by
Citicasters at any time after December 31, 1997, then all of
such Net Securities Proceeds shall be used exclusively for the
following purposes and subject to the following terms: (A) in
connection with the implementation of Permitted Acquisitions
within the applicable Reinvestment Period beginning on the
date of the receipt of such Net Securities Proceeds; (B) to
repay, prepay, redeem or repurchase, within the period of
sixty (60) days beginning on the date of the receipt of such
Net Securities Proceeds, Indebtedness of Citicasters permitted
by SECTION 8.2.2; (C) for other general corporate purposes
within such period of sixty (60) days; and (D) to the extent
that all of such Net Securities Proceeds are not used by
Citicasters for the purposes and within the periods described
in SUBCLAUSES (A), (B) and (C), to the application of the
balance of such Net Securities Proceeds remaining after the
use of such Net Securities Proceeds for the purposes and
within the periods described in SUBCLAUSES (A), (B) and (C)
(in this SUBCLAUSE (D), called the "NET AVAILABLE PROCEEDS")
in the following manner: (1) if the Leverage Ratio for the
first Reference Period ending on or prior to the last day of
such applicable period (either the Reinvestment Period or the
period of sixty (60) days, as the case may be) is greater than
4.75:1.00, then the Net Available Proceeds shall be applied by
the Principal Companies towards the mandatory prepayment of
Facility A Revolving Loans in an aggregate principal amount
equal to the lesser of (X) the Net Available Proceeds, or (Y)
the Leverage Ratio Adjustment for such Reference Period, as
required by SECTION 3.3.2, and the balance (if any) remaining
after such application may be used by the Principal Companies
for general corporate purposes, and (2) if the Leverage Ratio
for such Reference Period is equal to or less than 4.75:1.00,
then the entire Net Available Proceeds may be used by the
Principal Companies for general corporate purposes; and
(iv) at the time of such issuance, and after giving
effect thereto, each of the Special Covenant Conditions is
satisfied; and
(c) the issuance by any Citicasters Subsidiary
of Permitted Capital Stock of such Citicasters Subsidiary pursuant
to Investments permitted by CLAUSE (c) or CLAUSE (d) of
SECTION 8.2.5.
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SECTION 8.2.12. CHANGE OF CONTROL. Enter into or undertake any
transaction, arrangement or agreement (whether a consolidation, merger, issue
or Sale of Capital Stock or other Securities, reorganization, voting agreement
or otherwise) that will or is reasonably likely to result in a Default under
SECTION 9.1.12.
SECTION 8.2.13. CHANGE OF LOCATION OR NAME. Change (a) the location
of its principal place of business, chief executive office, major executive
office, chief place of business or records concerning its business and
financial affairs, or (b) its name or the name under or by which it conducts
its business, in each case, without first giving the Collateral Agent written
notice thereof and having taken any and all action reasonably required by the
Collateral Agent to maintain and preserve the perfected first-priority Liens in
favor of the Collateral Agent created by the Collateral Documents.
SECTION 8.2.14. ERISA COMPLIANCE.
(a) Permit any Single Employer Plan to incur an
"accumulated funding deficiency", as such term is defined in Section
302 of ERISA, whether or not such deficiency is or may be waived.
(b) Fail to contribute to any Single Employer Plan to an
extent which, or terminate any Single Employer Plan in a manner which,
could result in the imposition of a Lien on the Property of any of the
Principal Companies or any of their Subsidiaries.
(c) Permit or take any action which would result in the
aggregate benefit liabilities (within the meaning of Section 4001 of
ERISA) of any Single Employer Plan exceeding the value of the current
assets of such Plan.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. EVENTS OF DEFAULT. The term "EVENT OF DEFAULT" shall
mean any of the events set forth in this Section occurring or existing at any
time on or after the date of this Agreement.
SECTION 9.1.1. NON-PAYMENT OF OBLIGATIONS. The Borrower (or, with
respect to CLAUSE (c), any other Transaction Party) shall default:
(a) in the payment or prepayment when due under this
Agreement or any Note of any principal of any of the Loans, and such
default shall continue unremedied for a period of one (1) Business
Day;
(b) in the payment or prepayment when due under this
Agreement or any Note of any interest on any of the Loans or other
Obligations or any Fees payable under SECTION 3.5, and such default
shall continue unremedied for a period of three (3) Business Days; or
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(c) in the payment when due under this Agreement or any
of the other Loan Documents of any other sum (other than any sum
referred to in CLAUSE (a) or (b)), and such default shall continue
unremedied for a period of five (5) Business Days.
SECTION 9.1.2. NON-PERFORMANCE OF CERTAIN OBLIGATIONS. Any of the
Principal Companies shall default in the due performance or observance of any
of its Obligations under SECTION 8.1.2 or SECTION 8.2 (including SECTION 8.2.1
through 8.2.14, inclusive).
SECTION 9.1.3. NON-PERFORMANCE OF OTHER OBLIGATIONS. Any Transaction
Party shall default in the due performance or observance of any of its
Obligations in any of the Loan Documents (other than the obligations specified
in SECTION 9.1.1 or 9.1.2), and such default shall continue unremedied for
fifteen (15) days after notice thereof shall have been given to any Transaction
Party by the Administrative Agent.
SECTION 9.1.4. BREACH OF WARRANTY. Any representation or warranty of
any Transaction Party under any of the Loan Documents is or shall be untrue or
incorrect in any material respect when made or deemed made.
SECTION 9.1.5. DEFAULT UNDER OTHER DEBT DOCUMENTS. Any of the
following events shall occur:
(a) any Transaction Party shall fail to pay, when due,
any principal, interest or other sum payable in respect of any of its
Indebtedness under any Other Debt Document;
(b) any Indebtedness under any Other Debt Document is
accelerated or otherwise becomes due and payable prior to its
scheduled payment date;
(c) any default or event of default occurs under any
Other Debt Document;
(d) any holder or holders of any of the Indebtedness
under any Other Debt Document, or any Representatives of any such
holder or holders, shall exercise, purport to exercise, give any
notice of their intention to exercise or become entitled by the terms
of such Other Debt Document to exercise, (i) any right to accelerate
Indebtedness outstanding under such Other Debt Document, (ii) any
right to require any Restricted Payment to be made in respect of such
Indebtedness, or (iii) any other remedies under such Other Debt
Document; or
(e) any Transaction Party shall for any reason make,
offer to make or become obligated to make or offer to make, any
Restricted Payment in respect of any Indebtedness under any Other Debt
Document (other than Restricted Payments permitted by this Agreement
and other than offers to make a Restricted Payment where the making of
such Restricted Payment is contingent on all of the Obligations first
having been paid in full).
