<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
AND
SCHEDULE 13D
(Amendment No. 5)
Under the Securities Exchange Act of 1934
HEFTEL BROADCASTING CORPORATION
(Name of Subject Company)
CLEAR CHANNEL RADIO, INC.
CLEAR CHANNEL COMMUNICATIONS, INC.
(Bidders)
CLASS A COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
422799106
(CUSIP Number of Class of Securities)
-----------------------
L. LOWRY MAYS
CLEAR CHANNEL COMMUNICATIONS, INC.
200 CONCORD PLAZA, SUITE 600
SAN ANTONIO, TEXAS 78216
(210) 822-2828
(Name, Address and Telephone Number of Persons Authorized to Receive
Notices and Communications on Behalf of Bidders)
Copy to:
STEPHEN C. MOUNT
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
300 CONVENT STREET, SUITE 1500
SAN ANTONIO, TEXAS 78205
(210) 270-0800
-----------------------
AUGUST 5, 1996
(Date of Event Which Requires Filing Amendment to Statement on Schedule 13D)
<PAGE> 2
Introduction
This Amendment No. 4 to Schedule 14D-1 and Amendment No. 5 to
Schedule 13D amends and supplements the Tender Offer Statement on Schedule
14D-1 and the Schedule 13D filed with the Securities and Exchange Commission
(the "Commission") on June 7, 1996, as amended (as so amended from time to
time, the "Schedule 14D-1"), which relates to the tender offer by Clear
Channel Radio, Inc., a Nevada corporation (the "Purchaser"), to purchase any
and all outstanding shares of Class A Common Stock, par value $.001 per share
(the "Shares"), of Heftel Broadcasting Corporation, a Delaware corporation, at
a price of $23.00 per Share net to the seller in cash, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated June 7,
1996 (the "Offer to Purchase"), as amended by the Supplement to Offer to
Purchase dated July 11, 1996 (the "Supplement"), and in the related Letter of
Transmittal. Purchaser is a wholly-owned subsidiary of Clear Channel
Communications, Inc., a Texas corporation ("Parent").
Item 4. Source and Amount of Funds or Other Consideration.
Item 4(b) is hereby amended and supplemented by the addition of the
following paragraph:
On August 1, 1996, Parent entered into an Amended and
Restated Credit Agreement that, among other things, permits
borrowings of up to $1.0 billion. A copy of the Amended and
Restated Credit Agreement is filed herewith as Exhibit
99(b)(1) and is incorporated herein by reference.
Item 5. Purpose of the Tender Offer and Plans or Proposals of the Bidder.
Items 5(a) and 5(e) are hereby amended and supplemented as set forth
in Item 6 below.
Item 5(c) is hereby amended and supplemented by the addition of the
following paragraphs:
The Company, by resolutions of the Board of Directors of the
Company effective as of the Closing of the Offer, (1) accepted
the resignations as directors of the Company of Messrs. Cecil
Heftel, H. Carl Parmer, Madison B. Graves, II, Richard D.
Heftel and John E. Mason; and (2) elected Messrs. Ernesto
Cruz, L. Lowry Mays, B.J. McCombs, James M. Raines and John H.
Williams (the "New Board") to fill the vacancies resulting
from the above stated resignations.
Immediately following the Closing of the Offer, the Company,
by resolutions of the New Board effective August 5, 1996,
terminated the employment of Cecil Heftel and H. Carl Parmer
as officers and employees of the Company and elected L.
Lowry Mays as President and Chief Executive Officer of the
Company.
Item 6. Interest in Securities of the Subject Company.
Item 6 is hereby amended and supplemented by the addition of the
following paragraphs:
The Offer expired at 8:00 a.m., New York City time, on
August 5, 1996. Based on information provided by the
Depositary, a total of 269,309 Shares were validly tendered
and not withdrawn pursuant to the Offer. The Purchaser has
accepted for payment all such Shares at a purchase price of
$23.00 per Share in cash. In addition,
1
<PAGE> 3
pursuant to Section 1.5 of the Tender Offer Agreement, a
total of 1,355,184 Shares underlying Convertible Securities
were tendered in the Offer and the Purchaser has accepted
for payment all such Shares.
Following the Closing of the Tender Offer Agreement on
August 5, 1996, the Purchaser purchased a total of 3,516,529
Shares from the Selling Stockholders at a purchase price of
$23.00 per Share pursuant to the Stockholder Purchase
Agreement. The Purchaser also purchased from one of the
Selling Stockholders 335,634 shares of Series A Preferred
Stock of the Company at a purchase price of $1.00 per share
pursuant to the Stockholder Purchase Agreement.
As a result of the foregoing purchases, the Purchaser and
Parent beneficially own 7,297,821 Shares of Class A Common
Stock, representing 62.33% of the outstanding Shares of
Class A Common Stock on a fully diluted basis, and there are
no Shares of Class B Common Stock outstanding.
Item 7. Contracts, Arrangements, Understandings or Relationships with Respect
to the Subject Company's Securities.
Item 7 is hereby amended and supplemented as set forth in Item 5
above.
Item 10. Additional Information.
On August 5, 1996, the Purchaser issued the press release attached to
this Schedule 14D-1 as Exhibit 99(a)(13), which is incorporated
herein by reference.
Item 11. Material to be Filed as Exhibits.
Item 11 is amended to add the following:
99(a)(13) Text of Press Release dated August 5, 1996.
99(b)(1) Amended and Restated Credit Agreement dated as of
August 1, 1996, among Parent, the Lenders from time
to time party thereto and NationsBank of Texas,
N.A.
2
<PAGE> 4
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DATED: August 5, 1996 CLEAR CHANNEL COMMUNICATIONS, INC.
By: /s/ Mark P. Mays
Name: Mark P. Mays
Title: Senior Vice President/Operations
CLEAR CHANNEL RADIO, INC.
By: /s/ Mark P. Mays
Name: Mark P. Mays
Title: Senior Vice President/Operations
3
<PAGE> 5
EXHIBIT INDEX
Exhibit No. Description
99(a)(13) Text of Press Release dated August 5, 1996
99(b)(1) Amended and Restated Credit Agreement dated as of August 1,
1996, among Parent, the Lenders from time to time party
thereto and NationsBank of Texas, N.A.
<PAGE> 1
EXHIBIT 99(a)(13)
CLEAR CHANNEL COMMUNICATIONS, INC.
For Immediate Release
For Further Information Contact: Randall Mays (210) 822-2828
CLEAR CHANNEL COMPLETES ACQUISITION OF SHARES
OF HEFTEL BROADCASTING CORPORATION
San Antonio, Texas, August 5, 1996 -- Clear Channel Radio, Inc., an indirect
wholly-owned subsidiary of Clear Channel Communications, Inc., (NYSE:CCU)
today announced that its offer to purchase all outstanding shares of Class A
and Class B Common Stock of Heftel Broadcasting Corporation (NASDAQ:HBCCA) at
$23.00 per share, net to the seller in cash, expired at 8:00 a.m., New York
City time, on Monday, August 5, 1996.
Clear Channel Radio, Inc. accepted for payment all 269,309 shares which were
properly tendered and not withdrawn as of the expiration of the offer. Payment
for the tendered shares will be made promptly.
Additionally, Clear Channel Radio, Inc. consummated the purchase of a total of
4,871,713 shares of Heftel Common Stock from certain stockholders of Heftel at
a purchase price of $23.00 per share pursuant to a Stockholder Purchase
Agreement.
As a result of the foregoing acquisitions, Clear Channel Communications, Inc.
now beneficially owns a total of 7,297,821 shares of Heftel Class A Common
Stock, representing approximately 63% of the outstanding shares of Heftel
Class A Common Stock. There are no longer any shares of Heftel Class B Common
Stock outstanding.
Lowry Mays, President and Chief Executive Officer of Clear Channel
Communications, Inc. said, "The completion of the Heftel offer is the first
step in the process of consolidating the Spanish- language radio industry. The
next step, the proposed merger between Heftel and Tichenor, if successful,
will create the only broadcasting company to have a radio presence in each of
the top- ten Hispanic markets."
As previously announced, Clear Channel will submit to the Board of Directors
of Heftel an agreement to merge Heftel and Tichenor Media Systems, Inc.
("TMS"). Under the terms of the proposed Merger, TMS stockholders will
exchange the capital stock of TMS for approximately 5.68 million shares of
Heftel Class A common stock and approximately $3.2 million in cash.
The Merger is subject to certain conditions, including approval of the Merger
by the Board of Directors and stockholders of Heftel, approval of the Merger
by the stockholders of TMS, and the approval of the Federal Communications
Commission and the Federal Trade Commission.
<PAGE> 2
There can be no assurance that the conditions will be satisfied or that the
Merger will be consummated.
Clear Channel Communications, Inc. is a diversified broadcasting company
which, including pending acquisitions, owns and/or operates 94 radio stations
and 18 television stations in the United States. The Company also has
broadcasting operations in Australia and New Zealand. Its stock is traded on
the New York Stock Exchange under the symbol CCU.
<PAGE> 1
EXHIBIT 99.(b)(1)
================================================================================
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
CLEAR CHANNEL COMMUNICATIONS, INC.
CERTAIN LENDERS
AND
NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE LENDER
August 1, 1996
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE 1
Definitions
<S> <C> <C>
Section 1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Amendments and Renewals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 1.3 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 2
Advances
Section 2.1 The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.2 Manner of Borrowing and Disbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.3 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.4 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.5 Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.6 Reduction and Change of Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.7 Non-Receipt of Funds by the Administrative Lender . . . . . . . . . . . . . . . . . . . . . 29
Section 2.8 Payment of Principal of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.9 Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.10 Manner of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.11 LIBOR Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.12 Sharing of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.13 Calculation of LIBOR Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.14 Booking Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.16 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Closing and the Initial Advance and the
Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 3.2 Conditions Precedent to All Advances and Letters of Credit . . . . . . . . . . . . . . . . 43
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 4.2 Survival of Representations and Warranties, etc . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 5
General Covenants
Section 5.1 Preservation of Existence and Similar Matters . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.2 Business; Compliance with Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.3 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.4 Accounting Methods and Financial Records . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.6 Payment of Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.7 Visits and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.8 Payment of Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.9 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.10 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.11 Environmental Law Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.12 Syndication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 6
Information Covenants
Section 6.1 Quarterly Financial Statements and Information . . . . . . . . . . . . . . . . . . . . . . 56
Section 6.2 Annual Financial Statements and Information; Certificate of No
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 6.3 Compliance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 6.4 Copies of Other Reports and Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 6.5 Notice of Litigation, Default and Other Matters . . . . . . . . . . . . . . . . . . . . . . 58
Section 6.6 ERISA Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 7
Negative Covenants
Section 7.1 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.2 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.3 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.4 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.5 Liquidation, Disposition or Acquisition of Assets, Merger, New
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.6 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 7.7 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.8 Affiliate Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 7.9 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.10 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.11 Fixed Charges Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.12 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.13 Debt Service Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.14 Capital Stock of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.15 Sale and Leaseback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.16 Sale or Discount of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.17 Business of Television Licenses and Radio Licenses and Metroplex
Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.18 Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 8
Default
Section 8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 8.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 9
Changes in Circumstances
Section 9.1 LIBOR Basis Determination Inadequate . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 9.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 9.3 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.4 Effect On Base Rate Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 9.5 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE 10
AGREEMENT AMONG LENDERS
Section 10.1 Agreement Among Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 10.2 Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 10.3 Benefits of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE 11
Miscellaneous
Section 11.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 11.3 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
</TABLE>
- iii -
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 11.4 Determination by the Lenders Conclusive and Binding . . . . . . . . . . . . . . . . . . . . 78
Section 11.5 Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 11.6 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.9 Interest and Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.11 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.12 Exception to Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.13 No Liability of Issuing Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.14 Credit Agreement Governs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.15 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.16 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.17 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
</TABLE>
- iv -
<PAGE> 6
Schedules and Exhibits
Schedule 1: LIBOR Lending Offices
Schedule 2: Existing Liens
Schedule 3: Existing Litigation
Schedule 4: Licenses, Permits and Other Authorizations
Schedule 5: Rights Relating to Pledged Stock
Schedule 6: Existing Guaranties
Schedule 7: Subsidiaries
Schedule 8: Existing Investments
Schedule 9: Existing Indebtedness
Schedule 10: Intentionally Deleted
Schedule 11: Material Adverse Changes
Schedule 12: Specified Percentages
Schedule 13: Subsidiary Guarantors
Schedule 14: Existing Letters of Credit
Exhibit A: Revolving Credit Note
Exhibit B: Bid Rate Note
Exhibit C: Subsidiary Guaranty
Exhibit D: Compliance Certificate
Exhibit E: Assignment and Acceptance
<PAGE> 7
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as of
August 1, 1996, among CLEAR CHANNEL COMMUNICATIONS, INC., a Texas corporation
("Borrower"), the Lenders from time to time party hereto, and NATIONSBANK OF
TEXAS, N.A., a national banking association, as administrative agent for the
Lenders.
BACKGROUND
The Borrower and lenders entered into that certain Credit Agreement
dated as of September 30, 1994 in the maximum principal amount of $350,000,000
(said Credit Agreement, as amended, the "Original Credit Agreement").
The Borrower and certain of the Lenders entered into the certain
Amended and Restated Credit Agreement dated as of October 19, 1995 in the
maximum principal amount of $600,000,000 (said Amended and Restated Credit
Agreement, as amended, the "Existing Credit Agreement").
The Borrower has requested that the Lenders amend and restate the
Existing Credit Agreement by making a credit facility available to the Borrower
in the maximum principal amount of $1,040,000,000, subject to a possible
increase up to $1,300,000,000 as provided in Section 5.12 herein. The Lenders
have agreed to do so, subject to the terms and conditions set forth below.
In consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration hereby acknowledged, the
parties hereto agree that the Existing Credit Agreement is being amended and
restated as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. For purposes of this Agreement:
"ARN" means the Australian Radio Network Limited, PTY, an Australian
propriety company, 50% of whose Capital Stock is owned by the Borrower.
"Additional Costs" has the meaning set forth in Section 9.5 hereof.
"Administrative Lender" means NationsBank of Texas, N.A., a national
banking association, as administrative agent for Lenders, or such successor
administrative agent appointed pursuant to Section 10.1(b) hereof.
<PAGE> 8
"Advance" means a Revolving Credit Advance or a Bid Rate Advance and
"Advances" means Revolving Credit Advances and Bid Rate Advances.
"Affiliate" means any Person that directly or indirectly through one
or more Subsidiaries Controls, or is Controlled By or Under Common Control
with, the Borrower.
"Affiliation Agreements" means all affiliation agreements of the
Borrower and each Subsidiary with Fox Broadcasting.
"Agreement" means this Credit Agreement, as amended or renewed from
time to time.
"Agreement Date" means the date of this Agreement.
"Amortization Date" means the last Business Day of December 1999.
"Applicable Environmental Laws" means applicable laws pertaining to
health or the environment, including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986 (as amended from time
to time, "CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended by the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act
amendments of 1980, and the Hazardous and Solid Waste Amendments of 1984 (as
amended from time to time, "RCRA"), the Texas Water Code, and the Texas Solid
Waste Disposal Act.
"Applicable Law" means (a) in respect of any Person, all provisions of
constitutions, statutes, rules, regulations, courts and orders of governmental
bodies or regulatory agencies applicable to such Person and its properties,
including, without limiting the foregoing, all orders and decrees of all courts
and arbitrators in proceedings or actions to which the Person in question is a
party, and (b) in respect of contracts relating to interest or finance charges
that are made or performed in the State of Texas, "Applicable Law" shall mean
the laws of the United States of America, including without limitation 12 USC
Sections 85 and 86, as amended from time to time, and any other statute of the
United States of America now or at any time hereafter prescribing the maximum
rates of interest on loans and extensions of credit, and the laws of the State
of Texas, including, without limitation, Article 5069-1.04, Title 79, Revised
Civil Statutes of Texas, 1925, as amended ("Art. 1.04"), and any other statute
of the State of Texas now or at any time hereafter prescribing maximum rates of
interest on loans and extensions of credit; provided that the parties hereto
agree that the provisions of Chapter 15, Title 79, Revised Civil Statutes of
Texas, 1925, as amended, shall not apply to Advances, this Agreement, the notes
or any other Loan Documents.
"Applicable Margin" means the following per annum percentages,
applicable in the following situations:
- 2 -
<PAGE> 9
<TABLE>
<CAPTION>
Base Rate LIBOR
Applicability Basis Basis
------------- ----- -----
<S> <C> <C> <C>
(i) If the Leverage Ratio is not less than 5.0 to 1 0.00 0.7500
(ii) If the Leverage Ratio is less than 5.0 to 1 but is not less 0.00 0.6250
than 4.5 to 1
(iii) If the Leverage Ratio is less than 4.5 to 1 but is not less 0.00 0.5500
than 4.0 to 1
(iv) If the Leverage Ratio is less than 4.0 to 1 but is not less 0.00 0.4500
than 3.5 to 1
(v) If the Leverage Ratio is less than 3.5 to 1 but is not less 0.00 0.3750
than 2.5 to 1
(vi) If the Leverage Ratio is less than 2.5 to 1 0.00 0.3000
</TABLE>
The Applicable Margin payable by the Borrower on the Revolving Credit Advances
outstanding hereunder shall be subject to reduction or increase, as applicable
and as set forth in the table above, on a quarterly basis according to the
performance of the Borrower as tested by the Leverage Ratio. Except as set
forth in the last sentence hereof, any such increase or reduction in the
Applicable Margin provided for herein shall be effective three Business Days
after receipt by Administrative Lender of the applicable financial statements.
If financial statements of the Borrower setting forth the Leverage Ratio are
not received by the Administrative Lender by the date required pursuant to
Section 6.1 hereof, the Applicable Margin shall be determined as if the
Leverage Ratio is not less than 5.0 to 1 until such time as such financial
statements are received. For the final quarter of any fiscal year of the
Borrower, the Borrower may provide its unaudited financial statements, subject
only to year-end adjustments, for the purpose of adjusting the Applicable
Margin. Notwithstanding anything above to the contrary, if the compliance
certificate required to be delivered pursuant to Section 7.5(b) hereof prior to
any proposed acquisition indicates that the Leverage Ratio after giving effect
to the proposed acquisition would result in an adjustment of the Applicable
Margin, the Applicable Margin shall be increased or decreased, as the case may
be, as of the date of such acquisition.
"Art. 1.04" has the meaning ascribed thereto in the definition of
"Applicable Law."
"Assignees" means any assignee of a Lender pursuant to an Assignment
Agreement and shall have the meaning ascribed thereto in Section 11.6 hereof.
"Assignment Agreement" has the meaning ascribed thereto in Section
11.6 hereof.
- 3 -
<PAGE> 10
"Authorized Signatory" means such senior personnel of the Borrower as
may be duly authorized and designated in writing by the Borrower to execute
documents, agreements and instruments on behalf of the Borrower, and to request
Advances and Letters of Credit hereunder.
"Base Rate Advance" means any Revolving Credit Advance bearing
interest at the Base Rate Basis.
"Base Rate Basis" means, for any day, a per annum interest rate equal
to the lesser of (a) the Highest Lawful Rate on such day, or (b) the higher of
(i) the sum of (A) 0.50% plus (B) the Federal Funds Rate plus (C) the
Applicable Margin, or (ii) the sum of (A) the Prime Rate on such day plus (B)
the Applicable Margin. The Base Rate Basis shall be adjusted automatically as
of the opening of business on the effective date of each change in the Prime
Rate or Federal Funds Rate, as the case may be, to account for such change.
"Bid Rate Advance" means an Advance the interest rate on which is
determined by agreement between the Borrower and the Lender making such Advance
pursuant to Section 2.1(b) hereof.
"Bid Rate Note" means each promissory note of the Borrower evidencing
Bid Rate Advances, substantially in the form of Exhibit B hereto, together with
any extension, renewal or amendment thereof or substitution therefor.
"Borrower" means Clear Channel Communications, Inc., a Texas
corporation.
"Business Day" shall mean a day on which banks are open for the
transaction of business as required by this Agreement in Dallas, Texas and New
York, New York and, with respect to any LIBOR Advance, a domestic business day
in London, England and a day on which commercial banks are open for
international business in London, England (including dealings in United States
dollar deposits), and as otherwise relevant to the determination to be made or
the action to be taken.
"Capital Expenditures" means expenditures for the purchase of tangible
assets of long-term use which are capitalized in accordance with GAAP;
provided, however, Capital Expenditures shall not include assets acquired
through trade without any expenditure of cash, such trade capital expenditures
not to exceed $3,000,000 in aggregate value per year, such valuation to be
determined using the lesser of the fair market value of assets received or the
value of air- time run in exchange for the assets received.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital
stock of any Person that is a corporation and each class of partnership
interests (including, without limitation, general, limited and preference
units) in any Person that is a partnership.
- 4 -
<PAGE> 11
"Capitalized Lease Obligations" means that portion of any obligation
of the Borrower or any Restricted Subsidiary as lessee under a lease which at
the time would be required to be capitalized on a balance sheet prepared in
accordance with GAAP.
"CCC-Houston" means CCC-Houston AM, Ltd., a Texas limited partnership
and a Subsidiary of Borrower.
"CCRE" means Clear Channel Real Estate, Inc., a Nevada corporation,
and a wholly-owned Subsidiary of Holdings.
"CCR Houston-Nevada" means CCR Houston-Nevada, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of Radio.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means (a) prior to the Syndication Date $1,040,000,000,
as reduced from time to time pursuant to Section 2.6 hereof and (b) on and
after the Syndication Date, an amount not to exceed $1,300,000,000 as reduced
from time to time pursuant to Section 2.6 hereof.
"Communications Act" means, collectively, the Communications Act of
1934, as amended and the rules and regulations promulgated thereunder, as from
time to time in effect.
"Control" or "Controlled By" or "Under Common Control" means
possession, directly or indirectly, of power to direct or cause the direction
of management or policies (whether through ownership of voting securities, by
contract or otherwise); provided, however, that (a) in the event that no one
Person owns more than 50% of the outstanding Capital Stock of a corporation or
entity, any Person which beneficially owns, directly or, by contract or law,
indirectly, 10% or more (in number of votes) of the securities having ordinary
voting power for the election of directors of such corporation shall be
conclusively presumed to control such corporation or (b) in the event that one
Person owns greater than 50% of the outstanding Capital Stock of a corporation,
any Person which beneficially owns, directly or, by contract or law,
indirectly, greater than 20% or more (in number of votes) of the securities
having ordinary voting power for the election of directors of such corporation
shall be conclusively presumed to control such corporation.
"Controlled Group" means, as to any Person, all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) which are under common control with such Person and which,
together with such Person, are treated as a single employer under Section
414(b), (c), (m) or (o) of the Code; provided, however, that the Subsidiaries
of the Borrower shall be deemed to be members of the Borrower's Controlled
Group, and the Borrower and any other entities (whether incorporated or not
incorporated) which are under common Control with the Borrower and which,
together with the Borrower, are treated as a single employer under Section
414(b), (c), (m) or (o) of the Code, shall be deemed to be members of the
Borrower's Controlled Group on and after the Agreement Date.
- 5 -
<PAGE> 12
"Default" means an Event of Default and/or any of the events specified
in Section 8.1, regardless of whether there shall have occurred any passage of
time or giving of notice that would be necessary in order to constitute such
event an Event of Default.
"Default Rate" means a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, or (b) the sum of the Base Rate Basis
plus two percent.
"Determining Lenders" means, on any date of determination, any
combination of the Lenders having at least 51% of the aggregate amount of the
Revolving Credit Advances then outstanding; provided, however, that if there
are no Revolving Credit Advances outstanding hereunder, "Determining Lenders"
shall mean any combination of Lenders whose Specified Percentages aggregate at
least 51%.
"Dividend" means, as to any Person, (a) any declaration or payment of
any dividend (other than a dividend paid solely in shares of the common stock
of such Person) on, or the making of any distribution, loan, advance or
investment to or in any holder of, any shares of Capital Stock of such Person
(other than salaries and bonuses paid in the ordinary course of business), or
(b) any purchase, redemption, or other acquisition or retirement for value of
any shares of Capital Stock of such Person; provided, however, that the
acquisition of shares of Capital Stock of such Person for the purpose of
acquiring a Subsidiary (whether by merger, consolidation, asset acquisition,
stock acquisition, or otherwise) shall not be deemed a Dividend if (a) such
shares are used as a portion or all of the purchase price for the acquisition
of a Subsidiary within a period of ninety days from the date the initial shares
of such Capital Stock were acquired and (b) such Person shall have given the
Administrative Lender prior written notice of its intention to acquire such
Capital Stock for the purpose of acquiring a Subsidiary.
"Equity" means shares of Capital Stock, or options, warrants or any
other right to subscribe for or otherwise acquire Capital Stock, of the
Borrower or any Subsidiary.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any regulation promulgated thereunder.
"ERISA Event" means, with respect to the Borrower and its
Subsidiaries, (a) a Reportable Event (other than a Reportable Event not subject
to the provision for 30-day notice to the PBGC under regulations issued under
Section 4043 of ERISA), (b) the withdrawal of any such Person or any member of
its Controlled Group from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the
filing of a notice of intent to terminate under Section 4041 of ERISA, (d) the
institution of proceedings to terminate a Plan by the PBGC, (e) the failure to
make required contributions which could result in the imposition of a lien
under Section 412 of the Code or Section 302 of ERISA, or (f) any other event
or condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan or the imposition of any liability under Title IV of
ERISA other than PBGC premiums due but not delinquent under Section 4007 of
ERISA.
- 6 -
<PAGE> 13
"Event of Default" means any of the events specified in Section 8.1,
provided that any requirement for notice or lapse of time has been satisfied.
"Excess Cash Flow" means, for any year, calculated for the Borrower
and its Restricted Subsidiaries on a consolidated basis, an amount equal to the
remainder of (a) Operating Cash Flow for said year, minus (b) the sum of (i)
Capital Expenditures for said year, plus (ii) cash expenditures for the payment
of taxes for said year, plus (iii) principal, interest and fees scheduled to be
paid and paid for said year with respect to Indebtedness.
"Existing Credit Agreement" means that certain Amended and Restated
Credit Agreement dated as of October 19, 1995, by and among the Borrower,
NationsBank of Texas, N.A., as Administrative Lender, and the lenders party
thereto, as the same may have been amended, modified, renewed or extended from
time to time.
"Existing Letters of Credit" means those certain Letters of Credit
more specifically described on Schedule 14 hereto.
"FCC" means the Federal Communications Commission, or any governmental
agency succeeding to the functions thereof.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to
the Administrative Lender on such day on such transactions as determined by
Administrative Lender.
"Fixed Charges" means, for the Borrower and its Restricted
Subsidiaries on a consolidated basis determined in accordance with GAAP, for
the four most recently ended fiscal quarters preceding any date of
determination, an amount equal to the sum of (a) all payments of principal,
interest, fees and other amounts paid on all Indebtedness, plus (b) all
payments under Capitalized Lease Obligations, plus (c) all Capital
Expenditures, plus (d) cash expenditures for the payment of taxes, plus (e) all
Dividends paid.
"GAAP" means generally accepted accounting principles applied on a
consistent basis, set forth in the Opinions of the Accounting Principles Board
of the American Institute of Certified Public Accountants, or their successors
which are applicable in the circumstances as of the date in question. The
requisite that such principles be applied on a consistent basis shall mean that
the accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period.
- 7 -
<PAGE> 14
"Guaranty" or "Guaranteed", as applied to an obligation, means and
includes (a) a guaranty, direct or indirect, in any manner, of any part or all
of such obligation, and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of nonperformance) of any part
or all of such obligation, including, without limiting the foregoing, any
reimbursement obligations with respect to amounts which may be drawn by
beneficiaries of outstanding letters of credit.
"Heftel" means Heftel Broadcasting Corporation, a Delaware
corporation.
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under Applicable Law, the Lenders are then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, the Lenders are permitted to charge on the Obligations
shall change after the date hereof, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each change in the Highest Lawful Rate without notice
to the Borrower. For purposes of determining the Highest Lawful Rate under the
Applicable Law of the State of Texas (including any amendment to such
Applicable Law), the applicable rate ceiling shall be (a) the indicated rate
ceiling described in and computed in accordance with the provisions of Section
(a)(1) of Art. 1.04, or (b) if the parties subsequently contract as allowed by
Applicable Law, the quarterly ceiling or the annualized ceiling computed
pursuant to Section (d) of Art. 1.04; provided, however, that at any time the
indicated rate ceiling, the quarterly ceiling or the annualized ceiling shall
be less than 18% per annum or more than 24% per annum, the provisions of
Sections (b)(1) and (2) of said Art. 1.04 shall control for purposes of such
determination, as applicable.
"Holdings" means Clear Channel Holdings, Inc., a Nevada corporation,
and a wholly-owned Subsidiary of the Borrower.
"Increased Letter of Credit Costs" has the meaning set forth in
Section 2.16(d) hereof.
"Increased Letter of Credit Costs Retroactive Effective Date" has the
meaning set forth in Section 2.16(d) hereof.
"Increased Letter of Credit Costs Set Date" has the meaning set forth
in Section 2.16(d) hereof.
"Indebtedness" means, with respect to any Person, (a) all items,
except items of partners' equity or of Capital Stock or of surplus or of
general contingency or deferred tax reserves, which in accordance with GAAP
would be included in determining total liabilities as shown on the liability
side of a balance sheet of such Person, (b) all obligations secured by any Lien
on any property or asset owned by such Person, whether or not the obligation
secured thereby shall have been assumed, (c) to the extent not otherwise
included, all Capitalized Lease Obligations of such Person, all obligations of
such Person with respect to leases constituting part of a sale
- 8 -
<PAGE> 15
and leaseback arrangement, all Guaranties, all obligations under interest rate
swap agreements or similar hedge agreements, all indebtedness for borrowed
money (excluding, for purposes of calculation of financial covenants only,
indebtedness evidenced by Intercompany Notes), and all reimbursement
obligations with respect to outstanding letters of credit, and (d) any
"withdrawal liability" of the Borrower or any Subsidiary, as such term is
defined under Part I of Subtitle E of Title IV of ERISA.
"Indemnified Matters" has the meaning ascribed to it in Section
5.10(a) hereof.
"Indemnitees" has the meaning ascribed to it in Section 5.10(a)
hereof.
"Index Debt Rating" means the rating available to the Borrower's
senior, unsecured, non-credit-enhanced long term indebtedness for borrowed
money ("Index Debt") or the implied rating established by Moody's or S&P as if
the Borrower had outstanding Index Debt.
"Institutional Debt" means Indebtedness for borrowed money which may
be raised by the Borrower in the private placement or public debt markets.
"Intercompany Notes" means those notes payable to the Borrower or any
Subsidiary from any Subsidiary evidencing loans or advances made by Borrower or
any Subsidiary to such Subsidiary.
"Interest Period" means (a) for any Base Rate Advance, the period
beginning on the day the Advance was made and ending on the first Quarterly
Date thereafter, (b) for any LIBOR Advance, the period beginning on the day the
Advance is made and ending one, two, three, six or, subject to each Lender's
good faith determination of availability, twelve months thereafter (as the
Borrower shall select), and (c) any Bid Rate Advance, the period beginning on
the day the Advance was made and ending the date the Borrower and the Lender
making the Bid Rate Advance agree pursuant to Section 2.1(b).
"Investment" means any acquisition of all or substantially all assets
of any Person, or any direct or indirect purchase or other acquisition of, or
beneficial interest in, Capital Stock or other securities of any other Person,
or any direct or indirect loan, advance (other than advances to employees for
moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business) or capital contribution to, or investment in any
other Person, including without limitation the incurrence or sufferance of
Indebtedness or accounts receivable of any other Person that are not current
assets or do not arise in the ordinary course of business.
"Issuing Bank" means NationsBank of Texas, N.A., in its capacity as
issuer of the Letters of Credit.
"June Equity Offering" means the equity offering completed in June and
July, 1996 of 3.85 million shares of common Capital Stock of Borrower.
- 9 -
<PAGE> 16
"L/C Cash Collateral Account" has the meaning specified in Section
2.16(g) hereof.
"L/C Related Documents" has the meaning specified in Section 2.16(d)
hereof.
"Lender" means each financial institution shown on the signature pages
hereof so long as such financial institution maintains a Commitment or is owed
any part of the Obligations (including the Administrative Lender in its
individual capacity), and each Assignee that hereafter becomes party hereto
pursuant to Section 11.6 hereof.
"Letter of Credit" has the meaning specified in Section 2.16(a)
hereof.
"Letter of Credit Agreement" has the meaning specified in Section
2.16(b) hereof.
"Letter of Credit Facility" means the amount of the Letters of Credit
the Issuing Bank may issue pursuant to Section 2.16(a) hereof.
"Leverage Ratio" means, for any date of determination, the ratio of
Total Debt as of the date of determination to Operating Cash Flow for the four
most recently ended fiscal quarters preceding such date of determination.
"LIBOR Advance" means a Revolving Credit Advance which the Borrower
requests to be made as a LIBOR Advance or which is reborrowed as a LIBOR
Advance, in accordance with the provisions of Section 2.2 hereof.
"LIBOR Basis" means a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, or (b) the sum of the LIBOR Rate plus
the Applicable Margin. The LIBOR Basis shall, with respect to LIBOR Advances
with Interest Periods in excess of six months, be subject to premiums assessed
by each Lender, which are payable directly to each Lender. Once determined,
the LIBOR Basis shall remain unchanged during the applicable Interest Period.
"LIBOR Lending Office" means, with respect to a Lender, the office
designated as its LIBOR Lending Office on Schedule 1 attached hereto, and such
other office of the Lender or any of its affiliates hereafter designated by
notice to the Borrower and the Administrative Lender.
"LIBOR Rate" shall mean, for any LIBOR Advance for any Interest Period
therefore, the rate per annum (rounded upwards, if necessary, to the nearest
one-one hundredth (1/100th) of one percent (1%)) appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for deposits
in United States dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period. If for any reason such
rate is not available, the term "LIBOR Rate" shall mean, for any LIBOR Advance
for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest one-one hundredth (1/100th) of one percent (1%))
appearing on Reuters Screen LIBO page as the
- 10 -
<PAGE> 17
London interbank offered rate for deposits in United States dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates.
"Lien" means, with respect to any property, any mortgage, lien,
pledge, collateral assignment, hypothecation, charge, security interest, title
retention agreement, levy, execution, seizure, attachment, garnishment or other
encumbrance of any kind in respect of such property, whether or not choate,
vested or perfected.
"Loan Documents" means this Agreement, the notes, the Subsidiary
Guaranty, fee letters, and any other document or agreement executed or
delivered from time to time by the Borrower, any Subsidiary or any other Person
in connection herewith or as security for the Obligations.
"Local Marketing Agreement" means any time brokerage agreements, local
market affiliation agreements or related or similar agreements entered into
between the Borrower or any Subsidiary and any other Person, as any of the
above may be amended, substituted, replaced or modified.
"Management" means Clear Channel Management, Inc., a Delaware
corporation, and a wholly-owned Subsidiary of Holdings.
"Material Adverse Effect" means any act or circumstance or event that
(a) causes a Default, or (b) otherwise could reasonably be expected to be
material and adverse to the business, consolidated assets, liabilities,
financial condition, results of operations or prospects of the Borrower and its
Restricted Subsidiaries, together taken as a whole.
"Maturity Date" means the last Business Day of September, 2004.
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, the Lenders are permitted to charge on the Obligations.
"Memphis" means Clear Channel Communications of Memphis, Inc., a Texas
corporation, and a wholly-owned Subsidiary of Holdings.
"Metroplex" means Clear Channel Metroplex, Inc., a Nevada corporation,
and a wholly-owned Subsidiary of Metroplex Licenses.
"Metroplex Licenses" means Clear Channel Metroplex Licenses, Inc., a
Nevada corporation, and a wholly-owned Subsidiary of the Borrower.
"Moody's" means Moody's Investors Services, Inc.
- 11 -
<PAGE> 18
"Multiemployer Plan" means, as to any Person, at any time, a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which such Person or any member of its Controlled Group is making, or is
obligated to make contributions or has made, or been obligated to make,
contributions.
"NationsBank Guaranties" means the Guaranty in favor of NationsBank of
Texas, N.A. on behalf of RDS Broadcasting, Inc. and Mercury Broadcasting, Inc.
in the amounts of $9,575,000 and $2,000,000 respectively.
"Necessary Authorization" means any license, permit, consent, approval
or authorization from, or any filing or registration with, any governmental or
other regulatory authority (including without limitation the FCC) necessary or
appropriate to enable the Borrower or any Subsidiary to maintain and operate
its business and properties.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or disposition of any asset by any Person or the issuance of Institutional Debt
or Equity by any Person (other than the net cash proceeds from the
consolidation of any Restricted Subsidiary with another Restricted Subsidiary),
the aggregate amount of cash received by such Person in connection with such
transaction minus reasonable fees, costs and expenses and related taxes.
"Notice of Issuance" has the meaning ascribed to it in Section 2.16(b)
hereof.
"NRNZ" means NRNZ Holdings, Limited, a New Zealand corporation of
which 33 1/3% of the outstanding Capital Stock is owned by Borrower.
"Obligations" means (a) all obligations of any nature (whether matured
or unmatured, fixed or contingent, including the Reimbursement Obligations) of
the Borrower or any Subsidiary to the Lenders under the Loan Documents, as
they may be amended from time to time, and (b) all obligations of the Borrower
or any Subsidiary for losses, damages, expenses or any other liabilities of any
kind that any Lender may suffer by reason of a breach by the Borrower or any
Subsidiary of any obligation, covenant or undertaking with respect to any Loan
Document.
"Operating Cash Flow" means, for any period, determined in accordance
with GAAP on a consolidated basis for the Borrower and its Restricted
Subsidiaries, the sum of (a) pre-tax net income (excluding therefrom (i) any
items of extraordinary gain, including net gains on the sale of assets other
than asset sales in the ordinary course of business, and (ii) any items of
extraordinary loss, including net losses on the sale of assets other than asset
sales in the ordinary course of business), plus (b) interest expense,
depreciation and amortization (including amortization of film contracts), and
other non-cash expenses, and minus (c) payments made or scheduled to be made
with respect to film contracts. Operating Cash Flow shall be adjusted to
exclude (i) any extraordinary non-cash items deducted from or included in the
calculation of pre-tax net income and (ii) without duplication, any accrued but
not paid income or loss from Investments. For purpose of calculation of
Operating Cash Flow with respect to assets not
- 12 -
<PAGE> 19
owned at all times during the four fiscal quarters preceding the date of
determination of Operating Cash Flow there shall be (i) included in Operating
Cash Flow the Operating Cash Flow of any assets acquired during any of such
four fiscal quarters for the twelve month period preceding the date of
determination, (ii) excluded from Operating Cash Flow the Operating Cash Flow
of any assets disposed of during any of such four fiscal quarters for the
twelve month period preceding the date of determination, and (iii) excluded
from Operating Cash Flow, in the event that Heftel becomes a Restricted
Subsidiary, any unusual item (as defined under GAAP), severance pay,
non-compete agreement and transaction cost related to the acquisition of
Heftel.
"Operating Lease" means any operating lease, as defined in the
Financial Accounting Standard Board Statement of Financial Accounting Standards
No. 13, dated November, 1976 or otherwise in accordance with GAAP, with an
initial or remaining noncancellable lease term in excess of one year.
"Participant" has the meaning ascribed to it in Section 11.6(c)
hereof.
"Participation" has the meaning ascribed to it in Section 11.6(c)
hereof.
"Payment Date" means the last day of the Interest Period for any
Advance.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means, as applied to any Person:
(a) any Lien in favor of the Lenders to secure the Obligations
hereunder;
(b) (i) Liens on real estate for real estate taxes not yet
delinquent, (ii) Liens created by lease agreements to secure the payments of
rental amounts and other sums not yet due thereunder, (iii) Liens on leasehold
interests created by the lessor in favor of any mortgagee of the leased
premises, and (iv) Liens for taxes, assessments, governmental charges, levies
or claims that are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on such
Person's books, but only so long as no foreclosure, restraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen and other similar Liens incurred in the ordinary course of business
for sums not yet due or being contested in good faith, if such reserve or
appropriate provision, if any, as shall be required by GAAP shall have been
made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or similar
legislation;
- 13 -
<PAGE> 20
(e) Easements, right-of-way, restrictions and other similar
encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person;
(f) Liens created to secure the purchase price of tangible
personal property acquired by such Person or created to secure Indebtedness
permitted by Section 7.1(d) hereof in an amount not to exceed $20,000,000 in
the aggregate, which is incurred solely for the purpose of financing the
acquisition of such assets and incurred at the time of acquisition, so long as
each such Lien shall at all times be confined solely to the asset or assets so
acquired (and proceeds thereof), and refinancings thereof so long as any such
Lien remains solely on the asset or assets acquired and the amount of
Indebtedness related thereto is not increased;
(g) Liens in respect of judgments or awards for which appeals or
proceedings for review are being prosecuted and in respect of which a stay of
execution upon any such appeal or proceeding for review shall have been
secured, provided that (i) such Person shall have established adequate reserves
for such judgments or awards, (ii) such judgments or awards shall be fully
insured and the insurer shall not have denied coverage, or (iii) such judgments
or awards shall have been bonded to the satisfaction of the Determining
Lenders; and
(h) Any Liens existing on the Agreement Date which are described
on Schedule 2 hereto, and Liens resulting from the refinancing of the related
Indebtedness, provided that the Indebtedness secured thereby shall not be
increased and the Liens shall not cover additional assets of the Borrower.
"Person" means an individual, corporation, partnership, trust or
unincorporated organization, limited liability company, or a government or any
agency or political subdivision thereof.
"Plan" means an employee pension benefit plan as defined in Section
3(2) of ERISA (including a Multiemployer Plan) that is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
and is maintained for the employees of the Borrower, its Subsidiaries or any
member of their Controlled Group.
"Prime Rate" means, at any time, the prime interest rate announced or
published by the Administrative Lender from time to time as its reference rate
for the determination of interest rates for loans of varying maturities in
United States dollars to United States residents of varying degrees of
creditworthiness and being quoted at such time by the Administrative Lender as
its "prime rate;" it being understood that such rate may not be the lowest rate
of interest charged by the Administrative Lender.
"Productions" means Clear Channel Productions, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of Holdings.
"Pro-Forma Debt Service" means, as of any date of determination,
determined in accordance with GAAP for the Borrower and its Restricted
Subsidiaries on a consolidated basis,
- 14 -
<PAGE> 21
the sum (without duplication) of (a) all payments of principal, interest, fees
and other amounts scheduled to be paid on all Indebtedness during the
succeeding four fiscal quarters (assuming for any Indebtedness subject to a
floating interest rate, an interest rate equal to the applicable rate in effect
on the date of determination), plus (b) without duplication, all rentals and
other amounts (excluding insurance premiums and property taxes) scheduled to be
paid under all Capitalized Lease Obligations during the succeeding four fiscal
quarters, plus (c) all debt discount and expense scheduled to be amortized
during the succeeding four fiscal quarters..
"Quarterly Date" means the last Business Day of each September,
December, March and June, beginning September 30, 1996.
"Radio" means Clear Channel Radio, Inc., a Nevada corporation, and a
wholly-owned Subsidiary of Radio Licenses.
"Radio Licenses" means Clear Channel Radio Licenses, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of Holdings.
"Refinancing Advance" means any Revolving Credit Advance which is used
to pay the principal amount (or any portion thereof) of a Revolving Credit
Advance or Bid Rate Advance at the end of its Interest Period and which, after
giving effect to such application, does not result in an increase in the
aggregate amount of outstanding Revolving Credit Advances or Bid Rate Advances
at the time of the Refinancing Advance.
"Regulatory Modification" has the meaning set forth in Section 9.5
hereof.
"Regulatory Modification Retroactive Effective Date" has the meaning
set forth in Section 9.5 hereof.
"Regulatory Modification Set Date" has the meaning set forth in
Section 9.5 hereof.
"Reimbursement Obligation" means, in respect of any Letter of Credit
as at any date of determination, the maximum aggregate amount which is then
available to be drawn under such Letter of Credit (whether the conditions to
drawing thereunder have been met) plus any unreimbursed amounts under
outstanding Letters of Credit.
"Release Date" means the date on which the notes have been paid, all
other Obligations due and owing have been paid and performed in full, and the
Commitment has been terminated.
"Reportable Event" has the meaning set forth in Title IV of ERISA.
"Restricted Subsidiary" means (i) any Subsidiary which is not an
Unrestricted Subsidiary, (ii) ARN, (iii) NRNZ and (iv) CCC-Houston; provided,
however that each of the Subsidiaries set forth in clauses (ii) through (iv)
herein shall not have executed any Subsidiary Guaranties.
- 15 -
<PAGE> 22
"Revolving Credit Advance" means an Advance made pursuant to Section
2.1(a) hereof.
"Revolving Credit Note" means any promissory note of the Borrower
evidencing Revolving Credit Advances hereunder, substantially in the form of
Exhibit A hereto, together with any extension, renewal or amendment thereof or
substitution therefor.
"S&P" means Standard & Poor's Ratings Services, a Division of The
McGraw-Hill, Inc., a New York corporation.
"Snowden Broadcasting" means Snowden Broadcasting, L.C., a Texas
limited liability company.
"Snowden Broadcasting of Louisville" means Snowden Broadcasting of
Louisville, Inc., a Texas corporation.
"Special Counsel" means the law firm of Donohoe, Jameson & Carroll,
P.C., or such other legal counsel as the Administrative Lender may select.
"Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on Schedule 12 (which percentages may be amended on
or before the Syndication Date to reflect an increase in the Commitment as a
result of the syndication referred to in Section 5.12 hereof), or if
applicable, specified in its most recent Assignment Agreement.
"Subordinated Debt" means any Institutional Debt of the Borrower or
any of its Subsidiaries which shall have been and continues to be validly and
effectively subordinated to the prior payment in full of the Obligations on
terms and documentation approved in writing by the Determining Lenders.
"Subsidiary" means (a) any corporation of which 50% or more of the
outstanding stock (other than directors' qualifying shares) having ordinary
voting power to elect a majority of its board of directors, regardless of the
existence at the time of a right of the holders of any class of securities of
such corporation to exercise such voting power by reason of the happening of
any contingency, is at the time owned by the Borrower, directly or through one
or more intermediaries, and (b) any other entity which is Controlled or then
capable of being Controlled by the Borrower, directly or through one or more
intermediaries, whether a Restricted Subsidiary or Unrestricted Subsidiary.
"Subsidiary Guaranty" means any Guaranty executed by one or more
Restricted Subsidiaries guarantying payment and performance of the Obligations,
substantially in the form of Exhibit C hereto, as such agreement may be
amended, modified, renewed or extended from time to time.
"Syndication Date" means the earlier of (a) the date notice is
delivered to Borrower informing Borrower that the Commitment has increased to
an amount not to exceed
- 16 -
<PAGE> 23
$1,300,000,000 and is available to be drawn as designated by Borrower or (b)
December 31, 1997; provided, however, that no more than two such syndications
shall occur during such period.
"Television" means Clear Channel Television, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of Television Licenses.
"Television Licenses" means Clear Channel Television Licenses, Inc., a
Nevada corporation, and a wholly-owned Subsidiary of Holdings.
"Termination Event" means, with respect to the Borrower, any of its
Subsidiaries or any Plan, (a) a Reportable Event, (b) the withdrawal from a
Plan during a Plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate
a Plan or the treatment of a Plan amendment as a termination under Section 4041
of ERISA, (d) the institution of proceedings by the Pension Benefit Guaranty
Corporation to terminate a Plan or appoint a trustee to administer a Plan, (e)
the failure to comply with the minimum funding requirements of ERISA with
respect to any Plan, or (f) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan.
"Total Debt" means, as of any date of determination, determined for
the Borrower and its Restricted Subsidiaries on a consolidated basis, the sum
(without duplication) of (a) all principal and interest owing under the Loan
Documents, (b) all Indebtedness evidenced by a promissory note or otherwise
representing borrowed money, (c) all Capitalized Lease Obligations and (d) all
Guaranties.
"Unrestricted Subsidiary" means those Subsidiaries designated as
Unrestricted Subsidiaries on Schedule 7 and any entity acquired by an
Investment after the Agreement Date to the extent permitted pursuant to Section
7.3(h) hereof. An Unrestricted Subsidiary may become a Restricted Subsidiary
and subject to the provisions hereof by becoming a party to the Subsidiary
Guaranty.
"US Acquisitions" means US Radio Acquisitions, Inc., a Delaware
corporation, and a wholly-owned subsidiary of US Holdings.
"US El Paso" means US Radio of El Paso, Inc., a Texas corporation, and
a wholly-owned subsidiary of US Holdings.
"US Holdings" means US Radio Holdings, Inc., a Delaware corporation,
and a wholly-owned subsidiary of US Radio.
"US Houston" means US Radio of Houston, Inc., a Texas corporation, and
a wholly-owned subsidiary of US Holdings.
- 17 -
<PAGE> 24
"US Little Rock" means US Radio of Little Rock, Inc., an Arkansas
corporation, and a wholly-owned subsidiary of US Holdings.
"US Norfolk" means US Radio of Norfolk, Inc., a Virginia corporation,
and a wholly-owned subsidiary of US Holdings.
"US Memphis" means US Radio of Memphis, Inc., a Tennessee corporation,
and a wholly-owned subsidiary of US Holdings.
"US Milwaukee" means US Radio of Milwaukee, Inc., a Wisconsin
corporation, and a wholly-owned subsidiary of US Holdings.
"US Radio" means US Radio, Inc., a Delaware corporation, and
wholly-owned subsidiary of Memphis.
"US Radio Entities" means each of US Radio Acquisitions, Inc., a
Delaware corporation, US Radio of El Paso, Inc., a Texas corporation, US Radio
Holdings, Inc., a Delaware corporation, US Radio of Houston, Inc., a Texas
corporation, US Radio of Little Rock, Inc., an Arkansas corporation, US Radio
of Norfolk, Inc., a Virginia corporation, US Radio of Memphis, Inc., a
Tennessee corporation, US Radio of Milwaukee, Inc., a Wisconsin corporation, US
Radio, Inc., a Delaware corporation, US Radio of Raleigh/Durham, Inc., a
Virginia corporation, US Radio of Raleigh/Durham-2, Inc., a North Carolina
corporation, US Radio of Reading, Inc., a Pennsylvania corporation, USR of El
Paso AM/FM, Inc., a Nevada corporation, USR of El Paso FM-2, Inc., a Nevada
corporation, USR of Houston FM, Inc., a Nevada corporation, USR of Little Rock
FM, Inc., a Nevada corporation, USR of Memphis AM, Inc., a Nevada corporation,
USR of Memphis FM, Inc., a Nevada corporation, USR of Milwaukee FM, Inc., a
Nevada corporation, USR of Moyock FM, Inc., a Nevada corporation, USR of
Norfolk FM-2, Inc., a Nevada corporation, USR of Norfolk AM/FM, Inc., a Nevada
corporation, USR Radio of Raleigh/Durham FM, Inc., a Nevada corporation, USR
Radio of Raleigh/Durham FM-2, Inc., a Nevada corporation, and USR Radio of
Reading FM, Inc., a Nevada corporation, each of which have been dissolved as of
August 1, 1996.
"US Raleigh/Durham" means US Radio of Raleigh/Durham, Inc., a Virginia
corporation, and a wholly-owned subsidiary of US Holdings.
"US Raleigh/Durham-2" means US Radio of Raleigh/Durham-2, Inc., a
North Carolina corporation, and a wholly- owned subsidiary of US Holdings.
"US Reading" means US Radio of Reading, Inc., a Pennsylvania
corporation, and a wholly-owned subsidiary of US Holdings.
"USR El Paso" means USR of El Paso AM/FM, Inc., a Nevada corporation,
and a wholly-owned subsidiary of US Holdings.
- 18 -
<PAGE> 25
"USR El Paso FM-2" means USR of El Paso FM-2, Inc., a Nevada
corporation, and a wholly-owned subsidiary of US Holdings.
"USR Houston" means USR of Houston FM, Inc., a Nevada corporation, and
a wholly-owned subsidiary of US Holdings.
"USR Little Rock" means USR of Little Rock FM, Inc., a Nevada
corporation, and a wholly-owned subsidiary of US Holdings.
"USR Memphis AM" means USR of Memphis AM, Inc., a Nevada corporation,
and a wholly-owned subsidiary of US Holdings.
"USR Memphis FM" means USR of Memphis FM, Inc., a Nevada corporation,
and a wholly-owned subsidiary of US Holdings.
"USR Milwaukee" means USR of Milwaukee FM, Inc., a Nevada corporation,
and a wholly-owned subsidiary of US Holdings.
"USR Moyock" means USR of Moyock FM, Inc., a Nevada corporation, and a
wholly-owned subsidiary of US Holdings.
"USR Norfolk" means USR of Norfolk FM-2, Inc., a Nevada corporation,
and a wholly-owned subsidiary of US Holdings.
"USR Norfolk AM/FM" means USR of Norfolk AM/FM, Inc., a Nevada
corporation, and a wholly-owned subsidiary of US Holdings.
"USR Raleigh/Durham" means USR of Raleigh/Durham FM, Inc., a Nevada
corporation, and a wholly-owned subsidiary of US Holdings.
"USR Raleigh/Durham FM-2" means USR of Raleigh/Durham FM-2, Inc., a
Nevada corporation, and a wholly-owned subsidiary of US Holdings.
"USR Reading" means USR of Reading FM, Inc., a Nevada corporation, and
a wholly-owned subsidiary of US Holdings.
"Weighted Average Life to Maturity" means, as of the date of
determination, with respect to any debt instrument, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal payment of
such debt instrument by the amount of such principal payment by (ii) the sum of
all such principal payments.
Section 1.2 Amendments and Renewals. Each definition of an
agreement in this Article 1 shall include such agreement as amended to date,
and as amended or renewed from
- 19 -
<PAGE> 26
time to time in accordance with its terms, but only with the prior written
consent of the Determining Lenders.
Section 1.3 Construction. The terms defined in this Article 1
(except as otherwise expressly provided in this Agreement) for all purposes
shall have the meanings set forth in Section 1.1 hereof, and the singular shall
include the plural, and vice versa, unless otherwise specifically required by
the context. All accounting terms used in this Agreement which are not
otherwise defined herein shall be construed in accordance with GAAP on a
consolidated basis for the Borrower and its Subsidiaries, unless otherwise
expressly stated herein. To the extent that a material change in GAAP occurs
after the Agreement Date, Borrower and Lenders agree to negotiate in good faith
to affect conforming changes to the financial covenants set forth in Article 7
hereof.
ARTICLE 2
Advances
Section 2.1 The Advances.
(a) Revolving Credit Advances. Each Lender severally agrees, upon
the terms and subject to the conditions of this Agreement, to make Revolving
Credit Advances to the Borrower from time to time up to and including the
Maturity Date in an aggregate amount not to exceed its Specified Percentage of
the Commitment less its Specified Percentage of the Reimbursement Obligations
then outstanding (assuming compliance with all conditions to drawing) for the
purposes set forth in Section 5.9 hereof. Subject to Section 2.9 hereof,
Advances may be repaid and then reborrowed. Any Revolving Credit Advance
shall, at the option of the Borrower as provided in Section 2.2 hereof (and, in
the case of LIBOR Advances, subject to availability and to the provisions of
Article 9 hereof), be made as a Base Rate Advance or a LIBOR Advance; provided
that there shall not be outstanding to any Lender, at any one time, more than
seven LIBOR Advances. Notwithstanding any provision in any Loan Document to
the contrary, in no event shall the principal amount of all outstanding
Revolving Credit Advances, Bid Rate Advances and Reimbursement Obligations plus
the principal amount of Indebtedness guaranteed by the Borrower pursuant to the
NationsBank Guaranties exceed the Commitment. On the Maturity Date unless
sooner paid as provided herein, the outstanding Revolving Credit Advances shall
be repaid in full.
(b) Bid Rate Advances. Each Lender may, in its sole discretion
and on the terms and conditions set forth in this Agreement, make Bid Rate
Advances to the Borrower from time to time in an aggregate amount not in excess
of the difference between (i) the Commitment minus (ii) the sum of (A) the
aggregate outstanding principal amount for all Revolving Credit Advances, plus
(B) the aggregate outstanding principal amount of all Bid Rate Advances, plus
(C) the amount of all Reimbursement Obligations, plus (D) the principal amount
of Indebtedness guaranteed by the Borrower pursuant to the NationsBank
Guaranties. Notwithstanding anything
- 20 -
<PAGE> 27
in the preceding sentence to the contrary, Bid Rate Advances may not exceed
$300,000,000 in the aggregate at any time. Each Bid Rate Advance shall be for
a period for not less than 7 days and not more than 90 days. The Borrower may
not request any Bid Rate Advances unless the Index Debt Rating is the following
or better: BBB- from S&P or Baa3 from Moody's. Bid Rate Advances may not be
prepaid without the prior written consent of the Lender making such Bid Rate
Advances.
Section 2.2 Manner of Borrowing and Disbursement.