SECTION 9.1.6. DEFAULT UNDER OTHER INSTRUMENTS. Any Principal
Company or any of its Subsidiaries (a) shall fail to make any payment, when
due, of any Indebtedness
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(other than the Obligations or Indebtedness under Other Debt Documents) and
such payment shall exceed $2,000,000, or (b) shall fail to perform or observe
the terms of any Instrument relating to any such Indebtedness, and such failure
of the kind described in this CLAUSE (b) shall permit any holder of such
Indebtedness to declare Indebtedness in an aggregate amount exceeding
$2,000,000 to be immediately due and payable or to otherwise be accelerated, or
(c) any Lien on any Property of any Principal Company or any such Subsidiary
securing any such Indebtedness shall be foreclosed or otherwise enforced.
SECTION 9.1.7. BANKRUPTCY, INSOLVENCY, ETC. Any Principal Company or
any Subsidiary of any Principal Company shall:
(a) generally fail to pay its debts as they become due,
or admit in writing its inability to pay its debts as they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator, or other custodian
for any Principal Company or any such Subsidiary or any Property of
any thereof, or make a general assignment for the benefit of
creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the involuntary appointment of
a trustee, receiver, sequestrator or other custodian for any Principal
Company or any such Subsidiary or for a substantial part of the
Property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within thirty (30) days;
(d) permit or suffer to exist the involuntary
commencement of, or voluntarily commence, any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under
any bankruptcy or insolvency laws, or permit or suffer to exist the
involuntary commencement of, or voluntarily commence, any dissolution,
winding up or liquidation proceeding (except for the voluntary
dissolution, not under bankruptcy or insolvency law, of any such
Person that is not a Transaction Party), in each case, by or against
any Principal Company or any such Subsidiary, PROVIDED that if not
commenced by any Principal Company or any such Subsidiary, such
proceeding shall be consented to or acquiesced in by any Principal
Company or any such Subsidiary, or shall result in the entry of an
order for relief or shall remain undismissed for thirty (30) days;
(e) with respect to any Transaction Party, permit or
suffer to exist the commencement of any case, proceeding or other
action seeking the issuance of a warrant of attachment, execution,
distraint or similar process against all or any material part of its
Property (except for any such attachment or similar process that would
constitute a Permitted Lien); or
(f) take any corporate action authorizing, or in
furtherance of, any of the foregoing.
SECTION 9.1.8. JUDGMENTS. A final judgment which, with all other
such outstanding final judgments against any of the Principal Companies or
their Subsidiaries,
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exceeds an aggregate of $2,000,000 (net of actual insurance coverage with
respect thereto), shall be rendered against any of the Principal Companies or
their Subsidiaries, and, within thirty (30) days after entry thereof, such
judgment shall not have been discharged or execution thereof stayed pending
appeal, or within thirty (30) days after the expiration of any such stay, such
judgment shall not have been discharged.
SECTION 9.1.9. ERISA. Any of the following events shall occur:
(a) any Single Employer Plan shall fail to maintain the
minimum funding standard required by Section 412 of the Code for any
plan year, or a waiver of such standard or the extension of any
amortization period is sought or granted under Section 412(d) or (e)
of the Code;
(b) any Plan is or shall have been terminated or the
subject of termination proceedings under ERISA, or an event shall have
occurred entitling the PBGC to terminate a Plan under Section 4042(a)
of ERISA; or
(c) any Principal Company, any Subsidiary of any
Principal Company or any ERISA Affiliate shall have incurred or become
likely to incur liability to or on account of a termination of or a
withdrawal from a Plan under Section 4062, 4063, 4064, 4201, 4204 or
515 of ERISA;
and there shall result from any such event or events either (i) the provision
of security to induce the issuance of a waiver or extension of any funding
requirement under Section 412 of ERISA, or (ii) liability, or a material risk
of incurring liability, to the PBGC or a Plan or a trustee appointed under
Section 4042 or 4049 of ERISA in excess of $2,000,000.
SECTION 9.1.10. BROADCASTING STATIONS. Any of the following events
shall occur with respect to any Broadcasting Station or FCC License material to
the operations of any Transaction Party:
(a) the commencement by any Communications Regulatory
Authority of any proceedings to suspend, revoke, terminate, require
the divestiture of or adversely modify any such FCC License, which
proceedings are not dismissed or discharged within thirty (30) days;
(b) the on-the-air broadcasting operations of any of the
Broadcasting Stations owned by any Transaction Party accounting for,
in the aggregate, ten percent (10%) or more of the consolidated net
operating revenues of Citicasters and its Subsidiaries for the most
recently completed period of four consecutive fiscal quarters of
Citicasters (i) are interrupted at any time for more than 120 hours
during any period of 20 consecutive days (the last day of such period
being hereinafter referred to as the INTERRUPTION DETERMINATION
DATE"), and (ii) such Transaction Party shall not have satisfied the
Managing Agents by the 30th day following the Interruption
Determination Date that such Transaction Party will receive proceeds
of business interruption insurance sufficient to cover the aggregate
lost operating revenues resulting from such interruption;
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(c) the entry of any order by the FCC suspending,
revoking, terminating, requiring the divestiture of or adversely
modifying any such FCC License;
(d) any loss or revocation of or failure to timely file
for renewal any such FCC License; or
(e) any designation of an application for renewal of any
such FCC License for an evidentiary hearing.
SECTION 9.1.11. IMPAIRMENT OF SECURITY, ETC. Any Loan Document, or
any Lien granted thereunder, shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective, or cease to be the legally
valid, binding and enforceable obligation of any Transaction Party thereto; or
any Transaction Party or any other Person shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or any Lien securing any Obligations shall, in whole or in
part, cease to be a perfected first-priority Lien, subject only to the
exceptions permitted by the Loan Documents.