(a) In the case of Base Rate Advances, the Borrower, through an
Authorized Signatory, shall give the Administrative Lender at least one
Business Days' irrevocable written notice, or irrevocable telephonic notice
followed immediately by written notice (provided, however, that the Borrower's
failure to confirm any telephonic notice in writing shall not invalidate any
notice so given), of its intention to borrow or reborrow a Base Rate Advance
hereunder. Notice shall be given to the Administrative Lender prior to 11:00
a.m., Dallas, Texas time, in order for such Business Day to count toward the
minimum number of Business Days required. Such notice of borrowing shall
specify the requested funding date, which shall be a Business Day, and the
amount of the proposed aggregate Base Rate Advances to be made by Lenders.
Each Base Rate Advance shall have an Interest Period beginning on the date such
Advance is made and ending on the Quarterly Date next following the date the
Advance is made; provided that no such Interest Period shall extend past the
Maturity Date.
(b) In the case of LIBOR Advances, the Borrower, through an
Authorized Signatory, shall give the Administrative Lender at least three
Business Days' irrevocable written notice, or irrevocable telephonic notice
followed immediately by written notice (provided, however, that the Borrower's
failure to confirm any telephonic notice in writing shall not invalidate any
notice so given), of its intention to borrow or reborrow a LIBOR Advance
hereunder. Notice shall be given to the Administrative Lender prior to 11:00
a.m., Dallas, Texas time, in order for such Business Day to count toward the
minimum number of Business Days required. LIBOR Advances shall in all cases be
subject to availability and to Article 9 hereof. For LIBOR Advances, the
notice of borrowing shall specify the requested funding date, which shall be a
Business Day, the amount of the proposed aggregate LIBOR Advances to be made by
Lenders and the Interest Period selected by the Borrower, provided that no such
Interest Period shall extend past the Maturity Date or prohibit or impair the
Borrower's ability to comply with Section 2.8 hereof.
(c) Subject to Sections 2.1 and 2.9 hereof, at least three
Business Days prior to each Payment Date for a LIBOR Advance, the Borrower,
through an Authorized Signatory, shall give the Administrative Lender
irrevocable written notice, or irrevocable telephonic notice followed
immediately by written notice (provided, however, that the Borrower's failure
to confirm any telephonic notice in writing shall not invalidate any notice so
given), specifying whether all or a portion of such LIBOR Advance outstanding
on the Payment Date (i) is to be repaid and then reborrowed in whole or in part
as a LIBOR Advance, (ii) is to be repaid and then reborrowed in whole or in
part as a Base Rate Advance, or (iii) is to be repaid and not reborrowed;
- 21 -
<PAGE> 28
provided, however, notwithstanding anything in this Agreement to the contrary,
if on any Payment Date a Default shall exist, such LIBOR Advance may only be
reborrowed as a Base Rate Advance. Upon such Payment Date, such LIBOR Advance
shall, subject to the provisions hereof, be so repaid and, as applicable,
reborrowed.
(d) Subject to Sections 2.1 and 2.9 hereof, upon at least three
Business Days' irrevocable prior written notice (or three Business Days if the
Borrower wishes to reborrow a LIBOR Advance), through an Authorized Signatory,
or irrevocable telephonic notice followed immediately by written notice
(provided, however, that the Borrower's failure to confirm any telephonic
notice in writing shall not invalidate any notice so given), the Borrower may
repay a Base Rate Advance on its Payment Date, or prepay a Base Rate Advance
without regard to its Payment Date, and (i) reborrow all or a portion of the
principal amount thereof as a Base Rate Advance, (ii) reborrow all or a portion
of the principal amount thereof as one or more LIBOR Advances, or (iii) not
reborrow all or any portion of such Base Rate Advance. Upon such Payment Date
or date of repayment, such Base Rate Advance shall, subject to the provisions
hereof, be so repaid and, as applicable, reborrowed.
(e) The aggregate amount of Base Rate Advances to be made by the
Lenders on any day shall be in a principal amount which is at least $1,000,000
and which is an integral multiple of $100,000; provided, however, that such
amount may equal the unused amount of the Commitment. The aggregate amount of
LIBOR Advances having the same Interest Period and to be made by the Lenders on
any day shall be in a principal amount which is at least $2,500,000 and which
is an integral multiple of $100,000.
(f) The Administrative Lender shall promptly notify the Lenders of
each notice (other than with respect to a Bid Rate Advance) received from the
Borrower pursuant to this Section. Failure of the Borrower to give any notice
in accordance with Sections 2.2(c) and (d) hereof shall result in a repayment
of any such existing Advance on the applicable Payment Date by a Refinancing
Advance which is a Base Rate Advance. Each Lender shall, not later than noon,
Dallas, Texas time, on the date of any Revolving Credit Advance that is not a
Refinancing Advance, deliver to the Administrative Lender, at its address set
forth herein, such Lender's Specified Percentage of such Revolving Credit
Advance in immediately available funds in accordance with the Administrative
Lender's instructions. Prior to 2:00 p.m., Dallas, Texas time, on the date of
any Revolving Credit Advance hereunder, the Administrative Lender shall,
subject to satisfaction of the conditions set forth in Article 3, disburse the
amounts made available to the Administrative Lender by the Lenders by (i)
transferring such amounts by wire transfer pursuant to the Borrower's
instructions, or (ii) in the absence of such instructions, crediting such
amounts to the account of the Borrower maintained with the Administrative
Lender. All Revolving Credit Advances shall be made by each Lender according
to its Specified Percentage. No Lender shall be relieved of its obligation to
fund its Specified Percentage of any Revolving Credit Advance notwithstanding
the fact that at any time the aggregate outstanding principal amount of all Bid
Rate Advances made by such Lender exceed its Specified Percentage of the
Commitment.
- 22 -
<PAGE> 29
(g) Bid Rate Advances
(i) In the case of Bid Rate Advances, the Borrower, through an
Authorized Signatory, shall give the Administrative Lender (which shall promptly
notify the Lenders) prior to 12:00 noon, Dallas, Texas time, at least one
Business Day prior to the proposed borrowing, irrevocable written notice of its
intention to borrow a Bid Rate Advance. Each Bid Rate Advance request shall be
subject to a non-refundable $500.00 processing fee payable to the Administrative
Lender by the Borrower regardless of whether such Bid Rate Advance is funded.
Such notice of borrowing shall specify (i) the requested funding date, which
shall be a Business Day, (ii) the aggregate amount of the proposed Bid Rate
Advances, (iii) the Interest Period selected by the Borrower, provided that no
Interest Period shall extend past the Maturity Date and (iv) any other terms
applicable thereto.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Bid Rate Advances to the Borrower as
part of such proposed borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by making a written quote to the Administrative
Lender (which shall give prompt notice thereof to the Borrower) before 9:30
a.m., Dallas, Texas time, on the date of such proposed borrowing, setting forth
the minimum amount and maximum amount of each Bid Rate Advance which such Lender
would be willing to make as part of the proposed borrowing (which amounts may
exceed such Lender's Specified Percentage of the Commitment) and the rate or
rates of interest therefor and the Interest Period therefor. If NationsBank of
Texas, N.A. elects to offer to make one or more Bid Rate Advances, it shall
deliver its written quote with respect to the proposed borrowing to the Borrower
prior to the Administrative Lender's receipt of any other Lender's written quote
for such proposed borrowing. The Administrative Lender shall notify the
Borrower of each written quote provided by each Lender with respect to the
proposed borrowing before 10:00 a.m., Dallas, Texas, on the date of such
proposed borrowing. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Administrative Lender before 9:30 a.m., Dallas, Texas
time, on the date of such proposed borrowing, and such Lender shall not make any
Bid Rate Advance as part of such borrowing. If any Lender shall fail to respond
to the Administrative Lender by such time, such Lender shall be deemed to have
elected not to make an offer.
(iii) The Borrower shall, in turn, before 10:30 a.m., Dallas, Texas
time, on the date of such proposed borrowing either
(A) cancel such proposed borrowing by giving the
Administrative Lender notice to that effect, or
(B) accept one or more of the offers made by any Lender or
Lenders pursuant to clause (ii) above, in its sole discretion, by
giving notice to the Administrative Lender of the amount of each Bid
Rate Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than
- 23 -
<PAGE> 30
the maximum amount, for which notification was given to the Borrower by
the Administrative Lender on behalf of such Lender for such Bid Rate
Advance pursuant to clause (ii) above) to be made by each Lender as part
of such borrowing, and reject any remaining offers made by the Lenders
pursuant to clause (ii) above by giving the Administrative Lender notice
to that effect.
(iv) If the Borrower notifies the Administrative Lender that such
proposed borrowing is cancelled pursuant to clause (iii)(A) above, the
Administrative Lender shall give prompt notice thereof to the Lenders and such
borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to clause (iii)(B) above, the Administrative Lender
shall in turn promptly notify each Lender of the date, rate of interest, and
amount of each Bid Rate Advance and the Lender making such Advance.
Section 2.3 Interest.
(a) On Base Rate Advances.
(i) The Borrower shall pay interest on the outstanding unpaid
principal amount of each Base Rate Advance, from the date such Advance is made
until it is due (whether at maturity, by reason of acceleration, by scheduled
reduction, or otherwise) or repaid, at a simple interest rate per annum equal to
the Base Rate Basis as in effect from time to time, provided that interest on
Base Rate Advances shall not exceed the Maximum Amount. If at any time the Base
Rate Basis would exceed the Highest Lawful Rate, interest payable on Base Rate
Advances shall be limited to the Highest Lawful Rate, but the Base Rate Basis
shall not thereafter be reduced below the Highest Lawful Rate until the total
amount of interest accrued on such Advances equals the amount of interest that
would have accrued if the Base Rate Basis had been in effect at all times.
(ii) Interest on each Base Rate Advance shall be computed on the
basis of a year of 365 or 366 days, as applicable, for the number of days
actually elapsed, and shall be payable in arrears on each Quarterly Date and on
the Maturity Date.
(b) On LIBOR Advances.
(i) The Borrower shall pay interest on the unpaid principal amount
of each LIBOR Advance, from the date such Advance is made until it is due
(whether at maturity, by reason of acceleration, by scheduled reduction, or
otherwise) or repaid, at a rate per annum equal to the LIBOR Basis for such
Advance. The Administrative Lender, whose determination shall be conclusive,
shall determine the LIBOR Basis on the second Business Day prior to the
applicable funding date and shall notify the Borrower and the Lenders of such
LIBOR Basis.
- 24 -
<PAGE> 31
(ii) Subject to Section 11.9 hereof, interest on each LIBOR Advance
shall be computed on the basis of a 360- day year for the actual
number of days elapsed, and shall be payable in arrears on the
applicable Payment Date and on the Maturity Date; provided, however,
that if the Interest Period for such Advance exceeds three months,
interest shall also be due and payable in arrears on each Quarterly
Date during such Interest Period.
(c) On Bid Rate Advances. The Borrower shall pay interest on the
outstanding unpaid principal amount of each Bid Rate Advance at a per annum
rate equal to the interest rate agreed to by the Borrower and the Lender making
such Bid Rate Advance pursuant to Section 2.2(g) hereof. Interest on each Bid
Rate Advance shall be computed and shall be payable at such times as agreed
upon between the Borrower and the Lender making such Advance pursuant to
Section 2.2(g) hereof.
(d) Interest if No Notice of Selection of LIBOR Basis or Interest
Period. If the Borrower fails to give the Administrative Lender timely notice
of its selection of a LIBOR Basis for a LIBOR Advance, or if for any reason a
determination of a LIBOR Basis for any Advance is not timely concluded due to
the fault of the Borrower, the Base Rate Basis shall apply to the applicable
Advance. If the Borrower fails to give the Administrative Lender timely notice
of its selection of an Interest Period for a LIBOR Advance, a one-month
Interest Period shall apply to the applicable Advance.
(e) Interest After an Event of Default. (i) After an Event of
Default (other than an Event of Default specified in Section 8.1(f) or (g)
hereof) and during any continuance thereof, at the option of Determining
Lenders, and (ii) after an Event of Default specified in Section 8.1(f) or (g)
hereof and during any continuance thereof, automatically and without any action
by the Administrative Lender or any Lender, the Obligations shall bear interest
at a rate per annum equal to the Default Rate. Such interest shall be payable
on the earlier of demand, the Maturity Date or upon the occurrence of an Event
of Default specified in Section 8.1(f) or 8.1(g) hereof, immediately, and shall
accrue until the earlier of (i) waiver or cure (to the satisfaction of the
Determining Lenders) of the applicable Event of Default, (ii) agreement by the
Lenders to rescind the charging of interest at the Default Rate, or (iii)
payment in full of the Obligations. The Lenders shall not be required to
accelerate the maturity of the Advances, to exercise any other rights or
remedies under the Loan Documents, or to give notice to the Borrower of the
decision to charge interest at the Default Rate. The Lenders will undertake to
notify the Borrower, after the effective date, of the decision to charge
interest at the Default Rate, but any failure to do so will not affect the
application of such rate.
Section 2.4 Fees.
(a) Commitment Fee. Subject to Section 11.9 hereof, the Borrower
agrees to pay to the Administrative Lender, for the ratable account of the
Lenders, a commitment fee on the daily average unborrowed balance of the
Commitment based on the following schedule:
- 25 -
<PAGE> 32
<TABLE>
<CAPTION>
Per Annum
Applicability Percentage
------------- ----------
<S> <C> <C>
(i) If the Leverage Ratio is not less than 3.5 to 1 0.2500
(ii) If the Leverage Ratio is less than 3.5 to 1 but is not 0.1875
less than 2.5 to 1
(iii) If the Leverage Ratio is less than 2.5 to 1 0.1250
</TABLE>
The commitment fee shall be subject to reduction or increase, as
applicable and as set forth in the table above, on a quarterly basis according
to the performance of the Borrower as tested by the Leverage Ratio. Except as
set forth in the last sentence hereof, any such increase or reduction in such
fee shall be effective on the third Business Day following the date of receipt
of the applicable financial statements. If financial statements of the
Borrower setting forth the Leverage Ratio are not received by the
Administrative Lender by the date required pursuant to Section 6.1 hereof, the
commitment fee shall be determined as if the Leverage Ratio is not less than
3.5 to 1 until such time as such financial statements are received. For the
last fiscal quarter of any fiscal year of the Borrower, the Borrower may
provide its unaudited financial statements, subject only to year-end
adjustments, for the purpose of adjusting the commitment fee. Notwithstanding
anything above to the contrary, if the compliance certificate required to be
delivered pursuant to Section 7.5(b) hereof, prior to any proposed acquisition,
indicates that the Leverage Ratio after giving effect to the proposed
acquisition would result in an adjustment of the commitment fee, such fee shall
be increased or decreased, as the case may be, as of the date of such
acquisition.
The commitment fee shall be (i) payable in arrears on each Quarterly
Date and the Maturity Date, fully earned when due and, subject to Section 11.9
hereof, nonrefundable when paid and (ii) subject to Section 11.9 hereof,
computed on the basis of a year of 365 or 366 days, as applicable, for the
actual number of days elapsed. For purposes of calculating the commitment fee
only, (i) undrawn portions of Letters of Credit outstanding from time to time
will reduce the unused portion of the Commitment and (ii) outstanding Bid Rate
Advances shall not reduce the unused portion of the Commitment.
(b) Facility Fee. Subject to Section 11.9 hereof, the Borrower
agrees to pay directly to each Lender a facility fee in the amount provided for
in a facility fee letter between the Borrower and each Lender. Such fee shall
be payable on the Agreement Date, fully earned when due and, subject to Section
11.9 hereof, nonrefundable when paid.
- 26 -
<PAGE> 33
(c) Administrative Fee. Subject to Section 11.9 hereof, the
Borrower agrees to pay to the Administrative Lender, for its account and not
the account of the Lenders, a quarterly administrative fee as provided in a fee
letter between the Borrower and the Administrative Lender.
Section 2.5 Prepayment.
(a) Voluntary Prepayments. The principal amount of any Base Rate
Advance may be prepaid in full or in part at any time, without penalty and
without regard to the Payment Date for such Advance, upon two Business Days',
and any LIBOR Advance may be prepaid, subject to the last sentence of this
Section upon three Business Days prior telephonic notice (to be promptly
followed by written notice) by an Authorized Signatory to the Administrative
Lender. LIBOR Advances may be voluntarily prepaid only so long as the Borrower
concurrently reimburses the Lenders in accordance with Section 2.9 hereof. Any
notice of prepayment shall be irrevocable.
(b) Mandatory Prepayment. On or before the date of any reduction
of the Commitment, the Borrower shall prepay applicable outstanding Advances in
an amount necessary to reduce the sum of outstanding Advances and Reimbursement
Obligations to an amount less than or equal to the Commitment as so reduced.
The Borrower shall first prepay all Base Rate Advances, shall thereafter prepay
LIBOR Advances, and finally prepay Bid Rate Advances. To the extent that any
prepayment requires that a LIBOR Advance be repaid on a date other than the
last day of its Interest Period, the Borrower shall reimburse each Lender in
accordance with Section 2.9 hereof.
(c) Prepayments from Sales of Assets and Equity. Concurrently
with the receipt of Net Cash Proceeds from the sale or disposition by the
Borrower, any Restricted Subsidiary or Heftel of (i) any (A) asset in which the
Net Cash Proceeds from the sale or disposition thereof exceeds $100,000 and (B)
assets sold or disposed of during any fiscal year in which the aggregate Net
Cash Proceeds previously received during such fiscal year from sales or
dispositions of all assets exceeds $1,000,000, the Borrower shall first prepay
all Base Rate Advances, shall thereafter prepay LIBOR Advances, and finally
prepay Bid Rate Advances in a principal amount equal to (y) in the case of
clause (A) above, all Net Cash Proceeds from such sale or disposition and (z)
in the case of clause (B) above, the amount that the aggregate Net Cash
Proceeds received during any such fiscal year exceeds $1,000,000, or (ii) any
Equity, the Borrower shall prepay Advances in the same order as provided in
clause (i) above, in a principal amount by which 50% of the aggregate Net Cash
Proceeds received by the Borrower and its Restricted Subsidiaries after the
Agreement Date from the sale or disposition of Equity (not including the Net
Cash Proceeds received from the June Equity Offering) exceed $200,000,000.
(d) Prepayments from Issuance of Institutional Debt. Concurrently
with the receipt of Net Cash Proceeds from the issuance of Institutional Debt
by the Borrower, the Borrower shall prepay first all Base Rate Advances, shall
thereafter prepay LIBOR Advances, and finally prepay Bid Rate Advances in a
principal amount equal to such Net Cash Proceeds.
- 27 -
<PAGE> 34
(e) Prepayments, Generally. Any prepayment of an Advance shall be
accompanied by interest accrued on the principal amount being prepaid. Any
voluntary partial prepayment of a Base Rate Advance shall be in a principal
amount which is at least $1,000,000 and which is an integral multiple of
$100,000. Any voluntary partial prepayment of a LIBOR Advance shall be in a
principal amount which is at least $1,000,000 and which is an integral multiple
of $100,000, and to the extent that any prepayment of a LIBOR Advance is made
on a date other than the last day of its Interest Period, the Borrower shall
reimburse each Lender in accordance with Section 2.9 hereof. Following the
Amortization Date, prepayments shall be applied to the mandatory reductions of
the Commitment pursuant to Section 2.6(c) hereof in inverse order.
Section 2.6 Reduction and Change of Commitment.
(a) Voluntary Reduction. The Borrower shall have the right, upon
not less than 3 Business Days' notice (provided no notice shall be required for
a termination in whole of the Commitment) by an Authorized Signatory to the
Administrative Lender (if telephonic, to be confirmed by telex or in writing on
or before the date of reduction or termination), which shall promptly notify
the Lenders, to terminate or reduce the Commitment, in whole or in part. Each
partial termination shall be in an aggregate amount which is at least
$5,000,000 and which is an integral multiple of $100,000, and no voluntary
reduction in the Commitment shall cause any LIBOR Advance to be repaid prior to
the last day of its Interest Period. Notwithstanding anything herein to the
contrary, in no event shall the Borrower have the right to reduce the
Commitment to an amount less than the aggregate outstanding Reimbursement
Obligations.
(b) Mandatory Reduction. The Commitment shall be automatically
reduced (i) by the amount of any amount prepaid or required to be prepaid
pursuant to Section 2.5(b) hereof, (ii) if a Default or Event of Default exists
or would exist as a result of the sale or disposition of assets, by the amount
of aggregate Net Cash Proceeds received by the Borrower and its Subsidiaries
after the Agreement Date from the sale and disposition of assets referred to in
Section 2.5(c) hereof and which are required to be used to prepay Advances as
provided therein, (iii) if a Default or Event of Default exists, by the amount
of aggregate Net Cash Proceeds received by the Borrower and its Subsidiaries
after the Agreement Date from the sale or disposition of Equity referred to in
Section 2.5(c) hereof, and (iv) if a Default or Event or Default exists or
would exist as a result of the issuance of Institutional Debt, by the amount of
any amount prepaid or required to be prepaid pursuant to Section 2.5(d) hereof.
Notwithstanding anything herein to the contrary, in no event shall the Borrower
reduce the Commitment to an amount less than the aggregate outstanding
Reimbursement Obligations.
(c) Amortization. On each Quarterly Date, commencing on the
Amortization Date, through the last Business Day of September 2004, the
Commitment outstanding on the Amortization Date shall automatically reduce by
an amount equal to one-fourth (or, in the case of calendar year 1999, the full
reduction percentage and in the case of calendar year 2004, one-third) of the
percentage reduction that the Commitment is to reduce in the calendar year in
which such Quarterly Date falls pursuant to the table below. Notwithstanding
the foregoing, on the Maturity Date, the Commitment shall automatically reduce
to zero.
- 28 -
<PAGE> 35
<TABLE>
<CAPTION>
Calendar Year % Reduction
------------- -----------
<S> <C>
1999 2.5%
2000 11.25%
2001 17.50%
2002 25.00%
2003 25.00%
2004 18.75%
</TABLE>
(d) General Requirements. Upon any reduction of the Commitment
pursuant to Section 2.6(b), the Borrower shall immediately make a repayment of
applicable Advances in accordance with Section 2.5(b) hereof. The Borrower
shall reimburse each Lender for any loss or out-of-pocket expense incurred by
each Lender in connection with any such payment, as set forth in Section 2.9
hereof. The Borrower shall not have any right to rescind any termination or
reduction. Once reduced, the Commitment may not be increased or reinstated.
Section 2.7 Non-Receipt of Funds by the Administrative Lender.
Unless the Administrative Lender shall have been notified by a Lender prior to
the date of any proposed Revolving Credit Advance (which notice shall be
effective upon receipt) that such Lender does not intend to make the proceeds
of such Revolving Credit Advance available to the Administrative Lender, the
Administrative Lender may assume that such Lender has made such proceeds
available to the Administrative Lender on such date, and the Administrative
Lender may in reliance upon such assumption (but shall not be required to) make
available to the Borrower a corresponding amount. If such corresponding amount
is not in fact made available to the Administrative Lender by such Lender, the
Administrative Lender shall be entitled to recover such amount on demand from
such Lender (or, if such Lender fails to pay such amount forthwith upon such
demand, from the Borrower) together with interest thereon in respect of each
day during the period commencing on the date such amount was available to the
Borrower and ending on (but excluding) the date the Administrative Lender
receives such amount from the Lender, with interest thereon if paid by such
Lender,at a per annum rate equal to the Federal Funds Rate, and if paid by
Borrower, at the applicable Base Rate. No Lender shall be liable for any other
Lender's failure to fund a Revolving Credit Advance hereunder.
Section 2.8 Payment of Principal of Advances. The Borrower
agrees to pay the principal amount of the Advances to the Administrative Lender
for the account of the Lenders as follows:
- 29 -
<PAGE> 36
(a) End of Interest Period. The principal amount of each Advance
hereunder shall be due and payable on its Payment Date, which principal payment
may be made by means of a Refinancing Advance.
(b) Commitment Reduction. On the date of reduction of the
Commitment pursuant to Section 2.6 hereof, including the Maturity Date, the
aggregate amount of the Advances outstanding on such date of reduction in
excess of the Commitment as reduced minus all outstanding Reimbursement
Obligations shall be due and payable, which principal payment may not be made
by means of Refinancing Advances.
(c) Maturity Date. The principal amount of the Advances, all
accrued interest and fees thereon, and all other Obligations, shall be due and
payable in full on the Maturity Date.
Section 2.9 Reimbursement. Whenever any Lender shall sustain or
incur any losses or reasonable out-of- pocket expenses in connection with (a)
failure by the Borrower to borrow any LIBOR Advance or Bid Rate Advance which
is at a fixed rate after having given notice of its intention to borrow in
accordance with Section 2.2 hereof (whether by reason of the Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3 hereof), or (b) any prepayment for any reason of any LIBOR
Advance in whole or in part (including a prepayment pursuant to Sections
2.5(c), 2.5(d) and 9.3(b) hereof), the Borrower agrees to pay to any such
Lender, upon its demand, an amount sufficient to compensate such Lender for all
such losses and out-of-pocket expenses. Such Lender's good faith determination
of the amount of such losses or out-of-pocket expenses, calculated in its usual
fashion, absent manifest error, shall be binding and conclusive. Such losses
shall include, without limiting the generality of the foregoing, lost profits
and reasonable expenses incurred by such Lender in connection with the
re-employment of funds prepaid, repaid, converted or not borrowed, converted or
paid, as the case may be. Upon request of the Borrower, such Lender shall
provide a certificate setting forth the amount to be paid to it by the Borrower
hereunder and calculations therefor.
Section 2.10 Manner of Payment.
(a) Each payment (including prepayments) by the Borrower of the
principal of or interest on the Advances, fees, and any other amount owed under
this Agreement or any other Loan Document shall be made not later than 1:00
p.m. (Dallas, Texas time) on the date specified for payment under this
Agreement to the Administrative Lender at the Administrative Lender's office,
in lawful money of the United States of America constituting immediately
available funds.
(b) If any payment under this Agreement or any other Loan Document
shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day, unless such
Business Day falls in another calendar month, in which case payment shall be
made on the preceding Business Day. Any extension of
- 30 -
<PAGE> 37
time shall in such case be included in computing interest and fees, if any, in
connection with such payment.
(c) The Borrower agrees to pay principal, interest, fees and all
other amounts due under the Loan Documents without deduction for set-off or
counterclaim or any deduction whatsoever.
(d) Each payment by the Borrower in respect of obligations
relating to the Revolving Credit Advance and the Letters of Credit (whether for
principal, interest, fees or otherwise) shall be made to the Administrative
Lender for the account of the Lenders pro rata in accordance with their
respective Specified Percentages. Each payment by the Borrower in respect of
obligations related to Bid Rate Advances (whether for principal, interest, fees
or otherwise) shall be made to the Administrative Lender for the account of
each Lender holding such Bid Rate Advance. Notwithstanding anything in this
Section 2.10(d) or any other provision of this Agreement or any other Loan
Document to the contrary, any payment by the Borrower in respect of any
Advances after acceleration of the Advances pursuant to Section 8.2 or any
monies received by the Administrative Lender as a result of the exercise of
remedies under any Loan Documents after acceleration of the Advances pursuant
to Section 8.2 shall be distributed pro rata to each Lender based on the
percentage that the outstanding Advances and Reimbursement Obligations owed to
such Lender bears to the aggregate Advances and Reimbursement Obligations owed
to all Lenders after the payment of the Administrative Lender's expenses
incurred on behalf of the Lenders then due and payable.
Section 2.11 LIBOR Lending Offices. Each Lender's initial LIBOR
Lending Office is set forth opposite its name in Schedule 1 attached hereto.
Each Lender shall have the right at any time and from time to time to designate
a different office of itself or of any Affiliate as such Lender's LIBOR Lending
Office, and to transfer any outstanding LIBOR Advance to such LIBOR Lending
Office. No such designation or transfer shall result in any liability on the
part of the Borrower for increased costs or expenses resulting solely from such
designation or transfer (except any such transfer which is made by a Lender
pursuant to Section 9.2 or 9.3 hereof, or otherwise for the purpose of
complying with Applicable Law). Increased costs for expenses resulting from a
change in law occurring subsequent to any such designation or transfer shall be
deemed not to result solely from such designation or transfer.
Section 2.12 Sharing of Payments. Any Lender obtaining a payment
(whether voluntary or involuntary, due to the exercise of any right of set-off,
or otherwise) on account of its Revolving Credit Advances in excess of its
Specified Percentage of all payments made by the Borrower with respect to
Revolving Credit Advances shall purchase from each other Lender such
participation in the Revolving Credit Advances made by such other Lender as
shall be necessary to cause such purchasing Lender to share the excess payment
pro rata according to Specified Percentages with each other Lender which is not
in default of its obligations hereunder with respect to such Revolving Credit
Advance; provided, however, that if all or any portion of such excess payment
is thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest,
- 31 -
<PAGE> 38
provided, further that after an Event of Default, such payments will be shared
pro rata among all Lenders based on the total amount of all Advances
outstanding. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section, to the fullest extent permitted
by law, may exercise all its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
Section 2.13 Calculation of LIBOR Rate. The provisions of this
Agreement relating to calculation of the LIBOR Rate are included only for the
purpose of determining the rate of interest or other amounts to be paid
hereunder that are based upon such rate, it being understood that each Lender
shall be entitled to fund and maintain its funding of all or any part of a
LIBOR Advance as it sees fit.