SECTION 9.1.12.CHANGE OF CONTROL. At any time after the Closing Date,
any of the following shall occur:
(a) the Parent Company shall cease to own and control
(either directly or through a wholly-owned Subsidiary that is a
Transaction Party), both legally and beneficially, with full power to
vote, one hundred percent (100%) of the outstanding shares of Capital
Stock of the Borrower of every class;
(b) AFC and its Affiliates shall cease to own and
control, both legally and beneficially, with full power to vote, an
aggregate of at least twenty-five percent (25%) of all of the
outstanding shares of voting Capital Stock of the Parent Company; or
AFC and its Affiliates shall cease to possess, through ownership of
Capital Stock, contract, proxy or otherwise, the power to elect or to
cause the election of a majority of the members of the Board of
Directors of the Parent Company; or a majority of the members of the
Board of Directors of the Parent Company shall at any time not be
nominated or otherwise approved by AFC or its Affiliates; or
(c) the aggregate number of outstanding shares of voting
Capital Stock of the Parent Company owned and controlled, both legally
and beneficially, with full power to vote, by AFC and its Affiliates
(i) shall cease to exceed the aggregate number of outstanding shares
of voting Capital Stock of the Parent Company owned or controlled,
whether legally or beneficially, by any Person or Persons (other than
by any Open-end Company described below inSUBCLAUSE (II)) and any
Affiliates of any such Person or Persons acting in concert by an
amount representing ten percent (10%) or more of the total number of
outstanding shares of voting Capital Stock of the Parent Company, or
(ii) shall cease to exceed the aggregate number of outstanding shares
of voting Capital Stock of the Parent Company owned or controlled,
whether legally or beneficially, by any Open-end
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Company (as defined in the Investment Company Act of 1940, as
amended), whether directly or, indirectly, through one or more
Affiliates of such Open-end Company.
SECTION 9.1.13. MATERIALLY ADVERSE EFFECT. Any event or events shall
occur after the Closing Date which, individually or in the aggregate, have or
are reasonably likely to have, a Materially Adverse Effect.
SECTION 9.2. ACTION IF BANKRUPTCY. If any Default or Event of Default
described in SECTION 9.1.7 shall occur, all of the Commitments shall
automatically be terminated and the outstanding principal amount of all Loans
and the outstanding amount of all other Obligations shall automatically be and
become immediately due and payable, all without notice, demand, presentment or
other action of any kind.
SECTION 9.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of
Default (other than an Event of Default described in SECTION 9.1.7) shall occur
for any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required Lenders, shall, upon
notice or demand, declare (a) all of the Commitments to be terminated,
whereupon the Commitments shall be immediately terminated, and/or (b) all or
any portion of the outstanding principal amount of the Loans or the outstanding
amount of any other Obligations to be immediately due and payable, whereupon
all of the Commitments shall terminate forthwith and such Loans and other
Obligations shall be and become immediately due and payable, in each case under
CLAUSE (a) or (b), without further notice, demand, presentment or other action
of any kind.
SECTION 9.4. COMMITMENT TERMINATION EVENT. If any Commitment
Termination Event shall occur, all of the Commitments shall automatically
terminate, all without notice, demand, presentment or other action of any kind.
ARTICLE X
THE AGENTS
SECTION 10.1. ACTIONS. Each Lender or other holder of any Note
hereby authorizes each of the Administrative Agent, the Managing Agents and the
Collateral Agent to act on behalf of such Lender or holder under this Agreement
and the other Loan Documents and, in the absence of other written instructions
from the Required Lenders (or, if required by the terms of Section 12.1, from
all the Lenders) received from time to time by the Administrative Agent, the
Managing Agents or the Collateral Agent, as the case may be (with respect to
which each of the Administrative Agent, the Managing Agents or the Collateral
Agent, as the case may be, agrees that it will, subject to the next three
sentences of this SECTION 10.1, comply in good faith except to the extent that
it is advised by counsel that such compliance would be contrary to any
Applicable Law), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent, each
Managing Agent or the Collateral Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto. Each Lender
agrees (which agreement shall survive any termination of this Agreement) to
indemnify each Agent, promptly upon demand, Ratably at the time such demand is
transmitted, from and against any and all liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (collectively,
"INDEMNIFIED COSTS") which may at any time be imposed on, incurred by, or
asserted against such Agent, in any way relating to or arising out of this
Agreement or any of the other Loan Documents, including the reimbursement of
any Agent for all reasonable out-of-pocket expenses (including reasonable fees
and disbursements of counsel, amounts paid in settlement and court costs)
incurred by such Agent hereunder or in connection herewith or in enforcing the
Obligations of the Transaction Parties under this Agreement or any of the other
Loan Documents, in all cases as to which such Agent is not reimbursed by the
Principal Companies; EXCEPT for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements which (a) a court of competent jurisdiction has found, in a final
nonappealable order, resulted directly and primarily by reason of such Agent's
gross negligence or willful misconduct, or (b) have been reimbursed by the
Principal Companies pursuant to SECTION 12.4. No Agent shall be required to
take any action hereunder or under any other Loan Document, or to prosecute or
defend any suit in respect of this Agreement or any other Loan Document, unless
indemnified to its satisfaction by the Lenders against any Indemnified Costs,
except for Indemnified Costs resulting directly and primarily by reason of such
Agent's gross negligence or willful misconduct. If any indemnity required by
this SECTION 10.1 in favor of any Agent shall become impaired, such Agent may
call for additional indemnity and cease to do the acts indemnified against
until such additional indemnity is given. Any Agent may delegate its duties
hereunder to any of its Affiliates, agents or attorneys-in-fact selected in
good faith by the delegating Agent.
SECTION 10.2. EXCULPATION. Notwithstanding any provision to the
contrary elsewhere in this Agreement or any of the other Loan Documents, none
of the Agents shall have any duties or responsibilities, except those expressly
set forth herein, or any trust or fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent. None of the Agents or any of their
respective directors, officers, employees or agents (collectively, the "RELATED
PARTIES") shall be liable to any Lender for any action taken or omitted to be
taken by it under this Agreement or any other Loan Document, or in connection
herewith or therewith, except for its own willful misconduct or gross
negligence, nor shall any Agent or any of the Related Parties be responsible
for any recitals or representations or warranties herein or therein, or for the
effectiveness, enforceability, validity, or due execution of this Agreement or
any other Loan Document, nor shall any Agent or any of the Related Parties be
obligated to make any inquiry respecting the performance by the Transaction
Parties of their obligations hereunder or thereunder, or to inspect the
Properties, books or records of the Transaction Parties. Each of the Agents
shall be entitled to rely upon advice of counsel concerning legal matters and
upon any notice, consent, certificate, statement, or writing which it believes
to be genuine and to have been presented by a proper Person. The Agents shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, to the extent this Agreement requires a higher
percentage, such higher percentage), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Obligations. Each of the Agents shall be fully justified
in failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such
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advice or concurrence of the Required Lenders (or, to the extent this Agreement
requires a higher percentage, such higher percentage) as it deems appropriate.