Section 2.14 Booking Loans. Any Lender may make, carry or
transfer Advances at, to or for the account of any of its branch offices or the
office of any Affiliate.
Section 2.15 Taxes.
(a) Any and all payments by the Borrower hereunder shall be made,
in accordance with Section 2.10, free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges and
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Lender, taxes imposed on its overall net
income, and franchise taxes imposed on it (including interest and penalties
imposed thereon), by the jurisdiction under the laws of which such Lender or
the Administrative Lender (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender or the Administrative
Lender, (x) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.15) such Lender or the
Administrative Lender (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (y) the Borrower shall
make such deductions and (z) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
Applicable Law.
(b) In addition, the Borrower agrees to pay any and all stamp and
documentary taxes and any and all other excise and property taxes, charges and
similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Lender for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.15) paid by such Lender
- 32 -
<PAGE> 39
or the Administrative Lender (as the case may be) and all liabilities
(including penalties, additions to tax, interest and reasonable expenses)
arising therefrom or with respect thereto whether or not such Taxes or Other
Taxes were correctly or legally asserted, other than penalties, additions to
tax, interest and expenses arising as a result of gross negligence on the part
of such Lender or the Administrative Lender, provided, however, that the
Borrower shall have no obligation to indemnify such Lender or the
Administrative Lender (i) unless notice has been given by such Lender or the
Administrative Lender, as applicable, in a time sufficient to afford the
Borrower, in good faith, a reasonable opportunity to contest such payment by
such Lender or the Administrative Lender, provided such opportunity to contest
exists under Applicable Law, and (ii) until such Lender or the Administrative
Lender shall have delivered to the Borrower a certificate setting forth in
reasonable detail the basis of the Borrower's obligation to indemnify such
Lender or the Administrative Lender pursuant to this Section 2.15. This
indemnification shall be made within 30 days from the date such Lender or the
Administrative Lender (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Lender the original or a certified
copy of a receipt evidencing payment thereof. If no Taxes are payable in
respect of any payment hereunder, the Borrower will furnish to the
Administrative Lender a certificate from each appropriate taxing authority, or
an opinion of counsel acceptable to the Administrative Lender, in either case
stating that such payment is exempt from or not subject to Taxes, provided,
however, that such certificate or opinion need only be given if: (i) the
Borrower makes any payment from any account located outside the United States,
or (ii) the payment is made by a payor that is not a United States Person. For
purposes of this Section 2.15 the terms "United States" and "United States
Person" shall have the meanings set forth in Section 7701 of the Code.
(e) Each Lender which is not a United States Person hereby agrees
that:
(i) it shall, no later than the Agreement Date (or, in
the case of a Lender which becomes a party hereto pursuant to Section
11.06 after the Agreement Date, the date upon which such Lender
becomes a party hereto) deliver to the Borrower through the
Administrative Lender, with a copy to the Administrative Lender:
(A) if any lending office is located in the United States
of America, two (2) accurate and complete signed
originals of Internal Revenue Service Form 4224 or
any successor thereto ("Form 4224"),
(B) if any lending office is located outside the United
States of America, two (2) accurate and complete
signed originals of Internal Revenue Service Form
1001 or any successor thereto ("Form 1001").
in each case indicating that such Lender is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such lending office or
- 33 -
<PAGE> 40
lending offices under this Agreement free from withholding of United
States Federal income tax;
(ii) if at any time such Lender changes its lending office
or lending offices or selects an additional lending office it shall,
at the same time or reasonably promptly thereafter but only to the
extent the forms previously delivered by it hereunder are no longer
effective, deliver to the Borrower through the Administrative Lender,
with a copy to the Administrative Lender, in replacement for the forms
previously delivered by it hereunder:
(A) if such changed or additional lending office is
located in the United States of America, two (2)
accurate and complete signed originals of Form 4224;
or
(B) otherwise, two (2) accurate and complete signed
originals of Form 1001,
in each case indicating that such Lender is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such changed or additional lending office under
this Agreement free from withholding of United States Federal income
tax;
(iii) it shall, before or promptly after the occurrence of
any event (including the passing of time but excluding any event
mentioned in clause (ii) above) requiring a change in the most recent
Form 4224 or Form 1001 previously delivered by such Lender and if the
delivery of the same be lawful, deliver to the Borrower through the
Administrative Lender with a copy to the Administrative Lender, two
(2) accurate and complete original signed copies of Form 4224 or Form
1001 in replacement for the forms previously delivered by such Lender;
and
(iv) it shall, promptly upon the request of the Borrower
to that effect, deliver to the Borrower such other forms or similar
documentation as may be required from time to time by any applicable
law, treaty, rule or regulation in order to establish such Lender's
tax status for withholding purposes.
(f) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.15 shall survive the payment in full of principal
and interest hereunder.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.15 shall use its reasonable best efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its lending office, if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts which may
thereafter accrue and would not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender.
- 34 -
<PAGE> 41
(h) Each Lender (and the Administrative Lender with respect to
payments to the Administrative Lender for its own account) agrees that (i) it
will take all reasonable actions by all usual means to maintain all exemptions,
if any, available to it from United States withholding taxes (whether available
by treaty, existing administrative waiver, by virtue of the location of any
Lender's lending office) and (ii) otherwise cooperate with the Borrower to
minimize amounts payable by the Borrower under this Section 2.15; provided,
however, the Lenders and the Administrative Lender shall not be obligated by
reason of this Section 2.15(h) to contest the payment of any Taxes or Other
Taxes or to disclose any information regarding its tax affairs or tax
computations or reorder its tax or other affairs or tax or other planning.
Section 2.16 Letters of Credit.
(a) The Letter of Credit Facility. The Borrower may request the
Issuing Bank, on the terms and conditions hereinafter set forth, to issue, and
the Issuing Bank shall, if so requested, issue, letters of credit, including
the Existing Letters of Credit (the "Letters of Credit") for the account of the
Borrower from time to time on any Business Day from the date of the initial
Advance until the Maturity Date in an aggregate maximum amount (assuming
compliance with all conditions to drawing) not to exceed at any time
outstanding the lesser of (i) $100,000,000 (the "Letter of Credit Facility"),
and (ii) the difference of (A) the Commitment minus (B) the aggregate principal
amount of Advances then outstanding. No Letter of Credit shall have an
expiration date (including all rights of renewal) later than the earlier of (i)
the Maturity Date or (ii) one year after the date of issuance thereof.
Immediately upon the issuance of each Letter of Credit (or, with respect to the
Existing Letters of Credit, upon satisfaction of the conditions set forth in
Sections 3.1 and 3.2 of this Agreement), the Issuing Bank shall be deemed to
have sold and transferred to each Lender, and each Lender shall be deemed to
have purchased and received from the Issuing Bank, in each case irrevocably and
without any further action by any party, an undivided interest and
participation in such Letter of Credit, each drawing thereunder and the
obligations of the Borrower under this Agreement in respect thereof in an
amount equal to the product of (i) such Lender's Specified Percentage of the
Commitment times (ii) the maximum amount available to be drawn under such
Letter of Credit (assuming compliance with all conditions to drawing). Within
the limits of the Letter of Credit Facility, and subject to the limits referred
to above, the Borrower may request the issuance of Letters of Credit under this
Section 2.16(a), repay any Advances resulting from drawings thereunder pursuant
to Section 2.16(c) and request the issuance of additional Letters of Credit
under this Section 2.16(a). During the term of this Agreement, provided that
no Default or Event of Default then exists and subject to the same conditions
for the issuance of a Letter of Credit set forth in Section 3.2 hereof, the
Issuing Bank may at Borrower's option, automatically renew any expiring Letters
of Credit for a period of time not to exceed the earlier of (x) five (5) days
prior to the Maturity Date or (y) one year after the date of issuance thereof.
(b) Request for Issuance. Each Letter of Credit shall be issued
upon notice, given not later than 11:00 a.m. (Dallas time) on the third
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Lender and each Lender prompt notice thereof by telex,
telecopier
- 35 -
<PAGE> 42
or cable. Each Letter of Credit shall be issued upon notice given in
accordance with the terms of any separate agreement between the Borrower and
the Issuing Bank in form and substance reasonably satisfactory to the Borrower
and the Issuing Bank providing for the issuance of Letters of Credit pursuant
to this Agreement and containing terms and conditions not inconsistent with
this Agreement (a "Letter of Credit Agreement"), provided that if any such
terms and conditions are inconsistent with this Agreement, this Agreement shall
control. Each such notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telex, telecopier or cable, specifying therein, the
requested (A) date of such issuance (which shall be a Business Day), (B)
maximum amount of such Letter of Credit, (C) expiration date of such Letter of
Credit, (D) name and address of the beneficiary of such Letter of Credit, (E)
form of such Letter of Credit and (F) such other information as shall be
required pursuant to the relevant Letter of Credit Agreement. If the requested
terms of such Letter of Credit are acceptable to the Issuing Bank in its
reasonable discretion, the Issuing Bank shall, subject to this Section 2.16(b),
upon fulfillment of the applicable conditions set forth in Article 3 hereof,
make such Letter of Credit available to the Borrower at its office referred to
in Section 11.1 or as otherwise agreed with the Borrower in connection with
such issuance.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of
a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Revolving Credit Advance,
which shall bear interest at the applicable Base Rate Basis, in the amount of
such draft (but without any requirement for compliance with the conditions set
forth in Article 3 hereof). In the event that a drawing under any Letter of
Credit is not reimbursed by the Borrower by 11:00 a.m. (Dallas time) on the
first Business Day after such drawing, the Issuing Bank shall promptly notify
Administrative Lender and each other Lender. Each such Lender shall, on the
first Business Day following such notification, make an Revolving Credit
Advance, which shall bear interest at the applicable Base Rate Basis, and shall
be used to repay the applicable portion of the Issuing Bank's Revolving Credit
Advance with respect to such Letter of Credit, in an amount equal to the amount
of its participation in such drawing for application to reimburse the Issuing
Bank (but without any requirement for compliance with the applicable conditions
set forth in Article 3 hereof) and shall make available to the Administrative
Lender for the account of the Issuing Bank, by deposit at the Administrative
Lender's office, in same day funds, the amount of such Revolving Credit
Advance. In the event that any Lender fails to make available to the
Administrative Lender for the account of the Issuing Bank the amount of such
Revolving Credit Advance, the Issuing Bank shall be entitled to recover such
amount on demand from such Lender together with interest thereon at a rate per
annum equal to the lesser of (i) the Highest Lawful Rate or (ii) the Federal
Funds Rate.
(d) Increased Costs. If any change in any law or regulation or in
the interpretation thereof by any court or administrative or governmental
authority charged with the administration thereof shall either (i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against letters of credit or guarantees issued by, or assets held by, or
deposits in or for the account of, the Issuing Bank or any Lender or (ii)
impose on the Issuing Bank or any Lender any other condition regarding this
Agreement or such Lender or any Letter of Credit,
- 36 -
<PAGE> 43
and the result of any event referred to in the preceding clause (i) or (ii)
shall be, in the reasonable opinion of the Issuing Bank or any Lender, to
increase the cost to the Issuing Bank of issuing or maintaining any Letter of
Credit or to any Lender of purchasing any participation therein or making any
Advance pursuant to Section 2.16(c) ("Increased Letter of Credit Costs"), then,
upon demand by the Issuing Bank or such Lender, the Borrower shall, subject to
Section 11.9 hereof, pay to the Issuing Bank or such Lender, from time to time
as specified by the Issuing Bank or such Lender, additional amounts that shall
be sufficient to compensate the Issuing Bank or such Lender for such Increased
Letter of Credit Costs. Notwithstanding the foregoing, any demand for
Increased Letter of Credit Costs shall not include any Letter of Credit costs
with respect to any period more than 180 days prior to the date that the
Issuing Bank or any Lender gives notice to the Borrower of such Increased
Letter of Credit Costs unless the effective date of the condition which results
in the right to received Increased Letter of Credit Costs is retroactive (the
"Increased Letter of Credit Costs Retroactive Effective Date"). If any
Increased Letter of Credit Costs has an Increased Costs Letter of Credit
Retroactive Effective Date and the Issuing Bank or any Lender demands
compensation within 180 days after the date setting the Increased Letter of
Credit Costs Effective Date (the "Increased Letter of Credit Costs Set Date"),
the Issuing Bank or such Lender, as appropriate, shall have the right to
receive such Increased Letter of Credit Costs from the Increased Letter of
Credit Retroactive Effective Date. If the Issuing Bank or a Lender does not
demand such Increased Letter of Credit Costs within 180 days after the
Increased Letter of Credit Costs Set Date, the Issuing Bank or such Lender, as
appropriate, may not receive payment of Increased Letter of Credit Costs with
respect to any period more than 180 days prior to such demand. A certificate
as to the amount of such increased cost, submitted to the Borrower by the
Issuing Bank or such Lender, shall include in reasonable detail the basis for
the demand for additional compensation and shall be conclusive and binding for
all purposes, absent demonstrable error. The obligations of the Borrower under
this Section 2.16(d) shall survive termination of this Agreement. The Issuing
Bank or any Lender claiming any additional compensation under this Section
2.16(d) shall use reasonable efforts (consistent with legal and regulatory
restrictions) to reduce or eliminate any such additional compensation which may
thereafter accrue and which efforts would not, in the sole discretion of the
Issuing Bank or such Lender, be otherwise disadvantageous.
(e) Obligations Absolute. The obligations of the Borrower under
this Agreement with respect to any Letter of Credit, any Letter of Credit
Agreement and any other agreement or instrument relating to any Letter of
Credit or any Advance pursuant to Section 2.16(c) shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of this
Agreement, any other Loan Document, any Letter of Credit Agreement,
any Letter of Credit or any other agreement or instrument relating
thereto (collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations of the
Borrower in respect of the Letters of Credit
- 37 -
<PAGE> 44
or any Revolving Credit Advance pursuant to Section 2.16(c) or any
other amendment or waiver of or any consent to departure from all or
any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary
or any transferee of a Letter of Credit (or any Persons for whom any
such beneficiary or any such transferee may be acting), the Issuing
Bank, any Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C Related
Documents or any unrelated transaction;
(iv) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect, except to the extent that any payment by
the Issuing Bank against any such statement or other document shall be
as a result of the Issuing Bank's gross negligence or willful
misconduct;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not comply
with the terms of the Letter of Credit, except for any payment made
upon the Issuing Bank's gross negligence or willful misconduct;
(vi) any exchange, release or non-perfection of any
Collateral, or any release or amendment or waiver of or consent to
departure from any Subsidiary Guaranty or any other guarantee, for all
or any of the Obligations of the Borrower in respect of the Letters of
Credit or any Revolving Credit Advance pursuant to Section 2.16(c); or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or a guarantor,
other than the Issuing's Bank gross negligence or wilful misconduct.
(f) Compensation for Letters of Credit.
(i) Credit Fees. Subject to Section 11.9 hereof, the
Borrower shall pay to the Administrative Lender for the account of
each Lender a credit fee (which shall be payable quarterly in arrears
on each Quarterly Date and on the Maturity Date) on the average daily
amount available for drawing under all outstanding Letters of Credit
(computed, subject to Section 11.9 hereof, on the basis of a 365-day
year for the actual number of days elapsed) at the following per annum
percentages, applicable in the following situations:
- 38 -
<PAGE> 45
<TABLE>
<CAPTION>
Percentage
----------
Applicability
-------------
<S> <C> <C>
(i) If the Leverage Ratio is not less than 5.0 to 1 0.7500
(ii) If the Leverage Ratio is less than 5.0 to 1 but is not less 0.6250
than 4.5 to 1
(iii) If the Leverage Ratio is less than 4.5 to 1 but is not less 0.5500
than 4.0 to 1
(iv) If the Leverage Ratio is less than 4.0 to 1 but is not less 0.4500
than 3.5 to 1
(v) If the Leverage Ratio is less than 3.5 to 1 but is not less 0.3750
than 2.5 to 1
(vi) If the Leverage Ratio is less than 2.5 to 1 0.3000
</TABLE>
(ii) Adjustment of Credit Fee. The credit fee payable in
respect of the Letters of Credit shall be subject to reduction or
increase, as applicable and as set forth in the table in (i) above, on
a quarterly basis according to the performance of the Borrower as
tested by the Leverage Ratio. Except as set forth in the last
sentence hereof, any such increase or reduction in such fee shall be
effective on the third Business Day following the date of receipt of
the applicable financial statements. If financial statements of the
Borrower setting forth the Leverage Ratio are not received by the
Administrative Lender by the date required pursuant to Section 6.1
hereof, the fee payable in respect of the Letters of Credit shall be
determined as if the Leverage Ratio is not less than 5.0 to 1 until
such time as such financial statements are received. For the last
fiscal quarter of any fiscal year of the Borrower, the Borrower may
provide its unaudited financial statements, subject only to year-end
adjustments, for the purpose of adjusting the Letter of Credit fee.
Notwithstanding anything above to the contrary, if the compliance
certificate required to be delivered pursuant to Section 7.5(b)
hereof, prior to any proposed acquisition, indicates that the Leverage
Ratio after giving effect to the proposed acquisition would result in
an adjustment of the Letter of Credit fee, such fee shall be increased
or decreased, as the case may be, as of the date of such acquisition.
(iii) Issuance Fee. Subject to Section 11.9 hereof, the
Borrower shall pay to the Administrative Lender, for the sole account
of the Issuing Bank, an issuance fee of $500 on the date of issuance
of each Letter of Credit.
(g) L/C Cash Collateral Account.
(i) Upon the occurrence of an Event of Default and demand
by the Administrative Lender pursuant to Section 8.2(c), other than an
Event of Default pursuant to Section 8.1(f) or 8.1(g) hereof upon such
event the referenced sums will become immediately due and payable
without further action by the Administrative Lender, the Borrower will
promptly pay to the Administrative Lender in immediately available
funds an amount equal to 100% of the maximum amount then available to
be
- 39 -
<PAGE> 46
drawn under the Letters of Credit then outstanding. Any amounts so
received by the Administrative Lender shall be deposited by the
Administrative Lender in a deposit account maintained by the Issuing
Bank (the "L/C Cash Collateral Account").
(ii) As security for the payment of all Reimbursement
Obligations and for any other Obligations, the Borrower hereby grants,
conveys, assigns, pledges, sets over and transfers to the
Administrative Lender (for the benefit of the Issuing Bank and
Lenders), and creates in the Administrative Lender's favor (for the
benefit of the Issuing Bank and Lenders) a Lien in, all money,
instruments and securities at any time held in or acquired in
connection with the L/C Cash Collateral Account, together with all
proceeds thereof. The L/C Cash Collateral Account shall be under the
sole dominion and control of the Administrative Lender and the
Borrower shall have no right to withdraw or to cause the
Administrative Lender to withdraw any funds deposited in the L/C Cash
Collateral Account except as otherwise provided in Section
2.16(g)(iii). At any time and from time to time, upon the
Administrative Lender's request, the Borrower promptly shall execute
and deliver any and all such further instruments and documents,
including UCC financing statements, as may be necessary, appropriate
or desirable in the Administrative Lender's judgment to obtain the
full benefits (including perfection and priority) of the security
interest created or intended to be created by this paragraph (ii) and
of the rights and powers herein granted. The Borrower shall not
create or suffer to exist any Lien on any amounts or investments held
in the L/C Cash Collateral Account other than the Lien granted under
this paragraph (ii) and Liens arising by operation of Law and not by
contract which secure amounts not yet due and payable.
(iii) The Administrative Lender shall (A) apply any funds
in the L/C Cash Collateral Account on account of Reimbursement
Obligations when the same become due and payable if and to the extent
that the Borrower shall fail directly to pay such Reimbursement
Obligations, (B) after the Maturity Date, apply any proceeds remaining
in the L/C Cash Collateral Account first to pay any unpaid Obligations
then outstanding hereunder and then to refund any remaining amount to
the Borrower, and (C) provided no Default or Event of Default shall be
in existence, return any funds in the L/C Cash Collateral Account to
the Borrower.
(iv) The Borrower, no more than once in any calendar
month, may direct the Administrative Lender to invest the funds held
in the L/C Cash Collateral Account (so long as the aggregate amount of
such funds exceeds any relevant minimum investment requirement) in (A)
direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof and
(B) one or more other types of investments permitted by the
Determining Lenders, in each case with such maturities as the
Borrower, with the consent of the Determining Lenders, may specify,
pending application of such funds on account of Reimbursement
Obligations or on account of other Obligations, as the case may be.
In the absence of any such direction from the Borrower, the
Administrative Lender shall invest the funds held in the L/C Cash
Collateral Account (so long as the aggregate amount of such funds
exceeds any
- 40 -
<PAGE> 47
relevant minimum investment requirement) in one or more types of
investments with the consent of the Determining Lenders with such
maturities as the Borrower, with the consent of the Determining
Lenders, may specify, pending application of such funds on account of
Reimbursement Obligations or on account of other Obligations, as the
case may be. All such investments shall be made in the Administrative
Lender's name for the account of the Lenders. The Borrower recognizes
that any losses or taxes with respect to such investments shall be
borne solely by the Borrower, and the Borrower agrees to hold the
Administrative Lender and the Lenders harmless from any and all such
losses and taxes. Administrative Lender may liquidate any investment
held in the L/C Cash Collateral Account in order to apply the proceeds
of such investment on account of the Reimbursement Obligations (or on
account of any other Obligation then due and payable, as the case may
be) without regard to whether such investment has matured and without
liability for any penalty or other fee incurred (with respect to which
the Borrower hereby agrees to reimburse the Administrative Lender) as
a result of such application.
(v) The Borrower shall pay to the Administrative Lender
the fees customarily charged by the Issuing Bank with respect to the
maintenance of accounts similar to the L/C Cash Collateral Account in
an amount not to exceed $1,000 in aggregate per calendar year.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Closing and the Initial
Advance and the Letters of Credit. The obligation of each Lender to sign this
Agreement and to make the initial Advance and the obligation of the Issuing
Bank to issue the initial Letter of Credit is subject to receipt by the
Administrative Lender of each of the following, in form and substance
satisfactory to the Administrative Lender, with a copy (except for the notes)
for each Lender:
(a) a loan certificate of the Borrower certifying as to the
accuracy of its representations and warranties in the Loan Documents,
certifying that no Default or Material Adverse Effect, except as listed in
Schedule 11 hereto, has occurred since the last financial statements delivered
to the Lenders prior to the Agreement Date, certifying Borrower is in
compliance with all covenants in the Agreement, and including a certificate of
incumbency with respect to each Authorized Signatory, and including (i) a copy
of the Articles of Incorporation of the Borrower, certified to be true,
complete and correct by the secretary of state of its state of incorporation
(or a certification that there has been no change thereto from such form
provided in connection with the Existing Credit Agreement), (ii) a copy of the
By- Laws of the Borrower, as in effect on the Agreement Date (or a
certification that there has been no change thereto from such form provided in
connection with the Existing Credit Agreement), (iii) a copy of the resolutions
of the Borrower authorizing it to execute, deliver and perform this Agreement,
the Revolving Credit Notes, the Bid Rate Notes, and the other Loan Documents to
which it is
- 41 -
<PAGE> 48
a party, and (iv) a copy of a certificate of good standing and a certificate of
existence for its state of incorporation and each state in which it is or
should be qualified to do business;
(b) a certificate of an officer acceptable to the Lenders of each
Restricted Subsidiary, certifying as to the incumbency of the officers signing
the Loan Documents to which it is a party, and including (i) a copy of its
Articles of Incorporation, certified as true, complete and correct by the
secretary of state of its state of incorporation (or a certification that there
has been no change thereto from such form provided in connection with the
Existing Credit Agreement), (ii) a copy of its By-Laws, as in effect on the
Agreement Date (or a certification that there has been no change thereto from
such form provided in connection with the Existing Credit Agreement), (iii) a
copy of the resolutions authorizing it to execute, deliver and perform the Loan
Documents to which it is a party, and (iv) a copy of a certificate of good
standing and a certificate of existence for its state of incorporation and each
state in which it is or should be qualified to do business;
(c) duly executed Revolving Credit Notes, payable to the order of
each Lender and in an amount for each Lender equal to its Specified Percentage
of the Commitment;
(d) duly executed Bid Rate Notes, payable to the order of each
Lender in the principal amount of $300,000,000;
(e) a duly executed and completed Subsidiary Guaranty, dated as of
the Agreement Date executed by Holdings, Management, Memphis, Radio Licenses,
Television Licenses, Metroplex Licenses, Radio, Television, Metroplex, CCRE,
CCR Houston-Nevada, Productions, US Radio, US Holdings, US Acquisitions, US El
Paso, USR El Paso, USR El Paso FM-2, US Houston, USR Houston, US Little Rock,
USR Moyock, USR Little Rock, US Memphis, USR Memphis AM, USR Memphis FM, USR
Norfolk, US Norfolk, USR Norfolk AM/FM, US Raleigh/Durham, USR Raleigh/Durham,
US Reading, USR Reading, US Raleigh/Durham-2, USR Raleigh/Durham FM-2, US
Milwaukee and USR Milwaukee;
(f) an opinion of counsel and of FCC counsel to the Borrower and
its Restricted Subsidiaries addressed to the Lenders and in form and substance
satisfactory to the Lenders, dated the Agreement Date;
(g) copies of insurance binders or certificates covering the
assets of the Borrower and its Subsidiaries, and meeting the requirements of
Section 5.5 hereof;
(h) reimbursement for Administrative Lender for Special Counsel's
reasonable fees and expenses rendered through the date hereof;
(i) evidence that all corporate proceedings of the Borrower and
its Restricted Subsidiaries taken in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall be reasonably
satisfactory in form and substance to the Lenders and Special Counsel; and the
Lenders shall have received copies of all documents or other evidence
- 42 -
<PAGE> 49
which the Administrative Lender, Special Counsel or any Lender may reasonably
request in connection with such transactions;
(j) copies of the following consolidated and consolidating
financial statements for the Borrower and its Subsidiaries, as of and for the
period ended March 31, 1996: (i) consolidated and consolidating balance sheets
as of the end of such period, and (ii) consolidated and consolidating
statements of income and changes in cash for such period; which financial
statements shall set forth in comparative form figures for the corresponding
periods in the previous fiscal year, all in reasonable detail and certified by
an Authorized Signatory to the best of his knowledge to be complete and correct
and prepared in accordance with GAAP (other than footnotes thereto), subject to
year-end adjustment;
(k) the facility fee for the account of each Lender as required
pursuant to Section 2.4(b) hereof;
(l) all Indebtedness owing by the Borrower under the Existing
Credit Agreement shall have been refinanced in full; and
(m) in form and substance satisfactory to the Lenders and Special
Counsel, such other documents, instruments and certificates as the
Administrative Lender or any Lender may reasonably require in connection with
the transactions contemplated hereby, including without limitation the status,
organization or authority of the Borrower or any Restricted Subsidiary, and the
enforceability of and security for the Obligation.
Section 3.2 Conditions Precedent to All Advances and Letters of
Credit. The obligation of each Lender to make each Advance (including the
initial Advance) and the obligation of the Issuing Bank to issue each Letter of
Credit (including the initial Letter of Credit) hereunder is subject to
fulfillment of the following conditions immediately prior to or
contemporaneously with each such Advance or issuance:
(a) With respect to Advances (other than Refinancing Advances that
are Refinancing Advances of Revolving Credit Advances) and each issuance of a
Letter of Credit, all of the representations and warranties of the Borrower
under this Agreement, which, pursuant to Section 4.2 hereof, are made at and as
of the time of such Advance or issuance, shall be true and correct at such time
in all material respects, both before and after giving effect to the
application of the proceeds of the Advance or issuance;
(b) The incumbency of the Authorized Signatories shall be as
stated in the certificate of incumbency delivered in the Borrower's loan
certificate pursuant to Section 3.1(a) or as subsequently modified and
reflected in a certificate of incumbency delivered to the Administrative
Lender. The Lenders may, without waiving this condition, consider it fulfilled
and a representation by the Borrower made to such effect if no written notice
to the contrary, dated on or before the date of such Advance or issuance, is
received by the Administrative Lender from the Borrower prior to the making of
such Advance or issuance;
- 43 -
<PAGE> 50
(c) There shall not exist a Default hereunder, with respect to
Advances (other than Refinancing Advances that are Refinancing Advances of
Revolving Credit Advances) and with respect to issuance of each Letter of
Credit, or an Event of Default, with respect to any Refinancing Advance, and,
with respect to each Advance (other than a Refinancing Advance that is a
Refinancing Advances of a Revolving Credit Advance) and with respect to
issuance of each Letter of Credit, the Administrative Lender shall have
received written or telephonic certification thereof by an Authorized Signatory
(which certification, if telephonic, shall be followed promptly by written
certification);
(d) The aggregate Advances and amount available for draws under
Letters of Credit, after giving effect to such proposed Advance or Letter of
Credit, shall not exceed the maximum principal amount then permitted to be
outstanding hereunder; and
(e) The Administrative Lender shall have received all such other
certificates, reports, statements or other documents as the Administrative
Lender or any Lender may reasonably request.