SECTION 10.3. SUCCESSOR. Subject to the appointment and acceptance
of a successor as provided below, each of the Administrative Agent, the
Managing Agents and the Collateral Agent may resign as such at any time upon at
least thirty (30) days' prior notice to the Borrower and all Lenders, and any
such Agent may be removed at any time with reasonable cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders may, upon
consultation with the Borrower, appoint another Lender which is a commercial
banking institution or trust institution having a combined capital and surplus
of at least $500,000,000 as a successor Administrative Agent, Managing Agent or
Collateral Agent, as the case may be. If the Required Lenders do not make such
appointment within ten days, the resigning or removed Administrative Agent,
Managing Agent or Collateral Agent, as the case may be, shall, upon
consultation with the Borrower, appoint a new Administrative Agent, Managing
Agent or Collateral Agent, as the case may be, from among the Lenders which are
commercial banking or trust institutions having a combined capital and surplus
of at least $500,000,000 or, if no Lender accepts such appointment, from among
all other commercial banking institutions or trust institutions having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Administrative Agent, Managing Agent or Collateral Agent, as
the case may be, such successor Administrative Agent, Managing Agent or
Collateral Agent shall thereupon become the Administrative Agent, a Managing
Agent or the Collateral Agent hereunder and under the other Loan Documents and
shall be entitled to receive from the prior Administrative Agent, Managing
Agent or Collateral Agent, as the case may be, such documents of transfer and
assignment as it may reasonably request, and the resigning or removed
Administrative Agent, Managing Agent or Collateral Agent shall be discharged
from its duties and obligations under this Agreement and the other Loan
Documents.
SECTION 10.4. COLLATERAL DOCUMENTS, ETC. Each Lender hereby
authorizes the Collateral Agent to enter into the applicable Collateral
Documents and other Loan Documents and the Administrative Agent and each
Managing Agent to enter into any other Loan Documents and each thereof to take
all action contemplated thereby. Each Lender agrees that no Lender shall have
any right individually to seek to realize upon any security granted by or
guaranty provided by any Collateral Document or any other Loan Document, it
being understood and agreed that such rights and remedies may be exercised by
the Collateral Agent for the benefit of the Lenders and the Agents upon the
terms of the Collateral Documents and other Loan Documents.
SECTION 10.5. LOANS BY AGENTS. Any Lender which may at any time be
acting as an Agent and as a Lender hereunder shall have the same rights and
powers with respect to any Loans made by it and any Notes held by it as any
Lender and may exercise the same as if it were not an Agent hereunder, and the
term "Lender" and, when appropriate, "holder", shall include any Lender who is
then an Agent.
SECTION 10.6. CREDIT DECISIONS. Each Lender acknowledges that it
has, independently of any of the Agents or other Lenders, and based on the
financial information referred to in SECTIONS 7.4 and 7.5 and such other
documents, information and investigations as it has deemed appropriate, made
its own credit decision to make its Commitments and to
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participate in the Credit Extensions. Each Lender also acknowledges that it
will, independently of any of the Agents or other Lenders, and based on such
documents, information and investigations as it shall deem appropriate at any
time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
this Agreement, the Collateral Documents, the Notes or the other Loan
Documents.
SECTION 10.7. NOTICES, ETC., TO THE ADMINISTRATIVE AGENT AND
COLLATERAL AGENT. The Administrative Agent or the Collateral Agent, as the
case may be, will distribute to each Lender each Instrument and copies of all
other communications received by the Administrative Agent or the Collateral
Agent, as the case may be, from any of the Transaction Parties in accordance
with the terms of this Agreement or any of the other Loan Documents.
ARTICLE XI
ADDITIONAL LENDERS AND PARTICIPANTS
SECTION 11.1. PARTICIPATIONS BY LENDERS.
SECTION 11.1.1 PARTICIPATIONS. From and after the date of this
Agreement, any Lender may, in the ordinary course of its business and in
accordance with Applicable Law, sell to one or more banks or other entities
("PARTICIPANTS") participating interests in any Loans owing to such Lender, any
Notes held by such Lender, any Commitments of such Lender or any other
interests of such Lender under this Agreement and under the other Loan
Documents (which Sales shall be, as nearly as practicable, and permitting
customary rounding of such Sales and resulting retained interests, on a PRO
RATA basis as to all of the Loans, Notes, Commitments and other interests of
such Lender under the Loan Documents). In the event of any such Sale by any
Lender of participating interests to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of each of its Notes for all
purposes under this Agreement and the other Loan Documents, the Principal
Companies and the Agents shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents, and such Lender shall retain the sole
right to enforce the Obligations of the Principal Companies relating to the
Loans and to approve any amendment, modification or waiver of any provision of
this Agreement or any of the other Loan Documents. It is understood that
nothing in the prior sentence or elsewhere in this SECTION 11.1.1 shall
prohibit a Lender from agreeing with any Participant that such Lender will not,
without the consent of such Participant, take any action that would in any
event require approval of all of the Lenders under SECTION 12.1. Each Lender
hereby agrees that it will not agree with any Participant that such Lender will
not take any action without such Participant's consent unless such action would
in any event require approval of all Lenders under SECTION 12.1.
SECTION 11.1.2. PARTICIPANT'S RIGHTS OF SET-OFF IN CERTAIN CASES.
Each of the Principal Companies agrees that each Participant shall be deemed to
have all rights of set-off
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and bankers' liens provided by Applicable Law in respect of its participating
interest in amounts owing under this Agreement, any Notes or any of the other
Loan Documents to the same extent as if the amount of its participating
interest were owing directly to such Participant as a Lender under this
Agreement any Notes or any of the other Loan Documents, PROVIDED that such
Participant shall only be entitled to such right of set-off if it shall have
agreed, for the benefit of the Lenders and holders of Notes, in the agreement
pursuant to which it shall have acquired its participating interest, to
purchase from the Lenders and holders of Notes such participations in the Notes
held by them as shall be necessary to cause such Participant to share the
amount recovered in exercising such right of set-off or bankers' liens PRO RATA
in accordance with the aggregate unpaid principal and interest on the Loans
held by each of them.