Each request by the Borrower to the Administrative Lender or the
Issuing Bank, as appropriate, for an Advance or the issuance of a Letter of
Credit shall constitute a representation and warranty by the Borrower as of the
date of the making of such Advance or the issuance of such Letter of Credit
that all the conditions contained in this Section 3.2 have been satisfied.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby
represents and warrants to each Lender as follows:
(a) Organization; Power; Qualification. As of the Agreement Date,
(i) the respective jurisdictions of incorporation and percentage ownership by
the Borrower or another Subsidiary of the Subsidiaries listed on Schedule 7 are
true and correct and (ii) all Subsidiaries other than Heftel are Restricted
Subsidiaries. Each of the Borrower and its Restricted Subsidiaries is a
corporation or partnership duly organized, validly existing and in good
standing under the laws of its state of organization. Each of the Borrower and
its Restricted Subsidiaries has the corporate or organizational power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted. Each of the Borrower and its Restricted
Subsidiaries is duly qualified, in good standing and authorized to do business
in each jurisdiction in which the character of its properties or the nature of
its business requires such qualification or authorization. Nothwithstanding
the foregoing, each of the US Radio Entities merged with and into Metroplex or
Metroplex Licenses as of August 1, 1996.
- 44 -
<PAGE> 51
(b) Authorization. The Borrower has corporate power and has taken
all necessary corporate action to authorize it to borrow hereunder. Each of
the Borrower and its Restricted Subsidiaries has corporate power and has taken
all necessary corporate action to execute, deliver and perform the Loan
Documents to which it is party in accordance with the terms thereof, and to
consummate the transactions contemplated thereby. Each Loan Document has been
duly executed and delivered by the Borrower or the Restricted Subsidiary
executing it. Each of the Loan Documents to which the Borrower and its
Restricted Subsidiaries are party is a legal, valid and binding respective
obligation of the Borrower or the Restricted Subsidiary, as applicable,
enforceable in accordance with its terms, subject, to enforcement of remedies,
to the following qualifications: (i) equitable principles generally, and (ii)
bankruptcy, insolvency, liquidation, reorganization, reconstruction and other
similar laws affecting enforcement of creditors' rights generally (insofar as
any such law relates to the bankruptcy, insolvency or similar event of the
Borrower or any Restricted Subsidiary).
(c) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance by the Borrower and its
Restricted Subsidiaries of the other Loan Documents to which they are
respectively a party, and the consummation of the transactions contemplated
thereby, do not and will not (i) require any consent or approval not already
obtained, (ii) violate any Applicable Law, (iii) conflict with, result in a
breach of, or constitute a default under the articles of incorporation or
by-laws of the Borrower or any Restricted Subsidiary, or under any Necessary
Authorization, indenture, agreement or other instrument, to which the Borrower
or any Restricted Subsidiary is a party or by which they or their respective
properties may be bound, or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Borrower or any Restricted Subsidiary, except
Permitted Liens.
(d) Business. The Borrower and its Restricted Subsidiaries are
engaged solely in the communications and media broadcasting business and
activities related thereto (including, without limitation, radio and television
broadcasting, print, productions, billboards, power transmission rentals and
sales and real property rentals and sales, but only to the extent that such
real property rentals and sales arise from the lease or sale of properties
previously used by the Borrower or its Restricted Subsidiaries in the
communications and media broadcasting business).
(e) Licenses, etc. All Necessary Authorizations have been duly
authorized and obtained, and are in full force and effect. The Borrower and
its Restricted Subsidiaries are and will continue to be in compliance in all
material respects with all provisions thereof. No Necessary Authorization is
the subject of any pending or, to the best of the Borrower's knowledge,
threatened challenge or revocation.
(f) Compliance with Law. The Borrower and its Restricted
Subsidiaries are in compliance with all Applicable Laws, the violation of which
could reasonably be expected to have a Material Adverse Effect. The Borrower
and its Restricted Subsidiaries have duly and timely filed all reports,
statements and filings that are required to be filed by any of them under the
Communications Act, and are in all material respects in compliance therewith,
including
- 45 -
<PAGE> 52
without limitation the rules and regulations of the FCC relating to the
operation of television and radio stations. The Borrower and its Restricted
Subsidiaries have obtained all appropriate approvals and consents of, and have
made all filings with, the FCC in connection with the acquisition and ownership
of each of their television and radio stations. No Person has filed or
submitted any document or instrument to the FCC challenging or contesting the
FCC order approving any assignment of a FCC license to the Borrower or any of
its Restricted Subsidiaries.
(g) Title to Properties. The Borrower and its Restricted
Subsidiaries have good and indefeasible title to, or a valid leasehold interest
in, all of their material assets. None of their assets are subject to any
Liens, except Permitted Liens. No financing statement or other Lien filing
(except relating to Permitted Liens) is on file in any state or jurisdiction
that names the Borrower or any of its Restricted Subsidiaries as debtor or
covers (or purports to cover) any assets of the Borrower or any of its
Restricted Subsidiaries. The Borrower and its Restricted Subsidiaries have not
signed any such financing statement or filing, nor any security agreement
authorizing any Person to file any such financing statement or filing.
(h) Litigation. Except as reflected on Schedule 3 hereto, there
is no action, suit, investigation or proceeding pending against, or, to the
best of the Borrower's knowledge, threatened against the Borrower or any of its
Restricted Subsidiaries, or in any other manner relating directly and
materially adversely to the Borrower, any of its Restricted Subsidiaries, or
any of their material properties, including, but not limited to any litigation
with respect to these Loan Documents, in any court or before any arbitrator of
any kind or before or by any governmental body the result of which could
reasonably be expected to require the payment of money by the Borrower or any
Restricted Subsidiary in an amount of $500,000 or more in any one such action,
suit or proceeding or $2,500,000 or more in the aggregate for all such actions,
suits or proceedings.
(i) Taxes. All federal, state and other tax returns of the
Borrower and its Restricted Subsidiaries required by law to be filed have been
duly filed and all federal, state and other taxes, assessments and other
governmental charges or levies upon the Borrower, its Restricted Subsidiaries
or any of their properties, income, profits and assets, which are due and
payable, have been paid, unless the same are being diligently contested in good
faith by appropriate proceedings, with adequate reserves established therefor,
and no Lien (other than a Permitted Lien) has attached and no foreclosure,
distraint, sale or similar proceedings have been commenced. The charges,
accruals and reserves on the books of the Borrower and its Restricted
Subsidiaries in respect of their taxes are, in the judgment of the Borrower,
adequate.
(j) Financial Statements; Material Liabilities. The Borrower has
furnished or caused to be furnished to the Lenders copies of its December 31,
1995, financial statements, which are prepared in good faith and complete in
all material respects and present fairly in accordance with GAAP the financial
position of the Borrower and its Restricted Subsidiaries as at such dates and
the results of operations for the periods then ended, subject to normal
year-end adjustments. The Borrower and its Restricted Subsidiaries have no
material liabilities, contingent or
- 46 -
<PAGE> 53
otherwise, nor material losses, except as disclosed in writing to the Lenders
prior to the Agreement Date.
(k) No Adverse Change. Since December 31, 1995, no event or
circumstances has occurred or arisen that could reasonably be expected to have
a Material Adverse Effect except as disclosed in Form S-3 filed with the
Securities and Exchange Commission on June 14, 1996 and delivered to the
Lenders prior to the Agreement Date, or as listed on Schedule 11 hereto.
(l) ERISA. None of the Borrower or its Controlled Group maintains
or contributes to any Plan other than those disclosed to the Administrative
Lender in writing. Each such Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code, and any other applicable
Federal or state law, rule or regulation. With respect to each Plan of the
Borrower and each member of its Controlled Group (other than a Multiemployer
Plan), all reports required under ERISA or any other Applicable Law to be filed
with any governmental authority, the failure of which to file could reasonably
result in liability of the Borrower or any member of its Controlled Group in
excess of $100,000, have been duly filed. All such reports are true and
correct in all material respects as of the date given. No such Plan of the
Borrower or any member of its Controlled Group has been terminated nor has any
accumulated funding deficiency (as defined in Section 412(a) of the Code) been
incurred (without regard to any waiver granted under Section 412 of the Code),
nor has any funding waiver from the Internal Revenue Service been received or
requested. None of the Borrower or any member of its Controlled Group has
failed to make any contribution or pay any amount due or owing as required by
Section 412 of the Code or Section 302 of ERISA or the terms of any such Plan
prior to the due date under Section 412 of the Code and Section 302 of ERISA.
There has been no ERISA Event or any event requiring disclosure under Section
4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA with respect to any Plan or
trust of the Borrower or any member of its Controlled Group since the effective
date of ERISA. The value of the assets of each Plan (other than a
Multiemployer Plan) of the Borrower and each member of its Controlled Group
equaled or exceeded the present value of the benefit liabilities, as defined in
Title IV of ERISA, of each such Plan as of the most recent valuation date using
Plan actuarial assumptions at such date. There are no pending or, to the best
of the Borrower's knowledge, threatened claims, lawsuits or actions (other than
routine claims for benefits in the ordinary course) asserted or instituted
against, and neither the Borrower nor any member of its Controlled Group has
knowledge of any threatened litigation or claims against, (i) the assets of any
Plan or trust or against any fiduciary of a Plan with respect to the operation
of such Plan, or (ii) the assets of any employee welfare benefit plan within
the meaning of Section 3(1) or ERISA, or against any fiduciary thereof with
respect to the operation of any such plan. None of the Borrower or any member
of its Controlled Group has engaged in any prohibited transactions, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, in connection with
any Plan. None of the Borrower or any member of its Controlled Group has
withdrawn from any Multiemployer Plan, nor has incurred or reasonably expects
to incur (A) any liability under Title IV of ERISA (other than premiums due
under Section 4007 of ERISA to the PBGC), (B) any withdrawal liability (and no
event has occurred which with the giving of notice under Section 4219 of ERISA
would result in such liability) under Section 4201 of ERISA as a result of a
complete or partial
- 47 -
<PAGE> 54
withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a
Multiemployer Plan, or (C) any liability under Section 4062 of ERISA to the
PBGC or to a trustee appointed under Section 4042 of ERISA. None of the
Borrower, any member of its Controlled Group, or any organization to which the
Borrower or any member of its Controlled Group is a successor or parent
corporation within the meaning of ERISA Section 4069(b), has engaged in a
transaction within the meaning of ERISA Section 4069. None of the Borrower or
any member of its Controlled Group maintains or has established any welfare
benefit plan within the meaning of Section 3(1) of ERISA which provides for
continuing benefits or coverage for any participant or any beneficiary of any
participant after such participant's termination of employment except as may be
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA") and the regulations thereunder, and at the expense of the
participant or the beneficiary of the participant, or retiree medical
liabilities. Each of Borrower and its Controlled Group which maintains a
welfare benefit plan within the meaning of Section 3(1) of ERISA has complied
in all material respects with any applicable notice and continuation
requirements of COBRA and the regulations thereunder.
(m) Compliance with Regulations G, T, U and X. The Borrower is
not engaged principally or as one of its important activities in the business
of extending credit for the purpose of purchasing or carrying any margin stock
within the meaning of Regulations G, T, U and X of the Board of Governors of
the Federal Reserve System, and no part of the proceeds of the Advances or the
Letters of Credit will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock. No assets of the Borrower and its Restricted Subsidiaries are margin
stock, and none of the Pledged Stock is margin stock. None of the Borrower and
its Restricted Subsidiaries, nor any agent acting on their behalf, have taken
or will knowingly take any action which might cause this Agreement or any Loan
Documents to violate any regulation of the Board of Governors of the Federal
Reserve System or to violate the Securities Exchange Act of 1934, in each case
as in effect now or as the same may hereafter be in effect.
(n) Governmental Regulation. The Borrower and its Restricted
Subsidiaries are not required to obtain any Necessary Authorization that has
not already been obtained from, or effect any material filing or registration
that has not already been effected with, the FCC or any other federal, state or
local regulatory authority in connection with the execution and delivery of
this Agreement or any other Loan Document, or the performance thereof (other
than any enforcement of remedies by the Administrative Lender on behalf of the
Lenders), in accordance with their respective terms, including any borrowings
hereunder.
(o) Absence of Default. The Borrower and its Restricted
Subsidiaries are in compliance in all material respects with all of the
provisions of their articles of incorporation and by-laws, and no event has
occurred or failed to occur, which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, or which with the passage of
time or giving of notice or both would constitute, (i) an Event of Default or
(ii) a default by the Borrower or any of its Restricted Subsidiaries under any
material indenture, agreement or other
- 48 -
<PAGE> 55
instrument, or any judgment, decree or order to which the Borrower or any of
its Restricted Subsidiaries is a party or by which they or any of their
material properties is bound.
(p) Investment Company Act. The Borrower is not required to
register under the provisions of the Investment Company Act of 1940, as
amended. Neither the entering into or performance by the Borrower of this
Agreement nor the issuance of the notes violates any provision of such act or
requires any consent, approval, or authorization of, or registration with, the
Securities and Exchange Commission or any other governmental or public body or
authority pursuant to any provisions of such act.
(q) Environmental Matters. Neither the Borrower nor any
Subsidiary has any actual knowledge or reason to believe that any substance
deemed hazardous by any Applicable Environmental Law, has been installed on any
real property now owned by the Borrower or any of its Subsidiaries. The
Borrower and its Subsidiaries are not in violation of or subject to any
existing, pending or, to the best of the Borrower's knowledge, threatened
investigation or inquiry by any governmental authority or to any material
remedial obligations under any Applicable Environmental Laws, and this
representation and warranty would continue to be true and correct following
disclosure to the applicable governmental authorities of all relevant facts,
conditions and circumstances, if any, pertaining to any real property of the
Borrower and its Subsidiaries. The Borrower and its Subsidiaries have not
obtained and are not required to obtain any permits, licenses or similar
authorizations to construct, occupy, operate or use any buildings,
improvements, fixtures, and equipment forming a part of any real property of
the Borrower or any Subsidiary by reason of any Applicable Environmental Laws.
The Borrower and its Subsidiaries undertook, at the time of acquisition of any
real property, reasonable inquiry into the previous ownership and uses of such
real property consistent with good commercial or customary practice. The
Borrower and its Subsidiaries have taken all reasonable steps to determine, and
the Borrower and its Subsidiaries have no actual knowledge or reason to
believe, after reasonable investigation, that any hazardous substances or solid
wastes have been disposed of or otherwise released on or to the real property
of the Borrower or any of its Subsidiaries in any manner or quantities which
would be deemed a violation of the Applicable Environmental Laws.
(r) Certain Agreements. The Capitalized Lease Obligations and the
Affiliation Agreements have been duly authorized, executed and delivered by the
Borrower or its Restricted Subsidiaries, as applicable, and (to the best of the
Borrower's knowledge) the other parties thereto. Except as disclosed to each
Lender, there is no litigation, or, to the best of the Borrower's knowledge,
claim of breach or default, pending or threatened with respect to any
Capitalized Lease Obligations or Affiliation Agreement that could reasonably be
expected to adversely effect any such lease or contract. The Borrower has no
knowledge of any default by any seller of any of the Borrower's or its
Restricted Subsidiaries' television or radio stations under any obligations of
such seller to the Borrower or any Restricted Subsidiary. The Borrower has no
notice of or belief that any party to any Capitalized Lease Obligation or
Affiliation Agreement is contemplating a breach, default or termination for any
reason of such contract or lease, other than as disclosed in writing and
reasonably acceptable to the Lenders.
- 49 -
<PAGE> 56
The Borrower has provided, or caused to be provided, to the Administrative
Lender complete and correct copies of or access to the Capitalized Lease
Obligations and Affiliation Agreements, all as amended, together with all
exhibits and schedules thereto.
(s) Valid Issuance of Securities. All Capital Stock of the
Borrower and its Subsidiaries has been duly authorized and validly issued, and
is fully paid and nonassessable. The Capital Stock of the Borrower and its
Subsidiaries, when issued or sold, was either (i) registered or qualified under
applicable federal or state securities laws, or (ii) exempt therefrom.
(t) Certain Fees. No broker's, finder's or other fee or
commission will be payable by the Borrower (other than to the Lenders
hereunder) with respect to the making of the Commitments or the Advances
hereunder or the issuance of any Letters of Credit. The Borrower agrees to
indemnify and hold harmless the Administrative Lender and each Lender from and
against any claims, demand, liability, proceedings, costs or expenses asserted
with respect to or arising in connection with any such fees or commissions.
(u) Compliance. Attached as Schedule 4 hereto is a complete list
of all material licenses, consents, authorizations, permits and Necessary
Authorizations as of the Agreement Date. Such licenses, consents, permits and
authorizations constitute all that are necessary, appropriate or advisable for
each of the Borrower and its Restricted Subsidiaries to operate its business
and own its properties, and are in full force and effect. No event has
occurred which permits (or with the passage of time would permit) the
revocation or termination of any such license, consents, permits and
authorizations, or which could result in the imposition of any restriction
thereon of such a nature that could reasonably be expected to have a Material
Adverse Effect.
(v) Patents, Etc. The Borrower and its Restricted Subsidiaries
have obtained all patents, trademarks, service-marks, trade names, copyrights,
licenses and other rights, free from burdensome restrictions, that are
necessary for the operation of their business as presently conducted and as
proposed to be conducted, the loss of which could reasonably be expected to
have a Material Adverse Effect. Nothing has come to the attention of the
Borrower or any of its Restricted Subsidiaries to the effect that (i) any
process, method, part or other material presently contemplated to be employed
by the Borrower or any Restricted Subsidiary may infringe any patent,
trademark, service-mark, trade name, copyright, license or other right owned by
any other Person, or (ii) there is pending or overtly threatened any claim or
litigation against or affecting the Borrower or any Restricted Subsidiary
contesting its right to sell or use any such process, method, part or other
material.
(w) Disclosure. Neither this Agreement nor any other document,
certificate or statement which has been furnished to any Lender by or on behalf
of the Borrower or any Restricted Subsidiary in connection herewith contained
any untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statement contained herein and therein not
misleading at the time it was furnished. There is no fact known to the
Borrower and
- 50 -
<PAGE> 57
not known to the public generally that could reasonably be expected to
materially adversely affect the assets or business of the Borrower and its
Restricted Subsidiaries, or in the future could reasonably be expected (so far
as the Borrower can now foresee) to have a Material Adverse Effect, which has
not been set forth in this Agreement or in the documents, certificates and
statements furnished to the Lenders by or on behalf of the Borrower prior to
the date hereof in connection with the transaction contemplated hereby.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made at and as of the Agreement Date and at and
as of the date of each Advance and each Letter of Credit, and each shall be
true and correct when made, except to the extent (a) previously fulfilled in
accordance with the terms hereof, (b) applicable to a specific date or
otherwise subsequently inapplicable, or (c) previously waived in writing by the
Determining Lenders with respect to any particular factual circumstance. All
such representations and warranties shall survive, and not be waived by, the
execution hereof by any Lender, any investigation or inquiry by any Lender, or
by the making of any Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations are outstanding and unpaid or any
Commitment is outstanding (whether or not the conditions to borrowing have been
or can be fulfilled):
Section 5.1 Preservation of Existence and Similar Matters.
Except as provided in Section 7.5, the Borrower shall, and shall cause each
Restricted Subsidiary to:
(a) preserve and maintain, or timely obtain and thereafter
preserve and maintain, its existence, rights, franchises, licenses,
authorizations, consents, privileges and all other Necessary Authorizations
from federal, state and local governmental bodies and any tribunal (regulatory
or otherwise), the loss of which could have a Material Adverse Effect; and
(b) qualify and remain qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, unless the failure to do
so could not have a Material Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The
Borrower and its Restricted Subsidiaries shall (a) engage substantially in the
media or communication related business and activities related thereto, and (b)
comply in all material respects with the requirements of all Applicable Law,
the failure of which could reasonably be expected to have a Material Adverse
Effect.
- 51 -
<PAGE> 58
Section 5.3 Maintenance of Properties. The Borrower shall, and
shall cause each Restricted Subsidiary to, maintain or cause to be maintained
all its properties (whether owned or held under lease) in reasonably good
repair, working order and condition, taken as a whole, and from time to time
make or cause to be made all appropriate repairs, renewals, replacements,
additions, betterments and improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The
Borrower shall, and shall cause each Restricted Subsidiary to, maintain a
system of accounting established and administered in accordance with GAAP, keep
adequate records and books of account in which complete entries will be made
and all transactions reflected in accordance with GAAP, and keep accurate and
complete records of its respective assets. The Borrower and each of its
Restricted Subsidiaries shall maintain a fiscal year ending on December 31.
Section 5.5 Insurance. The Borrower shall, and shall cause each
Restricted Subsidiary or its direct parent to, maintain insurance from
responsible companies in such amounts and against such risks as shall be
customary and usual in the industry for companies of similar size and
capability, but in no event less than the amount and types insured as of the
Agreement Date. Each insurance policy shall provide for at least 30 days'
prior notice to the Administrative Lender of any proposed termination or
cancellation of such policy, whether on account of default or otherwise, the
loss of which could, individually or in the aggregate, reasonably be expected
to have Material Adverse Effect.
Section 5.6 Payment of Taxes and Claims. The Borrower shall, and
shall cause each Restricted Subsidiary to, pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or its income or
properties prior to the date on which penalties attach thereto, and all lawful
material claims for labor, materials and supplies which, if unpaid, might
become a Lien upon any of its properties; except that no such tax, assessment,
charge, levy or claim need be paid which is being diligently contested in good
faith by appropriate proceedings and for which adequate reserves shall have
been set aside on the appropriate books, but only so long as no Lien (other
than a Permitted Lien) shall attach with respect thereto and no foreclosure,
distraint, sale or similar proceedings shall have been commenced. The Borrower
shall, and shall cause each Restricted Subsidiary to, timely file all
information returns required by federal, state or local tax authorities.
Section 5.7 Visits and Inspections. The Borrower shall, and
shall cause each Restricted Subsidiary to, promptly permit representatives of
the Administrative Lender or any Lender from time to time to (a) visit and
inspect the properties of the Borrower and Restricted Subsidiary as often as
the Administrative Lender or any Lender shall deem advisable, (b) inspect and
make extracts from and copies of the Borrower's and each Restricted
Subsidiary's books and records, and (c) discuss with the Borrower's and each
Restricted Subsidiary's directors, officers, employees and auditors its
business, assets, liabilities, financial positions, results of operations and
business prospects.
- 52 -
<PAGE> 59
Section 5.8 Payment of Indebtedness. Subject to Section 5.6
hereof, the Borrower shall, and shall cause each Restricted Subsidiary to, pay
its Indebtedness when and as the same becomes due, other than amounts (other
than the Obligations) duly and diligently disputed in good faith.
Section 5.9 Use of Proceeds. The Borrower shall use the proceeds
of Advances and Letters of Credit to make acquisitions permitted under Section
7.5 hereof, to make Capital Expenditures, to make Investments (including
advances to Subsidiaries) permitted pursuant to Section 7.3 hereof, to
refinance all outstanding Indebtedness under the Existing Credit Agreement, for
working capital and for other general corporate purposes.
SECTION 5.10 INDEMNITY.
(a) THE BORROWER AGREES TO DEFEND, PROTECT, INDEMNIFY AND HOLD
HARMLESS THE ADMINISTRATIVE LENDER, THE ISSUING BANK, EACH LENDER, EACH OF
THEIR RESPECTIVE AFFILIATES, AND EACH OF THEIR RESPECTIVE (INCLUDING SUCH
AFFILIATES') OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, SHAREHOLDERS
AND CONSULTANTS (INCLUDING, WITHOUT LIMITATION, THOSE RETAINED IN CONNECTION
WITH THE SATISFACTION OR ATTEMPTED SATISFACTION OF ANY OF THE CONDITIONS SET
FORTH HEREIN) OF EACH OF THE FOREGOING (COLLECTIVELY, "INDEMNITEES") FROM AND
AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY
KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES
AND DISBURSEMENTS OF COUNSEL FOR SUCH INDEMNITEES IN CONNECTION WITH ANY
INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING, WHETHER OR NOT SUCH
INDEMNITEES SHALL BE DESIGNATED A PARTY THERETO), IMPOSED ON, INCURRED BY, OR
ASSERTED AGAINST SUCH INDEMNITEES (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL
AND WHETHER BASED ON ANY FEDERAL, STATE, OR LOCAL LAWS AND REGULATIONS, UNDER
COMMON LAW OR AT EQUITABLE CAUSE, OR ON CONTRACT, TORT OR OTHERWISE, ARISING
FROM OR CONNECTED WITH THE PAST, PRESENT OR FUTURE OPERATIONS OF THE BORROWER
OR ITS PREDECESSORS IN INTEREST, OR THE PAST, PRESENT OR FUTURE ENVIRONMENTAL
CONDITION OF PROPERTY OF THE BORROWER), IN ANY MANNER RELATING TO OR ARISING
OUT OF THIS AGREEMENT, THE LOAN DOCUMENTS, OR ANY ACT, EVENT OR TRANSACTION OR
ALLEGED ACT, EVENT OR TRANSACTION RELATING OR ATTENDANT THERETO, THE MAKING OF
OR ANY PARTICIPATIONS IN THE ADVANCES OR THE LETTERS OF CREDIT AND THE
MANAGEMENT OF THE ADVANCES AND THE LETTERS OF CREDIT, INCLUDING IN CONNECTION
WITH, OR AS A RESULT, IN WHOLE OR IN PART, OF ANY ORDINARY OR MERE NEGLIGENCE
OF ADMINISTRATIVE LENDER, THE ISSUING BANK OR ANY LENDER (OTHER THAN THOSE
MATTERS RAISED EXCLUSIVELY BY A PARTICIPANT AGAINST THE ADMINISTRATIVE LENDER,
THE ISSUING BANK OR ANY LENDER AND NOT THE BORROWER), OR THE USE OR INTENDED
USE OF THE PROCEEDS OF THE ADVANCES AND THE LETTERS OF CREDIT HEREUNDER, OR IN
CONNECTION WITH ANY INVESTIGATION OF ANY POTENTIAL MATTER COVERED HEREBY, BUT
EXCLUDING ANY CLAIM OR LIABILITY THAT ARISES AS THE RESULT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE, AS FINALLY JUDICIALLY
DETERMINED BY A COURT OF COMPETENT JURISDICTION, BUT EXCLUDING MATTERS RAISED
BY ONE LENDER AGAINST ANOTHER LENDER OR BY ANY SHAREHOLDERS OF A LENDER AGAINST
A LENDER OR ITS MANAGEMENT (COLLECTIVELY, "INDEMNIFIED MATTERS"); PROVIDED
HOWEVER, THAT SO LONG AS NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND
- 53 -
<PAGE> 60
BE CONTINUING, THERE SHALL BE NO SETTLEMENT BY THE INDEMNITEES OR ANY OF THEM
WITH RESPECT TO ANY INDEMNIFIED MATTER WITHOUT PRIOR CONSULTATION WITH THE
BORROWER.
(b) IN ADDITION, THE BORROWER SHALL PERIODICALLY, UPON REQUEST,
REIMBURSE EACH INDEMNITEE FOR ITS REASONABLE LEGAL AND OTHER ACTUAL EXPENSES
(INCLUDING THE COST OF ANY INVESTIGATION AND PREPARATION) INCURRED IN
CONNECTION WITH ANY INDEMNIFIED MATTER; PROVIDED, HOWEVER, THAT THE INDEMNITEES
AGREE THAT THEY SHALL ENDEAVOR TO USE LEGAL COUNSEL COMMON TO ALL INDEMNITEES
IN CONNECTION WITH ANY INDEMNIFIED MATTER UNLESS ANY SUCH INDEMNITEE SHALL
REASONABLY DETERMINE, IN ITS SOLE DISCRETION, THAT THE USE OF SUCH COMMON LEGAL
COUNSEL WOULD CONFLICT WITH ITS INTERESTS IN SUCH INDEMNIFIED MATTER. IF FOR
ANY REASON THE FOREGOING INDEMNIFICATION IS UNAVAILABLE TO ANY INDEMNITEE OR
INSUFFICIENT TO HOLD ANY INDEMNITEE HARMLESS WITH RESPECT TO INDEMNIFIED
MATTERS, THEN THE BORROWER SHALL CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY
SUCH INDEMNITEE AS A RESULT OF SUCH LOSS, CLAIM, DAMAGE OR LIABILITY IN SUCH
PROPORTION AS IS APPROPRIATE TO REFLECT NOT ONLY THE RELATIVE BENEFITS RECEIVED
BY THE BORROWER AND THE BORROWER'S STOCKHOLDERS ON THE ONE HAND AND SUCH
INDEMNITEE ON THE OTHER HAND BUT ALSO THE RELATIVE FAULT OF THE BORROWER AND
SUCH INDEMNITEE, AS WELL AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS. THE
REIMBURSEMENT, INDEMNITY AND CONTRIBUTION OBLIGATIONS UNDER THIS SECTION SHALL
BE IN ADDITION TO ANY LIABILITY WHICH THE BORROWER MAY OTHERWISE HAVE, SHALL
EXTEND UPON THE SAME TERMS AND CONDITIONS TO EACH INDEMNITEE, AND SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF ANY SUCCESSORS, ASSIGNS, HEIRS AND
PERSONAL REPRESENTATIVES OF THE BORROWER, THE ADMINISTRATIVE LENDER, THE
ISSUING BANK, THE LENDERS AND ALL OTHER INDEMNITEES. THIS SECTION SHALL
SURVIVE ANY TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE OBLIGATIONS.