SECTION 11.1.3. RIGHTS OF PARTICIPANTS. Each of the Principal
Companies also agrees that each Participant shall be entitled to the benefits
of SECTIONS 3.7, 4.5, 4.8 and 12.4 with respect to its participation in the
Loans outstanding from time to time, and all amounts to which any Participant
is entitled thereunder shall be paid by the Principal Companies directly to the
Participant; PROVIDED, that no Participant shall be entitled to receive any
greater amount pursuant to such SECTIONS than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
SECTION 11.2. ASSIGNMENTS BY LENDERS.
SECTION 11.2.1. ASSIGNMENTS. From and after the date of this
Agreement, any Lender (any such Lender being referred to herein as an
"ASSIGNING LENDER") may, in the ordinary course of its business and in
accordance with Applicable Law, assign and transfer to any other Lender or to
any Affiliate of such Assigning Lender and, with the consent of the Managing
Agents (such consent not to be unreasonably withheld), to any one or more
additional banks or financial institutions ("PURCHASING LENDER") any part of
such Assigning Lender's rights and obligations (including Commitments) under
this Agreement, its Notes and the other Loan Documents (which assignments and
transfers shall be, as nearly as practicable, and permitting customary rounding
of such assignments and transfers and resulting retained interests, on a PRO
RATA basis as to all of the Loans, Notes and Commitments of such Assigning
Lender and as to all of the other rights and obligations of such Assigning
Lender). Any such assignment and transfer ("ASSIGNMENT") shall be made
pursuant to an Assignment and Acceptance Agreement, substantially in the form
of EXHIBIT N attached hereto (an "ASSIGNMENT AND ACCEPTANCE AGREEMENT"),
executed by such Purchasing Lender and such Assigning Lender (and, in the case
of a Purchasing Lender that is not then a Lender or an Affiliate thereof, by
the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register (as hereinafter defined); PROVIDED,
HOWEVER, that (a) the aggregate principal amount of all Loans and Commitments
of the Assigning Lender being assigned pursuant to any such Assignment shall in
no event be less than $10,000,000 and shall be in an integral multiple of
$1,000,000 in excess thereof, (b) each such Assignment shall be of a constant,
and not a varying, percentage of all of the Assigning Lender's interests in
all of its Commitments, Loans and Notes and all of its other rights and
obligations under this Agreement, the Notes and the other Loan Documents, and
(c) after giving effect to any such Assignment by an Assigning Lender, the
aggregate amount of the Assigning Lender's Commitments hereunder shall not be
less than $10,000,000. From and after the effective
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date specified in each Assignment and Acceptance Agreement, which effective
date must be at least five (5) Business Days after the execution and delivery
of such Assignment and Acceptance Agreement to the Administrative Agent and (if
required) the acceptance of such Assignment and Acceptance Agreement by the
Administrative Agent (the "TRANSFER EFFECTIVE DATE"): (i) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance Agreement, have the rights and obligations of a
Lender hereunder with respect to the Loans, Commitments and Notes as set forth
therein, and (ii) the Assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance Agreement, be released from its obligations
under this Agreement.
SECTION 11.2.2. EFFECT OF ASSIGNMENT AND ACCEPTANCE AGREEMENT. Each
Assignment and Acceptance Agreement duly executed and delivered in compliance
with the foregoing provisions of SECTION 11.2.1 shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender as a Lender hereunder and the resulting
adjustment of Percentages.
SECTION 11.2.3. DELIVERY OF NEW NOTES BY BORROWER FOLLOWING
ASSIGNMENTS. In the case of any Assignment under SECTION 11.2.1 after the
Closing Date, within five (5) Business Days after the Transfer Effective Date
determined pursuant to the applicable Assignment and Acceptance Agreement and
SECTION 11.2.1, the Borrower, at its own expense, shall execute and deliver to
the Administrative Agent, against surrender of the Notes of the Assigning
Lender to the Administrative Agent, new Notes to the order of the Purchasing
Lender in an amount equal to the Commitments assigned to it pursuant to such
Assignment and Acceptance Agreement and new Notes to the order of the Assigning
Lender in a principal amount equal to the Commitment retained by it hereunder.
Such new Notes shall be dated the Transfer Effective Date (or such other date
as may be agreed to by the Borrower, the Administrative Agent, the Assigning
Lender and the Purchasing Lender) and shall otherwise be in the form of the
Notes replaced thereby. The Notes surrendered by the Assigning Lender shall be
returned by the Administrative Agent to the Borrower marked "cancelled."
SECTION 11.2.4. ADMINISTRATIVE AGENT'S MAINTENANCE OF REGISTER. The
Administrative Agent shall maintain at its address a copy of each Assignment
and Acceptance Agreement delivered to it and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders, the Commitments of
each Lender in effect from time to time, and the principal amount of the Loans
owing to each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Principal Companies, the
Agents and the Lenders may treat each Person whose name is recorded in the
Register as the maker of the Commitments and as the owner of the Loans recorded
therein for all purposes of this Agreement. The Register shall be available
for inspection by the Principal Companies, any Agent or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
SECTION 11.2.5. ACTIONS OF ADMINISTRATIVE AGENT; FEES. Upon its
receipt of an Assignment and Acceptance Agreement executed by an Assigning
Lender and a Purchasing Lender (and, in the case of a Purchasing Lender that is
not then a Lender or an Affiliate thereof, by the Administrative Agent),
together with (in the case of a Purchasing Lender that is not then a Lender or
an Affiliate thereof) payment by the Purchasing Lender to the
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Administrative Agent for the account of the Administrative Agent of a
registration and processing fee of $2,500, the Administrative Agent shall (a)
promptly accept such Assignment and Acceptance Agreement, (b) on the Transfer
Effective Date determined pursuant thereto and SECTION 11.2.1, record the
information contained therein in the Register, and (c) give notice of such
acceptance and recordation to each of the Lenders and the Principal Companies.