Section 5.11 Environmental Law Compliance. The use which the
Borrower or any Subsidiary intends to make of any real property owned by it
will not result in the disposal or other release of any hazardous substance or
solid waste on or to such real property in any manner or quantities which would
be deemed a violation of the Applicable Environmental Laws. Borrower further
agrees to exercise reasonable due diligence in the acquisition of real property
in connection with compliance with Applicable Environmental Laws. As used
herein, the terms "hazardous substance" and "release" as used in this Section
shall have the meanings specified in CERCLA (as defined in the definition of
Applicable Environmental Laws), and the terms "solid waste" and "disposal"
shall have the meanings specified in RCRA (as defined in the definition of
Applicable Environmental Laws); provided, however, that if CERCLA or RCRA is
amended so as to broaden the meaning of any term defined thereby, such broader
meaning shall apply subsequent to the effective date of such amendment; and
provided further, to the extent that any other law applicable to the Borrower,
any Subsidiary or any of their properties establishes a meaning for "hazardous
substance," "release," "solid waste," or "disposal" which is broader than that
specified in either CERCLA or RCRA, such broader meaning shall apply. THE
BORROWER AGREES TO INDEMNIFY AND HOLD THE ADMINISTRATIVE LENDER, THE ISSUING
BANK AND EACH LENDER HARMLESS FROM AND AGAINST, AND TO REIMBURSE THEM WITH
RESPECT TO, ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSS, DAMAGE,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURTS COSTS) OF
ANY KIND OR CHARACTER, KNOWN OR UNKNOWN, FIXED OR CONTINGENT, ASSERTED AGAINST
OR INCURRED BY ANY OF THEM AT ANY TIME AND FROM TIME
- 54 -
<PAGE> 61
TO TIME BY REASON OF OR ARISING OUT OF (A) THE FAILURE OF THE BORROWER OR ANY
SUBSIDIARY TO PERFORM ANY OBLIGATION HEREUNDER REGARDING ASBESTOS OR APPLICABLE
ENVIRONMENTAL LAWS, (B) ANY VIOLATION ON OR BEFORE THE RELEASE DATE OF ANY
APPLICABLE ENVIRONMENTAL LAW IN EFFECT ON OR BEFORE THE RELEASE DATE, AND (C)
ANY ACT, OMISSION, EVENT OR CIRCUMSTANCE EXISTING OR OCCURRING ON OR PRIOR TO
THE RELEASE DATE (INCLUDING WITHOUT LIMITATION THE PRESENCE ON SUCH REAL
PROPERTY OR RELEASE FROM SUCH REAL PROPERTY OF HAZARDOUS SUBSTANCES OR SOLID
WASTES DISPOSED OF OR OTHERWISE RELEASED ON OR PRIOR TO THE RELEASE DATE),
RESULTING FROM OR IN CONNECTION WITH THE OWNERSHIP OF THE REAL PROPERTY,
REGARDLESS OF WHETHER THE ACT, OMISSION, EVENT OR CIRCUMSTANCE CONSTITUTED A
VIOLATION OF ANY APPLICABLE ENVIRONMENTAL LAW AT THE TIME OF ITS EXISTENCE OR
OCCURRENCE, OR WHETHER THE ACT, OMISSION, EVENT OR CIRCUMSTANCE IS CAUSED BY OR
RELATES TO THE NEGLIGENCE OF ANY INDEMNIFIED PERSON; PROVIDED THAT, THE
BORROWER SHALL NOT BE UNDER ANY OBLIGATION TO INDEMNIFY THE ADMINISTRATIVE
LENDER, THE ISSUING BANK OR ANY LENDER TO THE EXTENT THAT ANY SUCH LIABILITY
ARISES AS THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
PERSON, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.
THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE RELEASE DATE AND SHALL
CONTINUE THEREAFTER IN FULL FORCE AND EFFECT.
Section 5.12 Syndication. Borrower shall assist Administrative
Lender and the Lenders in attempting to syndicate up to an additional
$260,000,000 in excess of $1,040,000,000; it being understood that neither the
Administrative Lender nor any Lender is obligated to syndicate such additional
$260,000,000 or participate or obtain other lenders to participate in such
syndication. Borrower's assistance shall include, without limitation, (a)
providing all information reasonably deemed necessary by Administrative Lender
and its Affiliates to assist in such syndication, (b) making available
appropriate officers and representatives of Borrower and its Subsidiaries to
participate in information meetings for potential syndicate members and
participants as Administrative Lender and its Affiliates may reasonably
request, and (c) in assembling and updating from time to time an information
package for delivery to potential syndicate members and participants (the
"Syndication Book"). Borrower agrees it will be responsible for the contents
of the Syndication Book (insofar as information furnished by it is concerned)
and prior to dissemination by Administrative Lender and its Affiliates of the
Syndication Book. Borrower will notify Administrative Lender and Lenders on or
before December 31, 1997 of any increase in the Commitment above $1,040,000,000
as a result of any syndication.
ARTICLE 6
Information Covenants
So long as any of the Obligations are outstanding and unpaid or any
Commitment is outstanding (whether or not the conditions to borrowing have been
or can be fulfilled), the Borrower shall furnish or cause to be furnished to
the Administrative Lender:
- 55 -
<PAGE> 62
Section 6.1 Quarterly Financial Statements and Information.
Within 45 days after the end of each fiscal quarter, consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as at the end
of such quarter and the related consolidated and consolidating statements of
income and consolidated statements of changes in cash flow for such quarter and
for the elapsed portion of the year ended with the last day of such quarter,
all of which shall be certified by the president or chief financial officer of
the Borrower, to be, in his or her opinion, complete and correct in all
material respects and to present fairly, in accordance with GAAP, the financial
position and results of operations of the Borrower and its Subsidiaries as at
the end of and for such period, and for the elapsed portion of the year ended
with the last day of such period, subject only to normal year-end adjustments.
In addition, the Borrower shall furnish within such time period a
reconciliation of such financial statements setting forth the difference in
financial position and results of operations between its Subsidiaries and its
Restricted Subsidiaries for such period and for the elapsed portion of the year
ended with the last day on such period, subject to sound year-end adjustments.
Section 6.2 Annual Financial Statements and Information;
Certificate of No Default.
(a) Within 90 days after the end of each fiscal year, a copy of
(i) the consolidated balance sheet of the Borrower and its Subsidiaries, as of
the end of the current and prior fiscal years and (ii) consolidated statements
of earnings, statements of changes in shareholders' equity, and statements of
changes in cash flow as of and through the end of such fiscal year, all of
which are prepared in accordance with GAAP, and certified by independent
certified public accountants acceptable to the Lenders, whose opinion shall be
in scope and substance in accordance with generally accepted auditing standards
and shall be unqualified. In addition, the Borrower shall furnish within such
time period an unaudited reconciliation of such financial statements setting
forth the difference in financial position and results of operations between
its Subsidiaries and its Restricted Subsidiaries as of and through the end of
such fiscal year.
(b) Simultaneously with the delivery of the statements required by
this Section 6.2, a letter from the Borrower's public accountants certifying
that no Default was detected during the examination of the Borrower and its
Restricted Subsidiaries, and authorizing the Borrower to deliver such financial
statements and opinion thereon to the Administrative Lender and Lenders
pursuant to this Agreement.
(c) As soon as available, but in any event within 60 days
following the end of each fiscal year, a copy of the annual consolidated
operating budget of the Borrower and its Subsidiaries for the succeeding fiscal
year.
Section 6.3 Compliance Certificates. At the time financial
statements are furnished pursuant to Sections 6.1 and 6.2 hereof, a certificate
of an Authorized Signatory:
(a) setting forth at the end of such period, a calculation of the
Leverage Ratio, as well as certifications and arithmetical calculations
required to establish whether the Borrower and its Restricted Subsidiaries were
in compliance with the requirements of Sections 7.1(d), (e), (f), (g)
- 56 -
<PAGE> 63
and (h), 7.3(h), 7.6, 7.7, 7.10, 7.11, 7.12, 7.13 and 7.14 hereof, which shall
be substantially in the form of Exhibit D hereto;
(b) setting forth the aggregate amount of outstanding Advances and
Reimbursement Obligations and certifying as to compliance herewith; and
(c) stating that, to the best of his or her knowledge after due
inquiry, no Default has occurred as at the end of such period, or if a Default
has occurred, disclosing each such Default and its nature, when it occurred,
whether it is continuing and the steps being taken with respect to such
Default.
Section 6.4 Copies of Other Reports and Notices.
(a) Promptly upon their becoming available, a copy of (i) all
material reports or letters submitted to the Borrower or any Restricted
Subsidiary by accountants in connection with any annual, interim or special
audit, including without limitation any report prepared in connection with the
annual audit referred to in Section 6.2 hereof, and any other comment letter
submitted to management in connection with any such audit, (ii) each financial
statement, report, notice or proxy statement sent by the Borrower or any
Restricted Subsidiary to stockholders generally, (iii) each regular or periodic
report and any registration statement (other than statements on Form S-8) or
prospectus (or material written communication in respect of any thereof) filed
by the Borrower or any subsidiary with any securities exchange, with the
Securities and Exchange Commission or any successor agency, and (iv) all press
releases concerning material financial aspects of the Borrower or any
Restricted Subsidiary;
(b) Promptly upon becoming aware that (i) the holder(s) of any
note(s) or other evidence of indebtedness or other security of the Borrower or
any Restricted Subsidiary in excess of $750,000 in the aggregate has given
notice or taken any action with respect to a breach, failure to perform,
claimed default or event of default thereunder, (ii) any party to any
Capitalized Lease Obligations or any Local Marketing Agreement has given notice
or taken any action with respect to a breach, failure to perform, claimed
default or event of default thereunder, (iii) any occurrence or non- occurrence
of any event which constitutes or which with the passage of time or giving of
notice or both could constitute a material breach by the Borrower or any
Restricted Subsidiary under any material agreement or instrument which could
reasonably be expected to result in a liability in excess of $750,000, other
than this Agreement to which the Borrower or any Restricted Subsidiary is a
party or by which any of their properties may be bound, or (iv) any event,
circumstance or condition which could reasonably be expected to have a Material
Adverse Effect, a written notice specifying the details thereof (or the nature
of any claimed default or event of default) and what action is being taken or
is proposed to be taken with respect thereto; provided, however, no notice
shall be required to be delivered hereunder with respect to any event,
circumstance or condition set forth in clause (i), (ii) or (iii) immediately
preceding if, in the opinion of counsel to the Borrower or such Restricted
Subsidiary, there is no reasonable possibility of an adverse determination with
respect to such event, circumstance or condition;
- 57 -
<PAGE> 64
(c) Promptly upon receipt thereof, information with respect to and
copies of any notices received from the FCC or any other federal, state or
local regulatory agencies or any tribunal relating to any order, ruling, law,
information or policy that relates to a breach of or noncompliance with the
Communications Act, or could reasonably be expected to result in the payment of
money by the Borrower or any Restricted Subsidiary in an amount of $750,000 or
more in the aggregate, or otherwise have a Material Adverse Effect, or result
in the loss or suspension of any Necessary Authorization; provided, however, no
information shall be required to be delivered hereunder if, in the opinion of
counsel to the Borrower or such Restricted Subsidiary, there is no reasonable
possibility of an adverse determination with respect to such notice;
(d) Promptly upon receipt from any governmental agency, or any
government, political subdivision or other entity, any material notice,
correspondence, hearing, proceeding or order regarding or affecting the
Borrower, any Subsidiary, or any of their properties or businesses; and
(e) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding the assets, business, liabilities, financial position,
projections, results of operations or business prospects of the Borrower and
its Subsidiaries, as the Administrative Lender or any Lender may reasonably
request.
Section 6.5 Notice of Litigation, Default and Other Matters.
Prompt notice of the following events after the Borrower has knowledge or
notice thereof:
(a) The commencement of all proceedings and investigations by or
before the FCC or any other governmental body, and all actions and proceedings
in any court or before any arbitrator involving claims for damages, fines or
penalties (including punitive damages) in excess of $750,000 per claim and
$2,000,000 in the aggregate (after deducting the amount with respect to the
Borrower or any Restricted Subsidiary such Person is insured, provided such
claim has not been denied), against or in any other way relating directly to
the Borrower, any Restricted Subsidiary, or any of their properties or
businesses; provided, however, no notice shall be required to be delivered
hereunder if, in the opinion of counsel to the Borrower or such Restricted
Subsidiary, there is no reasonable possibility of an adverse determination in
such action or proceeding;
(b) Promptly upon the happening of any condition or event which
constitutes a Default, a written notice specifying the nature and period of
existence thereof and what action is being taken or is proposed to be taken
with respect thereto; and
(c) Any material adverse change with respect to the business,
assets, liabilities, financial position, results of operations or prospective
business of the Borrower or any Subsidiary, other than changes in the ordinary
course of business which have not had and are not likely to have a Material
Adverse Effect.
- 58 -
<PAGE> 65
Section 6.6 ERISA Reporting Requirements.
(a) Promptly and in any event (i) within 30 days after the
Borrower or any member of its Controlled Group knows or has reason to know that
any ERISA Event described in clause (a) of the definition of ERISA Event or any
event described in Section 4063(a) of ERISA with respect to any Plan of the
Borrower or any member of its Controlled Group has occurred, and (ii) within 10
days after the Borrower or any member of its Controlled Group knows or has
reason to know that any other ERISA Event with respect to any Plan of the
Borrower or any member of its Controlled Group has occurred or a request for a
minimum funding waiver under Section 412 of the Code with respect to any Plan
of the Borrower or any member of its Controlled Group, a written notice
describing such event and describing what action is being taken or is proposed
to be taken with respect thereto, together with a copy of any notice of event
that is given to the PBGC;
(b) Promptly and in any event within two Business Days after
receipt thereof by the Borrower or any member of its Controlled Group from the
PBGC, copies of each notice received by the Borrower or any member of its
Controlled Group of the PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(c) Promptly and in any event within 30 days after the filing
thereof by the Borrower or any member of its Controlled Group with the United
States Department of Labor, the Internal Revenue Service or the PBGC, copies of
each annual and other report (including Schedule B thereto) with respect to
each Plan;
(d) Promptly and in any event within 30 days after receipt
thereof, a copy of any notice, determination letter, ruling or opinion the
Borrower or any member of its Controlled Group receives from the PBGC, the
United States Department of Labor or the Internal Revenue Service with respect
to any Plan;
(e) Promptly, and in any event within 10 Business Days after
receipt thereof, a copy of any correspondence the Borrower or any member of its
Controlled Group receives from the Plan Sponsor (as defined by Section
4001(a)(10) of ERISA) of any Plan concerning potential withdrawal liability
pursuant to Section 4219 or 4202 of ERISA, and a statement from the chief
financial officer of the Borrower or such member of its Controlled Group
setting forth details as to the events giving rise to such potential withdrawal
liability and the action which the Borrower or such member of its Controlled
Group is taking or proposes to take with respect thereto;
(f) Notification within 30 days of any material increases in the
benefits of any existing Plan which is not a Multiemployer Plan, or the
establishment of any new Plans, or the commencement of contributions to any
Plan to which the Borrower or any member of its Controlled Group was not
previously contributing;
- 59 -
<PAGE> 66
(g) Notification within three Business Days after the Borrower or
any member of its Controlled Group knows or has reason to know that the
Borrower or any such member of its Controlled Group has or intends to file a
notice of intent to terminate any Plan under a distress termination within the
meaning of Section 4041(c) of ERISA and a copy of such notice; and
(h) Promptly after receipt of written notice of commencement
thereof, notice of all actions, suits and proceedings before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting the Borrower or any member of its Controlled
Group with respect to any Plan, except those which, in the aggregate, if
adversely determined could not have a Material Adverse Effect.
ARTICLE 7
Negative Covenants
So long as any of the Obligations are outstanding and unpaid or any
Commitment is outstanding (whether or not the conditions to borrowing have been
or can be fulfilled):
Section 7.1 Indebtedness. The Borrower shall not, and shall not
permit any Restricted Subsidiary to, create, assume, incur or otherwise become
or remain obligated in respect of, or permit to be outstanding, or suffer to
exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Accounts payable (including film right payables), accrued
expenses, deferred revenue items, pension liabilities and customer advance
payments incurred in the ordinary course of business;
(c) Guaranties to the extent permitted under Section 7.6 hereof;
(d) Capitalized Lease Obligations and Indebtedness incurred to
purchase tangible personal property, in an aggregate amount not to exceed
$20,000,000 at any time;
(e) Indebtedness evidenced by the Intercompany Notes; and
(f) Institutional Debt in an aggregate amount not to exceed
$500,000,000 at any time outstanding; provided, that, (i) such debt is
unsecured, (ii) such debt is at all times on terms and conditions to the
reasonable satisfaction of the Determining Lenders, (iii) such debt has a final
maturity and Weighted Average Life to Maturity (computed from the date of
incurrence of such debt) at least one day longer than the Maturity Date and the
Weighted Average Life to Maturity of the Obligations, and (iv) the Net Cash
Proceeds of such issuance are applied in accordance with Section 2.5(d) hereof;
- 60 -
<PAGE> 67
(g) Indebtedness set forth on Schedule 9 hereto, and all renewals
and extensions (but not increases) thereof;
(h) Indebtedness (in addition to the Indebtedness otherwise
permitted pursuant to this Section 7.1) not to exceed $60,000,000 United States
dollars in the aggregate principal amount outstanding at any time, provided
that the terms of such Indebtedness are reasonably acceptable to the
Administrative Lender;
(i) Indebtedness (in addition to the Indebtedness otherwise
permitted pursuant to this Section 7.1) of its Restricted Subsidiaries not to
exceed $10,000,000 in aggregate principal amount outstanding at any time; and
(j) Indebtedness (in addition to the Indebtedness otherwise
permitted pursuant to this Section 7.1) of the Borrower not to exceed in
aggregate principal amount outstanding at any time 100% of Operating Cash Flow
for the immediately preceding four fiscal quarters.
provided, however, the incurrence of Indebtedness otherwise permitted pursuant
to clauses (c), (d), (e), (f), (h), (i) and (j) immediately preceding shall be
permitted only if there shall exist no Default prior to or after giving effect
to any such proposed Indebtedness.
Section 7.2 Liens. The Borrower shall not, and shall not permit
any Restricted Subsidiary to, create, assume, incur, permit or suffer to exist,
directly or indirectly, any Lien on any of its assets, whether now owned or
hereafter acquired, except Permitted Liens. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, agree with any other Person that it
shall not create, assume, incur, permit or suffer to exist or to be created,
assumed, incurred or permitted to exist, directly or indirectly, any Lien on
any of its assets.
Section 7.3 Investments. The Borrower shall not, and shall not
permit any Subsidiary to, make, own or maintain any Investment, except that the
Borrower may purchase or otherwise acquire and own and maintain:
(a) Marketable, direct obligations of, or guaranteed by, the
United States of America and maturing within 365 days of the date of purchase;
(b) Commercial paper issued by U.S. corporations that have a
rating of A-1/P-1 or better by Moody's or S&P;
(c) Certificates of deposit of domestic banks maturing within 365
days of the date of purchase, which banks' debt obligations have one of the two
highest ratings obtainable from Moody's or S&P;
(d) Securities issued by U.S. corporations that have one of the
two highest ratings obtainable from Moody's or S&P;
- 61 -
<PAGE> 68
(e) Investments in newly-formed or existing Restricted
Subsidiaries (i) that are subject to the provisions hereof and (ii) that are or
immediately become party to the Subsidiary Guaranty;
(f) Accounts receivable that arise in the ordinary course of
business and are payable on standard terms;
(g) Investments which are described on Schedule 8 hereto; and
(h) Provided there shall exist no Default prior to or after giving
effect to any such proposed Investments (which shall include, without
limitation, Investments in Unrestricted Subsidiaries and Restricted
Subsidiaries that have not executed a Subsidiary Guaranty), other Investments
in communication or media related businesses not to exceed, at any time
outstanding, an aggregate amount (determined using the purchase price or cost
of such Investments without any adjustment for depreciation or amortization)
equal to the sum of (i) 150% of Operating Cash Flow for the immediately
preceding four fiscal quarters, plus (ii) 100% of the Net Cash Proceeds
received by the Borrower and its Subsidiaries from the June Equity Offering,
plus (iii) 50% of Net Cash Proceeds in excess of $200,000,000 received by the
Borrower and its Subsidiaries from the issuance of Equity (including any
conversion of subordinated convertible debentures, which constitutes
Subordinated Debt, into Equity) after the Agreement Date, plus (iv) 50% of the
Net Cash Proceeds received by the Borrower and its Subsidiaries from the
issuance of any subordinated convertible debentures after the Agreement Date.
Section 7.4 Amendment and Waiver. Other than as provided in
Section 7.5 herein, the Borrower shall not, and shall not permit any
Restricted Subsidiary to, enter into any amendment of any material term or
provision of its articles of incorporation or by-laws. In addition, the
Borrower shall not, and shall not permit any Restricted Subsidiary to, enter
into any amendment of, or agree to or accept any waiver of any of the
provisions of, any Necessary Authorization, unless (a) the Determining Lenders
consent to such amendment and (b) the Lenders are provided with 10 days'
written notice prior to the execution or effectiveness of the proposed
amendment or waiver.
Section 7.5 Liquidation, Disposition or Acquisition of Assets,
Merger, New Subsidiaries. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, at any time:
(a) liquidate or dissolve itself (or suffer any liquidation or
dissolution) or otherwise wind up; or sell, lease, abandon, transfer or
otherwise dispose of all or any part of its assets, properties or business,
other than immaterial assets sold in the ordinary course of business, or
dispositions whose proceeds are applied in accordance with Section 2.5(c)
hereof;
(b) acquire (i) all or any substantial part of the assets,
property or business of any other Person, or (ii) any assets that constitute a
division or operating unit of the business of any
- 62 -
<PAGE> 69
other Person; provided, however, that, so long as there shall exist no Default
prior to or after giving effect to a proposed transaction, the Borrower or any
Restricted Subsidiary may, subject to the limitations set forth in Section
7.3(h) hereof and in this Section 7.5(b), purchase assets, property or business
of another Person, so long as (i) the Lenders shall have received prior written
notice at least 20 Business Days prior to the date of such purchase, (ii) the
Administrative Lender shall have received at least 10 Business Days prior to
the date of such purchase a compliance certificate in the form required by
Section 6.3 hereof, but setting forth the covenant calculations described in
Section 6.3(a) hereof both prior to and after giving effect to the proposed
purchase, (iii) such acquisition shall be pursuant to documentation acceptable
to the Administrative Lender, (iv) such assets, property or business shall be
in or relate to the communications or media related business, and (v) the
Administrative Lender shall have received copies of all documents, instruments,
opinions and other information relating to the seller and assets to be acquired
as it may reasonably request;
(c) enter into any merger or consolidation; provided, however,
that, so long as there shall exist no Default prior to or after giving effect
to a proposed transaction, (i)(A) a Restricted Subsidiary may merge or
consolidate with another Restricted Subsidiary; (B) an Unrestricted Subsidiary
may merge or consolidate with another Unrestricted Subsidiary or a Restricted
Subsidiary; and (C) an Unrestricted Subsidiary or a Restricted Subsidiary may
merge or consolidate with the Borrower provided, that the Borrower or such
Restricted Subsidiary shall be the surviving entity of any transaction governed
by this Section 7.5(c)(i); (ii) the Borrower or any Restricted Subsidiary may,
subject to the limitations set forth in Section 7.3(h) hereof and in this
Section 7.5(c), merge or consolidate with another Person, so long as (A) the
Lenders shall have received prior written notice at least 20 Business Days
prior to the date of such transaction, (B) the Administrative Lender shall have
received at least 10 Business Days prior to the date of such transaction a
compliance certificate in the form required by Section 6.3 hereof, but setting
forth the covenant calculations described in Section 6.3(a) hereof both prior
to and after giving effect to the proposed merger or consolidation, (C) such
merger or consolidation shall be pursuant to documentation acceptable to the
Administrative Lender, (D) the Person with whom such merger or consolidation is
being consummated with shall be engaged in a communication or media related
business, (E) the Borrower or such Restricted Subsidiary shall be the surviving
entity, and (F) the Administrative Lender shall have received copies of all
documents, instruments, opinions and other information relating to the seller
and assets to be acquired as it may reasonably request; or
(d) create or acquire any Subsidiary, except as permitted by
Sections 7.3(e) and (h) hereof.
Section 7.6 Guaranties. Other than those guaranties referenced
on Schedule 6 hereto, the Borrower shall not, and shall not permit any
Restricted Subsidiary to, at any time make or issue any Guaranty, or assume, be
obligated with respect to, or permit to be outstanding any Guaranty, of any
obligation of any other Person except Guaranties in an aggregate amount not to
exceed $10,000,000 at any time; provided, however, such Guaranties shall be
permitted only if prior to such proposed Guaranty or after giving effect
thereto there shall exist no Default.
- 63 -
<PAGE> 70
Section 7.7 Dividends. The Borrower shall not, and shall not
permit any Subsidiary to, directly or indirectly declare or pay any Dividend;
provided, however, (a) any Subsidiary may declare and pay Dividends to the
Borrower or any Restricted Subsidiary and (b) the Borrower may declare and pay
Dividends (including amounts which become Dividends as a result of the proviso
in the definition of Dividends) on any date in an amount such that the
aggregate amount of Dividends paid and declared during the term of this
Agreement shall not exceed $500,000,000; provided, however, notwithstanding
clause (b) immediately preceding to the contrary, the Borrower shall pay no
such Dividends unless there shall exist no Default prior to or after giving
effect to any such proposed Dividend.
Section 7.8 Affiliate Transactions. The Borrower shall not, and
shall not permit any Subsidiary to, at any time engage in any transaction with
an Affiliate, nor make an assignment or other transfer of any of its assets or
properties to any Affiliate, on terms materially less advantageous to the
Borrower or Subsidiary than would be the case if such transaction had been
effected with a non-Affiliate (other than advances to employees in the ordinary
course of business). The Borrower shall not, and shall not permit any
Subsidiary to, in any event incur or suffer to exist any Indebtedness or
Guaranty in favor of any Affiliate, unless such Affiliate shall subordinate the
payment and performance thereof on terms satisfactory to the Lenders in their
sole discretion, and otherwise upon terms, conditions and documentation, and in
a manner satisfactory to Determining Lenders. Notwithstanding the foregoing,
the Borrower may loan the proceeds of Advances to Subsidiaries that are
Restricted Subsidiaries, so long as (a) there shall exist no Default prior to
or after giving effect to such proposed loan and (b) such advances are
evidenced by Intercompany Notes that have been pledged pursuant to the Pledge
Agreements and for which entries in the financial records of the Borrower and
its Restricted Subsidiaries are made evidencing such loans and repayments
thereof.
Section 7.9 Compliance with ERISA. The Borrower shall not, and
shall not permit any Subsidiary to, directly or indirectly, or permit any
member of its Controlled Group to directly or indirectly, (a) terminate any
Plan so as to result in any material (in the opinion of the Determining
Lenders) liability to the Borrower or any member of its Controlled Group, (b)
permit to exist any ERISA Event, or any other event or condition which presents
the risk of a material (in the opinion of the Determining Lenders) liability of
the Borrower or any member of its Controlled Group, (c) make a complete or
partial withdrawal (within the meaning of Section 4201 of ERISA) from any
Multiemployer Plan so as to result in any material (in the opinion of the
Determining Lenders) liability to the Borrower or any member of its Controlled
Group, (d) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder except in the ordinary course of business
consistent with past practice which could result in any material (in the
opinion of the Determining Lenders) liability to the Borrower or any member of
its Controlled Group, or (e) permit the present value of all benefit
liabilities, as defined in Title IV of ERISA, under each Plan of the Borrower
or any member of its Controlled Group (using the actuarial assumptions utilized
by the PBGC upon termination of a plan) to materially (in the opinion of the
Determining Lenders) exceed the fair market value of Plan assets allocable to
such benefits all determined as of the most recent valuation date for each such
Plan.
- 64 -
<PAGE> 71
Section 7.10 Leverage Ratio. At the end of each fiscal quarter
occurring during the periods indicated below, the Borrower shall not permit the
Leverage Ratio to be greater than:
<TABLE>
<CAPTION>
Period Ratio
-----------------------------------------------
<S> <C>
From date hereof through December 31, 1997 5.25 to 1
Thereafter through December 31, 1998 5.00 to 1
Thereafter through December 31, 1999 4.75 to 1
Thereafter 4.50 to 1
</TABLE>
Section 7.11 Fixed Charges Coverage Ratio. The Borrower shall not
permit the ratio of (a) Operating Cash Flow for the four consecutive fiscal
quarters then ending to (b) Fixed Charges for such fiscal quarters as of the
last day of any fiscal quarter during the term of this Agreement, to be less
than 1.10 to 1.
Section 7.12 Interest Coverage Ratio. At the end of each fiscal
quarter, the Borrower shall not permit the ratio of (a) Operating Cash Flow for
the four consecutive fiscal quarters then ending, to (b) interest expense of
the Borrower and its Subsidiaries for such quarters, to be less than 2.0 to 1.
Section 7.13 Debt Service Coverage Ratio. The Borrower shall not
permit the ratio of (a) Operating Cash Flow for the four consecutive fiscal
quarters then ending, to (b) Pro-Forma Debt Service for the four succeeding
fiscal quarters, to be less than 1.25 to 1 at the end of each fiscal quarter
during the term of this Agreement.
Section 7.14 Capital Stock of the Borrower. The Borrower shall
not, and shall not permit any Restricted Subsidiary to, make or permit any
issuance, transfer, assignment, distribution, mortgage, pledge or gift of any
shares of Capital Stock, except in connection with issuances permitted by
Schedule 5 hereto and then only if such shares are pledged and delivered to the
Administrative Lender pursuant to the pledge agreements.
Section 7.15 Sale and Leaseback. The Borrower shall not, and
shall not permit any Restricted Subsidiary to, enter into any arrangement
whereby it sells or transfers any of its assets, and thereafter rents or leases
such assets.
Section 7.16 Sale or Discount of Receivables. The Borrower shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly
sell, with or without recourse, for discount or otherwise, any notes or
accounts receivable.
Section 7.17 Business of Television Licenses and Radio Licenses
and Metroplex Licenses. Notwithstanding anything in this Agreement to the
contrary, Borrower shall not
- 65 -
<PAGE> 72
permit Television Licenses, Radio Licenses, or Metroplex Licenses to engage in
any business other than the ownership of (i) FCC licenses and Necessary
Authorizations for the operation of Television, Radio and Metroplex,
respectively, and (ii) at least 95% of the Capital Stock of Television and 100%
of the Capital Stock of Radio and Metroplex, respectively.
Section 7.18 Subordinated Debt. The Borrower shall not, and shall
not permit any Subsidiary to, (a) make any payment of principal, interest,
premium, fee or otherwise with respect to Subordinated Debt except in strict
accordance with the terms of the Subordinated Debt documentation, (b) prepay,
redeem, repurchase or defease, or set aside funds for the prepayment,
redemption, repurchase or defeasance of all or any portion of the Subordinated
Debt or (c) amend or change (or take any action or fail to take any action the
result of which is an effective amendment or change) or accept any waiver or
consent with respect to, any document or instrument in connection with any
Subordinated Debt that would result in (i) an increase in the outstanding
principal amount of the Subordinated Debt, (ii) a change in any principal,
interest, fees, or other amounts payable under the Subordinated Debt (including
without limitation a waiver or action that results in the waiver of any payment
default under the Subordinated Debt), (iii) a change in any date fixed for any
payment of principal, interest, fees, or other amounts payable under the
Subordinated Debt (including, without limitation, as a result of any
redemption, defeasance or otherwise), (iv) a change in any percentage of
holders of the Subordinated Debt required to take (or refrain from taking) any
action, (v) a change in any financial covenant, (vi) a change in any remedy or
right of the holders of the Subordinated Debt, (vii) a change in any covenant,
term or provision which would result in such term or provision being more
restrictive than the terms of this Agreement and the other Loan Documents,
(viii) a change that grants or permits the granting of any security interest or
Lien on any asset or property of the Borrower or any Subsidiary to secure any
Subordinated Debt, or (ix) a change in any term or provision of any document or
instrument in connection with any Subordinated Debt that could have, in any
material respect, an adverse effect on the interests of Lenders.
Section 7.19 Other Agreements. Except as otherwise provided in
this Agreement, neither Borrower nor any Restricted Subsidiary shall enter into
any agreement pursuant to which the ability of the Borrower or a Restricted
Subsidiary to pay any money, dividend or other type of advance to, or otherwise
make any other Investment in, the Borrower or any Restricted Subsidiary shall
be limited or in which such payment would be a default or event of default.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event, and whether
voluntary, involuntary, or effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
- 66 -
<PAGE> 73
(a) Any representation or warranty made under any Loan Document
shall prove to have been incorrect or misleading in any material respect when
made;
(b) The Borrower shall default in the payment of (i) any interest
under any note or any fees payable hereunder or any other costs, fees, expenses
or other amounts payable hereunder or under the Loan Documents, when due, which
Default is not cured within three days from the date such payment became due by
payment of such late amount, or (ii) any principal under any of the notes;
(c) The Borrower or any Restricted Subsidiary shall default in the
performance or observance of any agreement or covenant contained in Section 5.1
or Article 7 hereof;
(d) The Borrower or any Restricted Subsidiary shall default in the
performance or observance of any other agreement or covenant contained in this
Agreement not specifically referred to elsewhere in this Section 8.1, and such
default shall not be cured within a period of 30 days after the earlier of
written notice from the Administrative Lender thereof or actual notice thereof;
(e) There shall occur any default or breach in the performance or
observance of any agreement or covenant (after the expiration of any applicable
grace period) or breach of any representation or warranty contained in any of
the Loan Documents (other than this Agreement);
(f) There shall be entered a decree or order by a court having
jurisdiction in the premises constituting an order for relief in respect of the
Borrower or any Subsidiary under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable Federal or state
bankruptcy law or other similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official of the Borrower
or any Subsidiary, or of any substantial part of their respective properties,
or ordering the winding-up or liquidation of the affairs of the Borrower or any
Subsidiary, and any such decree or order shall continue unstayed and in effect
for a period of 60 consecutive days; provided, that the affected assets alone
or in the aggregate total in excess of $2,000,000;
(g) The Borrower or any Subsidiary shall file a petition, answer
or consent seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable Federal or state
bankruptcy law or other similar law, or the Borrower or any Subsidiary shall
consent to the institution of proceedings thereunder or to the filing of any
such petition or to the appointment or taking of possession of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Borrower or any Subsidiary or of any substantial part of their
respective properties, or the Borrower or any Subsidiary shall fail generally
to pay its debts as they become due, or the Borrower or any Subsidiary shall
take any action in furtherance of any such action; provided, that the affected
assets alone or in the aggregate total in excess of $2,000,000;
- 67 -
<PAGE> 74
(h) A final judgment or judgments shall be entered by any court
against the Borrower or any Subsidiary for the payment of money which exceeds
$2,000,000 in the aggregate, or a warrant of attachment or execution or similar
process shall be issued or levied against property of the Borrower or any
Subsidiary which, together with all other such property of the Borrower and its
Subsidiaries subject to other such process, exceeds in value $2,000,000 in the
aggregate, and if such judgment or award is not insured or, within 30 days
after the entry, issue or levy thereof, such judgment, warrant or process shall
not have been paid or discharged or stayed pending appeal, or if, after the
expiration of any such stay, such judgment, warrant or process shall not have
been paid or discharged;
(i) With respect to any Plan of the Borrower or any member of its
Controlled Group: (i) the Borrower, any such member, or any other
party-in-interest or disqualified person shall engage in transactions which in
the aggregate would reasonably result in a direct or indirect liability to the
Borrower or any member of its Controlled Group in excess of $2,000,000 under
Section 409 or 502 of ERISA or Section 4975 of the Code; (ii) the Borrower or
any member of its Controlled Group shall incur any accumulated funding
deficiency, as defined in Section 412 of the Code, in the aggregate in excess
of $2,000,000, or request a funding waiver from the Internal Revenue Service
for contributions in the aggregate in excess of $2,000,000; (iii) the Borrower
or any member of its Controlled Group shall incur any withdrawal liability in
the aggregate in excess of $2,000,000 as a result of a complete or partial
withdrawal within the meaning of Section 4203 or 4205 of ERISA; (iv) the
Borrower or any member of its Controlled Group shall fail to make a required
contribution by the due date under Section 412 of the Code or Section 302 of
ERISA which would result in the imposition of a lien under Section 412 of the
Code or Section 302 of ERISA; (v) the Borrower, any member of its Controlled
Group or any Plan sponsor shall notify the PBGC of an intent to terminate, or
the PBGC shall institute proceedings to terminate, or the PBGC shall institute
proceedings to terminate, any Plan; (vi) a Reportable Event shall occur with
respect to a Plan, and within 15 days after the reporting of such Reportable
Event to the Administrative Lender, the Administrative Lender shall have
notified the Borrower in writing that the Determining Lenders have made a
determination that, on the basis of such Reportable Event, there are reasonable
grounds for the termination of such Plan by the PBGC or for the appointment by
the appropriate United States District Court of a trustee to administer such
Plan and as a result thereof an Event of Default shall have occurred hereunder;
(vii) a trustee shall be appointed by a court of competent jurisdiction to
administer any Plan or the assets thereof; (viii) the benefits of any Plan
shall be increased, or the Borrower or any member of its Controlled Group shall
begin to maintain, or begin to contribute to, any Plan, without the prior
written consent of the Determining Lenders; or (ix) any ERISA Event with
respect to a Plan shall have occurred, and 30 days thereafter (A) such ERISA
Event, other than such event described in clause (vi) of the definition of
ERISA Event herein, (if correctable) shall not have been corrected and (B) the
then present value of such Plan's benefit liabilities, as defined in Title IV
of ERISA, shall exceed the then current value of assets accumulated in such
Plan; provided, however, that the events listed in subsections (v) through (ix)
shall constitute Events of Default only if, as of the date thereof or any
subsequent date, the maximum amount of liability that the Borrower or any
member of its Controlled Group could incur in the aggregate under Section 4062,
4063, 4064, 4219 or 4023 of ERISA or any other provision of
- 68 -
<PAGE> 75
law with respect to all such Plans, computed by the actuary of the Plan taking
into account any applicable rules and regulations of the PBGC at such time, and
based on the actuarial assumptions used by the Plan, resulting from or
otherwise associated with such event exceeds $2,000,000;
(j) All or any material portion of the Loan Documents shall be the
subject of any proceeding instituted by any Person other than a Lender (except
in connection with any Lender's exercise of any remedies under the Loan
Documents), or there shall exist any litigation or threatened litigation with
respect to all or any material portion of the Collateral or the Loan Documents,
or any Person shall challenge in any manner whatsoever the validity or
enforceability of all or any portion of the Loan Documents; provided, however,
that during any such time any such circumstance shall be bonded or stayed in
accordance with Applicable Law and to the satisfaction of the Determining
Lenders, such circumstance shall not be an Event of Default;
(k) The Borrower or any Restricted Subsidiary shall default in the
payment of any Indebtedness in an aggregate amount of $2,000,000 or more beyond
any grace period provided with respect thereto, or shall default in the
performance of any agreement or instrument under which such Indebtedness is
created or evidenced beyond any applicable grace period or an event shall occur
with respect to such Indebtedness, if the effect of such default or event is to
permit or cause the holder of such Indebtedness (or a trustee on behalf of any
such holder) to cause such Indebtedness to become due prior to its date of
maturity;
(l) Except as otherwise permitted in Section 7.5(a) herein, less
than 90% of the issued and outstanding Capital Stock of the Restricted
Subsidiaries of the Borrower shall be owned, directly or indirectly, other than
Heftel (unless it becomes a Restricted Subsidiary, less than 51% of the Capital
Stock of Heftel shall be owned directly by Borrower), by the Borrower and by
management of the Borrower; except that, with respect to CCC-Houston, Borrower
shall own less than 79% of such subsidiary; with respect to the Australian
subsidiaries, Borrower shall own less than 50% of the Capital Stock of such
subsidiaries; and with respect to NRNZ, Borrower shall own less than 30% of
such subsidiary; provided, however, that if any Subsidiary becomes a Restricted
Subsidiary after the Agreement Date and Borrower shall own less than 90% of
such Subsidiary's Capital Stock, then for purposes of the definition of
Operating Cash Flow, Borrower may only include a percentage of such
Subsidiary's operating cash flow equal to Borrower's percentage ownership of
the Capital Stock of such Subsidiary in the calculation of Operating Cash Flow;
(m) Except as otherwise permitted in Section 7.5(a) herein, with
respect to the Australian subsidiaries, Borrower shall own less than 50% of the
Capital Stock of such subsidiaries; and with respect to NRNZ, Borrower shall
own less than 30% of such subsidiary;
(n) The Borrower or any Subsidiary shall fail to comply in any
material respect with the Communications Act, or any rule or regulation
promulgated by the FCC;
- 69 -
<PAGE> 76
(o) Any material Necessary Authorization shall be revoked; or
there shall occur a material default under any material Necessary Authorization
by the Borrower or any Subsidiary beyond any applicable grace period; or any
proceedings shall in any way be brought by any Person to challenge the validity
or enforceability of any material Necessary Authorization and the FCC shall
designate the Necessary Authorization for a revocation hearing; or proceedings
for the renewal of any material Necessary Authorization shall not be commenced
at least 90 days prior to the expiration thereof; or any material Necessary
Authorization shall expire due to termination, nonrenewal or for any other
reason, or shall be designated for a revocation hearing; other than WGLI in
Babylon, New York.
(p) Any lease of the Borrower or any Restricted Subsidiary shall
terminate or cease to be effective, and termination or cessation thereof could
reasonably be expected to have a Material Adverse Effect; provided, however,
that termination or cessation of a lease shall not constitute an Event of
Default if another lease reasonably satisfactory to the Determining Lenders is
contemporaneously substituted therefor;
(q) Any material provision of any Loan Document shall for any
reason cease to be valid and binding on or enforceable against any party to it
(other than the Administrative Lender or any Lender) in all material respects,
or any such party shall so state in writing; or
(r) There shall exist any breach or default of any management
agreement or contract of the Borrower or any Restricted Subsidiary, or any such
management agreement or contract shall terminate in accordance with its terms
and shall not be renewed among the parties upon substantially similar terms,
and such breach, default or termination could reasonably be expected to have a
Material Adverse Effect.
Section 8.2 Remedies. If an Event of Default shall have occurred
and shall be continuing:
(a) With the exception of an Event of Default specified in Section
8.1(f) or (g) hereof, the Administrative Lender shall, upon the direction of
the Determining Lenders, terminate the Commitments and/or declare the principal
of and interest on the Advances and all Obligations and other amounts owed
under the Loan Documents to be forthwith due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby expressly
waived, anything in the Loan Documents to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in
Section 8.1(f) or (g) hereof, such principal, interest and other amounts shall
thereupon and concurrently therewith become due and payable and the Commitments
shall forthwith terminate, all without any action by the Administrative Lender,
any Lender or any holders of the notes and without presentment, demand, protest
or other notice of any kind, all of which are expressly waived, anything in the
Loan Documents to the contrary notwithstanding.
- 70 -
<PAGE> 77
(c) If any Letter of Credit shall be then outstanding, the
Administrative Lender may (or, upon the direction of the Determining Lenders,
shall) demand upon the Borrower to, and forthwith upon such demand, the
Borrower shall, pay to the Administrative Lender in same day funds at the
office of the Administrative Lender on such demand for deposit in the L/C Cash
Collateral Account, an amount equal to the maximum amount available to be drawn
under the Letters of Credit then outstanding; provided, however, that upon the
occurrence of an Event of Default pursuant to Section 8.1(f) or 8.1 (g) hereof,
such amount shall become immediately due and payable without the requirement of
any action on the part of Administrative Lender.
(d) The Administrative Lender, and the Lenders may exercise all of
the post-default rights granted to them under the Loan Documents or under
Applicable Law.
(e) The rights and remedies of the Administrative Lender and the
Lenders hereunder shall be cumulative, and not exclusive.
ARTICLE 9
Changes in Circumstances
Section 9.1 LIBOR Basis Determination Inadequate. If with
respect to any proposed LIBOR Advance for any Interest Period, any Lender
determines that (i) deposits in dollars (in the applicable amount) are not
being offered to that Lender in the relevant market for such Interest Period or
(ii) the LIBOR Basis for such proposed LIBOR Advance does not adequately cover
the cost to such Lender of making and maintaining such proposed LIBOR Advance
for such Interest Period, such Lender shall forthwith give notice thereof to
the Borrower, whereupon until such Lender notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligation of
such Lender to make LIBOR Advances shall be suspended.
Section 9.2 Illegality. If any applicable law, rule or
regulation, or any change therein or adoption thereof, or interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its LIBOR Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency, shall make it unlawful or impossible for
such Lender (or its LIBOR Lending Office) to make, maintain or fund its LIBOR
Advances, such Lender shall so notify the Borrower and the Administrative
Lender. Before giving any notice to the Borrower pursuant to this Section, the
notifying Lender shall designate a different LIBOR Lending Office or other
lending office if such designation will avoid the need for giving such notice
and will not, in the sole judgment of the Lender, be materially disadvantageous
to the Lender. Upon receipt of such notice, notwithstanding anything contained
in Article 2 hereof, the Borrower shall repay in full the then outstanding
principal amount of each LIBOR Advance owing to the notifying Lender, together
with accrued interest thereon, on either (a) the last day of the Interest
Period applicable to such Advance, if the Lender may lawfully continue to
maintain and fund such Advance to such day,
- 71 -
<PAGE> 78
or (b) immediately, if the Lender may not lawfully continue to fund and
maintain such Advance to such day. Concurrently with repaying each affected
LIBOR Advance owing to such Lender, notwithstanding anything contained in
Article 2 hereof, the Borrower shall borrow a Base Rate Advance from such
Lender, and such Lender shall make such Base Rate Advance, in an amount such
that the outstanding principal amount of the Advances owing to such Lender
shall equal the outstanding principal amount of the Advances owing immediately
prior to such repayment.
Section 9.3 Increased Costs.
(a) If any applicable law, rule or regulation, or any change in or
adoption of any law, rule or regulation, or any interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
compliance by any Lender (or its LIBOR Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or compatible agency:
(i) shall subject a Lender (or its LIBOR Lending Office)
to any tax, duty or other charge (net of any tax benefit engendered
thereby) with respect to its LIBOR Advances or its obligation to make
such Advances, or shall change the basis of taxation of payments to a
Lender (or to its LIBOR Lending Office) of the principal of or
interest on its LIBOR Advances or in respect of any other amounts due
under this Agreement, as the case may be, or its obligation to make
such Advances (except for changes in the rate of tax on the overall
net income of the Lender or its LIBOR Lending Office and franchise
taxes imposed upon such Lender); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, a Lender's LIBOR Lending Office or shall impose on the
Lender (or its LIBOR Lending Office) or on the United States market
for certificates of deposit or the London interbank market any other
condition affecting its LIBOR Advances or its obligation to make such
Advances;
and the result of any of the foregoing is to increase the cost to a Lender (or
its LIBOR Lending Office) of making or maintaining any LIBOR Advances, or to
reduce the amount of any sum received or receivable by a Lender (or its LIBOR
Lending Office) with respect thereto, by an amount deemed by a Lender to be
material, then, within 15 days after demand by a Lender, the Borrower agrees to
pay to such Lender such additional amount as will compensate such Lender for
such increased costs or reduced amounts. The affected Lender will as soon as
practicable notify the Borrower of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Lender to compensation
pursuant to this Section and will designate a different LIBOR Lending Office or
other lending office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole judgment of the affected
Lender made in good faith, be disadvantageous to such Lender.
- 72 -
<PAGE> 79
(b) A certificate of any Lender claiming compensation under this
Section and setting forth the additional amounts to be paid to it hereunder and
calculations therefor shall be conclusive in the absence of manifest error. In
determining such amount, a Lender may use any reasonable averaging and
attribution methods. If a Lender demands compensation under this Section, the
Borrower may at any time, upon at least five Business Days' prior notice to the
Lender, after reimbursement to the Lender by the Borrower in accordance with
this Section of all costs incurred, prepay in full the then outstanding LIBOR
Advances of the Lender, together with accrued interest thereon to the date of
prepayment, along with any reimbursement required under Section 2.9 hereof.
Concurrently with prepaying such LIBOR Advances, the Borrower shall borrow a
Base Rate Advance from the Lender, and the Lender shall make such Base Rate
Advance, in an amount such that the outstanding principal amount of the
Advances owing to such Lender shall equal the outstanding principal amount of
the Advances owing immediately prior to such prepayment.
Section 9.4 Effect On Base Rate Advances. If notice has been
given pursuant to Section 9.1, 9.2 or 9.3 hereof suspending the obligation of a
Lender to make LIBOR Advances, or requiring LIBOR Advances of a Lender to be
repaid or prepaid, then, unless and until the Lender notifies the Borrower that
the circumstances giving rise to such repayment no longer apply, all Advances
which would otherwise be made by such Lender as LIBOR Advances shall be made
instead as Base Rate Advances.
Section 9.5 Capital Adequacy. If either (a) the introduction of
or any change in or in the interpretation of any law, rule or regulation or (b)
compliance by a Lender with any law, rule or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by a Lender or any corporation controlling such
Lender (any event or occurrence in clauses (a) or (b) above being a "Regulatory
Modification"), and such Lender reasonably determines that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
or Advances hereunder and other commitments or advances of such Lender of this
type, then, upon demand by such Lender, subject to Section 11.9, the Borrower
shall immediately pay to such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender with respect to
such circumstances (collectively, "Additional Costs"), to the extent that such
Lender reasonably determines in good faith such increase in capital to be
allocable to the existence of such Lender's Commitment hereunder.
Notwithstanding the foregoing, any Lender's demand for Additional Costs shall
not include any Additional Costs with respect to any period more than 180 days
prior to the date that such Lender gives notice to the Borrower of such
Additional Costs unless the effective date of the Regulatory Modification which
results in the right to receive Additional Costs is retroactive (the
"Regulatory Modification Retroactive Effective Date"). If any Regulatory
Modification has a Regulatory Modification Retroactive Effective Date and any
Lender demands compensation within 180 days after the date setting the
Regulatory Modification Retroactive Effective Date (the "Regulatory
Modification Set Date"), such Lender shall have the right to receive such
Additional Costs from the Regulatory Modification Retroactive Effective Date.
If a Lender does not demand such Additional Costs within 180 days after the
Regulatory
- 73 -
<PAGE> 80
Modification Set Date, such lender may not receive payment of Additional Costs
with respect to any period more than 180 days prior to such demand. A
certificate as to such amounts submitted to the Borrower by a Lender hereunder,
shall, in the absence of demonstrable error, be conclusive and binding for all
purposes.
ARTICLE 10
AGREEMENT AMONG LENDERS
Section 10.1 Agreement Among Lenders. The Lenders agree among
themselves that:
(a) Administrative Lender. Each Lender hereby appoints the
Administrative Lender as its nominee in its name and on its behalf, to receive
all documents and items to be furnished hereunder; to act as nominee for and on
behalf of all Lenders under the Loan Documents; to take such action as may be
requested by Determining Lenders, provided that, unless and until the
Administrative Lender shall have received such requests, the Administrative
Lender may take such administrative action, or refrain from taking such
administrative action, as it may deem advisable and in the best interests of
the Lenders; to arrange the means whereby the proceeds of the Advances of the
Lenders are to be made available to the Borrower; to distribute promptly to
each Lender information, requests and documents received from the Borrower, and
each payment (in like funds received) with respect to any of such Lender's
Advances, fee or other amount; and to deliver to the Borrower requests,
demands, approvals and consents received from the Lenders. Administrative
Lender agrees to promptly distribute to each Lender, at such Lender's address
set forth below information, requests, documents and payments received from the
Borrower.
(b) Replacement of Administrative Lender. Should the
Administrative Lender or any successor Administrative Lender ever cease to be a
Lender hereunder, or should the Administrative Lender or any successor
Administrative Lender ever resign as Administrative Lender, or should the
Administrative Lender or any successor Administrative Lender ever be removed
with or without cause by the Determining Lenders, then the Lender appointed by
the other Lenders shall forthwith become the Administrative Lender, and the
Borrower and the Lenders shall execute such documents as any Lender may
reasonably request to reflect such change. Any resignation or removal of the
Administrative Lender or any successor Administrative Lender shall become
effective upon the appointment by the Lenders of a successor Administrative
Lender; provided, however, that if the Lenders fail for any reason to appoint a
successor within 60 days after such removal or resignation, the Administrative
Lender or any successor Administrative Lender (as the case may be) shall
thereafter have no obligation to act as Administrative Lender hereunder.
(c) Expenses. Each Lender shall pay its pro rata share, based on
its Specified Percentage, of any reasonable expenses paid by the Administrative
Lender directly and solely in connection with any of the Loan Documents if
Administrative Lender does not receive
- 74 -
<PAGE> 81
reimbursement therefor from other sources within 60 days after the date
incurred, unless payment of such fees is being diligently disputed by such
Lender or the Borrower in good faith. Any amount so paid by the Lenders to the
Administrative Lender shall be returned by the Administrative Lender pro rata
to each paying Lender to the extent later paid by the Borrower or any other
Person on the Borrower's behalf to the Administrative Lender.
(d) Delegation of Duties. The Administrative Lender may execute
any of its duties hereunder by or through officers, directors, employees,
attorneys or agents, and shall be entitled to (and shall be protected in
relying upon) advice of counsel concerning all matters pertaining to its duties
hereunder.
(e) Reliance by Administrative Lender. The Administrative Lender
and its officers, directors, employees, attorneys and agents shall be entitled
to rely and shall be fully protected in relying on any writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telex or
teletype message, statement, order, or other document or conversation
reasonably believed by it or them in good faith to be genuine and correct and
to have been signed or made by the proper Person and, with respect to legal
matters, upon opinions of counsel selected by the Administrative Lender. The
Administrative Lender may, in its reasonable judgment, deem and treat the payee
of any note as the owner thereof for all purposes hereof.
(f) Limitation of Administrative Lender's Liability. Neither the
Administrative Lender nor any of its officers, directors, employees, attorneys
or agents shall be liable for any action taken or omitted to be taken by it or
them hereunder in good faith and believed by it or them to be within the
discretion or power conferred to it or them by the Loan Documents or be
responsible for the consequences of any error of judgment, except for its or
their own gross negligence or wilful misconduct. Except as aforesaid, the
Administrative Lender shall be under no duty to enforce any rights with respect
to any of the Advances, or any security therefor. The Administrative Lender
shall not be compelled to do any act hereunder or to take any action towards
the execution or enforcement of the powers hereby created or to prosecute or
defend any suit in respect hereof, unless indemnified to its satisfaction
against loss, cost, liability and expense. The Administrative Lender shall not
be responsible in any manner to any Lender for the effectiveness,
enforceability, genuineness, validity or due execution of any of the Loan
Documents, or for any representation, warranty, document, certificate, report
or statement made herein or furnished in connection with any Loan Documents, or
be under any obligation to any Lender to ascertain or to inquire as to the
performance or observation of any of the terms, covenants or conditions of any
Loan Documents on the part of the Borrower. To the extent not reimbursed by
the Borrower, each Lender hereby severally, but not jointly, indemnifies and
holds harmless the Administrative Lender, pro rata according to its Specified
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and/or
disbursements of any kind or nature whatsoever which may be imposed on,
asserted against, or incurred by the Administrative Lender in any way with
respect to any Loan Documents or any action taken or omitted by the
Administrative Lender under the
- 75 -
<PAGE> 82
Loan Documents (including any negligent action of the Administrative Lender),
except to the extent the same result from gross negligence or wilful misconduct
by the Administrative Lender.
(g) Liability Among Lenders. No Lender shall incur any liability
(other than the sharing of expenses and other matters specifically set forth
herein and in the other Loan Documents) to any other Lender, except for acts or
omissions in bad faith.