SECTION 11.2.6. ASSIGNING LENDER, PURCHASING LENDER AND OTHER
PARTIES; CONFIRMATIONS AND AGREEMENTS. By executing and delivering an
Assignment and Acceptance Agreement, the Assigning Lender thereunder and the
Purchasing Lender thereunder shall confirm to and agree with each other and the
other parties hereto as follows: (a) other than as provided in such Assignment
and Acceptance Agreement, such Assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, any
of the other Loan Documents or any other Instrument furnished pursuant hereto
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement, any of the other Loan Documents or any other
Instrument furnished pursuant hereto; (b) such Assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any of the Principal Companies or other Transaction
Parties or the performance or observance by any of the Principal Companies or
other Transaction Parties of any of their Obligations under this Agreement, any
of the other Loan Documents or any other Instrument furnished pursuant hereto;
(c) such Purchasing Lender confirms that it has received a copy of this
Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance Agreement;
(d) such Purchasing Lender will, independently and without reliance upon any of
the Agents, such Assigning Lender or any other Lenders and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (e) such Purchasing Lender appoints and authorizes each Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement or any of the other Loan Documents as are delegated to such Agent by
the terms hereof and thereof, together with such powers as are reasonably
incidental thereto; (f) such Purchasing Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement or any of the other Loan Documents are required to be performed by it
as a Lender; and (g) such Purchasing Lender (i) consents in all respects to the
provisions of the Collateral Documents and other Loan Documents, (ii) agrees to
be bound by the terms of the Collateral Documents and other Loan Documents, and
(iii) authorizes the Collateral Agent as Collateral Agent to act on its behalf
under the Collateral Documents and other Loan Documents and to exercise such
powers under the Collateral Documents and other Loan Documents as are delegated
to the Collateral Agent by the terms thereof, together with such powers as are
reasonably incidental thereto.
SECTION 11.3. DISCLOSURE OF INFORMATION. The Principal Companies
authorize each Lender to disclose to any Participant or Purchasing Lender
(each, a "TRANSFEREE") and any prospective Transferee any and all information
in such Lender's possession concerning the Principal Companies or other
Transaction Parties which has been delivered to such Lender by or on behalf of
the Principal
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Companies, other Transaction Parties or any Agent pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Principal
Companies, other Transaction Parties or any Agent in connection with such
Lender's credit evaluation of the Principal Companies and other Transaction
Parties prior to becoming a party to this Agreement; PROVIDED, that, prior to
any such disclosure, the Transferee or prospective Transferee shall agree to be
bound by the provisions of SECTION 12.14.
SECTION 11.4. ASSISTANCE. In order to facilitate the addition of
Purchasing Lenders and Participants hereto, the Principal Companies agree to
cooperate fully and promptly with each Assigning Lender, each Purchasing Lender
and the Managing Agents in connection therewith and to provide all reasonable
assistance requested by each Assigning Lender, each Purchasing Lender or the
Managing Agents relating thereto, including, without limitation:
(a) the furnishing promptly of such written materials and
financial information regarding the Principal Companies and their
Subsidiaries as each such Assigning Lender, Purchasing Lender or the
Managing Agents may reasonably request;
(b) the prompt execution of such documents as each such
Assigning Lender, Purchasing Lender or the Managing Agents may
reasonably request with respect thereto; and
(c) the participation by officers of the Principal
Companies and their Subsidiaries in a meeting or teleconference call
with prospective Purchasing Lenders or prospective Participants, upon
the request of each such Assigning Lender, Purchasing Lender or the
Managing Agents.
SECTION 11.5. TAXES. If any interest in this Agreement or any of the
Notes is transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any state thereof, the Assigning
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, (a) to represent to the Assigning Lender (for the benefit of the
Assigning Lender, the Agents and the Principal Companies) that under Applicable
Law no taxes will be required to be withheld by the Administrative Agent, the
Principal Companies or the Assigning Lender with respect to any payments to be
made to such Transferee in respect of the Loans or Notes, (b) to furnish to the
Assigning Lender (and, in the case of any Purchasing Lender registered in the
Register, the Administrative Agent and the Borrower) either U.S. Internal
Revenue Service Form 4224, U.S. Internal Revenue Service Form 1001 or U.S.
Internal Revenue Service Form W-8 (wherein such Transferee claims entitlement
to complete exemption from U.S. federal withholding tax on all interest
payments hereunder), and (c) to agree (for the benefit of the Assigning Lender,
the Administrative Agent and the Principal Companies) to provide the Assigning
Lender (and, in the case of any Purchasing Lender registered in the Register,
the Administrative Agent and the Borrower) a new Form 4224 or Form 1001 upon
the expiration or obsolescence of any previously delivered form and comparable
statements in accordance with Applicable Laws of the U.S. and amendments duly
executed and completed by such Transferee, and to comply from time to time with
Applicable Law with regard to such withholding tax exemption.
SECTION 11.6. FEDERAL RESERVE BANK. Nothing herein shall prohibit
any Lender from pledging or assigning any of its Loans or Notes to any Federal
Reserve Bank in accordance with Applicable law.
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ARTICLE XII
MISCELLANEOUS
SECTION 12.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and the other Loan Documents may from time to time be amended,
modified or waived, and any Collateral may be released, if such amendment,
modification, waiver or release is consented to in writing by the Required
Lenders and, in the case of any amendment or modification, each of the
Principal Companies party to the relevant Loan Document; PROVIDED, HOWEVER,
that no such amendment, modification, waiver or release:
(a) which would modify any requirement under any of the
Loan Documents that any particular action be taken by all the Lenders
shall be effective unless consented to by all of the Lenders;
(b) which would modify this Section, change the
definition of "REQUIRED LENDERS" or "COMMITMENT TERMINATION EVENT" or
"FACILITY A COMMITMENT TERMINATION DATE" or "FACILITY B COMMITMENT
TERMINATION DATE", release any Guaranty, or increase the aggregate
amount of all of the Commitments, shall be effective unless consented
to by all of the Lenders;
(c) which would release any substantial (in the
reasonable judgment of the Managing Agents) part of the Collateral
shall be effective unless consented to by all of the Lenders, unless
such release is in connection with the Sale of Property permitted by
SECTION 8.2.7 (in which event such release shall not require the
consent of any Agents or Lenders);
(d) which would increase the Commitments or the
Percentage of any Lender, reduce (other than by application of
payments) the amount of any principal, interest, Fees or other sums
payable under the Loan Documents to such Lender or reduce the rate of
interest on any Obligations to such Lender, shall be made without the
consent of such Lender;
(e) which would modify the table set forth in SECTION
2.2.1 or modify SECTION 3.3.1, SECTION 3.3.2(b) or 3.3.2(d) or SECTION
3.3.3(b) or 3.3.3(c) shall be effective unless consented to by all of
the Lenders;
(f) which would extend the payment dates for any interest
or Fees payable under this Agreement shall be effective unless
consented to by all the Lenders; or
(g) which would adversely affect the interests, rights or
obligations of the Administrative Agent, either Managing Agent or the
Collateral Agent in its capacity as the Administrative Agent, the
Managing Agent or the Collateral Agent, as the case may be, or would
amend the provisions of SECTION 3.1 or 3.6 relating to the transfer of
funds between the Administrative Agent and the Lenders (including the
types of funds or the method of such transfer), shall be made without
the consent of the Administrative Agent, each Managing Agent or the
Collateral Agent, as the case may be.
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The provisions of thisSECTION 12.1 are subject to the provisions of
SECTION 12.15. No failure or delay on the part of any Agent, Lender or holder
of any Note in exercising any power or right under this Agreement, the
Collateral Documents, the Notes or any other Loan Documents shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Borrower or any other
Transaction Party in any case shall entitle it to any notice or demand in
similar or other circumstances, unless otherwise required by the Loan
Documents. The remedies herein provided are cumulative and not exclusive of
any other remedies provided in any of the other Loan Documents or at law or in
equity.
No waiver or approval by any Agent, Lender or holder of any Note under
this Agreement, the Collateral Documents, the Notes or any other Loan Documents
shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 12.2. NOTICES. All notices and other communications provided
to any party hereto under this Agreement, the Collateral Documents, the Notes
or any other Loan Documents shall (except as otherwise specifically provided
herein or therein) be in writing or by facsimile transmission and addressed or
delivered to it at its address designated for notices set forth below its
signature hereto in the case of the Principal Companies, and in the case of
each Agent and each Lender at the address specified on SCHEDULE I or at such
other address as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
and any notice, if transmitted by facsimile transmission, shall be deemed given
when received.
SECTION 12.3. COSTS AND EXPENSES. Each Principal Company agrees to
pay all reasonable out-of-pocket expenses incurred by any of the Agents in
connection with the structuring, preparation, negotiation, review, execution or
delivery of this Agreement or any of the other Loan Documents or Ancillary
Documents, including schedules and exhibits, or any amendments, consents or
waivers to this Agreement, any of the other Loan Documents or Ancillary
Documents or any related documents as may from time to time hereafter be
required or requested (whether or not any of the same become effective),
including all reasonable (a) costs and expenses of syndication, and (b) fees
and expenses of counsel (including all local and special counsel) for any of
the Agents from time to time incurred in connection therewith, whether or not
any of the transactions contemplated hereby or thereby are consummated, and to
pay all reasonable costs and expenses of any of the Agents (including
reasonable fees and expenses of counsel to any of the Agents) incurred in
connection with the preparation, negotiation, review, execution or delivery of
the form of any Instrument relevant to this Agreement or any of the other Loan
Documents or Ancillary Documents, the consideration of legal questions relevant
hereto and thereto, and the consideration and/or conduct of any proposed or
actual restructuring or "workout" of any of the Obligations. Each Principal
Company also agrees to reimburse each Agent and each Lender upon demand for all
stamp or other taxes payable in connection with the execution, delivery or
enforcement of this Agreement or any Instrument related hereto and for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
legal expenses) incurred by such Agent or such Lender in enforcing any of the
Obligations of the Principal
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Companies or other Transaction Parties under this Agreement or any other Loan
Documents and the consideration and/or conduct of any proposed or actual
restructuring or "workout" of any Obligations.
SECTION 12.4. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
by each Lender, each Principal Company hereby indemnifies, exonerates and holds
free and harmless each of the Agents and Lenders and each of their respective
shareholders, officers, directors, employees, agents, subsidiaries and
Affiliates (collectively, the "INDEMNIFIED PARTIES" and, individually, an
"INDEMNIFIED PARTY") from and against any and all actions, causes of action,
suits, losses, costs, liabilities, damages, and expenses actually incurred in
connection with any of the Loan Documents or Ancillary Documents or any of the
transactions contemplated thereby (irrespective of whether such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including all reasonable fees and disbursements of counsel, all amounts paid in
settlement and all court costs (the "INDEMNIFIED LIABILITIES"), incurred from
time to time by the Indemnified Parties or any of them as a result of, or
arising out of, or relating to, or as a direct or indirect result of:
(a) any transaction financed or to be financed in whole
or in part or directly or indirectly with the proceeds of any of the
Loans; or
(b) the entering into or performance of this Agreement or
any of the other Loan Documents or Ancillary Documents by any of the
Indemnified Parties or any of the Principal Companies or their
Subsidiaries; or
(c) the enforcement by any of the Indemnified Parties of
any of its rights or remedies under any of the Loan Documents or in
respect of any of the Collateral; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or release from,
any real Property owned or operated by any of the Principal Companies
or any of their Subsidiaries of any Hazardous Material (including,
without limitation, any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under Environmental Law),
regardless of whether or not caused by, or within the control of, any
of the Principal Companies or any of their Subsidiaries;
EXCEPT for any PORTION of such Indemnified Liabilities which a court of
competent jurisdiction has found, in a final, nonappealable order, resulted
solely by reason of such Indemnified Party's gross negligence or willful
misconduct or breach by such Indemnified Party of its obligations under the
Loan Documents. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, each of the Principal Companies hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under Applicable Law, except as
aforesaid to the extent not payable by reason of the Indemnified Party's gross
negligence or willful misconduct or breach of such obligations.
<PAGE> 118
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SECTION 12.5. SURVIVAL. The obligations of the Principal Companies
under SECTIONS 3.7, 4.5, 4.8, 12.3, and 12.4 and the obligations of the Lenders
under SECTION 10.1 shall in each case survive any termination of this Agreement
and the payment of any of the Obligations. The representations and warranties
made by the Transaction Parties in this Agreement or in any of the other Loan
Documents, or in any document, certificate or statement delivered pursuant
hereto or thereto or in connection herewith or therewith, shall survive the
execution and delivery of this Agreement and each of the other Loan Documents
and the making of each of the Loans.
SECTION 12.6. SEVERABILITY. Any provision of this Agreement, the
Notes or any of the other Loan Documents which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent only of such prohibition or unenforceability without invalidating any of
the remaining provisions of this Agreement, the Notes or any of the other Loan
Documents or the enforceability of any such provision in any other
jurisdiction.
SECTION 12.7. HEADINGS. The various headings of this Agreement and
of each of the other Loan Documents are inserted for convenience only and shall
not affect the meaning or interpretation of this Agreement or any of such other
Loan Documents or any provisions hereof or thereof.
SECTION 12.8. COUNTERPARTS; ENTIRE AGREEMENT. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement. This Agreement, the Notes, the other Loan Documents and
each Assignment and Acceptance Agreement constitute the entire understanding
among the parties hereto with respect to the subject matter hereof and
supersede any prior agreements, written or oral, with respect thereto.