(h) Rights as Lender. With respect to its commitment hereunder,
the Advances made by it and note issued to it, the Administrative Lender shall
have the same rights as a Lender and may exercise the same as though it were
not the Administrative Lender, and the term "Lender" or "Lenders" shall, unless
the context otherwise indicates, include the Administrative Lender in its
individual capacity. The Administrative Lender or any Lender may accept
deposits from, act as trustee under indentures of, and generally engage in any
kind of business with, the Borrower and any of its Affiliates, and any Person
who may do business with or own securities of the Borrower or any of its
Affiliates, all as if the Administrative Lender were not the Administrative
Lender hereunder and without any duty to account therefor to the Lenders.
Section 10.2 Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Lender
or any other Lender and based upon the financial statements referred to in
Sections 4.1(j), 6.1 and 6.2 hereof, and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Lender or any other
Lender and based upon 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 and the other Loan Documents.
Section 10.3 Benefits of Article. None of the provisions of this
Article shall inure to the benefit of any Person other than Lenders or the
Borrower, as applicable; consequently, no Person other than Lenders or the
Borrower shall be entitled to rely upon, or to raise as a defense, in any
manner whatsoever, the failure of the Administrative Lender or any Lender to
comply with such provisions.
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) All notices and other communications under this Agreement
shall be in writing and shall be deemed to have been given on the date
personally delivered or sent by telecopy (answerback received), or three days
after deposit in the mail, designated as registered mail, return receipt
requested, postage-prepaid, or one day after being entrusted to a reputable
- 76 -
<PAGE> 83
commercial overnight delivery service, or one day after being delivered to the
telegraph office or sent out by telex addressed to the party to which such
notice is directed at its address determined as provided in this Section. All
notices and other communications under this Agreement shall be given to the
parties hereto at the following addresses:
(i) If to the Borrower, at:
Clear Channel Communications, Inc.
7710 Jones-Maltsberger, Suite 600
San Antonio, Texas 78216
Attn: Randall T. Mays, Vice President-Treasurer
(ii) If to the Administrative Lender, at:
NationsBank of Texas, N.A.
901 Main Street, 64th Floor
Dallas, Texas 75202
Attn: Thomas E. Carter, Senior Vice President
(iii) If to a Lender, at its address shown below its name on the
signature pages hereof, or if applicable, set forth in its
Assignment Agreement.
(b) Any party hereto may change the address to which notices shall
be directed by giving 10 days' written notice of such change to the other
parties.
Section 11.2 Expenses. The Borrower shall promptly pay:
(a) all reasonable out-of-pocket expenses of the Administrative
Lender in connection with the preparation, negotiation, execution and delivery
of this Agreement and the other Loan Documents, the transactions contemplated
hereunder and thereunder, and the making of Advances and the issuance of
Letters of Credit hereunder, including without limitation the reasonable fees
and disbursements of Special Counsel;
(b) all reasonable out-of-pocket expenses of the Administrative
Lender in connection with the administration of the transactions contemplated
in this Agreement and the other Loan Documents, the preparation, negotiation,
execution and delivery of any waiver, amendment or consent by the Lenders
relating to this Agreement or the other Loan Documents; and
(c) all reasonable costs, out-of-pocket expenses and attorneys'
fees of the Administrative Lender and each Lender incurred for enforcement,
collection, restructuring, refinancing and "work-out", or otherwise incurred in
obtaining performance under the Loan Documents, and all reasonable costs and
out-of-pocket expenses of collection if default is made in the payment of the
notes, which in each case shall include without limitation reasonable fees
- 77 -
<PAGE> 84
and expenses of consultants, counsel for the Administrative Lender and any
Lender, and administrative fees for the Administrative Lender.
Section 11.3 Waivers. The rights and remedies of the Lenders
under this Agreement and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which they would otherwise have. No
failure or delay by the Administrative Lender or any Lender in exercising any
right shall operate as a waiver of such right. The Lenders expressly reserve
the right to require strict compliance with the terms of this Agreement in
connection with any funding of a request for an Advance and the Issuing Bank
expressly reserves the right to require strict compliance with the terms of
this Agreement in connection with any issuance of a Letter of Credit. In the
event that any Lender decides to fund an Advance or the Issuing Bank decides to
issue a Letter of Credit at a time when the Borrower is not in strict
compliance with the terms of this Agreement, such decision by such Lender shall
not be deemed to constitute an undertaking by the Lender to fund any further
requests for Advances or by the Issuing Bank to issue any additional Letter of
Credit or preclude the Lenders from exercising any rights available under the
Loan Documents or at law or equity. Any waiver or indulgence granted by the
Lenders shall not constitute a modification of this Agreement, except to the
extent expressly provided in such waiver or indulgence, or constitute a course
of dealing by the Lenders at variance with the terms of the Agreement such as
to require further notice by the Lenders of the Lenders' intent to require
strict adherence to the terms of this Agreement in the future. Any such
actions shall not in any way affect the ability of the Administrative Lender or
the Lenders, in their discretion, to exercise any rights available to them
under this Agreement or under any other agreement, whether or not the
Administrative Lender or any of the Lenders are a party thereto, relating to
the Borrower.
Section 11.4 Determination by the Lenders Conclusive and Binding.
Any material determination required or expressly permitted to be made by the
Administrative Lender or any Lender under this Agreement shall be made in its
reasonable judgment and in good faith, and shall when made, absent manifest
error, be conclusive and binding on all parties.
Section 11.5 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default, each Lender and any subsequent
holder of any note, and any assignee or participant in any note is hereby
authorized by the Borrower at any time or from time to time, without notice to
the Borrower or any other Person, any such notice being hereby expressly
waived, to set-off, appropriate and apply any deposits (general or special
(except trust and escrow accounts), time or demand, including without
limitation Indebtedness evidenced by certificates of deposit, in each case
whether matured or unmatured) and any other Indebtedness at any time held or
owing by such Lender or holder to or for the credit or the account of the
Borrower, against and on account of the Obligations and other liabilities of
the Borrower to such Lender or holder, irrespective of whether or not (a) the
Lender or holder shall have made any demand hereunder, or (b) the Lender or
holder shall have declared the principal of and interest on the Advances and
other amounts due hereunder to be due and payable as permitted by Section 8.2
and although such obligations and liabilities, or any of them, shall be
contingent or
- 78 -
<PAGE> 85
unmatured. Any sums obtained by any Lender or by any assignee, participant or
subsequent holder of any note shall be subject to pro rata treatment of all
Obligations and other liabilities hereunder.
Section 11.6 Assignment.
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder or under the other Loan Documents without the prior
written consent of the Lenders.
(b) No Lender shall be entitled to assign its interest in this
Agreement, its notes or its Advances, except as hereinafter set forth.
(c) A Lender may at any time sell participations in all or any
part of its Advances (collectively, "Participations") to any banks or other
financial institutions ("Participants") provided that such Participation shall
not confer on any Person (other than the parties hereto) any right to vote on,
approve or sign amendments or waivers, or any other independent benefit or any
legal or equitable right, remedy or other claim under this Agreement or any
other Loan Documents, other than the right to vote on, approve, or sign
amendments or waivers or consents with respect to items that would result in
(i) any increase in the commitment of any Participant; or (ii)(A) the extension
of the date of maturity of, or (B) the extension of the due date for any
payment of principal, interest or fees respecting, or (C) the reduction of the
amount of any installment of principal or interest on or the change or
reduction of any mandatory reduction required hereunder, or (D) a reduction of
the rate of interest on, the Advances, the Letters of Credit, or the
Reimbursement Obligations, or change in Applicable Margin; or (iii) the release
of security for the Obligations, including without limitation any guarantee or
Pledged Stock; or (iv) the reduction of any fees payable hereunder.
Notwithstanding the foregoing, the Borrower agrees that the Participants shall
be entitled to the benefits of Article 9 and Section 11.5 hereof as though they
were Lenders and the Lenders may provide copies of all financial information
received from the Borrower to such Participants. To the fullest extent it may
effectively do so under Applicable Law, the Borrower agrees that any
Participant may exercise any and all rights of banker's lien, set-off and
counterclaim with respect to this Participation as fully as if such Participant
were the holder of the Advances in the amount of its Participation.
(d) Each Lender may assign to one or more financial institutions
or funds organized under the laws of the United States, or any state thereof,
or under the laws of any other country that is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, which is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business (each, an "Assignee")
its rights and obligations under this Agreement and the other Loan Documents up
to a total of 49% of its Specified Percentage of the Commitment; provided,
however, that (i) each such assignment shall be subject to the prior written
consent of the Administrative Lender and Borrower, which approval shall not be
unreasonably withheld or delayed (provided that without the consent of the
Borrower or the Administrative Lender, any Lender may make assignments to its
Affiliates or another Lender), (ii) each such assignment shall be of a
constant, and not a varying, percentage
- 79 -
<PAGE> 86
of the Lender's rights and obligations under this Agreement, (iii) the amount
of the Commitment, Advances and Reimbursement Obligations being assigned
pursuant to each such assignment (determined as of the date of the assignment
with respect to such assignment) shall in no event be less than $5,000,000 and
which is an integral multiple of $1,000,000, (iv) the applicable Lender,
Administrative Lender and applicable Assignee shall execute and deliver to the
Administrative Lender an Assignment and Acceptance Agreement (an "Assignment
Agreement") in substantially the form of Exhibit E hereto, together with the
notes subject to such assignment, (v) the Assignee or the Lender executing the
Assignment as the case may be, shall deliver to the Administrative Lender a
processing fee of $2,500 and (vi) notwithstanding anything herein to the
contrary, any Lender may assign up to a total of 100% of its Specified
Percentage of the Commitment with the prior written consent of the Borrower and
the Administrative Lender, which consent may be withheld for any reason or for
no reason. Upon such execution, delivery and acceptance from and after the
effective date specified in each Assignment, which effective date shall be at
least three Business Days after the execution thereof, (A) the Assignee
thereunder shall be party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment, have the rights
and obligations of a Lender hereunder and (B) the assigning Lender shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment, relinquish such rights and be released from such
obligations under this Agreement. The Borrower shall not be liable for any
fees or expenses of the Administrative Lender, any Lender, or any Assignee,
incurred in connection with such an Assignment.
(e) Notwithstanding anything in clause (d) above to the contrary,
any Lender may assign and pledge all or any portion of its Advances and note to
any Federal Reserve Bank as collateral security pursuant to Regulation A of
F.R.S. Board and any Operating Circular issued by such Federal Reserve Bank;
provided, however, that no such assignment under this clause (e) shall release
the assignor Lender from its obligations hereunder.
(f) Upon its receipt of an Assignment Agreement executed by a
Lender and an Assignee, and any note or notes subject to such assignment, the
Borrower shall, within three Business Days after its receipt of such Assignment
Agreement, at its own expense, execute and deliver to the Administrative Lender
in exchange for the surrendered notes new notes to the order of such Assignee
in an amount equal to the portion of the Advances, Reimbursement Obligations
and Commitment assigned to it pursuant to such Assignment Agreement and new
notes to the order of the assigning Lender in an amount equal to the portion of
the Advances and Commitment retained by it hereunder. Such new notes shall be
in an aggregate principal amount equal to the aggregate principal amount of
such surrendered notes, shall be dated the effective date of such Assignment
Agreement and shall otherwise be in substantially the form of Exhibit A hereto.
(g) No Lender may, without the prior consent of the Borrower,
which shall not be unreasonably withheld or delayed, in connection with any
assignment or Participation or proposed assignment or Participation pursuant to
this Section 11.6, disclose to the Assignee or Participant or proposed Assignee
or Participant, any information (which is not otherwise publicly
- 80 -
<PAGE> 87
available) relating to the Borrower furnished to such Lender by or on behalf of
the Borrower, unless such proposed assignee or participant agrees to keep such
information confidential and signs a confidentiality agreement in a form
substantially similar to the confidentiality agreement signed by the Persons
who were Lenders on the Agreement Date. The Borrower may not prohibit any
Participation by withholding its consent pursuant to this Section 11.6(g).
(h) Except as specifically set forth in this Section 11.6, nothing
in this Agreement or any other Loan Documents, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or any other Loan Documents.
Section 11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such separate counterparts shall together constitute but one and the same
instrument.
Section 11.8 Severability. Any provision of this Agreement which
is for any reason prohibited or found or held invalid or unenforceable by any
court or governmental agency shall be ineffective to the extent of such
prohibition or invalidity or unenforceability without invalidating the
remaining provisions hereof in such jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.9 Interest and Charges. It is not the intention of any
parties to this Agreement to make an agreement in violation of the laws of any
applicable jurisdiction relating to usury. Regardless of any provision in any
Loan Documents, no Lender shall ever be entitled to receive, collect or apply,
as interest on the Obligations, any amount in excess of the Maximum Amount. If
any Lender or participant ever receives, collects or applies, as interest, any
such excess, such amount which would be excessive interest shall be deemed a
partial repayment of principal and treated hereunder as such; and if principal
is paid in full, any remaining excess shall be paid to the Borrower. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Maximum Amount, the Borrower and the Lenders shall, to
the maximum extent permitted under Applicable Law, (a) characterize any
nonprincipal payment as an expense, fee or premium rather than as interest, (b)
exclude voluntary prepayments and the effect thereof, and (c) amortize,
prorate, allocate and spread in equal parts, the total amount of interest
throughout the entire contemplated term of the Obligations so that the interest
rate is uniform throughout the entire term of the Obligations; provided,
however, that if the Obligations are paid and performed in full prior to the
end of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds the Maximum Amount, the Lenders
shall refund to the Borrower the amount of such excess or credit the amount of
such excess against the total principal amount of the Obligations owing, and,
in such event, the Lenders shall not be subject to any penalties provided by
any laws for contracting for, charging or receiving interest in excess of the
Maximum Amount. This Section shall control every other provision of all
agreements pertaining to the transactions contemplated by or contained in the
Loan Documents.
- 81 -
<PAGE> 88
Section 11.10 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 11.11 Amendment and Waiver. This Agreement may not be
amended, modified or waived except by the written agreement of the Borrower and
the Determining Lenders; provided, however, that no such amendment,
modification or waiver shall be made (a) without the consent of all Lenders, if
it would (i) increase the Specified Percentage or commitment of any Lender, or
(ii) extend or postpone any Commitment Reduction, extend or postpone the date
of payment or maturity of, extend the due date for any payment of principal or
interest on, reduce the amount of any installment of principal or interest on,
or reduce the rate of interest on, any Advance, the Reimbursement Obligations,
fees or other amounts owing under any Loan Documents, or (iii) release any
security for or guaranty of the Obligations (except pursuant to this
Agreement), or (iv) reduce the fees payable hereunder, or (v) revise this
Section 11.11, or (v) waive the date for payment of any of the Obligations, or
(vi) amend the definition of Determining Lenders, (vii) revise Sections 2.5(b),
(c) or (d) hereof or (vii) revise Sections 2.6(b) or (c) hereof; or (b) without
the consent of the Administrative Lender, if it would alter the rights, duties
or obligations of the Administrative Lender; provided, further, however, no
consent of any Lender shall be required to increase the Commitment to an amount
not to exceed $1,300,000,000 so long as the Specified Percentage or commitment
of any Lender as of the Agreement Date is not increased. Neither this
Agreement nor any term hereof may be amended orally, nor may any provision
hereof be waived orally but only by an instrument in writing signed by the
Administrative Lender and, in the case of an amendment, by the Borrower.
Section 11.12 Exception to Covenants. Neither the Borrower nor any
Restricted Subsidiary shall be deemed to be permitted to take any action or
fail to take any action which is permitted as an exception to any of the
covenants contained herein or which is within the permissible limits of any of
the covenants contained herein if such action or omission would result in the
breach of any other covenant contained herein.
Section 11.13 No Liability of Issuing Bank. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither the
Issuing Bank nor any Lender nor any of their respective officers or directors
shall be liable or responsible for: (a) the use that may be made of any Letter
of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by the Issuing Bank against presentation of documents that do not
comply with the terms of a Letter of Credit, including failure of any documents
to bear any reference or adequate reference to the Letter of Credit, except for
any payment made upon the Issuing Bank's gross negligence or willful
misconduct; or (d) any other circumstances whatsoever in making or failing to
make payment under any Letter of Credit, except that the Borrower shall have a
claim against the Issuing Bank, and the Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) the Issuing Bank's
willful misconduct or gross
- 82 -
<PAGE> 89
negligence in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) the Issuing Bank's
willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the
terms and conditions of the Letter of Credit other than pursuant to the Uniform
Commercial Code Section 5-114. In furtherance and not in limitation of the
foregoing, the Issuing Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
Section 11.14 Credit Agreement Governs. In the event of any
conflict between the terms of this Agreement and any terms of any other Loan
Document, the terms of this Agreement shall control.
SECTION 11.15 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF TEXAS; PROVIDED, HOWEVER, THAT PURSUANT TO ARTICLE 5069-15.10(b),
TITLE 79, REVISED CIVIL STATUTES OF TEXAS, 1925, AS AMENDED, IT IS AGREED THAT
THE PROVISIONS OF CHAPTER 15, TITLE 79, REVISED CIVIL STATUTES OF TEXAS, 1925,
AS AMENDED, SHALL NOT APPLY TO THE ADVANCES, THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS. WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE BORROWER AGREES THAT
THE STATE AND FEDERAL COURTS OF TEXAS LOCATED IN DALLAS, TEXAS SHALL HAVE
JURISDICTION OVER PROCEEDINGS IN CONNECTION WITH THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
SECTION 11.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE LENDER AND THE LENDERS HEREBY KNOWINGLY VOLUNTARILY, IRREVOCABLY
AND INTENTIONALLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM ARISING OUT OF OR RELATED TO
ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. THIS
PROVISION IS A MATERIAL INDUCEMENT TO EACH LENDER ENTERING INTO THIS AGREEMENT
AND MAKING ANY ADVANCES HEREUNDER.
SECTION 11.17 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER
WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
- 83 -
<PAGE> 90
IN WITNESS WHEREOF, this Amended and Restated Credit Agreement is
executed as of the date first set forth above.
BORROWER: CLEAR CHANNEL COMMUNICATIONS, INC.
By: /s/ Mark P. Mays
----------------------------------
Name: Mark P. Mays
-----------------------------
Title: Senior Vice President-Operations
----------------------------
- 84 -
<PAGE> 91
ADMINISTRATIVE LENDER: NATIONSBANK OF TEXAS, N.A., as
Administrative Lender
By: /s/ David James
-------------------------------
David James
Vice President
- 85 -
<PAGE> 92
LENDERS: NATIONSBANK OF TEXAS, N.A., as a Lender
By: /s/ David James
-------------------------------
David James
Vice President
901 Main Street, 64th Floor
Dallas, Texas 75202
Attn: Thomas E. Carter,
Senior Vice President
- 86 -
<PAGE> 93
FIRST NATIONAL BANK OF BOSTON
By: /s/ Mark S. Denomme
------------------------------------
Name: Mark S. Denomme
Title: Vice President
100 Federal Street
Boston, Massachusetts 02110
Attn: Mark Denomme,
Vice President
- 87 -
<PAGE> 94
BANK OF MONTREAL
By: /s/ Rene Encarnacion
------------------------------------
Name: Rene Encarnacion
Title: Director
430 Park Avenue
16th Floor
New York, New York 10022
Attn: Ola Anderssen
- 88 -
<PAGE> 95
THE BANK OF NEW YORK
By: /s/ Joseph P. Matteo
-----------------------------------
Name: Joseph P. Matteo
------------------------------
Title: Vice President
-----------------------------
One Wall Street, 16th Floor South
New York, New York 10286
Attn: Joseph P. Matteo
Title: Vice President
- 89 -
<PAGE> 96
ABN AMRO BANK N.V., HOUSTON AGENCY
By: ABN AMRO NORTH AMERICA, INC., as Agent
By: /s/ Laurie C. Tuzo
-------------------------------
Name: Laurie C. Tuzo
Title: Vice President and
Director
By: /s/ David P. Orr
-------------------------------
Name: David P. Orr
Title: Vice President and
Director
Three Riverway, Suite 1700
Houston, Texas 77056
Attn: Ms. Laurie C. Tuzo
Title: Vice President and Director
- 90 -
<PAGE> 97
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Gail L. Fischer
-------------------------------------
Name: Gail L. Fischer
--------------------------------
Title: Vice President
-------------------------------
400 California Street, 17th Floor
San Francisco, California 94105
Attn: John Lee
Title:
- 91 -
<PAGE> 98
CITIBANK, N.A.
By: /s/ Illegible Signature of Attorney-In-Fact
----------------------------------------
Name: Eric Huttner
Title: Vice President
399 Park Avenue, 4th Floor
New York, New York 10043
Attn: Charles W. Hebard
- 92 -
<PAGE> 99
FLEET NATIONAL BANK
By: /s/ Wendy E. Klepper
----------------------------------
Name: Wendy E. Klepper
-----------------------------
Title: Vice President
----------------------------
75 State Street
MABOF10C
Boston, MA 02109
Attn: Wendy E. Klepper
Title: Vice President
- 93 -
<PAGE> 100
CORESTATES BANK, N.A.
By: /s/ Douglas E. Blackman
-----------------------------------
Name: Douglas E. Blackman
------------------------------
Title: Vice President
-----------------------------
1339 Chestnut Street, 11th Floor
F.C. 1-8-11-28
Philadelphia, Pennsylvania 19101
Attn: Douglas E. Blackman,
Vice President
- 94 -
<PAGE> 101
WELLS FARGO BANK (TEXAS), N.A., formerly
known as FIRST INTERSTATE BANK OF TEXAS,
N.A.
By: /s/ Susan Coulter
---------------------------------
Susan Coulter
Vice President
100 Congress, Suite 150
Austin, Texas 78701
Attn: Susan Coulter
Title: Vice President
- 95 -
<PAGE> 102
KEYBANK NATIONAL ASSOCIATION
By: /s/ Jason R. Weaver
-----------------------------------
Name: Jason R. Weaver
------------------------------
Title: Assistant Vice President
-----------------------------
Media Finance Division
127 Public Square
Cleveland, Ohio 44114-1306
Attn: Jason R. Weaver
Assistant Vice President
- 96 -
<PAGE> 103
CIBC INC.
By: /s/ Illegible Signature for
-------------------------------------
Name: Reid J. Murray
Title: Managing Director, CIBC
Wood Gundy Securities Corp.,
as Agent
425 Lexington Avenue
New York, New York 10017
Attn: Tefta Ghilaga
Title: Associate Director
- 97 -
<PAGE> 104
TORONTO DOMINION (TEXAS), INC.
By: /s/ Lisa Allison
----------------------------------
Name: Lisa Allison
-----------------------------
Title: Vice President
----------------------------
Houston Agency
909 Fannin Street, 17th Floor
Houston, Texas 77010
Attn: Lisa Allison
Title: Vice President
- 98 -
<PAGE> 105
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: /s/ Bruce W. Loftin
------------------------------------
Name: Bruce Loftin
Title: Senior Vice President
Capital Markets Group - Communications
One First Union Center DC-5
301 South College Street
Charlotte, North Carolina 28288-0735
Attn: Adrienne P. Musgnug
Title: Vice President
- 99 -
<PAGE> 106
BANQUE PARIBAS
By: /s/ John G. Acket
--------------------------------------
Name: John G. Acket
---------------------------------
Title: Group Vice President
--------------------------------
By: /s/ Harry Collyns
--------------------------------------
Name: Harry Collyns
---------------------------------
Title: Vice President
--------------------------------
2029 Century Park East, Suite 3900
Los Angeles, California 90067
Attn: Thomas G. Brandt
Title:
- 100 -
<PAGE> 107
SOCIETE GENERALE
By: /s/ Bryan G. Petermann
---------------------------------------
Name: Bryan G. Petermann
----------------------------------
Title: Vice President
---------------------------------
1221 Avenue of the Americas
New York, New York 10020
Attn: Bryan Petermann
Title: Vice President
- 101 -
<PAGE> 108
THE SUMITOMO BANK, LIMITED
By: /s/ Barumitsu Saki
---------------------------------------
Name: Barumitsu Saki
----------------------------------
Title: General Manager
---------------------------------
700 Louisiana, Suite 1750
Houston, Texas 77002
Attn: Michael Shryock
Title:
- 102 -
<PAGE> 109
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/ Satoru Otsubo
---------------------------------------
Name: Satoru Otsubo
----------------------------------
Title: Joint General Manager
---------------------------------
165 Broadway
New York, New York 10006
Attn: Maria Araujo
Title:
- 103 -
<PAGE> 110
MELLON BANK, N.A.
By: /s/ John T. Kranefuss
------------------------------------------
Name: John T. Kranefuss
-------------------------------------
Title: AVP
------------------------------------
One Mellon Bank Center, Room 4440
Pittsburgh, PA 15258-0001
Attn: John Kranefuss
Title: AVP
with a copy to:
Three Mellon Bank Center, 23rd Floor
Pittsburgh, PA 15259
Attn: Loan Administration
- 104 -
<PAGE> 111
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Jeffrey E. Hauser
-------------------------------------
Name: Jeffrey E. Hauser
--------------------------------
Title: Vice President
-------------------------------
Broad & Chestnut Streets
Philadelphia, PA 19101
Attn: Jeff Hauser
Title: Vice President
- 105 -
<PAGE> 112
FLEET BANK, N.A.
By: /s/ Wendy E. Klepper
-----------------------------------
Name: Wendy E. Klepper
------------------------------
Title: Vice President
-----------------------------
75 State Street
MABOF10C
Boston, MA 02109
Attn: Wendy E. Klepper
Title: Vice President
- 106 -
<PAGE> 113
THE FUJI BANK, LIMITED
By: /s/ David Kelley
-----------------------------------------------
Name: David Kelley
---------------------------------
Title: Sr. Vice President
---------------------------------
One Houston Center
Suite 4100
1221 McKinney Street
Houston, Texas 77010
Attn: David Kelley
Title: Sr. Vice President
- 107 -
<PAGE> 114
THE SANWA BANK, LIMITED, DALLAS AGENCY
By: /s/ R. Blake Wright
--------------------------------------------
Name: R. Blake Wright
---------------------------------
Title: Vice President
--------------------------------
4100 W. Texas Commerce Tower
2200 Ross Avenue
Dallas, Texas 75201
Attn: Blake Wright
Title: Vice President
- 108 -
<PAGE> 115
THE DAI-ICHI KANGYO BANK, LTD
By: /s/ Dean Murdock
-----------------------------------------
Name: Dean Murdock
------------------------------
Title: Vice President
-----------------------------
One World Trade Center
48th Floor
New York, NY 10048
Attn: Seiji Imai
Title: Vice President
- 109 -
<PAGE> 116
BANK BRUSSELS LAMBERT,
New York Branch
By: /s/ Craig Hallsteen
--------------------------------------
Name: Craig Hallsteen
---------------------------
Title: Vice President
--------------------------
By: /s/ Dominick H.J. Vangaever
---------------------------------------
Name: Dominick H.J. Vangaever
----------------------------
Title: Vice President
Credit Department
---------------------------
630 Fifth Avenue
6th floor
New York, NY 10111
Attn: Craig Hallsteen
Title: Vice President
- 110 -
<PAGE> 117
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By: /s/ Marcus Edward
----------------------------------------
Name: Marcus Edward
-----------------------------
Title: Vice President
----------------------------
By: /s/ Brian O'Leary
----------------------------------------
Name: Brian O'Leary
-----------------------------
Title: Vice President
----------------------------
520 Madison Avenue
37th Floor
New York, NY 10022
Attn: Marcus Edward
Title: Vice President
- 111 -
<PAGE> 118
ROYAL BANK OF SCOTLAND
By: /s/ Grant F. Stoddart
---------------------------------------------
Name: Grant F. Stoddart
----------------------------------
Title: Senior Vice President & Manager
---------------------------------
88 Pine Street
26th Floor
New York, NY 10005
Attn: Karen Stefancic
Title:
- 112 -
<PAGE> 119
MICHIGAN NATIONAL BANK
By: /s/ Stephane Lubin
-----------------------------------------
Name: Stephane Lubin
------------------------------
Title: Vice President
-----------------------------
Specialty Industries 10-36
27777 Inkster Road
Farmington Hills, MI 48334
Attn: Stephane Lubin
Title: Vice President
- 113 -
<PAGE> 120
THE MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ Patricia Loret De Mola
--------------------------------------------
Name: Patricia Loret De Mola
---------------------------------
Title: Senior Vice President
--------------------------------
520 Madison Avenue, 26th Floor
New York, NY 10022
Attn: Tony Rock
Title:
- 114 -
<PAGE> 121
CREDIT SUISSE
By: /s/ J. A. Coneeny
---------------------------------------------
Name: J. A. Coneeny
----------------------------------
Title: Member of Senior Management
---------------------------------
By: /s/ Illegible Signature
---------------------------------------------
Name: Illegible Signature
----------------------------------
Title: Member of Senior Management
---------------------------------
Tower 49
12 E. 49th Street
44th Floor
New York, NY 10017
Attn: Joe Coneeny
- 115 -