SECTION 12.9. CHOICE OF LAW. THIS AGREEMENT HAS BEEN EXECUTED AND
DELIVERED IN THE COMMONWEALTH OF MASSACHUSETTS AND SHALL IN ALL RESPECTS BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF SUCH STATE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND,
IN THE CASE OF PROVISIONS RELATING TO INTEREST RATES, ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.
SECTION 12.10. SERVICE OF PROCESS. EACH PRINCIPAL COMPANY BY ITS
EXECUTION HEREOF (A) HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE STATE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS AND TO
THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF, AND (B) HEREBY WAIVES, TO THE
EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH PROCEEDING,
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ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT ANY SUCH PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS IS
IMPROPER, OR THAT THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE SUBJECT
MATTER HEREOF OR THEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT. EACH
PRINCIPAL COMPANY HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING
IN ANY MANNER PERMITTED BY CHAPTER 223A OF THE GENERAL LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS AND AGREES THAT SERVICE OF PROCESS BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED IN OR PURSUANT TO
SECTION 12.2 IS REASONABLY CALCULATED TO GIVE ACTUAL NOTICE.
SECTION 12.11. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that:
(a) no Principal Company may assign or transfer any of
its rights or obligations hereunder or under any Loan Document without
the prior written consent of all Lenders; and
(b) the rights of sale, assignment, participation and
transfer by the Lenders are subject to ARTICLE XI.
SECTION 12.12. OTHER TRANSACTIONS; CONSENT TO RELATIONSHIPS. Nothing
contained herein shall preclude any Agent or Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with any of the Principal Companies or any of their Affiliates
in which such Principal Company or such Affiliate is not restricted hereby
from engaging with any other Person.
SECTION 12.13. FURTHER ASSURANCES. Each of the Principal Companies
hereby agrees that it will, from time to time at its own expense, promptly
execute and deliver all further Instruments, and take all further action, that
may be necessary or appropriate, or that the Administrative Agent, either
Managing Agent, the Collateral Agent or the Required Lenders may reasonably
request, in order to perfect, preserve or protect any Lien granted or purported
to be granted under the Collateral Documents, to enable the Lenders, the
Administrative Agent, either Managing Agent or the Collateral Agent to exercise
and enforce any of their rights or remedies under this Agreement or any of the
other Loan Documents or otherwise to carry out the intent of this Agreement or
any of the other Loan Documents.
SECTION 12.14. CONFIDENTIALITY. Each Lender shall, for a period of
two (2) years, hold all non-public information obtained pursuant to the
requirements of this Agreement, which has been identified in writing as
confidential by any Principal Company, in accordance with such Lender's
customary procedures for handling confidential information of this nature and
in accordance with safe and sound banking practices, PROVIDED that in any event
it is understood and agreed that each Lender may make disclosure of such
information (a) at any time while any Default shall be continuing, (b) to its
examiners, Affiliates, outside auditors,
<PAGE> 120
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counsel and other professional advisors in connection with this Agreement, (c)
as reasonably required by any BONA FIDE prospective Participant or Purchasing
Lender or actual Participant or Purchasing Lender in connection with the
contemplated transfer of any Commitments, Loans or Notes or any participations
therein, (d) as required or requested by any Applicable Law or any Governmental
Authority or pursuant to legal process, (e) which, at the time of disclosure,
is publicly available or (f) in connection with any litigation to which any
Lender is a party; PROVIDED, FURTHER, that,
(i) unless prohibited by any Applicable Law, each Lender
shall notify the Borrower promptly of any request by any Governmental
Authority (other than any such request in connection with an
examination of the financial condition of such Lender by such
Governmental Authority) for disclosure of any such non-public
information and shall exercise its reasonable efforts to permit the
Principal Companies, if practical, to respond to such notice prior to
disclosure of such information; and
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(ii) in no event shall any Lender be obligated or required
to return any materials furnished by the Principal Companies.
SECTION 12.15. RELEASE OF COLLATERAL. Each Lender hereby authorizes
each of the Collateral Agent and the Administrative Agent to execute and
deliver, on behalf of all Lenders and without any further consent or other
action by any of the Lenders or the Agents, all such releases, termination
statements or other documents as may necessary or appropriate from time to time
to release any Property constituting Collateral from the Lien of the Collateral
Documents in connection with any Sale of Property permitted by SECTION 8.2.7 of
this Agreement.
SECTION 12.16. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE AGENTS, LENDERS AND
PRINCIPAL COMPANIES HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN
ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
SUBJECT MATTER HEREOF OR THEREOF OR ANY OBLIGATION OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY OF THE AGENTS, LENDERS OR
PRINCIPAL COMPANIES IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE.
EACH PRINCIPAL COMPANY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION 12.16
CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE AGENTS AND LENDERS ARE RELYING
AND WILL RELY IN ENTERING INTO THIS AGREEMENT AND ANY OTHER LOAN DOCUMENT. ANY
OF THE AGENTS, LENDERS OR PRINCIPAL COMPANIES MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION 12.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF EACH OF THE AGENTS, LENDERS AND PRINCIPAL COMPANIES TO THE WAIVER OF
ITS RIGHT TO TRIAL BY JURY.
<PAGE> 122
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized as of the day
and in the year first above written.
CITICASTERS CO.
By:
---------------------------------
Its:
Address: One East Fourth Street
Cincinnati, Ohio 45202
Fax: (513) 721-8413
Attention: Gregory C. Thomas
CITICASTERS INC.
By:
---------------------------------
Its:
Address: One East Fourth Street
Cincinnati, Ohio 45202
Fax: (513) 721-8413
Attention: Gregory C. Thomas
BANK OF AMERICA ILLINOIS, as
Collateral Agent, as Managing
Agent, as Co-Agent and as one
of the Lenders
By:
---------------------------------
Its:
THE FIRST NATIONAL BANK OF
BOSTON, as Administrative
Agent, as Managing Agent, as
Co-Agent and as one of the
Lenders
By:
---------------------------------
Its:
<PAGE> 123
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THE CHASE MANHATTAN BANK, N.A.,
as Co-Agent and as one of the
Lenders
By:
---------------------------------
Its:
THE BANK OF NEW YORK,
as Co-Agent and as one of the
Lenders
By:
---------------------------------
Its:
NATIONAL WESTMINSTER BANK USA
as one of the Lenders
By:
---------------------------------
Its:
CHEMICAL BANK,
as one of the Lenders
By:
---------------------------------
Its:
STAR BANK, N.A.,
as one of the Lenders
By:
---------------------------------
Its:
