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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
_____________
Date of Report (Date of Earliest Event Reported): July 2, 1997
CHANCELLOR BROADCASTING COMPANY
________________________________________________________________________________
(Exact Name of Registrant as Specified in its Charter)
Delaware
________________________________________________________________________________
(State or Other Jurisdiction of Incorporation)
0-27726 75-2538487
________________________________ ____________________________________
(Commission File Number) (I.R.S. Employer Identification No.)
CHANCELLOR RADIO BROADCASTING COMPANY
________________________________________________________________________________
(Exact Name of Registrant as Specified in its Charter)
Delaware
________________________________________________________________________________
(State or Other Jurisdiction of Incorporation)
33-80534 75-2544623
_______________________________ ___________________________________
(Commission File Number) (I.R.S. Employer Identification No.)
12655 North Central Expressway
Suite 405
Dallas, Texas 75243
______________________________________ _________________
(Address of Principal Executive Offices) (Zip Code)
(972) 239-6220
________________________________________________________________________________
(Registrant's Telephone Number, Including Area Code)
________________________________________________________________________________
(Former Name or Former Address, if Changed Since Last Report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On July 2, 1997, Chancellor Radio Broadcasting Company, a Delaware
corporation and direct subsidiary of Chancellor Broadcasting Company, a
Delaware corporation (together with its subsidiaries, the "Company"), and
Evergreen Media Corporation of Los Angeles, a Delaware corporation ("EMCLA")
and direct wholly-owned subsidiary of Evergreen Media Corporation
("Evergreen"), consummated the acquisition of all of the issued and outstanding
capital stock of certain subsidiaries (the "Viacom Subsidiaries") of Viacom
International, Inc. ("Viacom") for an aggregate purchase price of $1.075
billion plus working capital of approximately $20.7 million (collectively, the
"Viacom Acquisition"). The Viacom Subsidiaries own and operate the assets
involved in the operation of ten radio broadcast stations.
In connection with the Company's pending merger with Evergreen (the
"Evergreen Merger"), the Company and Evergreen entered into a Joint Purchase
Agreement whereby, among other things, each of the Company and Evergreen
divided equally certain costs due in connection with the Viacom Acquisition,
including a $53.75 million non-refundable (except under limited circumstances)
deposit that was paid by each of the Company and Evergreen on February 19,
1997. Upon the consummation of the Viacom Acquisition, (i) EMCLA purchased the
Viacom Subsidiaries that own and operate 2 FM radio stations in New York, New
York and 2 FM and 2 AM stations serving the Washington, D.C. market for an
aggregate purchase price of approximately $595 million and (ii) Chancellor
Radio Broadcasting Company purchased the Viacom Subsidiaries that own and
operate 2 FM radio stations in Los Angeles, California, 1 FM station in
Chicago, Illinois and 1 FM station in Detroit, Michigan for an aggregate
purchase price of approximately $480 million (the "Chancellor Viacom
Acquisition"). In April 1997, Chancellor Radio Broadcasting Company entered
into an agreement to sell the 1 FM station in Detroit, Michigan that it
acquired from Viacom in the Viacom Acquisition to an affiliate of Capital
Cities/ABC Radio for $37 million in cash.
In connection with the Chancellor Viacom Acquisition, the Chancellor
Radio Broadcasting Company entered into an amended and restated credit
agreement as of July 2, 1997 (the "Restated Credit Agreement") with a syndicate
of commercial banks and other institutions, which provides for aggregate
borrowings of up to $750 million. In addition, Chancellor Broadcasting Company
entered into a senior credit agreement as of June 26, 1997, that provides for
aggregate borrowings of up to $170 million, which were contributed to the
capital of Chancellor Radio Broadcasting
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Company as of July 2, 1997. Borrowings under the Restated Credit Agreement and
the Senior Credit Agreement were used to fund the Chancellor Viacom Acquisition
and fees and expenses related thereto.
The aggregate purchase price for the Viacom Acquisition of $1.075
billion, plus working capital (the "Total Viacom Purchase Price"), was
determined as a result of an arm's length negotiation between Viacom, Evergreen
and the Company. The allocation between the Company and Evergreen of the Total
Viacom Purchase Price pursuant to the Joint Purchase Agreement was determined
as a result of arm's length negotiations between the Company and Evergreen in
connection with the negotiations related to the Evergreen Merger.
The Viacom Subsidiaries acquired by the Company own assets that
constitute plant, equipment and other physical property used in the operation
of radio stations and, subject to the disposition of WDRQ-FM in Detroit
described above, will continue to be utilized by the Company for such purposes.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired.
The following financial statements of WLIT Inc. and WDRQ Inc. and the
combined financial statements of KYSR Inc. and KIBB Inc., have been previously
filed with the Securities and Exchange Commission (the "Commission") on the
Company's Current Report on Form 8-K dated June 3, 1997 at the corresponding
page numbers in such report as set forth below:
Financial Statements of Business Acquired -- KYSR Inc. and KIBB Inc.
<TABLE>
<S> <C> <C>
(1) Independent Auditor's Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
(2) Combined Balance Sheets of KYSR Inc. and KIBB Inc. as of December 31, 1995 and 1996
and March 31, 1997 (unaudited) . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-2
(3) Combined Statements of Operations of KYSR Inc. and KIBB Inc. for the years ended
December 31, 1994, 1995 and 1996 and the three months ended March 31, 1996 and 1997
(unaudited) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-3
(4) Combined Statements of Cash Flows of KYSR Inc. and KIBB Inc. for the years ended
December 31, 1994, 1995 and 1996 and the three months ended March 31, 1996 and 1997
(unaudited) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-4
(5) Notes to Combined Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . B-5
</TABLE>
Financial Statements of Business Acquired -- WLIT Inc.
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<TABLE>
<S> <C>
(1) Independent Auditor's Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
(2) Balance Sheets of WLIT Inc. as of December 31, 1995 and 1996 and March 31, 1997
(unaudited) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-2
(3) Statements of Earnings of WLIT Inc. for the years ended December 31, 1994, 1995 and
1996 and the three months ended March 31, 1996 and 1997 (unaudited) . . . . . . . . . C-3
(4) Statements of Cash Flows of WLIT Inc. for the years ended December 31, 1994, 1995 and
1996 and the three months ended March 31, 1996 and 1997 (unaudited) . . . . . . . . . C-4
(5) Notes to Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-5
Financial Statements of Business Acquired -- WDRQ Inc.
(1) Independent Auditors' Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
(2) Balance Sheets of WDRQ Inc. as of December 31, 1995 and 1996 and March 31, 1997
(unaudited) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-2
(3) Statements of Earnings of WDRQ Inc. for the years ended December 31, 1994, 1995 and
1996 for the three months ended March 31, 1996 and 1997 (unaudited) . . . . . . . . . D-3
(4) Statements of Cash Flows of WDRQ Inc. for the years ended December 31, 1994, 1995 and
1996 and the three months ended March 31, 1996 and 1997 (unaudited) . . . . . . . . . D-4
(5) Notes to Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-5
</TABLE>
(b) Pro Forma Financial Information.
Pro forma financial information for the Chancellor Viacom Acquisition,
as well as certain other transactions, has been previously filed with the
Commission on the Company's Current Report on Form 8-K dated June 18, 1997.
(c) Exhibits.
2.1 Stock Purchase Agreement, dated as of February 16, 1997, between
Viacom International, Inc. and Evergreen Media Corporation of
Los Angeles.+
2.2 Joint Purchase Agreement, dated as of February 19, 1997, among
Chancellor Broadcasting Company, Chancellor Radio Broadcasting Company,
Evergreen Media Corporation and Evergreen Media Corporation of
Los Angeles.+
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4.1 Indenture, dated as of June 24, 1997, among Chancellor Radio
Broadcasting Company, as issuer, Trefoil Communications, Inc.,
Shamrock Broadcasting, Inc., Shamrock Radio Licenses, Inc., Shamrock
Broadcasting of Texas, Inc. Shamrock Broadcasting Licenses of Denver,
Inc. and Chancellor Broadcasting Licensee Company, as guarantors, and
U.S. Trust Company of Texas, N.A., as trustee.*
10.1 Amended and Restated Credit Agreement, dated as of February 14, 1996
and amended and restated as of January 23, 1997 and further amended
and restated as of July 2, 1997, among Chancellor Broadcasting
Company, Chancellor Radio Broadcasting Company, Various Banks, Goldman
Sachs Credit Partners L.P., as documentation agent, NationsBank of
Texas, N.A., as syndication agent, Toronto Dominion (Texas), Inc., as
syndication agent and Bankers Trust Company, as managing agent and
arranger.*
10.2 Senior Credit Agreement, dated as of June 26, 1997, among Chancellor
Broadcasting Company, as borrower, the lenders named therein, and
Bankers Trust New York Corporation, as agent.*
_____________________
* Filed herewith.
+ Incorporated by reference to the Company's Current Report on Form 8-K
dated February 13, 1997 and filed with the Commission on March 11,
1997.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
CHANCELLOR BROADCASTING COMPANY
Date: July 17, 1997 By: /s/ ERIC W. NEUMANN
----------------------------------
Eric W. Neumann
Senior Vice President
CHANCELLOR RADIO BROADCASTING COMPANY
Date: July 17, 1997 By: /s/ ERIC W. NEUMANN
----------------------------------
Eric W. Neumann
Senior Vice President
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
2.1 Stock Purchase Agreement, dated as of February 16, 1997, between Viacom International, Inc. and
Evergreen Media Corporation of Los Angeles.+
2.2 Joint Purchase Agreement, dated as of February 19, 1997, among Chancellor Broadcasting Company,
Chancellor Radio Broadcasting Company, Evergreen Media Corporation and Evergreen Media Corporation of
Los Angeles.+
4.1 Indenture, dated as of June 24, 1997, among Chancellor Radio Broadcasting Company, as issuer, Trefoil
Communications, Inc., Shamrock Broadcasting, Inc., Shamrock Radio Licenses, Inc., Shamrock Broadcasting
of Texas, Inc. Shamrock Broadcasting Licenses of Denver, Inc. and Chancellor Broadcasting Licensee
Company, as guarantors, and U.S. Trust Company of Texas, N.A., as trustee.*
10.1 Amended and Restated Credit Agreement, dated as of February 14, 1996 and amended and restated as of
January 23, 1997 and further amended and restated as of July 2, 1997, among Chancellor Broadcasting
Company, Chancellor Radio Broadcasting Company, Various Banks, Goldman Sachs Credit Partners L.P., as
documentation agent, NationsBank of Texas, N.A., as syndication agent, Toronto Dominion (Texas), Inc.,
as syndication agent and Bankers Trust Company, as managing agent and arranger.*
10.2 Senior Credit Agreement, dated as of June 26, 1997, among Chancellor Broadcasting Company, as borrower,
the lenders named therein, and Bankers Trust New York Corporation, as agent.*
</TABLE>
_____________________
* Filed herewith.
+ Incorporated by reference to the Company's Current Report on Form 8-K
dated February 13, 1997 and filed with the Commission on March 11,
1997.
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EXHIBIT 4.1
INDENTURE
Dated as of June 24, 1997
Among
CHANCELLOR RADIO BROADCASTING COMPANY, as Issuer,
THE GUARANTORS named herein
and
U.S. TRUST COMPANY OF TEXAS, N.A., as Trustee
=====================
$200,000,000
8 3/4% Senior Subordinated Notes due 2007
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CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- ---------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10;
11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07; 4.09;
11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . .. 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
</TABLE>
- ----------------------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Incorporation by Reference of TIA . . . . . . . . . . . 23
Section 1.03 Rules of Construction . . . . . . . . . . . . . . . . . 23
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . 24
Section 2.02 Execution and Authentication . . . . . . . . . . . . . . 24
Section 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . 26
Section 2.04 Paying Agent To Hold Assets in Trust . . . . . . . . . . 27
Section 2.05 Securityholder Lists . . . . . . . . . . . . . . . . . . 27
Section 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . 27
Section 2.07 Replacement Securities . . . . . . . . . . . . . . . . . 28
Section 2.08 Outstanding Securities . . . . . . . . . . . . . . . . . 29
Section 2.09 Treasury Securities . . . . . . . . . . . . . . . . . . 29
Section 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . 29
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . 30
Section 2.13 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.14 Deposit of Moneys . . . . . . . . . . . . . . . . . . . 31
Section 2.15 Book-Entry Provisions for Global Securities . . . . . . 31
Section 2.16 Special Transfer Provisions . . . . . . . . . . . . . . 33
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . 35
Section 3.02 Selection of Securities To Be Redeemed . . . . . . . . . 35
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . 36
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . 37
Section 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . 37
Section 3.06 Securities Redeemed in Part . . . . . . . . . . . . . . 37
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities . . . . . . . . . . . . . . . . . 38
Section 4.02 Maintenance of Office or Agency . . . . . . . . . . . . 38
Section 4.03 Limitation on Restricted Payments . . . . . . . . . . . 38
</TABLE>
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<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Section 4.04 Corporate Existence . . . . . . . . . . . . . . . . . . 42
Section 4.05 Payment of Taxes and Other Claims . . . . . . . . . . . 42
Section 4.06 Maintenance of Properties and Insurance . . . . . . . . 43
Section 4.07 Compliance Certificate; Notice of Default . . . . . . . 43
Section 4.08 Compliance with Laws . . . . . . . . . . . . . . . . . . 44
Section 4.09 SEC Reports . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.10 Waiver of Stay, Extension or Usury Laws . . . . . . . . 45
Section 4.11 Limitation on Transactions with Affiliates . . . . . . . 45
Section 4.12 Limitation on Incurrence of Additional Indebtedness . . 46
Section 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries . . . . . . . . . . . . . . . . . 46
Section 4.14 Prohibition on Incurrence of Senior Subordinated
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.15 Change of Control . . . . . . . . . . . . . . . . . . . 48
Section 4.16 Limitation on Asset Sales . . . . . . . . . . . . . . . 50
Section 4.17 Limitation on Preferred Stock of Subsidiaries . . . . . 54
Section 4.18 Limitation on Liens . . . . . . . . . . . . . . . . . . 54
Section 4.19 Guarantees of Certain Indebtedness . . . . . . . . . . . 54
Section 4.20 Limitation on Sale and Leaseback Transactions . . . . . 55
Section 4.21 Limitation on Line of Business . . . . . . . . . . . . . 55
Section 4.22 Limitation on Asset Swaps . . . . . . . . . . . . . . . 55
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, Etc. . . . . . . . . . . . . . . 56
Section 5.02 Successor Corporation Substituted . . . . . . . . . . . 57
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default . . . . . . . . . . . . . . . . . . . 57
Section 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . 59
Section 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . 60
Section 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . 60
Section 6.05 Control by Majority . . . . . . . . . . . . . . . . . . 61
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . 61
Section 6.07 Rights of Holders To Receive Payment . . . . . . . . . 61
Section 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . 62
Section 6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . 62
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . 63
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . 64
Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . 65
</TABLE>
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<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Section 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . 67
Section 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . 67
Section 7.05 Notice of Default . . . . . . . . . . . . . . . . . . . 67
Section 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . 67
Section 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . 68
Section 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . 69
Section 7.09 Successor Trustee by Merger, Etc. . . . . . . . . . . . 70
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . 70
Section 7.11 Preferential Collection of Claims Against the Company . . 71
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Termination of the Company's Obligations . . . . . . . . 71
Section 8.02 Acknowledgment of Discharge by Trustee . . . . . . . . . 74
Section 8.03 Application of Trust Money . . . . . . . . . . . . . . . 74
Section 8.04 Repayment to the Company . . . . . . . . . . . . . . . . 74
Section 8.05 Reinstatement . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders . . . . . . . . . . . . . . . 75
Section 9.02 With Consent of Holders . . . . . . . . . . . . . . . . 75
Section 9.03 Compliance with TIA . . . . . . . . . . . . . . . . . . 77
Section 9.04 Revocation and Effect of Consents . . . . . . . . . . . 77
Section 9.05 Notation on or Exchange of Securities . . . . . . . . . 78
Section 9.06 Trustee To Sign Amendments, Etc. . . . . . . . . . . . . 78
ARTICLE TEN
SUBORDINATION OF SECURITIES
Section 10.01 Securities Subordinated to Senior Indebtedness . . . . . 78
Section 10.02 No Payment on Securities in Certain Circumstances . . . 79
Section 10.03 Payment Over of Proceeds upon Dissolution, Etc. . . . . . 81
Section 10.04 Payments May Be Paid Prior to Dissolution . . . . . . . 83
Section 10.05 Subrogation . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.06 Obligations of the Company Unconditional . . . . . . . . 84
Section 10.07 Notice to Trustee . . . . . . . . . . . . . . . . . . . 84
Section 10.08 Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . . 85
Section 10.09 Trustee's Relation to Senior Indebtedness . . . . . . . 85
Section 10.10 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness . . . . 85
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C>
Section 10.11 Securityholders Authorize Trustee To Effectuate
Subordination of Securities . . . . . . . . . . . . . . 87
Section 10.12 This Article Ten Not To Prevent Events of Default . . . 87
Section 10.13 Trustee's Compensation Not Prejudiced . . . . . . . . . 87
ARTICLE TEN A
GUARANTEES OF THE SECURITIES
Section 10A.01 Guarantees . . . . . . . . . . . . . . . . . . . . . . . 87
Section 10A.02 Execution and Delivery of the Guarantees . . . . . . . . 90
Section 10A.03 Additional Guarantors . . . . . . . . . . . . . . . . . 90
Section 10A.04 Limitation of Guarantors' Liability . . . . . . . . . . 90
Section 10A.05 Guarantors May Consolidate, etc., on Certain Terms . . . 91
Section 10A.06 Contribution . . . . . . . . . . . . . . . . . . . . . . 92
Section 10A.07 Waiver of Subrogation . . . . . . . . . . . . . . . . . 92
ARTICLE TEN B
SUBORDINATION OF GUARANTEES
Section 10B.01 Guarantee Obligations Subordinated to
Guarantor Senior Indebtedness . . . . . . . . . . . . . 93
Section 10B.02 No Payment on Guarantees in Certain Circumstances . . . 94
Section 10B.03 Payment Over of Proceeds upon Dissolution, Etc. . . . . . 96
Section 10B.04 Payments May Be Paid Prior to Dissolution . . . . . . . 98
Section 10B.05 Subrogation . . . . . . . . . . . . . . . . . . . . . . 99
Section 10B.06 Guarantee Provisions Solely To Define Relative Rights . . 99
Section 10B.07 Trustee To Effectuate Subordination of Obligations
Under the Guarantees . . . . . . . . . . . . . . . . . . 100
Section 10B.08 No Waiver of Guarantee Subordination Provisions . . . . . 100
Section 10B.09 Guarantors To Give Notice to Trustee . . . . . . . . . . 101
Section 10B.10 Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc., of Guarantors . . . . 102
Section 10B.11 Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights . . . . . 102
Section 10B.12 No Suspension of Remedies . . . . . . . . . . . . . . . 103
Section 10B.13 Trustee's Relation to Guarantor Senior Indebtedness . . 103
Section 10B.14 Subordination Rights Not Impaired by Acts or Omissions of
the Guarantors or Holders of Guarantors Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 104
</TABLE>
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<TABLE>
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<S> <C> <C>
Section 10B.15 This Article Ten B Not To Prevent Events of Default . . 104
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls . . . . . . . . . . . . . . . . . . . . . . 105
Section 11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 11.03 Communications by Holders with Other Holders . . . . . . 106
Section 11.04 Certificate and Opinion as to Conditions Precedent . . . 106
Section 11.05 Statements Required in Certificate or Opinion . . . . . . 106
Section 11.06 Rules by Trustee, Paying Agent, Registrar . . . . . . . 107
Section 11.07 Legal Holidays . . . . . . . . . . . . . . . . . . . . . 107
Section 11.08 Governing Law . . . . . . . . . . . . . . . . . . . . . 107
Section 11.09 No Adverse Interpretation of Other Agreements . . . . . . 107
Section 11.10 No Recourse Against Others . . . . . . . . . . . . . . . 108
Section 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . 108
Section 11.12 Duplicate Originals . . . . . . . . . . . . . . . . . . 108
Section 11.13 Severability . . . . . . . . . . . . . . . . . . . . . . 108
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
</TABLE>
Exhibit A-1 - Form of Series A Security
Exhibit A-2 - Form of Series B Security
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Transferee Certificate for Non-QIB Accredited Investors
Exhibit D - Transferee Certificate for Transfers Pursuant to Regulation S
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
7
<PAGE> 8
INDENTURE, dated as of June 24, 1996, among Chancellor Radio
Broadcasting Company, a Delaware corporation (the "Company"), Trefoil
Communications, Inc., Shamrock Broadcasting, Inc., Shamrock Radio Licenses,
Inc., Shamrock Broadcasting of Texas, Inc., Shamrock Broadcasting Licenses of
Denver, Inc. and Chancellor Broadcasting Licensee Company (collectively the
"Guarantors") and U.S. Trust Company of Texas, N.A., a national banking
association, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's 8
3/4% Senior Subordinated Notes due 2007 (the "Securities"):
I.
DEFINITIONS AND INCORPORATION BY REFERENCE
A. Definitions.
"Acceleration Notice" has the meaning provided in Section 6.02.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and not incurred by such Person in connection with, or in anticipation
or contemplation of, such Person becoming a Subsidiary of the Company or such
acquisition, merger or consolidation.
"Acquired Preferred Stock" means Preferred Stock of any Person at the
time such Person becomes a Subsidiary of the Company or at the time it merges
or consolidates with the Company or any of its Subsidiaries and not issued by
such Person in connection with, or in anticipation or contemplation of, such
acquisition, merger or consolidation.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser
of the amount by which (x) the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding
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<PAGE> 9
liabilities under the Guarantee of such Guarantor at such date, and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Subsidiary under the Guarantee), excluding debt in respect of the
Guarantee, as they become absolute and matured.
"Affiliate" means a Person who, directly or indirectly, through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Company. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or Co-Registrar.
"Agent Members" has the meaning provided in Section 2.15.
"Asset Acquisition" means (i) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be consolidated or merged
with the Company or any Subsidiary of the Company or (ii) the acquisition by
the Company or any Subsidiary of the Company of assets of any Person comprising
a division or line of business of such Person.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary
course of business), assignment or other transfer for value by the Company or
any of its Subsidiaries (excluding any Sale and Leaseback Transaction or any
pledge of assets or stock by the Company or any of its Subsidiaries) to any
Person other than the Company or a Wholly Owned Subsidiary of the Company of
(i) any Capital Stock of any Subsidiary of the Company or (ii) any other
property or assets of the Company or any Subsidiary of the Company other than
in the ordinary course of business; provided, however, that for purposes of
Section 4.16, Asset Sales shall not include (a) a transaction or series of
related transactions for which the Company or its Subsidiaries receive
aggregate consideration of less than $500,000, (b) transactions permitted under
Section 4.22 or (c) transactions permitted under Section 5.01.
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<PAGE> 10
"Asset Swap" means the execution of a definitive agreement, subject
only to approval of the Federal Communications Commission and other customary
closing conditions, that the Company in good faith believes will be satisfied,
for a substantially concurrent purchase and sale, or exchange, of Productive
Assets between the Company or any of its Subsidiaries and another Person or
group of affiliated Persons; provided that any amendment to or waiver of any
closing condition which individually or in the aggregate is material to the
Asset Swap shall be deemed to be a new Asset Swap.
"Attributable Value" in respect of a sale and leaseback arrangement of
any property means, as at the time of determination, the greater of (i) the
fair market value of the property subject to such arrangement (as determined in
good faith by the Board of Directors of the Company) or (ii) the present value
(discounted at the interest rate borne by the Securities, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such arrangement.
"Bankruptcy Law" means Title 11, United States Code or any similar
federal, state or foreign law for the relief of debtors.
"Blockage Period" shall have the meaning provided in Section 10.02.
"Board of Directors" means, with respect to any Person, the board of
directors (or any other equivalent governing body) of such Person or any
committee of the board of directors of such Person duly authorized, with
respect to any particular matter, to exercise the power of the board of
directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" means, as to any Person, the obligation
of such Person to pay rent or other amounts under a lease to which such Person
is a party that is required to be classified and accounted for as a capital
lease obligation under GAAP and, for purposes of this definition, the amount of
such obligation at any date shall be the capitalized amount of such obligation
at such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person
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<PAGE> 11
that is a corporation, any and all shares, interests, participations or other
equivalents (however designated) of capital stock, including each class of
common stock and Preferred Stock of such Person and (ii) with respect to any
Person that is not a corporation, any and all partnership or other equity
interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Moody's Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Corporation or at least P-1 from Moody's
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any U.S. branch of a foreign bank
having at the date of acquisition thereof combined capital and surplus of not
less than $200,000,000; (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iv)
above; and (vi) investments in money market funds which invest substantially
all their assets in securities of the types described in clauses (i) through
(v) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group") (whether or not
otherwise in compliance with the provisions of this Indenture), other than (x)
in the event the Evergreen Merger is not consummated, to Hicks Muse or any of
its Affiliates, officers and directors or to Steven Dinetz and (y) if the
Evergreen Merger is consummated, from and after the effective date thereof, to
Hicks Muse or any of its Affiliates, officers, and directors or to Steven
Dinetz or Scott K. Ginsburg (the "Permitted Holders"); or (ii) a majority of
the Board of Directors of Holdings or the Company shall consist of Persons who
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<PAGE> 12
are not Continuing Directors; or (iii) the acquisition by any Person or Group
(other than the Permitted Holders) of the power, directly or indirectly, to
vote or direct the voting of securities having more than 50% of the ordinary
voting power for the election of directors of Holdings or the Company.
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section
4.15.
"Commodity Agreement" means any commodity futures contract, commodity
option or other similar agreement or arrangement entered into by the Company or
any of its Subsidiaries designed to protect the Company or any of its
Subsidiaries against fluctuations in the price of commodities actually used in
the ordinary course of business of the Company and its Subsidiaries.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor and also includes for the purposes of any provision contained herein
and required by the TIA any other obligor on the Securities.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii)
to the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary or
non-recurring gains or losses), (B) Consolidated Interest Expense and (C)
Consolidated Non-Cash Charges, all as determined on a consolidated basis for
such Person and its Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, the sum of (i) the interest expense of such
Person and its Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP, including, without limitation, (a) any
amortization of debt discount, (b) the net cost under Interest Swap Obligations
(including any amortization of discounts), (c) the interest portion of any
deferred payment obligation, (d) all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers' acceptance financing
or similar facilities, and (e) all accrued interest and (ii) the interest
component of Capitalized Lease Obligations paid or
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<PAGE> 13
accrued by such Person and its Subsidiaries during such period as determined on
a consolidated basis in accordance with GAAP.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or loss) of such Person and its Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided
that there shall be excluded therefrom, without duplication, (a) gains and
losses from Asset Sales (without regard to the $500,000 limitation set forth in
the definition thereof) or abandonments or reserves relating thereto and the
related tax effects, (b) items classified as extraordinary or nonrecurring
gains and losses, and the related tax effects according to GAAP, (c) the net
income (or loss) of any Person acquired in a pooling of interests transaction
accrued prior to the date it becomes a Subsidiary of such first referred to
Person or is merged or consolidated with it or any of its Subsidiaries, (d) the
net income of any Subsidiary to the extent that the declaration of dividends or
similar distributions by that Subsidiary of that income is restricted by
contract, operation of law or otherwise and (e) the net income of any Person,
other than a Subsidiary, except to the extent of the lesser of (x) dividends or
distributions paid to such first referred to Person or its Subsidiary by such
Person and (y) the net income of such Person (but in no event less than zero),
and the net loss of such Person shall be included only to the extent of the
aggregate Investment of the first referred to Person or a consolidated
Subsidiary of such Person.
"Consolidated Non-Cash Charges" means, with respect to any Person for
any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Subsidiaries reducing Consolidated Net Income
of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary or nonrecurring item).
"Continuing Director" means, as of the date of determination, any
Person who (i) was a member of the Board of Directors of Holdings or the
Company on the date of this Indenture or becomes a director upon consummation
of the Evergreen Merger, (ii) was nominated for election or elected to the
Board of Directors of Holdings or the Company with the affirmative vote of a
majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election, or (iii) is a
representative of a Permitted Holder.
"Credit Agreement" means the Credit Agreement, dated on or about
February 14, 1996, as amended and restated as of January 23, 1997, among
Holdings, the Company, the lenders from time to time party thereto and Bankers
Trust Company as managing agent, together with the related documents thereto
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<PAGE> 14
(including, without limitation, any guarantee agreements and security
documents), in each case, as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including by way of adding Subsidiaries
of the Company as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
the Company or any of its Subsidiaries against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Default Notice" shall have the meaning provided in Section 10.02.
"Depository" means The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Guarantor Senior Indebtedness" means (i) Indebtedness
guaranteed by a Guarantor under or in respect of the Credit Agreement and (ii)
any other Indebtedness constituting Guarantor Senior Indebtedness which, at the
time of determination, has an aggregate principal amount of at least
$25,000,000 and is specifically designated in the instrument evidencing such
Guarantor Senior Indebtedness as "Designated Guarantor Senior Indebtedness" by
the Guarantor.
"Designated Senior Indebtedness" means (i) Indebtedness under or in
respect of the Credit Agreement and (ii) any other Indebtedness constituting
Senior Indebtedness which, at the time of determination, has an aggregate
principal amount of at least $25,000,000 and is specifically designated in the
instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness" by the Company.
"Discharged" has the meaning provided in Section 8.01.
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<PAGE> 15
"Disqualified Capital Stock" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof (except,
in each case, upon the occurrence of a Change of Control), in whole or in part,
on or prior to the final maturity date of the Securities.
"Event of Default" has the meaning provided in Section 6.01.
"Evergreen Merger" means the merger of the Company with and into
Evergreen Media Corporation and its subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Financial Monitoring and Oversight Agreements" means the Financial
Monitoring and Oversight Agreement among Hicks, Muse & Co. Partners, L.P., the
Company and Holdings as in effect on the 1996 Issue Date, and the Financial
Advisory Agreement among HM2/Management Partners, L.P., the Company and
Holdings, as in effect on the 1996 Notes Issue Date, or as amended in
connection with the Evergreen Merger as described under the captions "Certain
Transactions -- Final Monitoring and Oversight Agreement" and "--Financial
Advisory Agreement" in the Offering Circular.
"Funding Guarantor" has the meaning provided in Section 10A.06.
"Funds" has the meaning provided in Section 8.01.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America as of the Issue Date.
"Global Securities" has the meaning provided in Section 2.02.
"Guarantees" means the guarantees of the Securities on a senior
subordinated basis by the Guarantors pursuant to Article Ten A.
"Guarantor" means (i) initially Trefoil Communications, Inc., Shamrock
Broadcasting, Inc., Shamrock Radio Licenses, Inc., Shamrock Broadcasting of
Texas, Inc., Shamrock Broadcasting Licenses of Denver, Inc. and Chancellor
Broadcast-
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ing Licensee Company and (ii) each of the Company's Subsidiaries that in the
future executes a supplemental indenture in which such Subsidiary agrees to be
bound by the terms of this Indenture as a Guarantor; provided that any Person
constituting a Guarantor as described above shall cease to constitute a
Guarantor when its respective Guarantee is released in accordance with the
terms thereof.
"Guarantor Senior Indebtedness" means any Indebtedness of a Guarantor
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law),
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Guarantees. Without limiting the generality of the foregoing,
"Guarantor Senior Indebtedness" shall also include the principal of, premium,
if any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, and all monetary
obligations of every nature under, (x) the Credit Agreement, including, without
limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities, and (y)
all Interest Swap Obligations. Notwithstanding the foregoing, Guarantor Senior
Indebtedness shall not include any of the following amounts (whether or not
constituting Indebtedness as defined in this Indenture): (i) any Indebtedness
of a Guarantor to a Subsidiary of such Guarantor; (ii) Indebtedness and other
amounts owing to trade creditors incurred in connection with obtaining goods,
materials or services; (iii) Indebtedness represented by Disqualified Capital
Stock; (iv) any liability for federal, state, local or other taxes owed or
owing by a Guarantor; (v) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of such Guarantor;
and (vi) guarantees of the 1996 Notes.
"Hicks Muse" means Hicks, Muse, Tate & Furst Incorporated, a Delaware
corporation.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Holdings" means Chancellor Broadcasting Company, a Delaware
corporation, parent of the Company.
"Indebtedness" means with respect to any Person,
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without duplication, any liability of such Person (i) for borrowed money, (ii)
evidenced by bonds, debentures, notes or other similar instruments, (iii)
constituting Capitalized Lease Obligations, (iv) incurred or assumed as the
deferred purchase price of property, or pursuant to conditional sale
obligations and title retention agreements (but excluding trade accounts
payable arising in the ordinary course of business), (v) for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) for Indebtedness of others guaranteed by such Person, (vii)
for Interest Swap Obligations, Commodity Agreements and Currency Agreements and
(viii) for Indebtedness of any other Person of the type referred to in clauses
(i) through (vii) which are secured by any Lien on any property or asset of
such first referred to Person, the amount of such Indebtedness being deemed to
be the lesser of the value of such property or asset or the amount of the
Indebtedness so secured. The amount of Indebtedness of any Person at any date
shall be the outstanding principal amount of all unconditional obligations
described above, as such amount would be reflected on a balance sheet prepared
in accordance with GAAP, and the maximum liability at such date of such Person
for any contingent obligations described above.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Initial Purchasers" means Credit Suisse First Boston Corporation, BT
Securities Corporation and Morgan Stanley & Co. Incorporated, pursuant to the
Purchase Agreement.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person under
any interest rate protection agreement, interest rate future, interest rate
option, interest rate swap, interest rate cap or other interest rate hedge or
arrangement.
"Investment" means (i) any transfer or delivery of cash, stock or
other property of value in exchange for Indebtedness, stock or other security
or ownership interest in any Person by way of loan, advance, capital
contribution, guarantee or otherwise and (ii) an investment deemed to have been
made by the Company at the time any entity which was a Subsidiary of the
Company ceases to be such a Subsidiary in an amount equal to the value of the
loans and advances made, and any remaining ownership interest in, such entity
immediately following such
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entity ceasing to be a Subsidiary of the Company. The amount of any non-cash
Investment shall be the fair market value of such Investment, as determined
conclusively in good faith by management of the Company unless the fair market
value of such Investment exceeds $1,000,000, in which case the fair market
value shall be determined conclusively in good faith by the Board of Directors
of the Company at the time such Investment is made.
"Issue Date" means the date of original issuance of the Securities.
"Legal Holiday" has the meaning provided in Section 11.07.
"Leverage Ratio" shall mean, as to any Person, the ratio of (i) the
sum of the aggregate outstanding amount of Indebtedness of such Person and its
Subsidiaries as of the date of calculation on a consolidated basis in
accordance with GAAP to (ii) the Consolidated EBITDA of such Person for the
four full fiscal quarters (the "Four Quarter Period") ending on or prior to the
date of determination.
For purposes of this definition, the aggregate outstanding principal
amount of Indebtedness of the Person and its Subsidiaries for which such
calculation is made shall be determined on a pro forma basis as if the
Indebtedness giving rise to the need to perform such calculation had been
incurred and the proceeds therefrom had been applied, and all other
transactions in respect of which such Indebtedness is being incurred had
occurred, on the last day of the Four Quarter Period. In addition to the
foregoing, for purposes of this definition, "Consolidated EBITDA" shall be
calculated on a pro forma basis after giving effect to (i) the incurrence of
the Indebtedness of such Person and its Subsidiaries (and the application of
the proceeds therefrom) giving rise to the need to make such calculation and
any incurrence (and the application of the proceeds therefrom) or repayment of
other Indebtedness, other than the incurrence or repayment of Indebtedness
pursuant to working capital facilities, at any time subsequent to the beginning
of the Four Quarter Period and on or prior to the date of determination, as if
such incurrence (and the application of the proceeds thereof) or the repayment,
as the case may be, occurred on the first day of the Four Quarter Period and
(ii) any Asset Sales or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a result
of such Person or one of its Subsidiaries (including any Person who becomes a
Subsidiary as a result of such Asset Acquisition) incurring, assuming or
otherwise becoming liable for Indebtedness) at any time on or subsequent to
the first day of the Four Quarter Period and on or prior to the date of
determination, as if such Asset Sale or Asset
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Acquisition (including the incurrence, assumption or liability for any such
Indebtedness and also including any Consolidated EBITDA associated with such
Asset Acquisition) occurred on the first day of the Four Quarter Period.
Furthermore, in calculating "Consolidated Interest Expense" for purposes of the
calculation of "Consolidated EBITDA," (i) interest on Indebtedness determined
on a fluctuating basis as of the date of determination (including Indebtedness
actually incurred on the date of the transaction giving rise to the need to
calculate the Leverage Ratio) and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness as in effect on the date of
determination and (ii) notwithstanding (i) above, interest determined on a
fluctuating basis, to the extent such interest is covered by Interest Swap
Obligations, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Maturity Date" means June 15, 2007.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents) received by the Company or any of its Subsidiaries from such Asset
Sale net of (i) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions, recording fees, title insurance premiums,
appraisers fees and costs reasonably incurred in preparation of any asset or
property for sale), (ii) taxes paid or reasonably estimated to be payable
(calculated based on the combined state, federal and foreign statutory tax
rates applicable to the Company or the Subsidiary engaged in such Asset Sale)
and (iii) repayment of Indebtedness secured by assets subject to such Asset
Sale; provided that if the instrument or agreement governing such Asset Sale
requires the transferor to maintain a portion of the purchase price in escrow
(whether as a reserve for adjustment of the purchase price or otherwise) or to
indemnify the transferee for specified liabilities in a maximum specified
amount, the portion of the cash or Cash Equivalents that is actually placed in
escrow or segregated and set aside by the transferor for such indemnification
obligation shall not be deemed to be Net Cash Proceeds until the escrow
terminates or the transferor ceases to segregate and set aside such funds, in
whole or in part, and then only to the extent of the proceeds released from
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escrow to the transferor or that are no longer segregated and set aside by the
transferor.
"Net Proceeds Offer" has the meaning provided in Section 4.16.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"1996 Notes" means $200.0 million aggregate principal amount of 9 3/8%
Senior Subordinated Notes due 2004 of the Company, issued pursuant to an
indenture (the "1996 Note Indenture"), dated as of February 14, 1996, as the
same may be modified or amended from time to time and future refinancings
thereof.
"1996 Notes Issue Date" means February 14, 1996.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing, or otherwise relating
to, any Indebtedness.
"Offering Circular" means the Offering Circular dated June 18, 1997
pursuant to which $200.0 million aggregate principal amount of the Securities
were offered, and any supplement thereto.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Controller, or the Secretary of
such Person, or any other officer designated by the Board of Directors serving
in a similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying
with the requirements of Sections 11.04 and 11.05, as they relate to the making
of an Officers' Certificate.
"Offshore Physical Securities" has the meaning provided in Section
2.02.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of
Sections 11.04 and 11.05, as they relate to the giving of an Opinion of
Counsel.
"Paying Agent" has the meaning provided in
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Section 2.03, except that, during the continuance of a Default or Event of
Default and for the purposes of Articles Three and Eight and Sections 4.14 and
4.15, the Paying Agent shall not be the Company or any Affiliate of the
Company.
"Pending Transactions" has the meaning set forth under the caption
"Business -- Evergreen -- Evergreen Pending Transactions" in the Offering
Circular.
"Permitted Indebtedness" means, without duplication, (i) the
Securities; (ii) the Guarantee; (iii) Indebtedness of the Company incurred
pursuant to the Credit Agreement in an aggregate principal amount at any time
outstanding not to exceed the sum of the aggregate commitments pursuant to the
Credit Agreement as initially in effect on the 1996 Notes Issue Date reduced by
the aggregate principal amount permanently repaid with the proceeds of Asset
Sales; (iv) Indebtedness outstanding on the 1996 Notes Issue Date; (v) Interest
Swap Obligations; provided that such Interest Swap Obligations are entered into
to protect the Company from fluctuations in interest rates of its Indebtedness;
(vi) additional Indebtedness of the Company or any of its Subsidiaries not to
exceed $10,000,000 in principal amount outstanding at any time (which amount
may, but need not, be incurred under the Credit Agreement); (vii) Refinancing
Indebtedness; (viii) Indebtedness owed by the Company to any Wholly Owned
Subsidiary or by any Subsidiary to the Company or any Wholly Owned Subsidiary
of the Company; and (ix) guarantees by Subsidiaries of any Indebtedness
permitted to be incurred pursuant to this Indenture.
"Permitted Investments" means (i) Investments by the Company or any
Subsidiary to acquire the stock or assets of any Person (or Indebtedness of
such Person acquired in connection with a transaction in which such Person
becomes a Subsidiary of the Company) engaged in the broadcast business or
businesses reasonably related thereto; provided that if any such Investment or
series of related Investments involves an Investment by the Company in excess
of $5,000,000, the Company is able, at the time of such Investment and
immediately after giving effect thereto, to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section
4.12, (ii) Investments received by the Company or its Subsidiaries as
consideration for a sale of assets, including an Asset Sale effected in
compliance with Section 4.16, (iii) Investments by the Company or any Wholly
Owned Subsidiary of the Company in any Wholly Owned Subsidiary of the Company
(whether existing on the Issue Date or created thereafter) or any Person that
after such Investments, and as a result thereof, becomes a Wholly Owned
Subsidiary of the Company and Investments in the Company by any Wholly Owned
Subsidiary of the Company, (iv) cash and Cash Equivalents, (v) Investments in
securities of trade creditors, wholesalers or customers
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received pursuant to any plan of reorganization or similar arrangement and (vi)
additional Investments in an aggregate amount not to exceed $2,500,000 at any
time outstanding.
"Permitted Liens" means (i) Liens for taxes, assessments and
governmental charges to the extent not required to be paid under this
Indenture, (ii) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens to the extent
not required to be paid under this Indenture, (iii) pledges or deposits to
secure lease obligations or nondelinquent obligations under workers'
compensation, unemployment insurance or similar legislation, (iv) Liens to
secure the performance of public statutory obligations that are not delinquent,
performance bonds or other obligations of a like nature (other than for
borrowed money), in each case incurred in the ordinary course of business, (v)
easements, rights-of-way, restrictions, minor defects or irregularities in
title and other similar charges or encumbrances incurred in the ordinary course
of business not interfering in any material respect with the business of the
Company or its Subsidiaries, (vi) Liens upon specific items of inventory or
other goods and proceeds of any Person securing such Person's obligations in
respect of letters of credit or bankers' acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods in the ordinary course of business, (vii) judgment and
attachment Liens not giving rise to an Event of Default, (viii) leases or
subleases granted to others in the ordinary course of business consistent with
past practice not interfering in any material respect with the business of the
Company or its Subsidiaries, (ix) any interest or title of a lessor in the
property subject to any lease, whether characterized as capitalized or
operating other than any such interest or title resulting from or arising out
of a default by the Company or its Subsidiaries of its obligations under such
lease and (x) Liens arising from filing UCC financing statements for
precautionary purposes in connection with true leases of personal property that
are otherwise permitted under this Indenture and under which the Company or any
of its Subsidiaries is a lessee.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Securities" has the meaning provided in Section 2.02.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or
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redemptions or upon liquidation.
"principal" of any Indebtedness (including the Securities) means the
principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Proceeds Purchase Date" shall have the meaning provided in Section
4.16.
"Productive Assets" means assets of a kind used or usable by the
Company and its Subsidiaries in broadcast businesses or businesses reasonably
related thereto, and specifically includes assets acquired through Asset
Acquisitions.
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Disqualified Capital Stock) of the Company or
Holdings, pursuant to an effective registration statement filed with the
Commission in accordance with the Securities Act; provided, however, that, in
the case of a Public Equity Offering by Holdings, Holdings contributes to the
capital of the Company net cash proceeds in an amount at least sufficient to
redeem the Securities called for redemption in accordance with the terms
thereof.
"Purchase Agreement" means the Purchase Agreement dated as of June 18,
1997 by and among the Company, the Guarantors and the Initial Purchasers
relating to the purchase of $200.0 million aggregate principal amount of
Securities.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Redemption Date" means, with respect to any Securities, the Maturity
Date of such Security or the earlier date on which such Security is to be
redeemed by the Company pursuant to the terms of the Securities.
"Redemption Price" shall have the meaning provided in Section 3.03.
"Refinancing Indebtedness" means any refinancing by the Company of
Indebtedness of the Company or any of its Subsidiaries incurred in accordance
with Section 4.12 (other than pursuant to clause (iii) or (iv) of the
definition of Permitted Indebtedness) that does not (i) result in an increase
in the aggregate principal amount of Indebtedness (such principal amount to
include, for purposes of this definition, any premiums, penalties or accrued
interest paid with the proceeds of
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the Refinancing Indebtedness) of such Person or (ii) create Indebtedness with
(A) a Weighted Average Life to Maturity that is less than the Weighted Average
Life to Maturity of the Indebtedness being refinanced or (B) a final maturity
earlier than the final maturity of the Indebtedness being refinanced.
"Registered Exchange Offer" means the consummation of the offer to
exchange the Series B Securities for all of the outstanding Series A Securities
in accordance with the Registration Rights Agreement.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement by and among the Company, the Guarantors and the Initial Purchasers,
relating to $200.0 million aggregate principal amount of Securities and dated
the Issue Date, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Indebtedness; provided
that if, and for so long as, any Designated Senior Indebtedness lacks such a
representative, then the Representative for such Designated Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding
principal amount of such Designated Senior Indebtedness.
"Restricted Payment" has the meaning provided in Section 4.03.
"Restricted Security" means a Security that is a "Restricted Security"
as defined in Rule 144A(a)(3) under the Securities Act; provided, however, that
the Trustee shall be entitled to request and conclusively rely on an Opinion of
Counsel with respect to whether any Security constitutes a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned
by the Company or any Subsidiary at the Issue Date or later acquired, which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or to any other Person from whom funds have been or are to be advanced
by such Person on the security of
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such property.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and Series B Securities, as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Indebtedness" means any Indebtedness of the Company (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law), whether outstanding on
the Issue Date or thereafter created, incurred or assumed, unless, in the case
of any particular Indebtedness, the instrument creating or evidencing the same
or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities.
Without limiting the generality of the foregoing, "Senior Indebtedness" shall
also include the principal of, premium, if any, interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on, and all other
amounts owing in respect of, and all monetary obligations of every nature
under, (x) the Credit Agreement, including, without limitation, obligations to
pay principal and interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities and (y) all Interest Swap Obligations.
Notwithstanding the foregoing, Senior Indebtedness shall not include any of the
following amounts (whether or not constituting Indebtedness as defined in this
Indenture): (i) any Indebtedness of the Company to a Subsidiary of the Company;
(ii) Indebtedness and other amounts owing to trade creditors incurred in
connection with obtaining goods, materials or services; (iii) Indebtedness
represented by Disqualified Capital Stock; (iv) any liability for federal,
state, local or other taxes owed or owing by the Company; and (v) any
Indebtedness which is, by its express terms, subordinated in right of payment
to any other Indebtedness of the Company, including the 1996 Notes, the 12 1/4%
Subordinated Exchange Debentures due 2008 of the Company and the 12%
Subordinated Exchange Debentures due 2009 of the Company.
"Series A Securities" means the 8 3/4% Senior Subordinated Notes due
2007, Series A, issued, authenticated and delivered under this Indenture, as
amended or supplemented from
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time to time pursuant to the terms of this Indenture.
"Series B Securities" means the 8 3/4% Senior Subordinated Notes due
2007, Series B (the terms of which are identical to the Series A Securities
except that, unless any Series B Securities shall be issued as Private Exchange
Securities (as defined in the Registration Rights Agreement), the Series B
Securities shall be registered under the Securities Act, and shall not contain
the respective legend on the face of the from of the Series A Securities), to
be issued in exchange for the Series A Securities pursuant to the Registered
Exchange Offer and this Indenture or the Private Exchange (as defined in the
Registration Rights Agreement).
"Significant Subsidiary" means for any Person each Subsidiary of such
Person which (i) for the most recent fiscal year of such Person accounted for
more than 5% of the consolidated net income of such Person or (ii) as at the
end of such fiscal year, was the owner of more than 5% of the consolidated
assets of such Person.
"Subsidiary," with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
Notwithstanding anything in this Indenture to the contrary, all references to
the Company and its consolidated Subsidiaries or to financial information
prepared on a consolidated basis in accordance with GAAP shall be deemed to
include the Company and its Subsidiaries as to which financial statements are
prepared on a combined basis in accordance with GAAP and to financial
information prepared on such a combined basis. Notwithstanding anything in
this Indenture to the contrary, an Unrestricted Subsidiary shall not be deemed
to be a Subsidiary for purposes of this Indenture.
"Tax Sharing Agreement" means the Tax Sharing Agreement between the
Company and Holdings as in effect on the 1996 Notes Issue Date.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such
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successor.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters or, in the
case of a successor trustee, an officer assigned to the department, division
or group performing the corporate trust work of such successor.
"Unrestricted Subsidiary" means a Subsidiary of the Company created
after the 1996 Notes Issue Date and so designated by a resolution adopted by
the Board of Directors of the Company, provided that (a) neither the Company
nor any of its other Subsidiaries (other than Unrestricted Subsidiaries) (1)
provides any credit support for any Indebtedness of such Subsidiary (including
any undertaking, agreement or instrument evidencing such Indebtedness) or (2)
is directly or indirectly liable for any Indebtedness of such Subsidiary, (b)
the creditors with respect to Indebtedness for borrowed money of such
Subsidiary, having a principal amount in excess of $5,000,000, have agreed in
writing that they have no recourse, direct or indirect, to the Company or any
other Subsidiary of the Company (other than Unrestricted Subsidiaries),
including, without limitation, recourse with respect to the payment of
principal of or interest on any Indebtedness of such Subsidiary and (c) at the
time of designation of such Subsidiary such Subsidiary has no property or
assets (other than de minimis assets resulting from the initial capitalization
of such Subsidiary). Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by the filing with the Trustee of a
certified copy of the resolution of the Company's Board of Directors giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions.
"U.S. Government Obligations" has the meaning provided in Section
8.01.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. Physical Securities" has the meaning provided in Section 2.02.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years
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(calculated to the nearest one-twelfth) which will elapse between such date and
the making of such payment.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than directors'
qualifying shares) which normally have the right to vote in the election of
directors are owned by such Person or any Wholly Owned Subsidiary of such
Person.
B. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
C. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the 1996 Notes
Issue Date;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular; and
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(5) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
II.
THE SECURITIES
A. Form and Dating.
The Series A Securities and the Series B Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A-
1 and A-2 annexed hereto, as applicable. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage (and, in
the case of Series B Securities that are Private Exchange Notes, legends
restricting the transfer thereof similar to the legend on the Series A
Securities). The Company shall approve the form of the Securities and any
notation, legend or endorsement thereon. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
B. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature. Each Guarantor shall execute a Guarantee in the manner set forth in
Section 10A.02.
If an Officer, Secretary or Assistant Secretary whose signature is on
a Security was an Officer or Assistant Secretary at the time of such execution
but no longer holds that office or position at the time the Trustee
authenticates the Security, the Security shall nevertheless be valid.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
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The Trustee shall authenticate Series A Securities for original issue
in the aggregate principal amount of up to $200,000,000 upon receipt of a
written order of the Company in the form of an Officers' Certificate. In
addition, on or prior to the date of the Registered Exchange Offer, the Trustee
or an authenticating agent shall authenticate Series B Securities to be issued
at the time of the Registered Exchange Offer in the aggregate principal amount
of up to $200,000,000 upon receipt of an Officers Certificate of the Company.
In each case, such Officers' Certificate shall specify the amount of Securities
to be authenticated and the date on which the Securities are to be
authenticated. The aggregate principal amount of Securities outstanding at any
time may not exceed $200,000,000 except as provided in Section 2.07. Upon the
written order of the Company in the form of an Officers' Certificate, the
Trustee shall authenticate Securities in substitution of Securities originally
issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Securities shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent Global Securities in registered
form, substantially in the form set forth in Exhibit A-1 ("Global Securities"),
deposited with the Trustee, as custodian for the Depository, and shall bear
the legend set forth on Exhibit B. The aggregate principal amount of any
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of certificated Securities in
registered form, substantially in the form set forth in Exhibit A-1 (the
"Offshore Physical Securities"). Securities offered and sold in reliance on
any other exemption from registration under the Securities Act other than as
described in the preceding paragraph shall be issued in the form of
certificated Securities in registered form in substantially the form set forth
in Exhibit A-1 (the "U.S. Physical Securities"). The Offshore Physical
Securities and the U.S.
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Physical Securities are sometimes collectively herein referred to as the
"Physical Securities." Physical Securities shall initially be registered in
the name of the Depository or the nominee of such Depository and be delivered
to the Trustee as custodian for such Depository. Beneficial owners of Physical
Securities, however, may request registration of such Physical Securities in
their names or the names of their nominees.
Series B Securities may also be issued in the form of Global
Securities, and if so issued, will be treated as Global Securities under this
Indenture.
C. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be located
in the Borough of Manhattan in the City of New York, State of New York), where
(a) Securities may be presented or surrendered for registration of transfer or
for exchange ("Registrar"), (b) Securities may be presented or surrendered for
payment ("Paying Agent") and (c) notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Registrar
shall keep a register of the Securities and of their transfer and exchange.
The Company, upon notice to the Trustee, may have one or more co-Registrars and
one or more additional paying agents reasonably acceptable to the Trustee. The
term "Paying Agent" includes any additional paying agent. Neither the Company
nor any Affiliate of the Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent until such time as the Trustee has resigned or a successor has been
appointed.
D. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, or interest on, the Securities (whether such assets have been
distributed to it by the Company or any other obligor on the Securities), and
shall notify the Trustee of any default by the Company (or any other obligor on
the Securities) in making any such payment. The Company at any time may
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require a Paying Agent to distribute all assets held by it to the Trustee and
account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee
and to account for any assets distributed. Upon distribution to the Trustee of
all assets that shall have been delivered by the Company to the Paying Agent
and the completion of any accounting required to be made hereunder, the Paying
Agent shall have no further liability for such assets.
E. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee five (5) Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing a list as of the
applicable Record Date and in such form as the Trustee may reasonably require
of the names and addresses of the Holders, which list may be conclusively
relied upon by the Trustee.
F. Transfer and Exchange.
Subject to the provisions of Section 2.15 and Section 2.16, when
Securities are presented to the Registrar or a co-Registrar with a request to
register the transfer of such Securities or to exchange such Securities for an
equal principal amount of Securities of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; provided, however,
that the Securities surrendered for transfer or exchange shall be duly endorsed
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-Registrar's request. No
service charge shall be made for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith. The Registrar
or co-Registrar shall not be required to register the transfer of or exchange
of any Security (i) during a period beginning at the opening of business 15
days before the mailing of a notice of redemption of Securities and ending at
the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Security being redeemed in part.
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Any Holder of the Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Holder of
such Global Security (or its agent), and that ownership of a beneficial
interest in the Security shall be required to be reflected in a book entry.
G. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of the Company and the Trustee, to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer
if a Security is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Security, including
reasonable fees and expenses of counsel. Every replacement Security shall
constitute an additional obligation of the Company.
H. Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company or any of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant to
Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Securities payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
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I. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver, consent or notice,
Securities owned by the Company or an Affiliate shall be considered as though
they are not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Securities, of the
aggregate principal amount of such Securities so repurchased or otherwise
acquired.
J. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and execute, and the Trustee shall authenticate upon receipt of a
written order of the Company pursuant to Section 2.02, definitive Securities in
exchange for temporary Securities.
K. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of the Company,
shall dispose of all Securities surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new
Securities to replace Securities that the Company has paid or delivered to the
Trustee for cancellation. If the Company shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
L. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus (to
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the extent lawful) any interest payable on the defaulted interest to the
Persons who are Holders on a subsequent special record date, which date shall
be the fifteenth day next preceding the date fixed by the Company for the
payment of defaulted interest or the next succeeding Business Day if such date
is not a Business Day. At least 15 days before the subsequent special record
date, the Company shall mail to each Holder, with a copy to the Trustee, a
notice that states the subsequent special record date, the payment date and
the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid.
M. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that no representation is hereby deemed
to be made by the Trustee as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed
only on the other identification numbers printed on the Securities.
N. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest Payment Date
and Maturity Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Paying Agent to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be.
O. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit B.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
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the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Securities
may be transferred or exchanged for Physical Securities in accordance with the
rules and procedures of the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor depository is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depository to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to
be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global Securities
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount of
Physical Securities of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) or (c) shall, except as otherwise provided by paragraphs
(a)(i)(x) and (c) of Section 2.16, bear the legend regarding transfer
restrictions applicable to the Physical Securities set forth in Exhibit A-1.
(f) The Holder of any Global Security may grant proxies and
otherwise authorize any person, including Agent
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Members and persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the
Securities.
P. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(a) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after June 24,
1999, provided, however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Security, or portion
thereof, at any time on or prior to June 24, 1999, or (y) (1) in the case
of a transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to the
Registrar a certificate substantially in the form of Exhibit C hereto or
(2) in the case of a transfer to a Non-U.S. Person, the proposed transferee
has delivered to the Registrar a certificate substantially in the form of
Exhibit D hereto; and
(b) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Security, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
written instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical
Securities) a decrease in the principal amount of a Global Security in an
amount equal to the principal amount of the beneficial interest in a Global
Security to be transferred, and (b) the Company shall execute and the Trustee
shall authenticate and deliver one or more Physical Securities of like tenor
and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(a) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who
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has checked the box provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Security stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB within the meaning of Rule 144A, and
is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(b) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Global Security, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall reflect on
its books and records the date and an increase in the principal amount of
the Global Security in an amount equal to the principal amount of the
Physical Securities to be transferred, and the Trustee shall cancel the
Physical Securities so transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the circumstances contemplated by
paragraph (a)(i)(x) of this Section 2.16 exist, (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of
the Securities Act or (iii) such Security has been sold pursuant to an
effective registration statement under the Securities Act.
(d) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only
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as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
III.
REDEMPTION
A. Notices to Trustee.
If the Company elects to redeem Securities pursuant to paragraph 6 of
the Securities, it shall notify the Trustee and the Paying Agent in writing of
the Redemption Date and the principal amount of the Securities to be redeemed
and whether it wants the Trustee to give notice of redemption to the Holders
(at the Company's expense) at least 60 days (unless a shorter notice shall be
satisfactory to the Trustee) but not more than 90 days before the Redemption
Date. Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
B. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed in compliance with the requirements
of the principal national securities exchange, if any, on which the Securities
being redeemed are listed, or, if the Securities are not listed on a national
securities exchange, on a pro rata basis, by lot or in such other fair and
reasonable manner chosen at the discretion of the Trustee; provided, however,
that a redemption pursuant to the provisions of paragraph 6(b) of the
Securities shall be made on a pro rata basis.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 or less may be redeemed only
in whole. The Trustee may select for redemption portions (equal to $1,000 or
any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
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Securities called for redemption also apply to portions of Securities called
for redemption.
C. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption by first-class
mail to each Holder whose Securities are to be redeemed, with a copy to the
Trustee. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice for
redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest, if
any, to be paid (the "Redemption Price");
(3) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(6) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in the aggregate principal amount equal to the unredeemed
portion thereof will be issued; and
(8) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption.
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D. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Trustee or Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price.
E. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price of all
Securities to be redeemed on that date. The Paying Agent shall promptly return
to the Company any U.S. Legal Tender so deposited which is not required for
that purpose, except with respect to monies owed as obligations to the Trustee
pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
F. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Security or Securities equal in
principal amount to the unredeemed portion of the Security surrendered.
IV.
COVENANTS
A. Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or Paying Agent holds on that date U.S. Legal Tender
designated for and sufficient to pay the installment. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this Indenture,
the Company may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from principal or interest payments hereunder.
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B. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
C. Limitation on Restricted Payments.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, (a) declare or pay any dividend or make any distribution (other
than dividends or distributions payable in Qualified Capital Stock of the
Company) on shares of the Company's Capital Stock, (b) purchase, redeem or
otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to acquire shares of any class of such Capital
Stock, other than the exchange of such Capital Stock or any warrants, rights or
options to acquire shares of any class of such Capital Stock for Qualified
Capital Stock or warrants, rights or options to acquire Qualified Capital
Stock, (c) make any principal payment on, purchase, defease, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness of the Company or its Subsidiaries that is subordinate or junior
in right of payment to the Securities or (d) make any Investment (other than
Permitted Investments) (each of the foregoing prohibited actions set forth in
clauses (a), (b), (c) and (d) being referred to as a "Restricted Payment"), if
at the time of such Restricted Payment or immediately after giving effect
thereto, (i) a Default or an Event of Default has occurred and is continuing,
(ii) the Company is not able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12, or (iii)
the aggregate amount of Restricted Payments made subsequent to the 1996 Notes
Issue Date (the amount expended for such purposes, if other than in cash, being
the fair market value of such property as determined by the Board of Directors
of the Company in good faith) exceeds the sum of:
a) (A)(x) 100% of the aggregate Consolidated EBITDA of the
Company (or, in the event such Consolidated EBITDA shall be a deficit,
minus 100% of such deficit) accrued subsequent to the 1996 Notes Issue Date
to the most recent date for which financial information is available to the
Company, taken as one accounting period; less
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(y) 1.4 times Consolidated Interest Expense for the same period;
plus
(B) 100% of the aggregate net proceeds, including the fair market
value of property other than cash as determined by the Board of Directors
of the Company in good faith, received by the Company from any Person
(other than a Subsidiary of the Company) from the issuance and sale on or
after the 1996 Notes Issue Date of Qualified Capital Stock of the Company
(excluding any net proceeds from issuances and sales financed directly or
indirectly using funds borrowed from the Company or any Subsidiary of the
Company, until and to the extent such borrowing is repaid, but including
the proceeds from the issuance and sale of any securities convertible into
or exchangeable for Qualified Capital Stock to the extent such securities
are so converted or exchanged and including any additional proceeds
received by the Company upon such conversion or exchange) plus
(C) without duplication of any amounts included in clause (iii)(B)
above, 100% of the aggregate net proceeds, including the fair market value
of property other than cash (valued as provided in clause (iii)(B) above),
received by the Company as a capital contribution (excluding any net
proceeds from a Public Equity Offering by Holdings to the extent used to
redeem the Securities) on or after to the 1996 Notes Issue Date.
Notwithstanding the foregoing, the provisions of this Section 4.03
shall not prohibit:
(1) the payment of any dividend or the making of any distribution
within 60 days after the date of its declaration if the dividend or
distribution would have been permitted on the date of declaration;
(2) the acquisition of Capital Stock or warrants, options or other
rights to acquire Capital Stock either (i) solely in exchange for shares of
Qualified Capital Stock or warrants, options or other rights to acquire
Qualified Capital Stock, or (ii) through the application of the net
proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock or
warrants, options or other rights to acquire Qualified Capital Stock;
(3) the acquisition of Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities, either (i)
solely in exchange for shares of Qualified Capital Stock (or warrants,
options or other rights to acquire Qualified Capital Stock) or for
Indebt-
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edness of the Company which is subordinate or junior in right of payment to
the Securities, at least to the extent that the Indebtedness being acquired
is subordinated to the Securities and has a Weighted Average Life to
Maturity no less than that of the Indebtedness being acquired or (ii)
through the application of the net proceeds of a substantially concurrent
sale for cash (other than to a Subsidiary of the Company) of shares of
Qualified Capital Stock (or warrants, options or other rights to acquire
Qualified Capital Stock) or Indebtedness of the Company which is subordinate
or junior in right of payment to the Securities, at least to the extent that
the Indebtedness being acquired is subordinated to the Securities and has a
Weighted Average Life to Maturity no less than that of the Indebtedness
being refinanced;
(4) payments by the Company to fund the operating expenses of
Holdings in an amount not to exceed $500,000 per annum;
(5) payments by the Company to Holdings to enable Holdings to make
payments pursuant to (a) the Financial Monitoring and Oversight Agreements
or (b) the Tax Sharing Agreement;
(6) payments by the Company to repurchase, or to enable Holdings
to repurchase, Capital Stock or other securities of Holdings from employees
of Holdings or the Company in an aggregate amount not to exceed $5,000,000
subsequent to the 1996 Notes Issue Date;
(7) payments to enable Holdings to redeem or repurchase stock
purchase or similar rights in an aggregate amount not to exceed $500,000
subsequent to the 1996 Notes Issue Date;
(8) payments, not to exceed $100,000 in the aggregate subsequent
to the 1996 Notes Issue Date, to enable Holdings to make cash payments to
holders of its Capital Stock in lieu of the issuance of fractional shares
of its Capital Stock; and
(9) payments made pursuant to any merger, consolidation or sale of
assets effected in accordance with Section 5.01; provided, however, that no
such payment may be made pursuant to this clause (9) unless, after giving
effect to such transaction (and the incurrence of any Indebtedness in
connection therewith and the use of the proceeds thereof), the Company
would be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.12 such that after incurring
that $1.00 of additional Indebtedness, the
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Leverage Ratio would be less than 5.5 to 1;
provided, however, that in the case of clauses 5(a), (6), (7), (8) and (9), no
Default or Event of Default shall have occurred or be continuing at the time of
such payment or as a result thereof.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date, amounts expended pursuant to clauses (1), (2),
(3) (but only to the extent that Indebtedness is acquired in exchange for, or
with the net proceeds from, the issuance of Qualified Capital Stock or
warrants, options or other rights to acquire Qualified Capital Stock), 5(a),
(6), (7), (8) and (9) shall be included in such calculation.
Prior to any Restricted Payment under the first paragraph of this
Section 4.03, the Company shall deliver to the Trustee an Officers' Certificate
setting forth the computation by which the amount available for Restricted
Payments pursuant to such paragraph was determined. The Trustee shall have no
duty or responsibility to determine the accuracy or correctness of this
computation and shall be fully protected in relying on such Officers'
Certificate.
D. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do or
cause to be done all things reasonably necessary to preserve and keep in full
force and effect its corporate or other existence and the corporate or other
existence of each of its Significant Subsidiaries in accordance with the
respective organizational documents of each such Significant Subsidiary and the
material rights (charter and statutory) and franchises of the Company and each
such Significant Subsidiary; provided, however, that the Company shall not be
required to preserve, with respect to itself, any material right or franchise
and, with respect to any of its Significant Subsidiaries, any such existence,
material right or franchise, if the Board of Directors of the Company or such
Significant Subsidiary, as the case may be, shall determine that the
preservation thereof is no longer reasonably necessary or desirable in the
conduct of the business of the Company or any such Significant Subsidiary.
E. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and
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additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all material lawful claims
for labor, materials, supplies and services that, if unpaid, might by law
become a Lien upon the property of it or any of its Subsidiaries; provided,
however, that there shall not be required to be paid or discharged any such
tax, assessment or charge, the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
provision has been made or where the failure to effect such payment or
discharge is not adverse in any material respect to the Holders.
F. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Subsidiaries
to, maintain its material properties in normal condition (subject to ordinary
wear and tear) and make all reasonably necessary repairs, renewals or
replacements thereto as in the judgment of the Company may be reasonably
necessary to the conduct of the business of the Company and its Subsidiaries;
provided, however, that nothing in this Section 4.06 shall prevent the Company
or any of its Subsidiaries from discontinuing the operation and maintenance of
any of its properties, if such properties are, in the reasonable and good faith
judgment of the Board of Directors of the Company or the Subsidiary, as the
case may be, no longer reasonably necessary in the conduct of their respective
businesses.
(b) The Company shall provide or cause to be provided, for itself
and each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company, are reasonably adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries.
G. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of the Company's fiscal year, an Officers' Certificate (signed by
the principal executive officer, principal financial officer or principal
accounting officer) stating that a review of its activities and the activities
of its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether it has
kept, observed, performed and fulfilled its obligations under this Indenture
and further stating, as to each such Officer signing such certificate, that to
the best of his knowledge the Company during such preceding fiscal year has
kept, observed, performed and fulfilled each and every such obligation and no
Default or Event of Default occurred during such year and at the date of such
certificate there is no Default or Event of Default that has occurred and
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is continuing or, if such signers do know of such Default or Event of Default,
the certificate shall describe the Default or Event of Default and its status
with particularity. The Officers' Certificate shall also notify the Trustee
should the Company elect to change the manner in which it fixes its fiscal year
end.
(b) The copy of the annual report on Form 10-K of the Company as
filed with the SEC or the annual financial statements delivered to the Trustee
pursuant to Section 4.09 shall be accompanied by a written report of the
Company's independent accountants that in conducting their audit of the
financial statements which are a part of such annual report or such annual
financial statements nothing has come to their attention that would lead them
to believe that the Company has violated any provisions of Article Four, Five
or Six insofar as they relate to accounting matters or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Securities, the
Company shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy by registered
or certified mail an Officers' Certificate specifying such event, notice or
other action within five Business Days of its becoming aware of such
occurrence.
H. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their
respective properties, except for such noncompliances as are not in the
aggregate reasonably likely to have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
I. SEC Reports.
The Company shall file with the Trustee and provide to the
Securityholders, within 15 days after it files them with the SEC, copies of the
annual reports and of the information,
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documents, and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which the Company
files with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. In the
event that the Company is no longer required to furnish such reports to its
securityholders pursuant to the Exchange Act, the Company will cause its
consolidated financial statements, comparable to those which would have been
required to appear in annual or quarterly reports, to be delivered to the
Holders of the Securities. The Company shall also comply with the other
provisions of TIA Section 314(a).
J. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the obligations or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
K. Limitation on Transactions with Affiliates.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with or for the benefit of any of its Affiliates
(other than transactions between the Company and a Wholly Owned Subsidiary of
the Company or among Wholly Owned Subsidiaries of the Company) (an "Affiliate
Transaction"), other than Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction on an arm's-length basis from a Person that is not an Affiliate;
provided, however, that for a transaction or series of related transactions
involving value of $1,000,000 or more, such determination shall be made in good
faith by a majority of the members of the Board of Directors of the Company and
by a majority of the disinterested members of the Board of Directors of the
Company, if any; provided, further, that for a transaction or series of related
transactions involving value of $5,000,000 or more, the Board of Directors of
the Company has received an opinion from a nationally recognized investment
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banking firm that such Affiliate Transaction is fair, from a financial point of
view, to the Company or such Subsidiary. The foregoing restrictions will not
apply to reasonable and customary directors' fees, indemnification and similar
arrangements and payments thereunder, or to any obligations of the Company
under the Financial Monitoring and Oversight Agreements, the Tax Sharing
Agreement or any employment agreement with any officer of the Company (provided
that each amendment of any of the foregoing agreements shall be subject to the
limitations of this Section 4.11), as well as reasonable and customary
investment banking, financial advisory, commercial banking and similar fees and
expenses paid to BT Securities Corporation and its Affiliates.
L. Limitation on Incurrence of Additional Indebtedness.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, create, incur, assume, guarantee, acquire or become liable for,
contingently or otherwise, (collectively "incur") any Indebtedness other than
Permitted Indebtedness. Notwithstanding the foregoing limitations, the Company
or any Subsidiary may incur Indebtedness if on the date of the incurrence of
such Indebtedness, after giving effect to the incurrence of such Indebtedness
and the receipt and application of the proceeds thereof, the Company's Leverage
Ratio is less than 7.0 to 1.
M. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, create or otherwise cause or permit to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its Capital Stock; (b) make loans
or advances or pay any Indebtedness or other obligation owed to the Company or
any of its Subsidiaries; or (c) transfer any of its property or assets to the
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law, (2) this Indenture, (3) customary
non-assignment provisions of any lease governing a leasehold interest of the
Company or any Subsidiary, (4) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property or
assets of the Person, so acquired, (5) agreements permitted under the 1996
Notes Indenture existing on the Issue Date (including the Credit Agreement) as
such agreements are from time to time in effect; provided, however, that any
amendments or modifications of such agreements which affect the encumbrances or
restrictions of the types subject to this
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Section 4.13 shall not result in such encumbrances or restrictions being less
favorable to the Company in any material respect, as determined in good faith
by the Board of Directors of the Company, than the provisions as in effect
before giving effect to the respective amendment or modification, (6) an
agreement effecting a refinancing, replacement or substitution of Indebtedness
issued, assumed or incurred pursuant to an agreement referred to in clause (2),
(4) or (5) above or any other agreement evidencing Indebtedness permitted under
this Indenture; provided, however, that the provisions relating to such
encumbrance or restriction contained in any such refinancing, replacement or
substitution agreement or any such other agreement are not less favorable to
the Company in all material respects as determined in good faith by the Board
of Directors of the Company than the provisions relating to such encumbrance or
restriction contained in agreements referred to in such clause (2), (4) or (5),
or (7) restrictions on the transfer of assets subject to any Lien permitted
under this Indenture imposed by the holder of such Lien.
N. Prohibition on Incurrence of Senior Subordinated Indebtedness.
The Company shall not incur or suffer to exist any Indebtedness that
is senior in right of payment to the Securities and is expressly subordinate in
right of payment to any other Indebtedness of the Company.
O. Change of Control.
(a) In the event of a Change of Control, the Company shall be
obligated to make an offer to repurchase all outstanding Securities pursuant to
the offer described in paragraph (b) below (the "Change of Control Offer"), at
a purchase price equal to 101% of the principal amount thereof plus accrued
interest, if any, to the date of repurchase. Prior to the mailing of the
notice referred to below, but in any event within 30 days following the date on
which a Change of Control occurs, the Company covenants to (i) repay in full
all Indebtedness under the Credit Agreement (and terminate all commitments
thereunder) or offer to repay in full all such Indebtedness (and terminate all
such commitments) and to repay the Indebtedness owed to (and terminate the
commitments of) each lender which has accepted such offer or (ii) obtain the
requisite consents under the Credit Agreement to permit the repurchase of the
Securities as provided below. The Company shall first comply with the covenant
in the preceding sentence before it shall be required to repurchase Securities
pursuant to the provisions described in this Section 4.15; provided that the
Company's failure to comply with such covenant shall constitute an Event of
Default under Section 6.01(3).
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(b) Within 30 days following the date upon which a Change of
Control occurs (the "Change of Control Date"), the Company shall send, by first
class mail, a notice to each Holder of Securities, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer. The notice
to the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Securities pursuant to the Change of Control Offer.
Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Securities validly tendered and not
withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued interest,
if any) and the purchase date (which shall be no earlier than 30 days
nor later than 45 days from the date such notice is mailed, other than
as may be required by law) (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have a Security purchased pursuant to
a Change of Control Offer will be required to surrender the Security,
properly endorsed for transfer together with such customary documents
as the Company reasonably may request, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days prior to
the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Securities the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have
such Security purchased;
(7) that Holders whose Securities are purchased only in part will
be issued new Securities in a principal
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amount equal to the unpurchased portion of the Securities surrendered;
and
(8) the circumstances and relevant facts regarding such Change of
Control.
(c) On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Securities or portions thereof (in integral multiples of
$1,000) validly tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price of
all Securities so tendered and (iii) deliver to the Trustee Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to the Holders of Securities so accepted payment in an amount
equal to the purchase price out of the funds deposited with the Paying Agent in
accordance with the preceding sentence. The Trustee shall promptly
authenticate and mail to such Holders new Securities equal in principal amount
to any unpurchased portion of the Securities surrendered. Upon the payment of
the purchase price for the Securities accepted for purchase, the Trustee shall
return the Securities purchased to the Company for cancellation. Any amounts
remaining after the purchase of Securities pursuant to a Change of Control
Offer shall be returned by the Trustee to the Company.
(d) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
purchase of the Securities pursuant to a Change of Control Offer. To the
extent the provisions of any such rule conflict with the provisions of this
Indenture relating to a Change of Control Offer, the Company shall comply with
the provisions of such rule and be deemed not to have breached its obligations
relating to such Change of Control Offer by virtue thereof.
P. Limitation on Asset Sales.
(a) Neither the Company nor any of its Subsidiaries will
consummate an Asset Sale unless (i) the Company or the applicable Subsidiary,
as the case may be, receives consideration at the time of such Asset Sale at
least equal to the fair market value of the assets sold or otherwise disposed
of (as determined in good faith by management of the Company or, if such Asset
Sale involves consideration in excess of $2,500,000, by the Board of Directors
of the Company, as evidenced by a board resolution), (ii) at least 75% of the
consideration received by the Company or the Subsidiary, as the case may be,
from such Asset Sale is cash or Cash Equivalents (other than in the case where
the Company is exchanging all or substantially
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all the assets of one or more broadcast businesses operated by the Company
(including by way of the transfer of the capital stock) for all or
substantially all the assets (including by way of the transfer of the capital
stock) constituting one or more broadcast businesses operated by another
Person, in which event the foregoing requirement with respect to the receipt of
cash or Cash Equivalents shall not apply) and is received at the time of such
disposition and (iii) upon the consummation of an Asset Sale, the Company
applies or causes such Subsidiary to apply, such Net Cash Proceeds within 180
days of receipt thereof, either (A) to repay the principal of any Senior
Indebtedness (and, to the extent such Senior Indebtedness relates to principal
under a revolving credit or similar facility, to obtain a corresponding
reduction in the commitments thereunder), (B) to reinvest, or to be
contractually committed to reinvest pursuant to a binding agreement, in
Productive Assets and, in the latter case, to have so reinvested within 360
days of the date of receipt of such Net Cash Proceeds, or (C) to purchase
Securities tendered to the Company for purchase at a price equal to 100% of the
principal amount thereof, plus accrued interest thereon to the date of
purchase, pursuant to an offer to purchase made by the Company as set forth
below (a "Net Proceeds Offer"); provided, however, that, prior to making any
such Net Proceeds Offer, the Company shall, to the extent required pursuant to
the 1996 Notes Indenture as in effect on the Issue Date, offer to use such Net
Cash Proceeds to repurchase and use all or a portion of such Net Cash Proceeds
to repurchase 1996 Notes, in which event the Company shall be required to use
only the Net Cash Proceeds remaining after such repurchase to make the Net
Proceeds Offer contemplated by this Section 4.16; provided, further, that if at
any time any non-cash consideration received by the Company or any Subsidiary
of the Company, as the case may be, in connection with any Asset Sale is
converted into or sold or otherwise disposed of for cash, then such conversion
or disposition shall be deemed to constitute an Asset Sale hereunder and the
Net Cash Proceeds thereof shall be applied in accordance with clause (iii)
above; provided, further, that the Company may defer making a Net Proceeds
Offer until the aggregate Net Cash Proceeds from Asset Sales (taking into
account any Net Cash Proceeds used to repurchase 1996 Notes pursuant to the
second immediately preceding proviso) to be applied equals or exceeds
$5,000,000. In the event of a transaction effected in accordance with Section
5.01 which involves less than all of the property or assets of the Company,
only property or assets not included in such transaction shall be deemed to
have been transferred in an Asset Sale.
(b) Subject to the deferral right set forth in the final proviso
of paragraph (a), each notice of a Net Proceeds Offer pursuant to this Section
4.16 shall be mailed, by first class mail, by the Company to Holders of the
Securities as shown on the applicable register of Holders of the Securities
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not more than 180 days after the relevant Asset Sale or, in the event the
Company or a Subsidiary has entered into a binding agreement as provided in (B)
above, within 180 days following the termination of such agreement but in no
event later than 360 days after the relevant Asset Sale, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Securities pursuant to the Net Proceeds Offer and
shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section
4.16 and that Holders of Securities may elect to tender their Securities in
denominations of less than $1,000 and that all Securities validly tendered
will be accepted for payment; provided, however, that if the aggregate
principal amount of Securities tendered in a Net Proceeds Offer plus
accrued interest at the expiration of such offer exceeds the aggregate
amount of the Net Proceeds Offer, the Company shall select the Securities
to be purchased on a pro rata basis (based upon the principal amount
tendered);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be
required by law) (the "Proceeds Purchase Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to
a Net Proceeds Offer will be required to surrender the Security, properly
endorsed for transfer together with such other customary documents as the
Company reasonably may request, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days prior to the
Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have
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such Security purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Net Proceeds
Offer.
(c) On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof validly tendered pursuant to
the Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Securities so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price out of funds
deposited with the Paying Agent in accordance with the preceding sentence. The
Trustee shall promptly authenticate and mail to such Holders new Securities
equal in principal amount to any unpurchased portion of the Securities
surrendered. Upon payment of the purchase price for the Securities accepted for
purchase, the Trustee shall return the Securities purchased to the Company for
cancellation. Any Securities not so accepted shall be promptly mailed by the
Company to the Holder thereof.
(d) If the aggregate principal amount of Securities validly tendered
pursuant to any Net Proceeds Offer is less than the amount of Net Cash Proceeds
subject to such Net Proceeds Offer, the Company may use any remaining portion
of such Net Cash Proceeds not required to fund the repurchase of tendered
Securities for purposes otherwise permitted by this Indenture. Upon the
consummation of any Net Proceeds Offer, the amount of Net Cash Proceeds subject
to any future Net Proceeds Offer from the Asset Sales giving rise to such Net
Cash Proceeds shall be deemed to be zero.
(e) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with their
purchase of Securities pursuant to a Net Proceeds Offer. To the extent the
provisions of any such rule conflict with the provisions of this Indenture
relating to a Net Proceeds Offer, the Company shall comply with the provisions
of such rule and be deemed not to have breached its obligations relating to
such Net Proceeds Offer by virtue thereof.
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Q. Limitation on Preferred Stock of Subsidiaries.
The Company will not permit any of its Subsidiaries to issue any
Preferred Stock (other than to the Company or to a Wholly Owned Subsidiary of
the Company) or permit any Person (other than the Company or a Wholly Owned
Subsidiary of the Company) to own any Preferred Stock (other than Acquired
Preferred Stock; provided that at the time the issuer of such Acquired
Preferred Stock becomes a Subsidiary of the Company or merges with the Company
or any of its Subsidiaries, and after giving effect to such transaction, the
Company shall be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12).
R. Limitation on Liens.
Neither the Company nor any of its Subsidiaries shall create, incur,
assume or suffer to exist any Liens upon any of their respective assets, except
for (a) Permitted Liens, (b) Liens to secure Senior Indebtedness or guarantees
thereof permitted under this Indenture, (c) Liens permitted under the 1996
Notes Indenture existing on the Issue Date, (d) Liens in favor of the Trustee,
(e) Liens to secure Guarantor Senior Indebtedness permitted under this
Indenture and (f) any Lien to secure the replacement, refunding, extension or
renewal, in whole or in part, of any Indebtedness described in the foregoing
clauses; provided that, to the extent any such clause limits the amount secured
or the asset subject to such Liens, no extension or renewal will increase the
assets subject to such Liens or the amount secured thereby beyond the assets or
amounts set forth in such clauses.
S. Guarantees of Certain Indebtedness.
The Company will not permit any of its Subsidiaries, directly or
indirectly, to incur, guarantee or secure through the granting of Liens the
payment of any Indebtedness under the Credit Agreement or any refunding or
refinancing thereof in each case unless such Subsidiary, the Company and the
Trustee execute and deliver a supplemental indenture pursuant to which such
Subsidiary becomes a Guarantor of the Securities and which evidences such
Subsidiary's Guarantee of the Securities, such Guarantee to be a senior
subordinated unsecured obligation of such Subsidiary. Neither the Company nor
any Guarantor shall be required to make a notation on the Securities or its
Guarantee to reflect any such subsequent Guarantee. Nothing in this Section
4.19 shall be construed to permit any Subsidiary of the Company to incur
Indebtedness otherwise prohibited by Section 4.12.
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T. Limitation on Sale and Leaseback Transactions.
Neither the Company nor any of its Subsidiaries will enter into any
Sale and Leaseback Transaction, except that the Company or any Subsidiary may
enter into a Sale and Leaseback Transaction if, immediately prior thereto, and
after giving effect to such Sale and Leaseback Transaction (the Indebtedness
thereunder being equivalent to the Attributable Value thereof) the Company
could incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12.
U. Limitation on Line of Business.
For so long as any Securities are outstanding, the Company and its
Subsidiaries will engage solely in the ownership and operation of broadcast
businesses or businesses reasonably related thereto.
V. Limitation on Asset Swaps.
Neither the Company nor any of its Subsidiaries shall engage in any
Asset Swaps, unless: (i) at the time of entering into the agreement to swap
assets and immediately after giving effect to the proposed Asset Swap, no
Default or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof; (ii) the Company would, after giving pro forma
effect to the proposed Asset Swap, have been permitted to incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.12; (iii) the respective fair market values of the assets being
purchased and sold by the Company or any of its Subsidiaries (as determined in
good faith by the management of the Company or, if such Asset Swap includes
consideration in excess of $2,500,000 by the Board of Directors, as evidenced
by a Board Resolution delivered to the Trustee) are substantially the same at
the time of entering into the agreement to swap assets; and (iv) at the time
of the consummation of the proposed Asset Swap, the percentage of any decline
in the fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company and its Subsidiaries shall not be significantly greater
than the percentage of any decline in the fair market value (determined as
aforesaid) of the assets being disposed of by the Company, calculated from the
time the agreement to swap assets was entered into, provided, however, that
this Section 4.22 shall not apply to any of the Pending Transactions.
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V.
SUCCESSOR CORPORATION
A. When Company May Merge, Etc.
(a) The Company shall not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into, or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, another Person or adopt a plan of
liquidation, unless:
(1) either (A) the Company shall be the survivor of such merger or
consolidation or (B) the surviving or transferee Person is a
corporation, partnership or trust organized and existing under the
laws of the United States, any State thereof or the District of
Columbia and such surviving or transferee Person shall expressly
assume by supplemental indenture all the obligations of the Company
under the Securities and this Indenture;
(2) immediately after giving effect to such transaction and the
use of the proceeds therefrom (on a pro forma basis, including any
Indebtedness incurred or anticipated to be incurred in connection with
such transaction), the Company or the surviving or transferee Person
is able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12;
(3) immediately after giving effect to such transaction (including
any Indebtedness incurred or anticipated to be incurred in connection
with the transaction) no Default or Event of Default shall have
occurred and be continuing; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Indenture, that
the surviving or transferee Person agrees by supplemental indenture to
be bound hereby, and that all conditions precedent in this Indenture
relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties and assets of one
or more Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
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B. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When a successor corporation
assumes all of the obligations of the Company hereunder and under the
Securities and agrees to be bound hereby and thereby, the predecessor shall be
released from such obligations.
VI.
DEFAULT AND REMEDIES
A. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on the
Securities when the same becomes due and payable and the Default
continues for a period of 30 days (whether or not such payment shall
be prohibited by Article Ten); or
(2) the Company defaults in the payment of the principal of any
Securities when the same becomes due and payable, at maturity, upon
redemption or otherwise (whether or not such payment shall be
prohibited by Article Ten); or
(3) the Company fails to observe or perform any other covenant or
agreement contained in the Securities or this Indenture and the
Default continues for a period of 30 days after written notice thereof
specifying such Default has been given to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the
outstanding Securities; or
(4) there shall be a failure to pay at the final stated maturity
(giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Subsidiary of the Company, or the
acceleration of the final stated maturity (giving effect to any
extensions thereof) of any such Indebtedness, if the aggregate
principal amount of such Indebtedness, together with the aggregate
principal amount of any other such Indebtedness in
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default for failure to pay principal at the final stated maturity
(giving effect to any extensions thereof) or which has been
accelerated, aggregates $5,000,000 or more at any time, in each case
after a 10-day period during which such default shall not have been
cured or such acceleration rescinded; or
(5) one or more judgments in an aggregate amount in excess of
$5,000,000 (which are not covered by insurance as to which the insurer
has not disclaimed coverage) shall have been rendered against the
Company or any of its Significant Subsidiaries and such judgments
remain undischarged or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable; or
(6) the Company or any Significant Subsidiary (A) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (B) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to the appointment of a Custodian of it
or for substantially all of its property, (D) consents to or
acquiesces in the institution of a bankruptcy or an insolvency
proceeding against it or (E) makes a general assignment for the
benefit of its creditors; or
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any Bankruptcy
Law, which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of
the Company or any Significant Subsidiary, (B) appoint a Custodian of
the Company or any Significant Subsidiary or for substantially all of
its property or (C) order the winding-up or liquidation of its
affairs; and such judgment, decree or order shall remain unstayed and
in effect for a period of 60 consecutive days.
B. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, the Trustee may, by notice to
the Company, or the Holders of at least 25% in aggregate principal amount of
the Securities then outstanding may, by written notice to the Company and the
Trustee, and the Trustee shall,
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upon the request of such Holders, declare the aggregate principal amount of the
Securities outstanding, together with accrued but unpaid interest, if any, on
all Securities to be due and payable by notice in writing to the Company and
the Trustee specifying the respective Event of Default and that it is a "notice
of acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Credit Agreement, shall become due and payable upon the first to occur of
an acceleration under the Credit Agreement or 5 Business Days after receipt by
the Company and the Representative under the Credit Agreement of such
Acceleration Notice (unless all Events of Default specified in such
Acceleration Notice have been cured or waived). If an Event of Default
specified in Section 6.01(6) or (7) occurs and is continuing with respect to
the Company, all unpaid principal and accrued interest on the Securities then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholder.
The Holders of a majority in principal amount of the Securities then
outstanding (by notice to the Trustee) may rescind and cancel a declaration of
acceleration and its consequences if (i) the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction, (ii) all
existing Events of Default have been cured or waived, except non-payment of the
principal or interest on the Securities which have become due solely by such
declaration of acceleration, (iii) to the extent the payment of such interest
is lawful, interest (at the same rate as specified in the Securities) on
overdue installments of interest and overdue payments of principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of a Default or Event of Default of the type
described in Sections 6.01(6) and (7), the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Default or Event of
Default has been cured or waived and the Trustee shall be entitled to
conclusively rely upon such Officer's Certificate and Opinion of Counsel. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
C. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does
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not possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
D. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as specified
in clauses (1) and (2) of Section 6.01.
E. Control by Majority.
The Holders of a majority in principal amount of the outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it, including, without limitation, any remedies provided for in
Section 6.03. Subject to Section 7.01, however, the Trustee may, in its
discretion, refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee, in its discretion, which is not inconsistent with such direction.
F. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing Event
of Default;
(2) Holders of at least 25% in principal amount of the outstanding
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee reasonably satisfactory to
the Trustee indemnity or security against any loss, liability or
expense to be incurred in compliance with such request;
(4) the Trustee does not comply with the request
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within 45 days after receipt of the request and the offer of
satisfactory indemnity or security; and
(5) during such 45-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee
a direction which, in the opinion of the Trustee, is inconsistent with
the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
G. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
H. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified
in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest at the rate set forth in the
Securities and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
I. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property, and shall be entitled and empowered to collect
and receive any monies or other property payable or deliverable on any such
claims and to distribute the same, and any Custodian in any
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such judicial proceedings is hereby authorized by each Securityholder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Securityholders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07. The Company's payment
obligations under this Section 6.09 shall be secured in accordance with the
provisions of Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
J. Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Sections 6.09 and 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10.
K. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the
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suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or
Holders of more than 10% in principal amount of the outstanding Securities.
VII.
TRUSTEE
A. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent Person would exercise or use under the circumstances in
the conduct of its own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture or the TIA and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture
that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
(including Officers' Certificates) or opinions (including Opinions of
Counsel) furnished to the Trustee and conforming to the requirements
of this Indenture. However, as to any certificates or opinions which
are required by any provision of this Indenture to be delivered or
provided to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
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(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree with the Company. Assets
held in trust by the Trustee need not be segregated from other assets except to
the extent required by law.
(g) In the absence of bad faith, negligence or wilful misconduct
on the part of the Trustee, the Trustee shall not be responsible for the
application of any money by any Paying Agent other than the Trustee.
B. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 11.04 and 11.05.
The Trustee shall not be liable for and shall be fully protected in
respect of any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
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(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate (including
any Officers' Certificate), statement, instrument, opinion (including
any Opinion of Counsel), notice, request, direction, consent, order,
bond, debenture, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled,
upon reasonable notice to the Company, to examine the books, records,
and premises of the Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders of the Securities pursuant to
the provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred by it in
compliance with such request, order or direction.
(g) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization
and protection from liability with respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
C. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, any
Subsidiary or Unrestricted Subsidiary, or their respective Affiliates, with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with
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Sections 7.10 and 7.11.
D. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, and it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this Indenture or the
Securities other than the Trustee's certificate of authentication.
E. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice
of the uncured Default or Event of Default within 60 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of
Default in payment of principal of, or interest on, any Security, including an
accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Proceeds Purchase
Date pursuant to a Net Proceeds Offer and, except in the case of a failure to
comply with Article Five, the Trustee may withhold the notice if and so long as
its Board of Directors, the executive committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Securityholders. The Trustee
shall not be deemed to have knowledge of a Default or Event of Default other
than (i) any Event of Default occurring pursuant to Section 6.01(1), 6.01(2) or
4.01; or (ii) any Default or Event of Default of which a Trust Officer shall
have received written notification or obtained actual knowledge.
F. Reports by Trustee to Holders.
Within 60 days after each May 15 of each year beginning with May 15,
1998, the Trustee shall, to the extent that any of the events described in TIA
Section 313(a) occurred within the previous twelve months, but not otherwise,
mail to each Securityholder a brief report dated as of such date that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Sections
313(b) and 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
The Company shall promptly notify the Trustee if the Securities become
listed on any stock exchange and the Trustee
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shall comply with TIA Section 313(d).
G. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as may be agreed upon by the Company and the Trustee. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by it in connection with the performance of its duties and the
discharge of its obligations under this Indenture. Such expenses shall include
the reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents, employees,
officers, stockholders and directors for, and hold them harmless against, any
loss, liability or expense incurred by them except for such actions to the
extent caused by any negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the acceptance or administration of this
trust including the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance
of any of their rights, powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for which it may
seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel; provided
that the Company will not be required to pay such fees and expenses if it
assumes the Trustee's defense and there is no conflict of interest between the
Company and the Trustee in connection with such defense as reasonably
determined by the Trustee. The Company need not pay for any settlement made
without its written consent. The Company need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all assets or money held
or collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, such expenses and the
compensation for such services shall be paid to the extent allowed under any
Bankruptcy Law.
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H. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the Company and the Trustee and may appoint a successor
trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
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I. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
J. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(2). The Trustee (or in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA Section 310(a)(2). The
Trustee shall comply with TIA Section 310(b); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met. The
provisions of TIA Section 310 shall apply to the Company and any other obligor
of the Securities.
K. Preferential Collection of Claims Against the Company
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company and any
other obligor of the Securities.
VIII.
DISCHARGE OF INDENTURE; DEFEASANCE
A. Termination of the Company's Obligations.
This Indenture shall cease to be of further effect and the obligations
of the Company under the Securities and this Indenture shall terminate (except
that the obligations under Sections 7.07, 8.04 and 8.05 shall survive the
effect of this Article Eight) when all outstanding Securities theretofore
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authenticated and issued have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder.
In addition, at the Company's option, either (a) the Company shall be
deemed to have been Discharged from any and all obligations with respect to the
Securities (except for certain obligations of the Company to register the
transfer or exchange of such Securities, replace stolen, lost or mutilated
Securities, maintain paying agencies and hold moneys for payment in trust)
after the applicable conditions set forth below have been satisfied or (b) the
Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Article Four (except that the Company's
obligations under Sections 4.01 and 4.02 shall survive) and Section 5.01 after
the applicable conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities U.S. Legal Tender or U.S. Government Obligations or a
combination thereof which, through the payment of interest thereon and
principal in respect thereof in accordance with their terms, will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay all the principal of and interest on the Securities
on the dates such installments of interest or principal are due in
accordance with the terms of such Securities, as well as the Trustee's fees
and expenses; provided that no deposits made pursuant to this Section
8.01(1) shall cause the Trustee to have a conflicting interest as defined
in and for purposes of the TIA; provided, further, that from and after the
time of deposit, the Funds deposited shall not be subject to the rights of
holders of Senior Indebtedness pursuant to the provisions of Article Ten;
and provided, further, that, as confirmed by an Opinion of Counsel, no such
deposit shall result in the Company, the Trustee or the trust becoming or
being deemed to be an "investment company" under the Investment Company Act
of 1940;
(2) The Company shall have delivered to the Trustee an Opinion of
Counsel or a private letter ruling issued to the Company by the IRS to the
effect that the Holders of the Securities will not recognize income, gain
or loss for federal income tax purposes as a result of the deposit and
related defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the
case if such option had
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not been exercised and, in the case of an Opinion of Counsel furnished in
connection with a Discharge pursuant to the foregoing, accompanied by a
private letter ruling issued to the Company by the IRS to such effect;
(3) No Event of Default or Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit after
giving effect to such deposit;
(4) The Company shall have delivered to the Trustee an Opinion of
Counsel, subject to certain qualifications, to the effect that (i) the
Funds will not be subject to any rights of any other holders of
Indebtedness of the Company, and (ii) the Funds so deposited will not be
subject to avoidance under applicable Bankruptcy Law;
(5) The Company shall have paid or duly provided for payment of
all amounts then due to the Trustee pursuant to Section 7.07;
(6) No such deposit will result in a Default under this Indenture
or a breach or violation of, or constitute a default under, any other
instrument or agreement (including, without limitation, the Credit
Agreement) to which the Company or any of its Subsidiaries is a party or by
which it or its property is bound; and
(7) An Officers' Certificate and an Opinion of Counsel to the
effect that all conditions precedent to the defeasance have been complied
with.
Notwithstanding the foregoing, the Opinion of Counsel required by
subparagraph 2 above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable on the Maturity Date within one year, or (iii) are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same upon compliance by the
Company with the provisions of this Section), except (i) the rights of the
Holders of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest on such Securities when
such
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payments are due, (ii) the Company's obligations with respect to the Securities
under Sections 2.03 through 2.07, 7.07 and 7.08 and (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
"Funds" means the aggregate amount of U.S. Legal Tender and/or U.S.
Government Obligations deposited with the Trustee pursuant to this Article
Eight.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of
which the full faith and credit of the United States of America is pledged.
SECTION 8.02. Acknowledgment of Discharge by Trustee.
Subject to Section 8.05, after (i) the conditions of Section 8.01,
have been satisfied and (ii) the Company has delivered to the Trustee an
Opinion of Counsel, stating that all conditions precedent referred to in clause
(i) above relating to the satisfaction and discharge of this Indenture have
been complied with, the Trustee upon written request of the Company shall
acknowledge in writing the discharge of the Company's obligations under this
Indenture except for those surviving obligations specified in this Article
Eight.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust Funds deposited with it pursuant to
Section 8.01. It shall apply the Funds through the Paying Agent and in
accordance with this Indenture to the payment of principal and accrued and
unpaid interest on the Securities.
SECTION 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the Company any
Funds held by them for the payment of principal or interest that remains
unclaimed for one year; provided, however, that the Trustee or such Paying
Agent may, at the expense of the Company, cause to be published once in a
newspaper of general circulation in the City of New York or mailed to each
Holder, notice that such Funds remain unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed balance of such Funds then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
the Funds must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person and all liability
of the Trustee and Paying Agent with respect to such Funds shall cease.
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SECTION 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any Funds by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee or Paying Agent is permitted to
apply all such Funds in accordance with Section 8.01; provided, however, that
if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from Funds held by the Trustee or Paying Agent.
IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
A. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee,
together, may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(4) to make any other change that does not adversely affect in any
material respect the rights of any Securityholders hereunder;
provided that the Company has delivered to the Trustee an Opinion of Counsel
and an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
B. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder
or Holders of at least a majority
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in principal amount of the outstanding Securities may amend or supplement this
Indenture or the Securities, without notice to any other Securityholders.
Subject to Sections 6.04 and 6.07, the Holder or Holders of a majority in
aggregate principal amount of the outstanding Securities may waive compliance
by the Company with any provision of this Indenture or the Securities without
notice to any other Securityholder. No amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, shall, directly or indirectly,
without the consent of each Holder of each Security affected thereby:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Securities;
(3) reduce the principal of or change the fixed maturity of any
Securities, or change the date on which any Securities may be subject
to redemption or repurchase, or reduce the redemption or repurchase
price therefor;
(4) make any Securities payable in money other than that stated in
the Securities;
(5) make any change in provisions of this Indenture protecting the
right of each Holder of a Security to receive payment of principal of
and interest on such Security on or after the due date thereof or to
bring suit to enforce such payment or permitting Holders of a majority
in principal amount of Securities to waive Defaults or Events of
Default; or
(6) after the Company's obligation to purchase the Securities
arises under Section 4.14 or 4.15, amend, modify or change the
obligation of the Company to consummate a Change of Control Offer or a
Net Proceeds Offer or waive any default in the performance thereof or
modify any of the provisions or definitions with respect to any such
offers.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective (as provided in Section 9.04), the Company shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. Any
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failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
C. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
D. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of his
Security by notice to the Trustee or the Company received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver (at
which time such amendment, supplement or waiver shall become effective).
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 120 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (6) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such
waiver shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
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E. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the
changed terms.
F. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to and adopted in accordance with this Article Nine;
provided that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture. The Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not be an expense
of the Trustee.
X.
SUBORDINATION OF SECURITIES
A. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees and the Trustee and each Holder of
the Securities, by its acceptance thereof, likewise covenants and agrees, that
all Securities shall be issued subject to the provisions of this Article Ten;
and the Trustee and each Person holding any Security, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees that
the payment of all Obligations on the Securities (except for the payment of
fees and expenses of the Trustee and any indemnity under Section 7.07) by the
Company shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in full in
cash or Cash Equivalents (or such payment shall be duly provided for to the
satisfaction of the holders of the Senior Indebtedness) of all Obligations on
the Senior Indebtedness; that the subordination is for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness, and that
each holder of Senior Indebtedness whether now outstanding or hereafter
created, incurred, assumed or guaranteed
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shall be deemed to have acquired Senior Indebtedness in reliance upon the
covenants and provisions contained in this Indenture and the Securities.
B. No Payment on Securities in Certain Circumstances.
(a) If any default occurs and is continuing in the payment when
due, whether at maturity, upon any redemption, by declaration or otherwise, of
any principal of, interest on or any other amounts owing with respect to any
Senior Indebtedness, no payment of any kind or character (except (i) in
Qualified Capital Stock issued by the Company to pay interest on the Securities
or issued in exchange for the Securities, (ii) in securities substantially
identical to the Securities issued by the Company in payment of interest
accrued thereon or (iii) in securities issued by the Company which are
subordinated to the Senior Indebtedness at least to the same extent as the
Securities and having a Weighted Average Life to Maturity at least equal to the
remaining Weighted Average Life to Maturity of the Securities (the issuance of
such subordinated securities to be consented to by the holders of at least a
majority of the outstanding amount of Senior Indebtedness consisting of each
class of Designated Senior Indebtedness then outstanding, which subordinated
securities shall be issued in exchange for outstanding Securities or to pay
interest accrued on outstanding Securities)) shall be made by the Company or
any other Person on behalf of the Company with respect to any Obligations on
the Securities or to acquire any of the Securities for cash or property or
otherwise. In addition, if any other event of default occurs and is continuing
(or if such an event of default would occur upon any payment with respect to
the Securities or would arise upon the passage of time as a result of such
payment) with respect to any Designated Senior Indebtedness (as such event of
default is defined in the instrument creating or evidencing such Designated
Senior Indebtedness) and such event of default permits the holders of such
Designated Senior Indebtedness then outstanding to accelerate the maturity
thereof and if the Representative for the respective issue of Designated Senior
Indebtedness gives written notice of the event of default to the Company and
the Trustee (a "Default Notice"), then, unless and until all events of default
have been cured or waived or have ceased to exist or the Company and the
Trustee receive notice from the Representative for the respective issue of
Designated Senior Indebtedness terminating the Blockage Period (as defined
below), during the 180 days after the delivery of such Default Notice (the
"Blockage Period"), neither the Company nor any other Person on behalf of the
Company shall make any payment of any kind or character (except (i) in
Qualified Capital Stock issued by the Company to pay interest on the Securities
or issued in exchange for the Securities, (ii) in securities substantially
identical to the
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Securities issued by the Company in payment of interest accrued thereon or
(iii) in securities issued by the Company which are subordinated to the Senior
Indebtedness at least to the same extent as the Securities and having a
Weighted Average Life to Maturity at least equal to the remaining Weighted
Average Life to Maturity of the Securities (the issuance of such subordinated
securities to be consented to by the holders of at least a majority of the
outstanding amount of Senior Indebtedness consisting of each class of
Designated Senior Indebtedness then outstanding, which subordinated securities
shall be issued in exchange for outstanding Securities or to pay interest
accrued on outstanding Securities)) with respect to any Obligations on the
Securities or to acquire any of the Securities for cash or property or
otherwise. Notwithstanding anything herein to the contrary, in no event will a
Blockage Period extend beyond 180 days from the date the payment on the
Securities was due and only one such Blockage Period may be commenced within
any 360 consecutive days. For all purposes of this Section 10.02(a), no event
of default which existed or was continuing on the date of the commencement of
any Blockage Period with respect to the Designated Senior Indebtedness
initiating such Blockage Period shall be, or be made, the basis for the
commencement of a second Blockage Period by the Representative of such
Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days (it being acknowledged that
any subsequent action, or any breach of any financial covenants for a period
commencing after the date of commencement of such Blockage Period that, in
either case, would give rise to an event of default pursuant to any provision
under which an event of default previously existed or was continuing shall
constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.02(a), such payment shall be held in trust for the benefit of,
and shall be paid over or delivered to, the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amount of Senior
Indebtedness held by such holders) or their respective Representatives, as
their respective interests may appear. The Trustee shall be entitled to rely
on information regarding amounts then due and owing on the Senior Indebtedness,
if any, received from the holders of Senior Indebtedness (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from the Company and only amounts included in the
information provided to the Trustee shall be paid to the holders of Senior
Indebtedness.
Nothing contained in this Article Ten shall limit the
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right of the Trustee or the Holders of Securities to take any action to
accelerate the maturity of the Securities pursuant to Section 6.02 or to pursue
any rights or remedies hereunder; provided that all Senior Indebtedness
thereafter due or declared to be due shall first be paid in full in cash or
Cash Equivalents before the Holders are entitled to receive any payment with
respect to Obligations on the Securities.
C. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors or marshalling of assets of the Company or in a
bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Indebtedness
shall first be paid in full in cash or Cash Equivalents, or such payment duly
provided for to the satisfaction of the holders of the Senior Indebtedness,
before any payment or distribution of any kind or character is made on account
of any Obligations on the Securities, or for the acquisition of any of the
Securities for cash or property or otherwise. Upon any such dissolution,
winding-up, liquidation, reorganization, receivership or similar proceeding,
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee under this Indenture would be entitled (other than any payments
of fees and expenses of the Trustee and any indemnity made under Section 7.07),
except for the provisions hereof, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders of the Securities or by
the Trustee under this Indenture if received by them, directly to the holders
of Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full in
cash or Cash Equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of Senior
Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether by
or on behalf of the Company, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential, set
aside or
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required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person, the Senior Indebtedness or
part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by any Holder when such payment
or distribution is prohibited by Section 10.03(a), such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Indebtedness (pro rata to such holders on the basis
of the respective amount of Senior Indebtedness held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as
their respective interests may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full in cash or Cash Equivalents, after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of such
Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five and as long as permitted under the terms of the Senior
Indebtedness shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, assume
the Company's obligations hereunder in accordance with Article Five.
D. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in
Sections 10.02 and 10.03, from making payments at any time for the purpose of
making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment would be
prohibited by Section 10.02 or 10.03, the application by the Trustee of any
moneys deposited with it for the purpose of making such payments of principal
of, and interest on, the
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Securities to the Holders entitled thereto unless at least one Business Day
prior to the date upon which such payment would otherwise become due and
payable, the Trustee shall have received the written notice provided for in
Section 10.02(a) or in Section 10.07. The Company shall give prompt written
notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of the Company.
E. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until the Securities shall be paid in full; and, for the
purposes of such subrogation, no such payments or distributions to the holders
of the Senior Indebtedness by or on behalf of the Company or by or on behalf of
the Holders by virtue of this Article Ten which otherwise would have been made
to the Holders shall, as between the Company and the Holders of the Securities,
be deemed to be a payment by the Company to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article Ten are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
F. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and any interest on
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders
of the Senior Indebtedness, nor shall anything herein or therein prevent the
Holder of any Security or the Trustee on its behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
G. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit
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the making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Ten. Regardless of anything to the
contrary contained in this Article Ten or elsewhere in this Indenture, the
Trustee shall not be charged with knowledge of the existence of any default or
event of default with respect to any Senior Indebtedness or of any other facts
which would prohibit the making of any payment to or by the Trustee unless and
until the Trust Officer of the Trustee shall have received notice in writing
from the Company, or from a holder of Senior Indebtedness or a Representative
therefor, and, prior to the receipt of any such written notice, the Trustee
shall be entitled to assume (in the absence of actual knowledge to the
contrary) that no such facts exist.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amounts of Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article Ten, and if such evidence is not
furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
H. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Securities shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings
are pending, or upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Securities, for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other Indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Ten.
I. Trustee's Relation to Senior Indebtedness.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Indebtedness which may
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at any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Indebtedness and nothing in this Indenture
shall deprive the Trustee or any such agent of any of its rights as such
holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its duties, covenants,
responsibilities and obligations as are specifically set forth in this Article
Ten, and no implied duties, covenants, responsibilities or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Indebtedness, the distribution may be made and the notice may
be given to their Representative, if any.
J. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of
any knowledge thereof which any such holder may have or otherwise be charged
with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Ten or the
obligations hereunder of the Holders of the Securities to the holders of the
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness, or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
payment or collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
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K. Securityholders Authorize Trustee To Effectuate Subordination of Securities.
Each Holder of Securities by its acceptance of such Security
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate, as between the
holders of Senior Indebtedness and the Holders of Securities, the subordination
provided in this Article Ten, and appoints the Trustee such Holder's
attorney-in-fact to act for and on behalf of each such Holder of Securities for
such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a claim
for the unpaid balance of its Securities and accrued interest in the form
required in those proceedings.
L. This Article Ten Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article Ten will not be
construed as preventing the occurrence of an Event of Default.
M. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
ARTICLE TEN A
GUARANTEES OF THE SECURITIES
SECTION 10A.01. Guarantees.
Subject to the provisions of this Article Ten A, each Guarantor hereby
jointly and severally unconditionally guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Securities or the obligations of the Company or any other
Guarantors to the Holders or the Trustee hereunder, that: (a) the principal of
and interest on the Securities will be duly and punctually paid in full when
due, whether at maturity, by acceleration or otherwise, and interest on the
overdue principal and (to the extent permitted by law) interest, if any, on the
Securities and all other Obligations
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on the Securities will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other Obligations on the
Securities, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at final stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, for whatever reason, each Guarantor will be obligated to pay the
same immediately. An Event of Default under this Indenture or the Securities
shall constitute an event of default under the Guarantees, and shall entitle
the Holders of Securities to accelerate the obligations of the Guarantors
hereunder in the same manner and to the same extent as the Obligations of the
Company on the Securities.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular
Security, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each of the Guarantors hereby
waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that its Guarantee will not be
discharged except by complete performance of the obligations contained in the
Securities, this Indenture and the Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, the Guarantees, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders of Securities and the Trustee, on the other hand, (a) subject to this
Article Ten A, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 6.02 for the purposes of the Guarantees,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Section 6.02, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of the Guarantees.
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The Guarantees shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Securities are, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Securities,
whether as a "voidable preference," "fraudulent transfer" or otherwise, all as
though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, of any Guarantor, as such, shall have any personal liability
under the Guarantees by reason of his, her or its status as such stockholder,
officer, director, employer or incorporator.
The Guarantors shall have the right to seek contribution from any non-
paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantees.
Each Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that in no event shall
any Guarantor's obligations under its Guarantee be subject to avoidance under
any applicable fraudulent conveyance or similar law of any relevant
jurisdiction. Therefore, in the event that the Guarantees would, but for this
sentence, be subject to avoidance, then the liability of the Guarantors under
the Guarantees shall be reduced to the extent necessary such that such
Guarantees shall not be subject to avoidance under the applicable fraudulent
conveyance or similar law. Subject to the preceding limitation on liability,
the Guarantee of each Guarantor constitutes a guarantee of payment in full when
due and not merely a guarantee of collectability.
SECTION 10A.02. Execution and Delivery of the Guarantees.
To further evidence the Guarantees set forth in Section 10A.01, each
Guarantor hereby agrees that a notation of such Guarantees, substantially in
the form included in Exhibit A hereto, shall be endorsed on each Security
authenticated and delivered by the Trustee. The validity and enforceability
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of any Guarantee shall not be affected by the fact that it is not affixed to
any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 10A.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
Security or at any time thereafter, such Guarantor's Guarantee of such
Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 10A.03. Additional Guarantors.
Any Person may become a Guarantor by executing and delivering to the
Trustee (a) a supplemental indenture, in form and substance satisfactory to the
Trustee, which subjects such Person to the provisions of this Indenture as a
Guarantor, and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and constitutes
the legal, valid, binding and enforceable obligation of such Person (subject to
such customary exceptions concerning fraudulent conveyance laws, creditors'
rights and equitable principles as may be acceptable to the Trustee in its
discretion).
SECTION 10A.04. Limitation of Guarantors' Liability.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees under the Credit
Agreement) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to Section 10A.06, result in the
obligations of such Guarantor under the Guarantees not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law. Each
Guarantor that makes a payment or distribution under the Guarantees shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the Adjusted Net Assets of each Guarantor.
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SECTION 10A.05. Guarantors May Consolidate,
etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into the Company or another Guarantor or shall prevent any sale or conveyance
of the property of a Guarantor, as an entirety or substantially as an entirety,
to the Company or another Guarantor. Upon any such consolidation, merger,
sale or conveyance, the Guarantee given by such Guarantor shall no longer have
any force or effect.
(b) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into a Person (provided such Person is a corporation, partnership or trust)
other than the Company or another Guarantor or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to any such Person (whether or not an Affiliate of the Guarantor).
Upon the sale or disposition of a Guarantor (or all or substantially all of its
assets) to a Person which is not a Subsidiary of the Company, which is
otherwise in compliance with this Indenture (including Section 4.16), such
Guarantor shall be deemed released from all its obligations under this
Indenture and its Guarantee and such Guarantee shall terminate; provided,
however, that any such termination shall occur only to the extent that all
obligations of such Guarantor under the Credit Agreement and all its guarantees
of, and under all of its pledges of assets or other security interests which
secure, Indebtedness of the Company shall also terminate upon such release,
sale or transfer.
(c) The Trustee shall, at the Company's expense, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section 10A.05. Any Guarantor not so released remains liable for the
full amount of principal of an interest on the Securities as provided in this
Article Ten A.
SECTION 10A.06. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantees, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantees; provided that such Funding Guarantor's
contribution right with respect to any such Guarantor shall be subordinated in
right of payment to such Guarantor's
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Guarantor Senior Indebtedness on the same basis as its Guarantee is
subordinated to Guarantor Senior Indebtedness pursuant to Article Ten B.
SECTION 10A.07. Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under the Guarantees and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration or indemnification, and any
right to participate in any claim or remedy of any Holder of Securities against
the Company, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation, the right
to take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account
of such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Securities shall not have been paid
in full, such amount shall have been deemed to have been paid to such Guarantor
for the benefit of, and held in trust for the benefit of, the Holders of the
Securities, and shall, subject to the provisions of Article Ten B, forthwith be
paid to the Trustee for the benefit of such Holders to be credited and applied
upon the Securities, whether matured or unmatured, in accordance with the terms
of this Indenture. Each Guarantor acknowledges that it will receive direct or
indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 10A.07 is knowingly
made in contemplation of such benefits.
ARTICLE TEN B
SUBORDINATION OF GUARANTEES
SECTION 10B.01. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness.
Each Guarantor covenants and agrees, and the Trustee and each Holder
of the Securities, by its acceptance thereof, likewise covenants and agrees,
that all Guarantees shall be issued subject to the provisions of this Article
Ten B; and the Trustee and each Person holding any Guarantee, whether upon
original issue or upon transfer, assignment or exchange thereof, accepts and
agrees that the payment of all Obligations on the Securities pursuant to the
Guarantees (except for the
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payment of fees and expenses of the Trustee under Section 7.07) made by or on
behalf of such Guarantor shall, to the extent and in the manner herein set
forth, be subordinated and junior in right of payment to the prior payment in
full in cash or Cash Equivalents (or such payment shall be duly provided for to
the satisfaction of the holders of the Guarantor Senior Indebtedness of any
Guarantor) of all existing and future Obligations on the Guarantor Senior
Indebtedness of such Guarantor; that the subordination is for the benefit of,
and shall be enforceable directly by, the holders of Guarantor Senior
Indebtedness of any Guarantor, and that each holder of Guarantor Senior
Indebtedness of any Guarantor whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired Guarantor
Senior Indebtedness of any Guarantor in reliance upon the covenants and
provisions contained in this Indenture and the Guarantees.
This Section 10B.01 and the following Sections 10B.02 through 10B.15
of this Article Ten B shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold,
Guarantor Senior Indebtedness of any Guarantor and, to the extent set forth in
Section 10B.02, holders of Designated Guarantor Senior Indebtedness; and such
provisions are made for the benefit of the holders of Guarantor Senior
Indebtedness of each Guarantor and, to the extent set forth in 10B.02, holders
of Designated Guarantor Senior Indebtedness; and such holders (to such extent)
are made obligees hereunder and they or each of them may enforce such
provisions.
SECTION 10B.02. No Payment on Guarantees in Certain Circumstances.
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on or any other amounts owing with respect to any
Guarantor Senior Indebtedness, no payment of any kind or character (except (i)
in Qualified Capital Stock issued by the Company to pay interest on the
Securities or issued in exchange for the Securities, (ii) in securities
substantially identical to the Securities issued by the Company and guaranteed
by the Guarantors on the same basis as provided in the Guarantees in payment
of interest accrued on the Securities or (iii) in securities issued by the
Company and guaranteed by the Guarantors which securities and guarantees
thereof are subordinated to the Guarantor Senior Indebtedness at least to the
same extent as the Guarantees and having a Weighted Average Life to Maturity at
least equal to the remaining Weighted Average Life to Maturity of the
Securities (the issuance of any such guarantee in respect of such subordinated
securities to be consented to by the holders of at least a majority of the
outstanding amount of
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Guarantor Senior Indebtedness consisting of each class of Designated Guarantor
Senior Indebtedness then outstanding, which subordinated securities shall be
issued in exchange for outstanding Securities or to pay interest accrued on
outstanding Securities)) shall be made by any Guarantor or any other Person on
behalf of such Guarantor with respect to any Obligations on the Securities or
under the Guarantees or to acquire any of the Securities for cash or property
or otherwise. In addition, if any other event of default occurs and is
continuing (or if such an event of default would occur upon any payment with
respect to the Securities or would arise upon the passage of time as a result
of such payment) with respect to any Designated Guarantor Senior Indebtedness
(as such event of default is defined in the instrument creating or evidencing
such Designated Guarantor Senior Indebtedness) and such event of default
permits the holders of such Designated Guarantor Senior Indebtedness then
outstanding to accelerate the maturity thereof and if the Representative for
the respective issue of Designated Guarantor Senior Indebtedness gives a
Default Notice to the Company, the Guarantors and the Trustee, then, unless and
until all events of default have been cured or waived or have ceased to exist
or the Company, the Guarantors and the Trustee receive notice from the
Representative for the respective issue of Designated Guarantor Senior
Indebtedness terminating the Blockage Period, neither the Guarantors nor any
other Person on behalf of the Guarantors shall make any payment of any kind or
character (except (i) in Qualified Capital Stock issued by the Company to pay
interest on the Securities or issued in exchange for the Securities, (ii) in
securities substantially identical to the Securities issued by the Company and
guaranteed by the Guarantors on the same basis as provided in the Guarantees in
payment of interest accrued thereon or (iii) in securities issued by the
Company and guaranteed by the Guarantors which securities and guarantees
thereof are subordinated to the Guarantor Senior Indebtedness at least to the
same extent as the Guarantees and having a Weighted Average Life to Maturity at
least equal to the remaining Weighted Average Life to Maturity of the
Securities (the issuance of any such guarantee in respect of such subordinated
securities to be consented to by the holders of at least a majority of the
outstanding amount of Guarantor Senior Indebtedness consisting of each class of
Designated Guarantor Senior Indebtedness then outstanding, which subordinated
securities shall be issued in exchange for outstanding Securities or to pay
interest accrued on outstanding Securities) with respect to any Obligations of
a Guarantor on the Securities or under the Guarantees or to acquire any of the
Securities for cash or property or otherwise. Notwithstanding anything herein
to the contrary, in no event will a Blockage Period extend beyond 180 days from
the date the payment on the Securities was due and only one such Blockage
Period may be commenced within any 360 consecutive days. For all purposes of
this Section 10B.02(a), no event of default which existed or
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was continuing on the date of the commencement of any Blockage Period with
respect to the Designated Guarantor Senior Indebtedness initiating such
Blockage Period shall be, or be made, the basis for the commencement of a
second Blockage Period by the Representative of such Designated Guarantor
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of
not less than 90 consecutive days (it being acknowledged that any subsequent
action, or any breach of any financial covenants for a period commencing after
the date of commencement of such Blockage Period that in either case, would
give rise to an event of default pursuant to any provision under which an event
of default previously existed or was continuing shall constitute a new event of
default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder of a Guarantee when such payment
is prohibited by Section 10B.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Guarantor
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Guarantor Senior Indebtedness held by such holders) or their
respective Representatives, as their respective interests may appear. The
Trustee shall be entitled to rely on information regarding amounts then due and
owing on the Guarantor Senior Indebtedness, if any, received from the holders
of Guarantor Senior Indebtedness (or their Representatives) or, if such
information is not received from such holders or their Representatives, from
the Company or the Guarantors and only amounts included in the information
provided to the Trustee shall be paid to the holders of Guarantor Senior
Indebtedness.
Nothing contained in this Article Ten B shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Guarantor Senior Indebtedness thereafter
due or declared to be due shall first be paid in full in cash or Cash
Equivalents before the Holders are entitled to receive any payment with respect
to Obligations on the Guarantees.
SECTION 10B.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of any Guarantor of any
kind or character, whether in cash, property or securities, to creditors upon
any liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshalling of assets of any Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or other
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similar proceeding relating to any Guarantor or its property, whether voluntary
or involuntary, all Obligations due or to become due upon all Guarantor Senior
Indebtedness shall first be paid in full in cash or Cash Equivalents, or such
payment duly provided for to the satisfaction of the holders of the Guarantor
Senior Indebtedness, before any payment or distribution of any kind or
character is made on account of any Obligations of a Guarantor on the
Guarantees, or for the acquisition of any of the Securities for cash or
property or otherwise. Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment, or
distribution of assets of any Guarantor of any kind or character, whether in
cash, property or securities, to which the Holders of the Guarantees or the
Trustee under this Indenture would be entitled, except for the provisions
hereof, shall be paid by the Guarantors or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Guarantees or by the Trustee under this
Indenture if received by them, directly to the holders of Guarantor Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts
of Guarantor Senior Indebtedness held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of Guarantor
Senior Indebtedness remaining unpaid until all such Guarantor Senior
Indebtedness has been paid in full in cash or Cash Equivalents after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of Guarantor Senior Indebtedness.
(b) To the extent any payment of Guarantor Senior Indebtedness
(whether by or on behalf of a Guarantor, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the
Guarantor Senior Indebtedness or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of a Guarantor of any kind or character, whether in
cash, property or securities, shall be received by any Holder when such payment
or distribution is prohibited by Section 10B.03(a), such payment or
distribution shall be held in trust for the benefit of, and shall
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be paid over or delivered to, the holders of Guarantor Senior Indebtedness (pro
rata to such holders on the basis of the respective amount of Guarantor Senior
Indebtedness held by such holders) or their respective Representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Guarantor Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of Guarantor Senior
Indebtedness remaining unpaid until all such Guarantor Senior Indebtedness has
been paid in full in cash or Cash Equivalents, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Guarantor Senior Indebtedness.
(d) The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution
of any Guarantor following the conveyance or transfer of all or substantially
all of its assets to another corporation upon the terms and conditions provided
in Section 10A.05 as if the Guarantor were the Company and as long as permitted
under the terms of the Guarantor Senior Indebtedness shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 10B.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume such Guarantor's
obligations hereunder in accordance with Section 10A.05 as if the Guarantor
were the Company.
SECTION 10B.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten B or elsewhere in this Indenture
shall prevent (i) a Guarantor, except under the conditions described in
Sections 10B.01 and 10B.02, from making payments at any time for the purpose of
making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment would be
prohibited by Sections 10B.01 and 10B.02, the application by the Trustee of any
moneys deposited with it for the purpose of making such payments of principal
of, and interest on, the Securities to the Holders entitled thereto unless, at
least one Business Day prior to the date upon which such payment would
otherwise become due and payable, the Trustee shall have actually received the
written notice provided for in Section 10B.02(a) or in Section 10B.09. The
Guarantor shall give prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of any Guarantor.
SECTION 10B.05. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Indebtedness, the Holders of the Guarantees shall be
subrogated to the rights of the holders of
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Guarantor Senior Indebtedness to receive payments or distributions of cash,
property or securities of a Guarantor applicable to the Guarantor Senior
Indebtedness until the Securities shall be paid in full; and, for the purposes
of such subrogation, no such payments or distributions to the holders of the
Guarantor Senior Indebtedness by or on behalf of any Guarantor or by or on
behalf of the holders of the Guarantees by virtue of this Article Ten B which
otherwise would have been made to such holders shall, as between such Guarantor
and the holders of the Guarantees, be deemed to be a payment by such Guarantor
to or on account of the Guarantor Senior Indebtedness.
SECTION 10B.06. Guarantee Provisions Solely To Define Relative Rights.
The subordination provisions of this Article Ten B are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities on the one hand and the holders of Guarantor Senior
Indebtedness of each Guarantor and, to the extent set forth in Section 10B.02,
holders of Designated Guarantor Senior Indebtedness on the other hand. Nothing
contained in this Article Ten B or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among each Guarantor, its
creditors other than holders of its Guarantor Senior Indebtedness and the
Holders of the Securities, the obligation of such Guarantor, which is absolute
and unconditional, to make payments to the Holders in respect of its
obligations under its Guarantee as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against such Guarantor of the Holders of the Securities and creditors of such
Guarantor other than the holders of the Guarantor Senior Indebtedness of such
Guarantor; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
the subordination provisions of this Article Ten B of the holders of Guarantor
Senior Indebtedness of the Guarantors hereunder and, to the extent set forth in
Section 10B.02, holders of Designated Guarantor Senior Indebtedness on the
other hand (1) in any case, proceeding, dissolution, liquidation or other
winding-up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Guarantor referred to in Section 10B.03, to
receive, pursuant to and in accordance with such Section, cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder, or
(2) under the conditions specified in Section 10B.02, to prevent any payment
prohibited by such Section or enforce their rights pursuant to Section
10B.02(c).
The failure by any Guarantor to make a payment in respect of its
obligations under this Guarantee by reason of
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any provision of this Article Ten B shall not be construed as preventing the
occurrence of a Default or an Event of Default hereunder.
SECTION 10B.07. Trustee to Effectuate Subordination of Obligations Under the
Guarantees.
Each Holder of a Security by its acceptance of such Security
authorizes and expressly directs the Trustee to take on behalf of such Holder
of Securities such action as may be necessary or appropriate to effectuate as
between the holders of Guarantor Senior Indebtedness and Holders of Guarantees,
the subordination provided in this Article Ten B, and appoints the Trustee its
attorney-in-fact to act for it and on its behalf for such purposes, including,
in the event of any dissolution, winding-up, liquidation or reorganization of
any Guarantor (whether in bankruptcy, insolvency, receivership, reorganization
or similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of such
Guarantor, the filing of a claim for the unpaid balance of its Guarantees and
accrued interest in the form required in those proceedings.
SECTION 10B.08. No Waiver of Guarantee Subordination Provisions.
No right of any present or future holder of any Guarantor Senior
Indebtedness of any Guarantor to enforce subordination as provided herein shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or any Guarantor or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Company or any
Guarantor with the terms of this Indenture, regardless of any knowledge thereof
any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Indebtedness of any Guarantor may, at any time
and from time to time, without the consent of or notice to the Trustee, without
incurring responsibility to the Trustee or the Holders of the Securities and
without impairing or releasing the subordination provided in this Article Ten B
or the obligations hereunder of the Holders of the Guarantees to the holders of
such Guarantor Senior Indebtedness, do any one or more of the following: (1)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Guarantor Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor Senior Indebtedness relates, or
otherwise amend or supplement in any manner such Guarantor Senior Indebtedness
or any Senior Indebtedness to which such Guarantor Senior Indebtedness relates;
(2) sell, exchange, release or otherwise deal with any
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property pledged, mortgaged or otherwise securing such Guarantor Senior
Indebtedness or any Senior Indebtedness as to which such Guarantor Senior
Indebtedness relates; (3) release any person liable in any manner for the
collection or payment of such Guarantor Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor Senior Indebtedness relates; and (4)
exercise or refrain from exercising any rights against such Guarantor and any
other Person.
SECTION 10B.09. Guarantors to Give Notice to Trustee.
The Company and each Guarantor shall give prompt written notice to the
Trustee of any fact known to such Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Ten B. Notwithstanding the subordination provisions
of this Article Ten B or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any default or event of
default with respect to any Guarantor Senior Indebtedness or of any other facts
which would prohibit the making of any payment to or by the Trustee unless and
until the Trustee shall have received notice in writing from the Company, such
Guarantor or from a holder of Guarantor Senior Indebtedness or a Representative
therefor, and, prior to the receipt of any such written notice, the Trustee
shall be entitled to assume (in the absence of actual knowledge to the
contrary) that no such facts exist. In the event that the Trustee determines
in good faith that any evidence is required with respect to the right of any
Person as a holder of Guarantor Senior Indebtedness of any Guarantor to
participate in any payment or distribution pursuant to this Article Ten B, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Guarantor Senior Indebtedness
of each Guarantor held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Ten B, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 10B.10. Reliance on Judicial Order or Certificate of Liquidating Agent
Regarding Dissolution, etc., of Guarantors.
Upon any payment or distribution of assets of a Guarantor referred to
in this Article Ten B, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such bankruptcy,
liquidation, reorganization, dissolution or winding-up proceeding
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<PAGE> 100
are pending or, upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of the Guarantees, for the purpose
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Guarantor Senior Indebtedness of such Guarantor
and other Indebtedness of such Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Ten B.
SECTION 10B.11. Rights of Trustee as a Holder of Guarantor Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Ten B with respect to any Guarantor Senior
Indebtedness of any Guarantor which may at any time be held by the Trustee, to
the same extent as any other holder of such Guarantor Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article Ten B shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
SECTION 10B.12. No Suspension of Remedies.
Nothing contained in this Article Ten B shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Six or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any,
under this Article Ten B of the holders, from time to time, of Guarantor Senior
Indebtedness of the Guarantors.
SECTION 10B.13. Trustee's Relation to Guarantor Senior Indebtedness.
The Trustee and any agent of the Guarantor or the Trustee shall be
entitled to all the rights set forth in this Article Ten B with respect to any
Guarantor Senior Indebtedness which may at any time be held by it in its
individual or any other capacity to the same extent as any other holder of the
Guarantor Senior Indebtedness and nothing in this Indenture shall deprive the
Trustee or any such agent of any of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its duties, covenants,
responsibilities and obligations as are specifically set forth in this Article
Ten B, and no implied covenants or obligations with respect to the
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<PAGE> 101
holders of Guarantor Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary or
other duty to the holders of Guarantor Senior Indebtedness.
Whenever a distribution is to be made or a notice given to holders or
owners of Guarantor Senior Indebtedness, the distribution may be made and the
notice may be given to their Representative, if any.
SECTION 10B.14. Subordination Rights Not Impaired by Acts or Omissions of the
Guarantors or Holders of Guarantor Senior Indebtedness.
No right of any present or future holders of any Guarantor Senior
Indebtedness to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Guarantors or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Guarantors with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Ten B or the
obligations hereunder of the Holders of the Securities to the holders of the
Guarantor Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, Guarantor Senior Indebtedness, or otherwise amend or supplement
in any manner Guarantor Senior Indebtedness, or any instrument evidencing the
same or any agreement under which Guarantor Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Guarantor Senior Indebtedness; (iii) release
any Person liable in any manner for the payment or collection of Guarantor
Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Guarantors and any other Person.
SECTION 10B.15. This Article Ten B Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article Ten B will not be
construed as preventing the occurrence of an Event of Default.
101
<PAGE> 102
XI.
MISCELLANEOUS
A. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
B. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
if to the Company:
12655 North Central Expressway
Dallas, TX 75243
Attention: Chief Financial Officer
if to the Trustee:
U.S. Trust Company of Texas, N.A.
2001 Ross Avenue
Suite 2700
Dallas, Texas 75201
Attention: Corporate Trust Department
The Company and the Trustee by written notice to each other may
designate additional or different addresses for notices. Any notice or
communication to the Company or the Trustee shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if faxed; and five (5) calendar
days after mailing if sent by registered or certified mail, postage prepaid
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
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<PAGE> 103
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
C. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA Section 312(c).
D. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory
to the Trustee, stating that, in the opinion of the signers, all
conditions precedent to be performed by the Company, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company,
if any, provided for in this Indenture relating to the proposed action
have been complied with.
E. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.07, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable
him to express an
103
<PAGE> 104
informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
F. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Securityholders. The
Paying Agent or Registrar may make reasonable rules for its functions.
G. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York, or at such place of payment are not required to be open. If a payment
date is a Legal Holiday at such place, payment may be made at such place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
H. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
I. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
J. No Recourse Against Others.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creations. Each Securityholder by accepting a Security waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
K. Successors.
All agreements of the Company in this Indenture and
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<PAGE> 105
the Securities shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successors.
L. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
M. Severability.
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
105
<PAGE> 106
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date first written above.
CHANCELLOR RADIO BROADCASTING
COMPANY
Attest: By: /s/ STEVEN DINETZ
-----------------------------------
/s/ KATHRINE ELROD Name: Steven Dinetz
- ------------------------- Title: President
The Guarantors:
TREFOIL COMMUNICATIONS, INC.
Attest: By: /s/ STEVEN DINETZ
------------------------------------
/s/ KATHRINE ELROD Name: Steven Dinetz
- ------------------------- Title:
SHAMROCK BROADCASTING, INC.
Attest: By: /s/ STEVEN DINETZ
------------------------------------
/s/ KATHRINE ELROD Name: Steven Dinetz
- ------------------------- Title:
SHAMROCK RADIO LICENSES, INC.
Attest: By: /s/ STEVEN DINETZ
------------------------------------
/s/ KATHRINE ELROD Name: Steven Dinetz
- ------------------------- Title:
106
<PAGE> 107
SHAMROCK BROADCASTING OF TEXAS,
INC.
Attest: By: /s/ STEVEN DINETZ
--------------------------------
/s/ KATHRINE ELROD Name: Steven Dinetz
- ------------------------- Title:
SHAMROCK BROADCASTING LICENSES
OF DENVER, INC.
Attest: By: /s/ STEVEN DINETZ
--------------------------------
/s/ KATHRINE ELROD Name: Steven Dinetz
- ------------------------- Title:
CHANCELLOR BROADCASTING
LICENSEE COMPANY
Attest: By: /s/ STEVEN DINETZ
--------------------------------
/s/ KATHRINE ELROD Name: Steven Dinetz
- ------------------------- Title:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
Attest: By: /s/ STEVEN DINETZ
--------------------------------
/s/ KATHRINE ELROD Name: Steven Dinetz
- ------------------------- Title:
107
<PAGE> 108
EXHIBIT A-1
CHANCELLOR RADIO BROADCASTING COMPANY
8 3/4% Senior Subordinated Notes due 2007
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO CHANCELLOR RADIO BROADCASTING COMPANY (THE
"COMPANY") OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS
SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO ANOTHER
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1-1
<PAGE> 109
No. $
CHANCELLOR RADIO BROADCASTING COMPANY, a Delaware corporation (the
"Company"), for value received, promises to pay to or
registered assigns, the principal sum of Dollars, on June 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
CHANCELLOR RADIO BROADCASTING
COMPANY
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
A-1-2
<PAGE> 110
Trustee's Certificate of Authentication
This is one of the 8 3/4% Senior Subordinated Notes due 2007 referred
to in the within-mentioned Indenture.
Dated:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
-------------------------------------------
Authorized Signatory
A-1-3
<PAGE> 111
(REVERSE OF SECURITY)
8 3/4% Senior Subordinated Notes due 2007
1. Interest. CHANCELLOR RADIO BROADCASTING COMPANY, a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. Interest on the Securities
will accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from June 24, 1997. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing December 15,
1997. Interest will be computed on the basis of a 360-day year of twelve 30-
day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Securities to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar. Initially, U.S. Trust Company of
Texas, N.A. (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without notice
to the Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
4. Indenture and Guarantees. The Company issued the Securities under
an Indenture, dated as of June 24, 1997 (the "Indenture"), among the Company,
the Guarantors and the Trustee. This Security is one of a duly authorized
issue of Securities of the Company designated as its 8 3/4% Senior Subordinated
Notes due 2007 (the "Securities"), limited (except as otherwise provided in
the Indenture) in aggregate principal amount to $200,000,000, which may be
issued under the Indenture. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to
A-1-4
<PAGE> 112
the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the TIA for a statement of them.
The Securities are general unsecured obligations of the Company. Payment on
each Security is guaranteed on a senior subordinated basis, jointly and
severally, by the Guarantors pursuant to Article Ten A of the Indenture.
5. Subordination. The Securities are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior Indebtedness,
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. To the extent and in the manner provided in
the Indenture, Senior Indebtedness must be paid before any payment may be made
to any Holder of this Security. Each Holder by his acceptance hereof agrees to
be bound by such provisions and authorizes and expressly directs the Trustee,
on his behalf, to take such action as may be necessary or appropriate to
effectuate the subordination provided for in the Indenture and appoints the
Trustee his attorney-in-fact for such purposes.
6. Optional Redemption. (a) The Securities will be redeemable, at
the Company's option, in whole at any time or in part from time to time, on and
after June 15, 2002, at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the twelve-month period
commencing on June 15 of the year set forth below, plus, in each case, accrued
and unpaid interest thereon to the date of redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ---- ----------
<S> <C>
2002 . . . . . . . . . . . . . . . . . . . . . . . 104.375%
2003 . . . . . . . . . . . . . . . . . . . . . . . 102.917%
2004 . . . . . . . . . . . . . . . . . . . . . . . 101.458%
2005 and thereafter . . . . . . . . . . . . . . . . 100.000%
</TABLE>
(b) In addition, on or prior to June 15, 2000, the Company may, at its
option, use the net cash proceeds of one or more Public Equity Offerings to
redeem the Securities, in part, at a redemption price of 108.750% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of redemption; provided, however, that after any such redemption the aggregate
principal amount of the Securities outstanding must equal at least 75% of the
aggregate principal amount of the Securities originally issued.
(c) In addition, at any time prior to June 15, 2000, upon the
occurrence of a Change of Control, the Company may redeem the Securities, in
whole but not in part, at a redemp-
A-1-5
<PAGE> 113
tion price equal to the principal amount thereof plus the Applicable Premium
plus accrued and unpaid interest, if any, to the date of redemption. The
Company may not redeem Securities pursuant to this paragraph if it has made an
offer to repurchase the Securities with respect to such Change of Control.
"Applicable Premium" means, with respect to a Security, the greater of
(i) 1.0% of the then outstanding principal amount of such Security and (ii) (a)
the present value of all remaining required interest and principal payments due
on such Security and all premium payments relating thereto assuming a
redemption date of June 15, 2002, computed using a discount rate equal to the
Treasury Rate plus 100 basis points minus (b) the then outstanding principal
amount of such Security minus (c) accrued interest paid on the redemption date.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519)
("Statistical Release") which has become publicly available at least two
business days prior to the date fixed for redemption (or, if such Statistical
Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the then remaining term to June 15, 2002; provided,
however, that if the then remaining term to June 15, 2002 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the then remaining term to June 15, 2002 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
7. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's registered address. In
order to effect a redemption with the proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 60 days after the consummation of such Public Equity
Offering. Securities in denominations larger than $1,000 may be redeemed in
part.
8. Change of Control Offer. In the event of a Change of Control,
upon the satisfaction of the conditions set forth in the Indenture, the Company
shall be required to offer to repurchase all of the then outstanding Securities
pursuant to a Change of Control Offer at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase. Holders of Securities which are the subject of such an offer to
repurchase shall
A-1-6
<PAGE> 114
receive an offer to repurchase and may elect to have such Securities
repurchased in accordance with the provisions of the Indenture pursuant to and
in accordance with the terms of the Indenture.
9. Limitation on Disposition of Assets. Under certain circumstances,
the Company is required to apply the net proceeds from Asset Sales to offer to
repurchase Securities at a price equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest to the date of repurchase.
10. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities during a period
beginning 15 days before the mailing of a redemption notice for any Securities
or portions thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a Security
shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee
and such Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Company at
any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of and interest on the Securities
to redemption or maturity and complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including certain covenants,
but excluding its obligation to pay the principal of and interest on the
Securities).
14. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default
or noncompliance with any provision may be waived with the written consent of
the Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto
may
A-1-7
<PAGE> 115
amend or supplement the Indenture or the Securities to, among other things,
cure any ambiguity, defect or inconsistency, provide for uncertificated
Securities in addition to or in place of certificated Securities, or comply
with Article Five of the Indenture, or make any other change that does not
adversely affect in any material respect the rights of any Holder of a
Security.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain Indebtedness, engage in certain Asset Swaps, enter into
transactions with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries and merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially
all of its assets or adopt a plan of liquidation. Such limitations are subject
to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Securities and the
Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may declare all the Securities to be due
and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee is not obligated
to enforce the Indenture or the Securities unless it has been offered indemnity
or security reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Securities then outstanding to direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines in good faith
that withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, Unrestricted Subsidiaries or their respective Affiliates as if it
were not the Trustee.
19. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator,
A-1-8
<PAGE> 116
as such, of the Company shall have any liability for any obligation of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of
a Security by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities.
20. Authentication. This Security shall not be valid until the
Trustee or authenticating agent manually signs the certificate of
authentication on this Security.
21. Governing Law. The laws of the State of New York shall govern
this Security and the Indenture, without regard to principles of conflict of
laws.
22. Abbreviations and Defined Terms. Customary abbreviations may
be used in the name of a Holder of a Security or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
24. Registration Rights. Pursuant to the Registration Rights
Agreement, the Company will be obligated to consummate an exchange offer
pursuant to which, subject to the terms and conditions of the Registration
Rights Agreement, the Holder of this Security shall have the right to exchange
this Security for Securities of a separate series issued under the Indenture
(or a trust indenture substantially identical to the Indenture in accordance
with the terms of the Registration Rights Agreement) which have been registered
under the Securities Act, in like principal amount and having identical terms
as this Security. The Holders of the Securities shall be entitled to receive
certain additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
25. Indenture. Each Holder, by accepting a Security, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time. Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.
The Company will furnish to any Holder of a Security
A-1-9
<PAGE> 117
upon written request and without charge a copy of the Indenture, which has the
text of this Security in larger type. Requests may be made to: CHANCELLOR
RADIO BROADCASTING COMPANY, 12655 N. Central Expressway, Suite 405, Dallas,
Texas 75243.
A-1-10
<PAGE> 118
GUARANTEE
The Guarantors (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each hereinafter referred to
as a "Guarantor," which term includes any successor person under the Indenture)
have unconditionally guaranteed on a senior basis (such guarantee by each
Guarantor being referred to herein as the "Guarantee") (i) the due and punctual
payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Securities, to
the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms set forth in Article Ten A of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
No stockholder, officer, director or incorporator, as such, past,
present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The Guarantees shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantees
are noted shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers.
A-1-11
<PAGE> 119
GUARANTORS:
TREFOIL COMMUNICATIONS, INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
SHAMROCK BROADCASTING, INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
SHAMROCK RADIO LICENSES, INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
SHAMROCK BROADCASTING OF TEXAS,
INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
SHAMROCK BROADCASTING LICENSES
OF DENVER, INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
CHANCELLOR BROADCASTING
LICENSEE COMPANY
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
A-1-12
<PAGE> 120
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
- --------------------------------
- --------------------------------------------------------------------------------
(please print or type name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer the Security on the books of the Company with full power
of substitution in the premises.
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the SEC of
the effectiveness of a registration statement under the Securities Act of 1933,
as amended (the "Securities Act"), covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) June 24, 1999, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided by
Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Security in the name of any person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the Indenture shall have
been satisfied.
A-1-13
<PAGE> 121
Dated:
------------- -------------------------------------
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Security in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee:
--------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
A-1-14
<PAGE> 122
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 4.15 or 4.16 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 4.15 or 4.16 of the Indenture, state the amount:
$
---------------
Date: Your Signature:
--------------- ------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
-------------------------------
A-1-15
<PAGE> 123
EXHIBIT A-2
CHANCELLOR RADIO BROADCASTING COMPANY
8 3/4% Senior Subordinated Notes due 2007
[FORM OF SERIES B SECURITY]
No. $
CHANCELLOR RADIO BROADCASTING COMPANY, a Delaware corporation (the
"Company"), for value received, promises to pay to or
registered assigns, the principal sum of Dollars, on June 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
CHANCELLOR RADIO BROADCASTING
COMPANY
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
A-2-1
<PAGE> 124
Trustee's Certificate of Authentication
This is one of the 8 3/4% Senior Subordinated Notes due 2007 referred
to in the within-mentioned Indenture.
Dated:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
---------------------------------------
Authorized Signatory
A-2-2
<PAGE> 125
(REVERSE OF SECURITY)
8 3/4% Senior Subordinated Notes due 2007
26. Interest. CHANCELLOR RADIO BROADCASTING COMPANY, a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. Interest on the Securities
will accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from June 24, 1997. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing December 15,
1997. Interest will be computed on the basis of a 360-day year of twelve 30-
day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Securities to the extent lawful.
27. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
28. Paying Agent and Registrar. Initially, U.S. Trust Company of
Texas, N.A. (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without notice
to the Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
29. Indenture and Guarantees. The Company issued the Securities
under an Indenture, dated as of June 24, 1997 (the "Indenture"), among the
Company, the Guarantors and the Trustee. This Security is one of a duly
authorized issue of Securities of the Company designated as its 8 3/4% Senior
Subordinated Notes due 2007 (the "Securities"), limited (except as otherwise
provided in the Indenture) in aggregate principal amount to $200,000,000, which
may be issued under the Indenture. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
A-2-3
<PAGE> 126
the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the TIA for a statement of them.
The Securities are general unsecured obligations of the Company. Payment on
each Security is guaranteed on a senior subordinated basis, jointly and
severally, by the Guarantors pursuant to Article Ten A of the Indenture.
30. Subordination. The Securities are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior Indebtedness,
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. To the extent and in the manner provided in
the Indenture, Senior Indebtedness must be paid before any payment may be made
to any Holder of this Security. Each Holder by his acceptance hereof agrees to
be bound by such provisions and authorizes and expressly directs the Trustee,
on his behalf, to take such action as may be necessary or appropriate to
effectuate the subordination provided for in the Indenture and appoints the
Trustee his attorney-in-fact for such purposes.
31. Optional Redemption. (a) The Securities will be redeemable,
at the Company's option, in whole at any time or in part from time to time, on
and after June 15, 2002, at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the twelve-month period
commencing on June 15 of the year set forth below, plus, in each case, accrued
and unpaid interest thereon to the date of redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ---- ----------
<S> <C>
2002 . . . . . . . . . . . . . . . . . . 104.375%
2003 . . . . . . . . . . . . . . . . . . 102.917%
2004 . . . . . . . . . . . . . . . . . . 101.458%
2005 and thereafter . . . . . . . . . . . 100.000%
</TABLE>
(b) In addition, on or prior to June 15, 2000, the Company may, at its
option, use the net cash proceeds of one or more Public Equity Offerings to
redeem the Securities, in part, at a redemption price of 108.750% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of redemption; provided, however, that after any such redemption the aggregate
principal amount of the Securities outstanding must equal at least 75% of the
aggregate principal amount of the Securities originally issued.
(c) In addition, at any time prior to June 15, 2000, upon the
occurrence of a Change of Control, the Company may redeem the Securities, in
whole but not in part, at a redemption
A-2-4
<PAGE> 127
price equal to the principal amount thereof plus the Applicable Premium plus
accrued and unpaid interest, if any, to the date of redemption. The Company
may not redeem Securities pursuant to this paragraph if it has made an offer to
repurchase the Securities with respect to such Change of Control.
"Applicable Premium" means, with respect to a Security, the greater of
(i) 1.0% of the then outstanding principal amount of such Security and (ii)(a)
the present value of all remaining required interest and principal payments due
on such Security and all premium payments relating thereto assuming a
redemption date of June 15, 2002, computed using a discount rate equal to the
Treasury Rate plus 100 basis points minus (b) the then outstanding principal
amount of such Security minus (c) accrued interest paid on the redemption date.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519)
("Statistical Release") which has become publicly available at least two
business days prior to the date fixed for redemption (or, if such Statistical
Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the then remaining term to June 15, 2002; provided,
however, that if the then remaining term to June 15, 2002 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the then remaining term to June 15, 2002 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
32. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's registered address. In
order to effect a redemption with the proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 60 days after the consummation of such Public Equity
Offering. Securities in denominations larger than $1,000 may be redeemed in
part.
33. Change of Control Offer. In the event of a Change of Control,
upon the satisfaction of the conditions set forth in the Indenture, the Company
shall be required to offer to repurchase all of the then outstanding Securities
pursuant to a Change of Control Offer at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase. Holders of Securities which are the subject of such an offer to
repurchase shall
A-2-5
<PAGE> 128
receive an offer to repurchase and may elect to have such Securities
repurchased in accordance with the provisions of the Indenture pursuant to and
in accordance with the terms of the Indenture.
34. Limitation on Disposition of Assets. Under certain
circumstances, the Company is required to apply the net proceeds from Asset
Sales to offer to repurchase Securities at a price equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the
date of repurchase.
35. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities during a period
beginning 15 days before the mailing of a redemption notice for any Securities
or portions thereof selected for redemption.
36. Persons Deemed Owners. The registered Holder of a Security
shall be treated as the owner of it for all purposes.
37. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee
and such Paying Agent with respect to such money shall cease.
38. Discharge Prior to Redemption or Maturity. If the Company at
any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of and interest on the Securities
to redemption or maturity and complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including certain covenants,
but excluding its obligation to pay the principal of and interest on the
Securities).
39. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default
or noncompliance with any provision may be waived with the written consent of
the Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto
may
A-2-6
<PAGE> 129
amend or supplement the Indenture or the Securities to, among other things,
cure any ambiguity, defect or inconsistency, provide for uncertificated
Securities in addition to or in place of certificated Securities, or comply
with Article Five of the Indenture, or make any other change that does not
adversely affect in any material respect the rights of any Holder of a
Security.
40. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain Indebtedness, engage in certain Asset Swaps, enter into
transactions with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries and merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially
all of its assets or adopt a plan of liquidation. Such limitations are subject
to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
41. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Securities and the
Indenture, the predecessor will be released from those obligations.
42. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may declare all the Securities to be due
and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee is not obligated
to enforce the Indenture or the Securities unless it has been offered indemnity
or security reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Securities then outstanding to direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines in good faith
that withholding notice is in their interest.
43. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, Unrestricted Subsidiaries or their respective Affiliates as if it
were not the Trustee.
44. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator,
A-2-7
<PAGE> 130
as such, of the Company shall have any liability for any obligation of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of
a Security by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities.
45. Authentication. This Security shall not be valid until the
Trustee or authenticating agent manually signs the certificate of
authentication on this Security.
46. Governing Law. The laws of the State of New York shall govern
this Security and the Indenture, without regard to principles of conflict of
laws.
47. Abbreviations and Defined Terms. Customary abbreviations may
be used in the name of a Holder of a Security or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
48. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
49. Indenture. Each Holder, by accepting a Security, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time. Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture, which has the text of this
Security in larger type. Requests may be made to: CHANCELLOR RADIO
BROADCASTING COMPANY, 12655 N. Central Expressway, Suite 405, Dallas, Texas
75243.
A-2-8
<PAGE> 131
GUARANTEE
The Guarantors (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each hereinafter referred to
as a "Guarantor," which term includes any successor person under the Indenture)
have unconditionally guaranteed on a senior basis (such guarantee by each
Guarantor being referred to herein as the "Guarantee") (i) the due and punctual
payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Securities, to
the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms set forth in Article Ten A of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
No stockholder, officer, director or incorporator, as such, past,
present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The Guarantees shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantees
are noted shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers.
A-2-9
<PAGE> 132
GUARANTORS:
TREFOIL COMMUNICATIONS, INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
SHAMROCK BROADCASTING, INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
SHAMROCK RADIO LICENSES, INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
SHAMROCK BROADCASTING OF TEXAS,
INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
SHAMROCK BROADCASTING LICENSES
OF DENVER, INC.
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
CHANCELLOR BROADCASTING
LICENSEE COMPANY
Attest: By:
------------------------------------------
Name:
- ------------------------- Title:
A-2-10
<PAGE> 133
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
- --------------------------------
- --------------------------------------------------------------------------------
(please print or type name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer the Security on the books of the Company with full power
of substitution in the premises.
Dated:
------------- -------------------------------------
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Security in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee:
--------------------------------
A-2-11
<PAGE> 134
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 4.15 or 4.16 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 4.15 or 4.16 of the Indenture, state the amount:
$
---------------
Date: Your Signature:
--------------- ------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
-------------------------------
A-2-12
<PAGE> 135
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
<PAGE> 136
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
---------,----
U.S. Trust Company of Texas, N.A.
Attention: Corporate Trust Administration Department
Re: Chancellor Radio Broadcasting Company
(the "Company") 8 3/4% Senior Subordinated
Notes due 2007 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Securities, we confirm that:
1. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture dated
as of June 24, 1997 relating to the Securities and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Securities except
in compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell or otherwise transfer any Securities
prior to the date which is two years after the original issuance of the
Securities, we will do so only (i) to the Company or any of its subsidiaries,
(ii) inside the United States in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act), (iii) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to the
Trustee (as defined in the Indenture relating to the Securities), a signed
letter
C-1
<PAGE> 137
containing certain representations and agreements relating to the restrictions
on transfer of the Securities, (iv) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (v) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available), or (vi) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing any of
the Securities from us a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
3. We are not acquiring the Securities for or on behalf of, and will
not transfer the Securities to, any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974), except as
permitted in the section entitled "Transfer Restrictions" of the Offering
Circular.
4. We understand that, on any proposed resale of any Securities, we
will be required to furnish to the Trustee and the Company such certification,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Securities purchased by
us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or their investment, as the case may be.
6. We are acquiring the Securities purchased by us for our account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
------------------------------------------
Name:
Title:
C-2
<PAGE> 138
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
---------,----
U.S. Trust Company of Texas, N.A.
Attention: Corporate Trust Administration Department
Re: Chancellor Radio Broadcasting Company
(the "Company") 8 3/4% Senior Subordinated
Notes due 2007 (the "Securities")
Dear Sirs:
In connection with our proposed sale of $ _____________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
D-1
<PAGE> 139
restrictions applicable to the Securities.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------------
Authorized Signature
D-2
<PAGE> 1
EXHIBIT 10.1
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
among
CHANCELLOR BROADCASTING COMPANY,
CHANCELLOR RADIO BROADCASTING COMPANY,
VARIOUS BANKS,
GOLDMAN SACHS CREDIT PARTNERS L.P., as DOCUMENTATION AGENT,
NATIONSBANK OF TEXAS, N.A., as SYNDICATION AGENT,
TORONTO DOMINION (TEXAS), INC., as SYNDICATION AGENT
and
BANKERS TRUST COMPANY,
as MANAGING AGENT
and
ARRANGER
-------------------------
Dated as of February 14, 1996
and
Amended and Restated as of January 23, 1997
and further
Amended and Restated as of July 2, 1997
-------------------------
$750,000,000
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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----
<S> <C>
SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . .. 1
1.01 The Commitments . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Amount of Each Borrowing . . . . . . . . . . . . . . . 3
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . 4
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . 5
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . 7
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . 8
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . 9
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.12 Change of Lending Office . . . . . . . . . . . . . . . . . . . 12
1.13 Replacement of Banks . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . 14
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . 14
2.02 Letter of Credit Requests . . . . . . . . . . . . . . . . . . . 16
2.03 Letter of Credit Participations . . . . . . . . . . . . . . . . 16
2.04 Agreement to Repay Letter of Credit Drawings . . . . . . . . . 19
2.05 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3. Commitment Commission; Fees; Reductions of Commitment . . . . 20
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.02 Voluntary Termination and Reduction of Commitments . . . . . . 22
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . 22
SECTION 4. Prepayments; Payments; Taxes . . . . . . . . . . . . . . . . . 23
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . 23
4.02 Mandatory Repayments and Commitment Reductions . . . . . . . . 24
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . 32
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5. Conditions Precedent to Credit Events on the Second
Restatement Effective Date . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
5.01 Execution of Agreement; Notes . . . . . . . . . . . . . . . . . 34
5.02 Fees, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.03 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . 35
5.04 Corporate Documents; Proceedings; etc.. . . . . . . . . . . . . 35
5.05 Shareholders' Agreements; Management Agreements;
Employment Agreements; Tax Sharing Agreements . . . . . . . 35
5.06 Absence of Certain Conditions . . . . . . . . . . . . . . . . . 36
5.07 Consummation of the Bridge Financing; Transaction . . . . . . . 36
5.08 Subsidiary Guaranty . . . . . . . . . . . . . . . . . . . . . . 39
5.09 Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . 39
5.10 Subsidiary Security Agreement . . . . . . . . . . . . . . . . . 39
5.11 Existing Mortgages; Title Insurance; etc. . . . . . . . . . . . 40
5.12 Environmental Indemnity Agreement . . . . . . . . . . . . . . . 41
5.13 Existing Credit Agreement; etc. . . . . . . . . . . . . . . . . 41
5.14 Adverse Change, etc.. . . . . . . . . . . . . . . . . . . . . . 42
5.15 Solvency Certificate; Environmental Analyses; Insurance . . . . 42
5.16 Pro Forma Balance Sheet; Projections . . . . . . . . . . . . . 42
5.17 Acknowledgment, Consent and Amendment . . . . . . . . . . . . . 43
SECTION 6. Conditions Precedent to All Credit Events . . . . . . . . . . 44
6.01 No Default; Representations and Warranties . . . . . . . . . . 44
6.02 Notice of Borrowing; Letter of Credit Request . . . . . . . . . 44
SECTION 7. Representations, Warranties and Agreements . . . . . . . . . . 45
7.01 Corporate Status . . . . . . . . . . . . . . . . . . . . . . . 45
7.02 Corporate Power and Authority . . . . . . . . . . . . . . . . . 45
7.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.04 Governmental Approvals . . . . . . . . . . . . . . . . . . . . 46
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc.. . . . . . . . . . . . . . . . . 47
7.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.07 True and Complete Disclosure . . . . . . . . . . . . . . . . . 48
7.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . 48
7.09 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . 49
7.10 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . 50
7.11 The Security Documents . . . . . . . . . . . . . . . . . . . . 50
7.12 Representations and Warranties in Documents . . . . . . . . . . 51
7.13 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.14 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . 52
7.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
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----
<S> <C>
7.16 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . 53
7.17 Investment Company Act . . . . . . . . . . . . . . . . . . . . 54
7.18 Public Utility Holding Company Act . . . . . . . . . . . . . . 54
7.19 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . 54
7.20 Patents, Licenses, Franchises and Formulas . . . . . . . . . . 54
7.21 Transaction; Bridge Financing . . . . . . . . . . . . . . . . . 55
7.22 Special Purpose Corporations . . . . . . . . . . . . . . . . . 55
7.23 FCC Licenses . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.24 Subordinated Notes . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 8. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . 56
8.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . 57
8.02 Books, Records and Inspections . . . . . . . . . . . . . . . . 60
8.03 Maintenance of Property; Insurance . . . . . . . . . . . . . . 60
8.04 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . 61
8.05 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . 62
8.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.07 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . 63
8.08 Performance of Obligations . . . . . . . . . . . . . . . . . . 63
8.09 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . 63
8.10 Maintenance of Separateness . . . . . . . . . . . . . . . . . . 63
8.11 Dividends on Series A Exchangeable Preferred Stock and
Exchangeable Preferred Stock; Interest on Bridge Financing . 64
8.12 Additional Security; Further Assurances . . . . . . . . . . . . 64
8.13 Designation of Agent . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . 67
9.01 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. . . . . 71
9.03 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
9.04 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.05 Advances, Investments and Loans . . . . . . . . . . . . . . . . 79
9.06 Transactions with Affiliates . . . . . . . . . . . . . . . . . 81
9.07 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . 82
9.08 Maximum Leverage Ratio . . . . . . . . . . . . . . . . . . . . 84
9.09 Minimum Consolidated EBITDA . . . . . . . . . . . . . . . . . . 85
9.10 Consolidated EBITDA to Consolidated Net Cash Interest
Expense . . . . . . . . . . . . . . . . . . . . . . . . . . 86
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<CAPTION>
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----
<S> <C>
9.11 Limitation on Modifications of Certificate of Incorporation, By-
Laws and Certain Other Agreements; Limitations of
Prepayments and Modifications of Indebtedness; etc.. . . . 87
9.12 Limitation on Certain Restrictions on Subsidiaries . . . . . 88
9.13 Limitation on Issuance of Capital Stock . . . . . . . . . . . 88
9.14 Business . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.15 Limitation on Creation of Subsidiaries . . . . . . . . . . . 89
9.16 No Other Designated Senior Debt . . . . . . . . . . . . . . . 89
SECTION 10. Events of Default . . . . . . . . . . . . . . . . . . . . . 89
10.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.02 Representations, etc.. . . . . . . . . . . . . . . . . . . . 89
10.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 90
10.04 Default Under Other Agreements . . . . . . . . . . . . . . . 90
10.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . 90
10.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
10.07 Security Documents . . . . . . . . . . . . . . . . . . . . . 91
10.08 Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . 91
10.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . 92
10.10 Change of Ownership . . . . . . . . . . . . . . . . . . . . 92
10.11 Environmental Matters . . . . . . . . . . . . . . . . . . . 92
SECTION 11. Definitions and Accounting Terms. . . . . . . . . . . . . . 93
11.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 12. The Managing Agent . . . . . . . . . . . . . . . . . . . . 128
12.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . 128
12.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . 129
12.03 Lack of Reliance on the Managing Agent . . . . . . . . . . . 129
12.04 Certain Rights of the Managing Agent . . . . . . . . . . . . 129
12.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . 130
12.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . 130
12.07 The Managing Agent in Its Individual Capacity . . . . . . . 130
12.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 130
12.09 Resignation by the Managing Agent . . . . . . . . . . . . . 131
SECTION 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 131
13.01 Payment of Expenses, etc.. . . . . . . . . . . . . . . . . . 131
13.02 Right of Setoff; Collateral Matters . . . . . . . . . . . . 133
13.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 134
</TABLE>
(iv)
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
13.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . 134
13.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . 136
13.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . 136
13.07 Calculations; Computations . . . . . . . . . . . . . . . . . 137
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . 137
13.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 139
13.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . 139
13.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . 140
13.12 Amendment or Waiver; etc.. . . . . . . . . . . . . . . . . . 140
13.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 141
13.14 Domicile of Loans . . . . . . . . . . . . . . . . . . . . . 142
13.15 Limitation on Additional Amounts, etc. . . . . . . . . . . . 142
13.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . 142
13.17 Register . . . . . . . . . . . . . . . . . . . . . . . . . . 143
13.18 Additions of New Banks; Conversion of Existing Loans of
Continuing Banks; Termination of Commitments of Non-
Continuing Banks . . . . . . . . . . . . . . . . . . . . . 144
SECTION 14. Holdings Guaranty . . . . . . . . . . . . . . . . . . . . . 145
14.01 The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . 145
14.02 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . 145
14.03 Nature of Liability . . . . . . . . . . . . . . . . . . . . 145
14.04 Independent Obligation . . . . . . . . . . . . . . . . . . . 146
14.05 Authorization . . . . . . . . . . . . . . . . . . . . . . . 146
14.06 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . 147
14.07 Subordination . . . . . . . . . . . . . . . . . . . . . . . 147
14.08 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
14.09 Nature of Liability . . . . . . . . . . . . . . . . . . . . 149
</TABLE>
SCHEDULE I Commitments
SCHEDULE II Existing Letters of Credit
SCHEDULE III Real Property
SCHEDULE IV FCC Licenses
SCHEDULE V Insurance
SCHEDULE VI Existing Liens
SCHEDULE VII Existing Indebtedness
SCHEDULE VIII Existing Investments
(v)
<PAGE> 7
ANNEX A Evergreen Loan Agreement
ANNEX 5.07 FCC License Issues
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Term Note
EXHIBIT B-2 Revolving Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of Weil Gotshal & Manges L.L.P., Special Counsel to
the Credit Parties
EXHIBIT E-2 Opinion of Liebowitz & Associates, Special FCC Counsel to the
Credit Parties
EXHIBIT F Officers' Certificate
EXHIBIT G Subsidiary Guaranty
EXHIBIT H Subsidiary Pledge Agreement
EXHIBIT I Subsidiary Security Agreement
EXHIBIT J Form of Mortgage
EXHIBIT K Environmental Indemnity Agreement
EXHIBIT L Assignment and Assumption Agreement
EXHIBIT M Acknowledgement, Consent and Amendment
(vi)
<PAGE> 8
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 14, 1996 and
amended and restated as of January 23, 1997 and further amended and restated as
of July 2, 1997, among CHANCELLOR BROADCASTING COMPANY (formerly known as
CHANCELLOR CORPORATION), a Delaware corporation ("Holdings"), CHANCELLOR RADIO
BROADCASTING COMPANY (formerly known as CHANCELLOR BROADCASTING COMPANY), a
Delaware corporation (the "Borrower"), the Banks party hereto from time to
time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Documentation Agent, TORONTO
DOMINION (TEXAS), INC. and NATIONSBANK OF TEXAS, N.A., as Syndication Agent,
and BANKERS TRUST COMPANY, as Managing Agent (all capitalized terms used herein
and defined in Section 11 are used herein as therein defined).
WITNESSETH:
WHEREAS, Holdings, the Borrower, the Existing Banks and Bankers Trust
Company, as Managing Agent, are party to a Credit Agreement, dated as of
February 14, 1996 and amended and restated as of January 23, 1997 (as the same
has been amended, modified or supplemented to, but not including, the Second
Restatement Effective Date, the "Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Existing Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Bank with a Term Loan Commitment severally agrees, (A) in
the case of each Continuing Bank, to convert into Term Loans (each, a "Term Loan
Conversion", and collectively, the "Term Loan Conversions") on the Second
Restatement Effective Date, the Existing Term Loans made by such Continuing Bank
to the Borrower pursuant to the Existing Credit Agreement and outstanding on the
Second Restatement Effective Date in an aggregate principal amount equal to the
<PAGE> 9
aggregate principal amount of such Existing Term Loans made by such Continuing
Bank and so outstanding and/or (B) to make, on the Second Restatement Effective
Date a term loan or term loans (together with each Term Loan Conversion each, a
"Term Loan" and, collectively, the "Term Loans") to the Borrower, which Term
Loans (i) made or converted on the Second Restatement Effective Date, shall not
exceed for any Bank, in an initial principal amount, that amount which equals
such Bank's Term Loan Commitment and (ii) shall, at the option of the Borrower,
be Base Rate Loans or Eurodollar Loans, provided that, except as otherwise
specifically provided in Section 1.10(b), all Term Loans comprising the same
Borrowing shall at all times be of the same Type. Once repaid, Term Loans
borrowed hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Bank with a Revolving Loan Commitment severally agrees, (A) in the case of
each Continuing Bank, to convert into Revolving Loans (each a "Revolving Loan
Conversion", and collectively the "Revolving Loan Conversions"), on the Second
Restatement Effective Date, Existing Revolving Loans made by such Continuing
Bank to the Borrower pursuant to the Existing Credit Agreement and outstanding
on the Second Restatement Effective Date in an aggregate principal amount equal
to the lesser of (x) the aggregate principal amount of such Existing Revolving
Loans made by such Continuing Bank and so outstanding and (y) such Continuing
Bank's Adjusted RL Percentage of the aggregate principal amount of Revolving
Loans made by all Banks and outstanding on the Second Restatement Effective Date
and/or (B) at any time and from time to time on and after the Second Restatement
Effective Date and prior to the Maturity Date, to make a revolving loan or
revolving loans (together with each Revolving Loan Conversion each, a "Revolving
Loan" and, collectively, the "Revolving Loans") to the Borrower, which
Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or
Eurodollar Loans, provided that, except as otherwise specifically provided in
Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all
times be of the same Type, (ii) may be repaid and reborrowed in accordance with
the provisions hereof, (iii) shall not exceed for any Bank at any time
outstanding that aggregate principal amount (which amount, in the case of each
Continuing Bank, shall include the principal amount of each Revolving Loan
Conversion) which, when added to the product of (x) such Bank's Adjusted RL
Percentage and (y) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) at such time, equals the Revolving Loan Commitment of such Bank at such
time and (iv) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to the amount of all Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the
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<PAGE> 10
respective incurrence of Revolving Loans) at such time, equals the Total
Revolving Loan Commitment at such time.
(c) Notwithstanding any other provision of this Agreement, each Bank
with a Tenn Loan outstanding or with a Revolving Loan Commitment severally
agrees, automatically and immediately effective upon the consummation of the
Evergreen Merger (so long as (i) no Default or Event of Default then exists
under Section 10.01 or 10.05 of this Agreement and (ii) no Default or Event of
Default then exists under Section 8.01(b), (f) or (g) of (and as such terms are
defined in) the Evergreen Loan Agreement (defined below)), that such Term Loan
shall become a Term Loan for the identical amount (and with a corresponding Term
Loan Commitment) under the Second Amended and Restated Loan Agreement among
Evergreen Media of LA (which entity shall be the surviving corporation of a
merger with the Borrower pursuant to the Evergreen Merger Agreement, and
accordingly the successor in interest to the Borrower), the Lenders signatory
thereto (the "Lenders"), Toronto Dominion (Texas), Inc., Bankers Trust Company,
The Bank of New York, NationsBank of Texas, N.A., and Union Bank of California,
as Managing Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
for the Lenders (the "Evergreen Administrative Agent"), dated as of April 25,
1997, as amended by a certain First Amendment to Second Amended and Restated
Loan Agreement dated as of June 26, 1997 (as amended, the "Evergreen Loan
Agreement") a copy of which is attached hereto as Annex A, and each Bank with a
Revolving Loan Commitment agrees that such Revolving Loan Commitment shall
become, automatically and immediately effective without further action upon the
consummation of the Evergreen Merger, a Revolving Loan Commitment (with the
amount of outstanding Revolving Loans converted into an equal amount of new
Revolving Loans) for the identical amount under the Evergreen Loan Agreement.
The Evergreen Administrative Agent shall, on the date of the Evergreen Merger,
issue a revised Schedule 1 - Commitment Ratios, to each Lender under the
Evergreen Loan Agreement, which shall include each Bank hereunder, and
thereafter, the new Borrower shall issue new promissory notes to each Bank which
requests such notes promptly after such requests and relinquishment by such Bank
of any Notes issued hereunder. Concurrently with such conversion, (i) the
Borrower shall pay all unpaid interest, fees and other amounts (other than
principal in respect of the outstanding Loans) which are unpaid at such time,
all Loans hereunder shall be deemed repaid and satisfied in full and all
Revolving Loan Commitments shall be automatically terminated and (ii) all
Letters of Credit which remain outstanding hereunder shall be deemed terminated
for purposes of this Agreement to the extent assumed as Letters of Credit under
the Evergreen Loan Agreement.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount
of each Borrowing of Term Loans shall not be less than $2,000,000 and, if
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<PAGE> 11
greater, shall be in an integral multiple of $100,000. The aggregate principal
amount of each Borrowing of Revolving Loans shall be not less than $250,000
and, if greater, shall be in an integral multiple of $50,000 or, if less, the
then remaining Total Unutilized Revolving Loan Commitment. More than one
Borrowing may occur on the same date, but at no time shall there be outstanding
more than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur a
Borrowing hereunder, it shall give the Managing Agent at its Notice Office at
least one Business Day's prior written (or telephonic promptly confirmed in
writing) notice of each Base Rate Loan and at least three Business Days' prior
written (or telephonic promptly confirmed in writing) notice of each Eurodollar
Loan to be made hereunder, provided that any such notice shall be deemed to
have been given on a certain day only if given before 11:00 A.M. (New York
time) in the case of a Borrowing of Eurodollar Loans, or 12:00 Noon (New York
time) in the case of a Borrowing of Base Rate Loans, on such day. Each such
written notice or written confirmation of telephonic notice (each a "Notice of
Borrowing"), except as otherwise expressly provided in Section 1.10, shall be
irrevocable and shall be given by the Borrower in the form of Exhibit A,
appropriately completed to specify the aggregate principal amount of the Loans
to be made pursuant to such Borrowing, the date of such Borrowing (which shall
be a Business Day), whether the Loans being made pursuant to such Borrowing
shall constitute Term Loans or Revolving Loans and whether the Loans being made
pursuant to such Borrowing are to be initially maintained as Base Rate Loans or
Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to be
applicable thereto. The Managing Agent shall promptly give each Bank which is
required to make Loans of the Tranche specified in the respective Notice of
Borrowing, notice of such proposed Borrowing, of such Bank's proportionate
share thereof and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing of Loans, the
Managing Agent may act without liability upon the basis of telephonic notice of
such Borrowing, believed by the Managing Agent in good faith to be from the
President, Chief Financial Officer or Senior Vice President of Finance of the
Borrower (or any other officer of the Borrower designated in writing to the
Managing Agent by the President, the Chief Financial Officer or Senior Vice
President of Finance of the Borrower as being authorized to give such notices
under this Agreement) prior to receipt of written confirmation. In each such
case, the Borrower hereby waives the right to dispute the Managing Agent's
record of the terms of such telephonic notice of such Borrowing of Loans.
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<PAGE> 12
1.04 Disbursement of Funds. Except as otherwise specifically provided
in the second succeeding sentence, no later than 12:00 Noon (New York time) on
the date specified in each Notice of Borrowing, each Bank with a Commitment of
the respective Tranche will make available its pro rata portion of each such
Borrowing requested to be made on such date. All such amounts shall be made
available in Dollars and in immediately available funds at the Payment Office
of the Managing Agent, and the Managing Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available
by the Banks (prior to 1:00 P.M. on such day, to the extent of funds actually
received by the Managing Agent prior to 12:00 Noon on such day). Unless the
Managing Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the Managing
Agent such Bank's portion of any Borrowing to be made on such date, the
Managing Agent may assume that such Bank has made such amount available to the
Managing Agent on such date of Borrowing and the Managing Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Managing Agent by such Bank, the Managing Agent shall be entitled to recover
such corresponding amount on demand from such Bank. If such Bank does not pay
such corresponding amount forthwith upon the Managing Agent's demand therefor,
the Managing Agent shall promptly notify the Borrower and the Borrower shall
immediately pay such corresponding amount to the Managing Agent. The Managing
Agent shall also be entitled to recover on demand from such Bank or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Managing Agent to the Borrower until the date such corresponding amount is
recovered by the Managing Agent, at a rate per annum equal to (i) if recovered
from such Bank, at the overnight Federal Funds Rate and (ii) if recovered from
the Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result
of any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Bank shall, if requested by any Bank, be
evidenced (i) if Term Loans, by a promissory note duly executed and delivered
by the Borrower substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each, a "Term Note" and,
collectively, the "Tenn Notes") and (ii) if Revolving Loans, by a promissory
note duly executed and delivered by the Borrower substantially in the form of
Exhibit B-2, with blanks appropriately completed in conformity herewith (each,
a "Revolving Note" and, collectively, the "Revolving Notes").
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<PAGE> 13
(b) The Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank and be dated the Second
Restatement Effective Date, (iii) be in a stated principal amount equal to the
Term Loan Commitment of such Bank as in effect on the Second Restatement
Effective Date (before giving effect to any reductions thereto as a result of
the making of Term Loans by such Bank on such date) and be payable in the
principal amount of Term Loans evidenced thereby, (iv) mature on the Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Revolving Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to the order of such Bank and be dated the Second
Restatement Effective Date, (iii) be in a stated principal amount equal to the
Revolving Loan Commitment of such Bank and be payable in the principal amount
of the Revolving Loans evidenced thereby, (iv) mature on the Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on
any Business Day, all or a portion equal to at least (x) in the case of a
conversion of Term Loans, $2,000,000 (and, if greater, in an integral multiple
of $100,000) and (y) in the case of a conversion of Revolving Loans, $1,000,000
(and, if greater, in an integral multiple of $250,000), of the outstanding
principal amount of Loans made pursuant to one or more Borrowings (so long as
of the same Tranche) of one or more Types of Loans into a Borrowing (of the
same Tranche) of another Type of Loan, provided that (i) except as otherwise
provided in Section 1. 10(b), Eurodollar Loans may be converted into Base Rate
Loans only on the last day of an Interest Period applicable to the Loans being
converted and no partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of such Eurodollar Loans made pursuant to a single
Borrowing to less than (x) in the case of Term Loans, $2,000,000, and (y) in
the
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<PAGE> 14
case of Revolving Loans, $1,000,000, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of the conversion and (iii) no conversion pursuant to this Section 1.06
shall result in a greater number of Eurodollar Loans than is permitted under
Section 1.02. Each such conversion shall be effected by the Borrower by giving
the Managing Agent at its Notice Office prior to 12:00 Noon (New York time) at
least three Business Days' prior notice (each a "Notice of Conversion")
specifying the Loans to be so converted, the Borrowing or Borrowings pursuant
to which such Loans were made and, if to be converted into Eurodollar Loans,
the Interest Period to be initially applicable thereto. The Managing Agent
shall give each Bank prompt notice of any such proposed conversion affecting
any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Term Loans and Revolving
Loans under this Agreement shall be incurred from the Banks pro rata on the
basis of their Term Loan Commitments or Revolving Loan Commitments, as the case
may be. It is understood that no Bank shall be responsible for any default by
any other Bank of its obligation to make Loans hereunder and that each Bank
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Bank to make its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the
maturity (whether by acceleration, optional or mandatory prepayment or
otherwise) of such Base Rate Loan and (ii) the conversion of such Base Rate
Loan to a Eurodollar Loan pursuant to Section 1.06, at a rate per annum which
shall be equal to the sum of the Applicable Margin plus the Base Rate in effect
from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date the proceeds thereof are
made available to the Borrower until the earlier of (i) the maturity (whether
by acceleration, optional or mandatory prepayment or otherwise) of such
Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base Rate
Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per
annum which shall, during each Interest Period applicable thereto, be equal to
the sum of the Applicable Margin plus the Eurodollar Rate for such Interest
Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to the greater of
(x) 2% per annum in excess of the rate otherwise applicable to Base Rate Loans
of the respective Tranche
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<PAGE> 15
of Loans from time to time and (y) the rate which is 2% in excess of the rate
then borne by such Loans, in each case with such interest to be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Managing Agent shall
determine the Eurodollar Rate for each Interest Period applicable to Eurodollar
Loans and shall promptly notify the Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of Borrowing or
Notice of Conversion in respect of the making of, or conversion into, any
Eurodollar Loan (in the case of the initial Interest Period applicable thereto)
or on the third Business Day prior to the expiration of an Interest Period
applicable to such Eurodollar Loan (in the case of any subsequent Interest
Period), the Borrower shall have the right to elect, by giving the Managing
Agent notice thereof, the interest period (each an "Interest Period")
applicable to such Eurodollar Loan, which Interest Period shall, at the option
of the Borrower, be a one, two, three, six month period, or, to the extent
available to each Bank with a Commitment under the Tranche under which such
Borrowing is to be made, a nine or twelve month period; provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Loan of a different Type) and each
Interest Period occurring thereafter in respect of such Eurodollar Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on
a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end
on the last Business Day of such calendar month;
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<PAGE> 16
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period
for a Eurodollar Loan would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period may be selected at any time when a Default
or Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of Term Loans
shall be selected which extends beyond the Maturity Date;
(vii) no Interest Period in respect of any Borrowing of Revolving
Loans shall be selected which extends beyond the Maturity Date; and
(viii) no Interest Period in respect of any Borrowing of Term Loans
shall be selected which extends beyond any date upon which a mandatory
repayment of Term Loans will be required to be made under Section 4.02(b)
if after giving effect to the selection of such Interest Period, the
aggregate principal amount of Term Loans which have Interest Periods which
will expire after such date of mandatory repayment will be in excess of
the aggregate principal amount of Term Loans then outstanding less the
aggregate amount of such required repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to
convert such Eurodollar Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any Bank
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Managing Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the Second Restatement Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
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<PAGE> 17
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the Second Restatement
Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in
the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to any Bank of the principal of
or interest on such Eurodollar Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Bank, or any franchise tax based on the
net income or profits of such Bank, in either case pursuant to the laws of
the United States of America or the jurisdiction in which it is organized
or in which its principal office or applicable lending office is located
or any subdivision thereof or therein), but without duplication of any
amounts payable in respect of Taxes pursuant to Section 4.04(a), or (B) a
change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances since
the Second Restatement Effective Date affecting such Bank or the interbank
Eurodollar market or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Bank in good
faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the
Second Restatement Effective Date which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Bank (or the Managing Agent, in the case of
clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Managing Agent of such determination (which notice the Managing Agent shall
promptly transmit to each of the other Banks). Thereafter (x) in the case of
clause (i) above, Eurodollar Loans shall no longer be available until such
time as the Managing Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Managing Agent no longer exist,
and any Notice of Borrowing or Notice of Conversion given by the Borrower with
respect to Eurodollar Loans which have not yet been incurred (including by way
of conversion) shall be deemed rescinded by the Borrower, (y) in the case of
clause (ii) above, the Borrower shall, subject to the provisions of Section
13.15 (to the extent applicable) pay to such Bank, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, inter-
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<PAGE> 18
est or otherwise as such Bank in its sole discretion shall determine) as shall
be required to compensate such Bank for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional
amounts owed to such Bank, showing the basis for the calculation thereof,
submitted to the Borrower by such Bank in good faith shall, absent manifest
error, be final and conclusive and binding on all the parties hereto) and (z)
in the case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event, within
the time period required by law. Each of the Managing Agent and each Bank
agrees that if it gives notice to the Borrower of any of the events described
in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the
case of any such Bank, the Managing Agent, if such event ceases to exist. If
any such event described in clause (iii) above ceases to exist as to a Bank,
the obligations of such Bank to make Eurodollar Loans and to convert Base Rate
Loans into Eurodollar Loans on the terms and conditions contained herein shall
be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Managing Agent telephonic notice (confirmed in writing)
on the same date that the Borrower was notified by the affected Bank or the
Managing Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days' written
notice to the Managing Agent, require the affected Bank to convert such
Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank is
affected at any time, then all affected Banks must be treated the same pursuant
to this Section 1.10(b).
(c) If at any time after the Second Restatement Effective Date any
Bank determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank based on the existence of such Bank's Commitments
hereunder or its obligations hereunder, then the Borrower shall, subject to the
provisions of Section 13.15 (to the extent applicable), pay to such Bank, upon
its written demand therefor, such additional amounts as shall be required to
compensate such Bank or such other corporation for the increased cost to such
Bank or such other corporation or the reduction in the rate of return to such
Bank or such other corporation as a result of such increase of capital. In
determining such additional
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<PAGE> 19
amounts, each Bank will act reasonably and in good faith and will use reasonable
averaging and attribution methods, provided that such Bank's reasonable good
faith determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Bank, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to
the Borrower, which notice shall show the basis for calculation of such
additional amounts.
1.11 Compensation. The Borrower shall, subject to the provisions of
Section 13.15 (to the extent applicable), compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding any loss of anticipated profit) which
such Bank may sustain: (i) if for any reason (other than a default by such Bank
or the Managing Agent) a Borrowing of, or conversion from or into, Eurodollar
Loans does not occur on a date specified therefor in a Notice of Borrowing or
Notice of Conversion (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 1.10(a) or (b)); (ii) if any repayment
(including any repayment made pursuant to Section 4.02 or as a result of an
acceleration of the Loans pursuant to Section 10) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the
Borrower; or (iv) as a consequence of (x) any other default by the Borrower to
repay its Loans when required by the terms of this Agreement or any Note held
by such Bank or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such Bank,
it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans affected by such event, provided that such designation is made on
such terms that such Bank and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section
1.12 shall affect or postpone any of the obligations of the Borrower or the
right of any Bank provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a Defaulting Bank
or otherwise defaults in its obligations to make Loans or fund Unpaid Drawings,
(y) upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or
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(iii), Section 1. 10(c), Section 2.05 or Section 4.04 with respect to any Bank
which results in such Bank charging to the Borrower increased costs in excess
of those being generally charged by the other Banks or (z) as provided in
Section 13.12(b) in the case of certain refusals by a Bank (other than a Bank
whose commitments are terminated in accordance with Section 3.02(b) and/or
whose Loans are repaid in accordance with Section 4.01(v)) to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks, the Borrower
shall have the right, if no Default or Event of Default will exist immediately
after giving effect to the respective replacement, to either replace such Bank
(the "Replaced Bank") with one or more other Eligible Transferee or
Transferees, none of whom shall constitute a Defaulting Bank at the time of
such replacement (collectively, the "Replacement Bank") reasonably acceptable
to the Managing Agent or, at the option of the Borrower, to replace only (a)
the Term Loan Commitment or Term Loans of the Replaced Bank with an identical
Tenn Loan Commitment or Term Loans provided by the Replacement Bank or (b) the
Revolving Loan Commitment (and outstandings pursuant thereto) of the Replaced
Bank with an identical Revolving Loan Commitment provided by the Replacement
Bank, provided that (i) at the time of any replacement pursuant to this Section
1.13, the Replacement Bank shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 13.04(b) (and with all fees payable
pursuant to said Section 13.04(b) to be paid by the Replacement Bank) pursuant
to which the Replacement Bank shall acquire all of the Commitments and
outstanding Loans (or, in the case of the replacement of only (a) the Term Loan
Commitment or Term Loans, the Term Loan Commitment or Term Loans or (b) the
Revolving Loan Commitment, the Revolving Loan Commitment and outstanding Revo l
ving Loans) of, and in each case (except for the replacement of only the
outstanding Term Loans) participations in Letters of Credit by, the Replaced
Bank and, in connection therewith, shall pay to (x) the Replaced Bank in
respect thereof an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans (or of the
Loans of the respective Tranche being replaced) of the Replaced Bank, (B)
except for the replacement of only the outstanding Term Loans, an amount equal
to all Unpaid Drawings that have been funded by (and not reimbursed to) such
Replaced Bank, together with all then unpaid interest with respect thereto at
such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees
owing to the Replaced Bank (but only with respect to the relevant Tranche, in
the case of all Tranches of Loans being held by the respective Replaced Bank)
pursuant to Section 3.01 and (y) except in the case of the replacement of only
the outstanding Term Loans of the Replaced Bank, any Issuing Bank an amount
equal to such Replaced Bank's Adjusted RL Percentage (for this purpose,
determined as if the adjustment described in clause (y) of the immediately
succeeding sentence had been made with respect to such Replaced Bank) of any
Unpaid Drawing (which at such time remains an Unpaid Drawing) to the extent
such amount was not theretofore funded by
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<PAGE> 21
such Replaced Bank, and (ii) all obligations of the Borrower owing to the
Replaced Bank (other than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Bank concurrently with such
replacement. Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (i) and (ii) above
and, if so requested by the Replacement Bank, delivery to the Replacement Bank
of the appropriate Note or Notes executed by the Borrower, (x) the Replacement
Bank shall become a Bank hereunder and, unless the respective Replaced Bank
continues to have outstanding Loans or Commitments hereunder, the Replaced Bank
shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01, as the same may be limited
by Section 13.15 (to the extent applicable)), which shall survive as to such
Replaced Bank and (y) in the case of a replacement of a Defaulting Bank with a
Non-Defaulting Bank, the Adjusted RL Percentages of the Banks shall be
automatically adjusted at such time to give effect to such replacement (and to
give effect to the replacement of a Defaulting Bank with one or more
Non-Defaulting Banks).
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that any Issuing Bank
issue, at any time and from time to time on and after the Second Restatement
Effective Date and prior to the Maturity Date, (x) for the account of the
Borrower and for the benefit of any holder (or any trustee, agent or other
similar representative for any such holders) of L/C Supportable Obligations of
the Borrower or any of its Subsidiaries, an irrevocable sight standby letter of
credit, in a form customarily used by such Issuing Bank or in such other form
as has been approved by such Issuing Bank (each such standby letter of credit,
a "Standby Letter of Credit") in support of such L/C Supportable Obligations
and (y) for the account of the Borrower and for the benefit of sellers of goods
to the Borrower or any of its Subsidiaries, an irrevocable sight commercial
letter of credit in a form customarily used by such Issuing Bank (each such
commercial letter of credit, a "Trade Letter of Credit" and each such Trade
Letter of Credit and each Standby Letter of Credit, a "Letter of Credit") in
support of commercial transactions of the Borrower and its Subsidiaries.
(b) Each Issuing Bank may agree in its sole discretion, and BTCo
hereby agrees that, in the event a requested Letter of Credit is not issued by
one of the other Issuing Banks, it will (subject to the terms and conditions
contained herein), at any time and from time to time on or after the Second
Restatement Effective Date and prior to the Maturity Date, following its
receipt of the respective Letter of Credit Request, issue
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for the account of the Borrower one or more Letters of Credit (x) in the case
of Standby Letters of Credit, in support of such L/C Supportable Obligations of
the Borrower or any of its Subsidiaries and (y) in the case of Trade Letters of
Credit, in support of sellers of goods as referenced in Section 2.01(a),
provided that the respective Issuing Bank shall be under no obligation to issue
any Letter of Credit of the types described above if at the time of such
issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Bank from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Bank or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such
Issuing Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing Bank
with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Bank is not otherwise
compensated) not in effect on the date hereof, or any unreimbursed loss,
cost or expense which was not applicable, in effect or known to such
Issuing Bank as of the date hereof and which such Issuing Bank in good
faith deems material to it; or
(ii) such Issuing Bank shall have received notice from any Bank prior
to the issuance of such Letter of Credit of the type described in the
second sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $40,000,000 minus the aggregate amount of cash earnest money
deposits outstanding at such time pursuant to Section 9.01(xix) or (y) when
added to the aggregate outstanding principal amount of all Revolving Loans of
Non-Defaulting Banks, the Adjusted Total Revolving Loan Commitment; (ii) each
Letter of Credit shall be denominated in Dollars; and (iii) each Letter of
Credit shall by its terms terminate (A) in the case of Standby Letters of
Credit, on or before the earlier of (x) the date which occurs 12 months after
the date of the issuance thereof (although any such Letter of Credit may be
extendable for successive periods of up to 12 months, but not beyond July 2,
2004, on terms acceptable to the Issuing Bank thereof) and (y) July 2, 2004 and
(B) in the case of Trade Letters of Credit, on or before the earlier of (x) the
date which occurs 180 days after the date of issuance thereof and (y) the date
which is 30 days prior to July 2, 2004.
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(d) Schedule II contains a description of all letters of credit issued
by BTCo pursuant to the Existing Credit Agreement and which are to remain
outstanding on the Second Restatement Effective Date. Each Existing Letter of
Credit, including any extension thereof, issued by BTCo shall constitute a
"Letter of Credit" for all purposes of this Agreement. Each Existing Letter of
Credit shall be deemed issued for purposes of Sections 3.01(b) and 3.01(c) on
the Second Restatement Effective Date.
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires that
a Letter of Credit be issued for its account, the Borrower shall give the
Managing Agent and the respective Issuing Bank at least two Business Days' (or
such shorter period as is acceptable to the respective Issuing Bank) written
notice thereof. In the case of Letters of Credit to be issued pursuant to
Section 2.01, each notice shall be in the form of Exhibit C (each a "Letter of
Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.01(c). Unless the respective Issuing Bank has received notice from any Bank
before it issues a Letter of Credit that one or more of the conditions
specified in Section 5 or Section 6 are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.01(c), then such
Issuing Bank may issue the requested Letter of Credit for the account of the
Borrower in accordance with such Issuing Bank's usual and customary practices.
Upon its issuance of any Standby Letter of Credit, such Issuing Bank shall
promptly notify each Bank participating therein of such issuance, which notice
shall be accompanied by a copy of the Letter of Credit actually issued and any
amendments thereto. For Trade Letters of Credit on which the Issuing Bank is
other than the Managing Agent, the Issuing Bank will send to the Managing Agent
by facsimile transmission, promptly on the first Business Day of each week, the
daily aggregate Stated Amounts of Trade Letters of Credit available during the
preceding week. The Managing Agent will send to each Bank with a Revolving Loan
Commitment, after each calendar month end and upon each Letter of Credit Fee
payment, a report setting forth for the relevant period the daily aggregate
Stated Amount under Trade Letters of Credit of all Issuing Banks during such
period.
2.03 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall
be deemed to have sold and transferred to each Bank with a Revolving Loan
Commitment, other than such Issuing Bank (each such Bank, in its capacity under
this Section 2.03, a "Participant"), and each such Participant shall be deemed
irrevocably and unconditionally to have purchased and received from such
Issuing Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Adjusted RL
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<PAGE> 24
Percentage, in such Letter of Credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto (although the Letter of Credit
Fee shall be payable directly to the Managing Agent for the account of the
Participants as provided in Section 3.01(b) and the Participants shall have no
right to receive any portion of any Facing Fees). Upon any change in the
respective Revolving Loan Commitments or Adjusted RL Percentages of the Banks
pursuant to Section 1.13 or 13.04 or as a result of a Bank Default, it is
hereby agreed that, with respect to all such outstanding Letters of Credit and
Unpaid Drawings, there shall be an automatic adjustment to the participations
pursuant to this Section 2.03 to reflect the new Adjusted RL Percentages of the
assignor and assignee Bank or of all Banks with respective Revolving Loan
Commitments.
(b) In determining whether to pay under any Letter of Credit, such
Issuing Bank shall have no obligation relative to the other Banks other than to
confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they appear to substantially comply on
their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by any Issuing Bank under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Issuing Bank any resulting liability to
the Borrower or any Bank.
(c) In the event that any Issuing Bank makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall
promptly notify the Managing Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Managing Agent so notifies, prior to 11:00 A.M. (New York time)
on any Business Day, any Participant required to fund a payment under a Letter
of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted RL Percentage of the amount of such payment
on such Business Day in same day funds. If and to the extent such Participant
shall not have so made its Adjusted RL Percentage of the amount of such payment
available to such Issuing Bank, such Participant agrees to pay to such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to such Issuing Bank at
the overnight Federal Funds Rate. The failure of any Participant to make
available to such Issuing Bank its Adjusted RL Percentage of any payment under
any Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to such Issuing Bank its Adjusted RL Percentage of
any Letter of Credit on the date required, as specified
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above, but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Bank such other Participant's
Adjusted RL Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Bank shall pay to each Participant
which has paid its Adjusted RL Percentage thereof, in Dollars and in same day
funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) The obligations of the Participants to make payments to each
Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), the
Managing Agent, any Issuing Bank, any Participant, or any other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including
any underlying transaction between the Borrower and the beneficiary named
in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any
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;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
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2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the respective Issuing Bank, by making payment
directly to such Issuing Bank in immediately available funds, for any payment
or disbursement made by it under any Letter of Credit (each such amount, so
paid until reimbursed, an "Unpaid Drawing"), no later than three Business Days
after the date of such payment or disbursement, with interest on the amount so
paid or disbursed by such Issuing Bank, to the extent not reimbursed prior to
12:00 Noon (New York time) on the date of such payment or disbursement, from
and including the date paid or disbursed to but excluding the date such Issuing
Bank was reimbursed by the Borrower therefor at a rate per annum which shall be
the Base Rate in effect from time to time plus the Applicable Margin for
Revolving Loans maintained as Base Rate Loans; provided, however, to the extent
such amounts are not reimbursed prior to 12:00 Noon (New York time) on the
fifth Business Day following such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by such Issuing Bank (and
until reimbursed by the Borrower) at a rate per annum which shall be the Base
Rate in effect from time to time plus the Applicable Margin for Revolving Loans
maintained as Base Rate Loans plus 2%, in each such case, with interest to be
payable on demand. The respective Issuing Bank shall give the Borrower prompt
notice of each Drawing under any Letter of Credit, provided that the failure to
give any such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Bank (including in its capacity as the issuer of the
Letter of Credit or as Participant), or any nonapplication or misapplication by
the beneficiary of the proceeds of such Drawing, the respective Issuing Bank's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that
they appear to comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Bank under or in
connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create for such Issuing Bank
any resulting liability to the Borrower.
2.05 Increased Costs. If at any time after the Second Restatement
Effective Date, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant, or any corporation controlling
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<PAGE> 27
such Person, with any request or directive by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by any Issuing Bank or participated in by any
Participant, or (ii) impose on any Issuing Bank or any Participant, or any
corporation controlling such Person, any other conditions relating, directly or
indirectly, to this Agreement or any Letter of Credit; and the result of any of
the foregoing is to increase the cost to any Issuing Bank or any Participant of
issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Bank or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters
of Credit (except for changes in the rate of tax on, or determined by reference
to, the net income or profits of such Issuing Bank or such Participant, or any
corporation controlling such Person, or any franchise tax based on the net
income or profits of such Bank or Participant, or any corporation controlling
such Person, in either case pursuant to the laws of the United States of
America, the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), but without duplication of any amounts payable in respect of taxes
pursuant to Section 4.04(a), then, upon demand to the Borrower by such Issuing
Bank or any Participant (a copy of which demand shall be sent by such Issuing
Bank or such Participant to the Managing Agent) and subject to the provisions
of Section 13.15 (to the extent applicable), the Borrower shall pay to such
Issuing Bank or such Participant such additional amount or amounts as will
compensate such Bank for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Bank
or any Participant, upon determining that any additional amounts will be
payable pursuant to this Section 2.05, will give prompt written notice thereof
to the Borrower, which notice shall include a certificate submitted to the
Borrower by such Issuing Bank or such Participant (a copy of which certificate
shall be sent by such Issuing Bank or such Participant to the Managing Agent),
setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate such Issuing Bank or such
Participant. The certificate required to be delivered pursuant to this Section
2.05 shall, if delivered in good faith and absent manifest error, be final and
conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees, Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay the Managing Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment a
commitment commission (the "Commitment Commission") for the period from the
Second Restatement Effective Date to and including the Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been
terminated), computed
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at a rate for each day equal to (x) if on the relevant Quarterly Payment Date
or the Maturity Date (or such earlier date as the Total Revolving Loan
Commitment shall have been terminated) the Leverage Ratio is equal to or
greater than 4.5 to 1, 3/8 of 1% per annum or (y) if on the relevant Quarterly
Payment Date or the Maturity Date (or such earlier date as the Total Revolving
Loan Commitment shall have been terminated) the Leverage Ratio is less than 4.5
to 1, 1/4 of 1% per annum, in each case on the daily average Unutilized
Revolving Loan Commitment of such Non-Defaulting Bank. Accrued Commitment
Commission shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the Maturity Date or such earlier date upon which the Total
Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Managing Agent for distribution
to each Non-Defaulting Bank with a Revolving Loan Commitment, as the case may
be (based on their respective Adjusted RL Percentages), a fee in respect of
each Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the
period from and including the date of issuance of such Letter of Credit, to and
including the termination of such Letter of Credit computed at a rate per annum
equal to the Applicable Margin for Revolving Loans maintained as Eurodollar
Loans as in effect from time to time on the daily Stated Amount of such Letter
of Credit. Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and upon the first day on or after the
termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Bank, for its
own account, a facing fee in respect of each Letter of Credit issued for its
account hereunder (the "Facing Fee") for the period from and including the date
of issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the daily
Stated Amount of such Letter of Credit; provided that in no event shall the
annual Facing Fee be less than $500. Accrued Facing Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the date
upon which the Total Revolving Loan Commitment has been terminated and no
Letters of Credit remain outstanding.
(d) The Borrower shall pay, upon each payment under, issuance of, or
amendment to, any Letter of Credit, such amount as shall at the time of such
event be the administrative charge which the respective Issuing Bank is
generally imposing in connection with such occurrence with respect to letters
of credit.
(e) The Borrower shall pay to the Managing Agent, for its own account,
such other fees as have been agreed to in writing by the Borrower and the
Managing Agent.
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3.02 Voluntary Termination and Reduction of Commitments. (a) Upon at
least two Business Days' prior written notice (or telephonic notice confirmed
in writing) to the Managing Agent at its Notice Office (which notice the
Managing Agent shall promptly transmit to each of the Banks), the Borrower
shall have the right, at any time or from time to time, without premium or
penalty, to terminate or partially reduce the Total Unutilized Revolving Loan
Commitment, in whole or in part, provided that (x) each such reduction shall
apply proportionately to permanently reduce the Revolving Loan Commitment of
each Bank with a Revolving Loan Commitment (y) any partial reduction pursuant
to this Section 3.02 shall be in integral multiples of $500,000 and (z) the
reduction to the Total Unutilized Revolving Loan Commitment shall in no case be
in an amount which would cause the Revolving Loan Commitment of any Bank to be
reduced (as required by the preceding clause (x)) by an amount which exceeds
the Unutilized Revolving Loan Commitment of such Bank as in effect immediately
before giving effect to such reduction.
(b) In the event of certain refusals by a Bank as provided in Section
13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks, the Borrower may, upon five Business Days' written notice to
the Managing Agent at its Notice Office (which notice the Managing Agent shall
promptly transmit to each of the Banks) terminate the entire Revolving Loan
Commitment of such Bank so long as (i) all Loans, together with accrued and
unpaid interest, Fees and other amounts, owing to such Bank (other than amounts
owing in respect of Term Loans maintained by such Bank, if such Term Loans are
not being repaid pursuant to Section 13.12(b)) are repaid concurrently with the
effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts), and at such time, unless the
respective Bank continues to have outstanding Term Loans hereunder, such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01, as the same may
be limited by Section 13.15 (to the extent applicable)), which shall survive as
to such repaid Bank and (ii) the Managing Agent and each other Bank which will
be party to this Agreement after giving effect to such change, waiver,
discharge or termination with respect to this Agreement consents to such
termination of Revolving Loan Commitment and repayment of Loans.
3.03 Mandatory Reduction of Commitments. (a) Unless the Second
Restatement Effective Date shall have occurred on or before July 31, 1997, the
Total Commitment (and the Term Loan Commitment and the Revolving Loan
Commitment of each Bank) shall terminate in its entirety.
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(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Term Loan Commitment (and the Term Loan
Commitment of each Bank) shall terminate in its entirety on the Second
Restatement Effective Date (after giving effect to the making of Term Loans on
such date)
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each Bank) shall terminate in its entirety on the Maturity
Date.
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date after the Second Restatement Effective Date
upon which a mandatory repayment of Term Loans pursuant to Section 4.02(e) is
required (and exceeds in amount the aggregate principal amount of Term Loans
then outstanding) or would be required if Term Loans were then outstanding, the
Total Revolving Loan Commitment shall be permanently reduced by the amount, if
any, by which the amount required to be applied pursuant to said Section
(determined as if an unlimited amount of Term Loans were actually outstanding)
exceeds the aggregate principal amount of Term Loans then outstanding.
(e) Each reduction to the Total Term Loan Commitment and/or the Total
Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant to Section
4.02) shall be applied proportionately to reduce the Term Loan Commitment or
the Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Managing Agent prior to 12:00 Noon (New York time) at its Notice
Office (x) at least one Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Base Rate Loans
and (y) at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Eurodollar Loans,
whether Term Loans or Revolving Loans shall be prepaid, the amount of such
prepayment and the Types of Loans to be prepaid and, in the case of Eurodollar
Loans, the specific Borrowing or Borrowings pursuant to which made, which
notice the Managing Agent shall promptly transmit to each of the Banks; (ii)
each prepayment shall be in an aggregate principal amount of at least $100,000,
provided that if any partial prepayment of Eurodollar Loans made pursuant to
any Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than (1) in the case of Term Loans,
$2,000,000, and (2)
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<PAGE> 31
in the case of Revolving Loans, $250,000, then such Borrowing may not be
continued as a Borrowing of Eurodollar Loans and any election of an Interest
Period with respect thereto given by the Borrower shall have no force or
effect; (iii) prepayments of Eurodollar Loans made pursuant to this Section
4.01 may only be made on the last day of an Interest Period applicable thereto
(except in connection with payments made pursuant to clause (v) below); (iv)
each prepayment in respect of any Loans made pursuant to a Borrowing shall,
except as provided in clauses (v) and (vi) below, be applied pro rata among the
Banks which made such Loans; (v) in the event of certain refusals by a Bank as
provided in Section 13.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Banks, the Borrower may, upon five Business Days'
written notice to the Managing Agent at its Notice Office (which notice the
Managing Agent shall promptly transmit to each of the Banks) repay all Loans,
together with accrued and unpaid interest, Fees and other amounts, owing to
such Bank (or owing to such Bank with respect to each Tranche which gave rise
to the need to obtain such Bank's individual consent) in accordance with said
Section 13.12(b) so long as (A) in the case of the repayment of Revolving Loans
of any Bank pursuant to this clause (v), the Revolving Loan Commitment of such
Bank, is terminated concurrently with such repayment (at which time Schedule I
shall be deemed modified to reflect such changed amounts), and (B) the Managing
Agent and each other Bank which will be party to this Agreement after giving
effect to such change, waiver, discharge or termination with respect to this
Agreement consents to such repayment of Loans and such termination of Revolving
Loan Commitment; (vi) at the Borrower's election in connection with any
prepayment of Revolving Loans, such prepayment shall not be applied to the
Revolving Loans of a Defaulting Bank; and (vii) each voluntary prepayment of
Term Loans made pursuant to this Section 4.01 (other than prepayments made
pursuant to preceding clauses (v) and (vi)) shall be applied to reduce the then
remaining Scheduled Repayments pro rata based upon the then remaining number of
Scheduled Repayments after giving effect to all prior reductions thereto;
provided that if the amount to be applied to any Scheduled Repayment (whether
pursuant to preceding clause (vii) or as a result of this proviso) would exceed
the then remaining amount of such Scheduled Repayment, then an amount equal to
such excess shall be applied to reduce the other then remaining Scheduled
Repayments pro rata based upon the then remaining number of such Scheduled
Repayments after giving effect to all prior reductions thereto (including the
amount of prepayments theretofore allocated pursuant to preceding clause (vii)
and this proviso).
4.02 Mandatory Repayments and Commitment Reductions. (a) (i) On any
day on which the sum of the aggregate outstanding principal amount of the
Revolving Loans made by the Non-Defaulting Banks and the Letter of Credit
Outstandings exceeds the Adjusted Total Revolving Loan Commitment as then in
effect, the
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<PAGE> 32
Borrower shall prepay on such date principal on Revolving Loans of the Non-
Defaulting Banks in an amount equal to such excess. If, after giving effect to
the prepayment of all Revolving Loans of Non-Defaulting Banks, the aggregate
amount of the Letter of Credit Outstandings exceeds the Adjusted Total
Revolving Loan Commitment as then in effect, the Borrower shall pay to the
Managing Agent at the Payment Office on such date an amount of cash or Cash
Equivalents equal to the amount of such excess (up to a maximum amount equal to
the Letter of Credit Outstandings at such time), such cash or Cash Equivalents
to be held as security for all obligations of the Borrower to Non-Defaulting
Banks hereunder in a cash collateral account to be established by the Managing
Agent.
(ii) On any day on which the aggregate outstanding principal amount of
the Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrower shall prepay principal of
Revolving Loans of such Defaulting Bank in an amount equal to such excess.
(iii) On any day on which Holdings or any of its Subsidiaries receives
Net Sale Proceeds not required to be applied as a mandatory prepayment of Term
Loans pursuant to the operation of clauses (i) and (ii) of the first proviso to
Section 4.02(e) or required to be applied as a mandatory repayment of the
Bridge Financing, such Net Sale Proceeds shall be applied to pay outstanding
principal of Revolving Loans to the extent of such outstandings in accordance
with Section 4.02(i).
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Term Loans, to the
extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(i),
a "Scheduled Repayment"):
<TABLE>
<CAPTION>
Scheduled Repayment Date Amount
------------------------ ------
<S> <C>
Quarterly Payment Date in September 1997 $0
Quarterly Payment Date in December 1997 $0
Quarterly Payment Date in March 1998 $0
Quarterly Payment Date in June 1998 $0
Quarterly Payment Date in September 1998 $10,000,000
Quarterly Payment Date in December 1998 $10,000,000
Quarterly Payment Date in March 1999 $10,000,000
Quarterly Payment Date in June 1999 $10,000,000
</TABLE>
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<PAGE> 33
<TABLE>
<S> <C>
Quarterly Payment Date in September 1999 $15,000,000
Quarterly Payment Date in December 1999 $15,000,000
Quarterly Payment Date in March 2000 $15,000,000
Quarterly Payment Date in June 2000 $15,000,000
Quarterly Payment Date in September 2000 $15,000,000
Quarterly Payment Date in December 2000 $15,000,000
Quarterly Payment Date in March 2001 $15,000,000
Quarterly Payment Date in June 2001 $15,000,000
Quarterly Payment Date in September 2001 $15,000,000
Quarterly Payment Date in December 2001 $15,000,000
Quarterly Payment Date in March 2002 $15,000,000
Quarterly Payment Date in June 2002 $15,000,000
Quarterly Payment Date in September 2002 $20,000,000
Quarterly Payment Date in December 2002 $20,000,000
Quarterly Payment Date in March 2003 $20,000,000
Quarterly Payment Date in June 2003 $20,000,000
Quarterly Payment Date in September 2003 $25,000,000
Quarterly Payment Date in December 2003 $25,000,000
Quarterly Payment Date in March 2004 $25,000,000
Maturity Date $25,000,000
</TABLE>
; provided that in the event the aggregate principal amount of Term Loans
incurred at the time that the Total Term Loan Commitment is terminated in
accordance with Section 3.03(b) is less than $400,000,000, an amount equal to
such deficiency shall be applied to reduce the Scheduled Repayments pro rata
based on the then remaining principal amount of each such Scheduled Repayment.
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Second
Restatement Effective Date upon which Holdings or any of its Subsidiaries
receives any proceeds from any sale or issuance of its equity (other than (i)
proceeds received from the issuance of shares of Holdings Common Stock as a
result of the exercise of options issued (x) pursuant to the Dinetz Employment
Contract or the agreements granting certain options to Ms. Matrice Ellis-Kirk,
Mr. Marvin Dinetz, Mr. Eric W. Neumann, Mr. Jeffrey A. Marcus and Mr. John H.
Massey as in effect on the Second Restatement Effective Date, (y) pursuant to
the Employee Stock Option Plan or (z) as a result of any re-
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<PAGE> 34
issuance of Holdings Common Stock to new employees pursuant to, and as
permitted by Section 9.03(iii)(B)(z) to the extent that the aggregate proceeds
(after deduction of amounts used to purchase Holdings Common Stock in the case
of reissuances of the type described in Section 9.03(iii)(B)(z) excluded
pursuant to this clause (i)) do not exceed $2,500,000 in any fiscal year of
Holdings and (ii) proceeds received from any Permitted Issuance), an amount
equal to 100% of the cash proceeds of the respective sale or issuance (net of
all reasonable costs associated therewith, including, without limitation, all
due diligence costs and expenses paid for, or reimbursed by, Holdings and/or
any of its Subsidiaries, underwriting or similar fees, discounts and
commissions, attorneys' fees and expenses paid for, or reimbursed by, Holdings
and/or any of its Subsidiaries and other direct costs associated therewith) not
otherwise applied to make mandatory prepayments of outstandings under the
Bridge Financing permitted pursuant to Section 9.11 shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(h) and (i).
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Second
Restatement Effective Date upon which Holdings or any of its Subsidiaries
receives any proceeds from any incurrence by Holdings or any of its
Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for
borrowed money permitted to be incurred pursuant to Section 9.04 as such
Section is in effect on the Second Restatement Effective Date), an amount equal
to 100% of the cash proceeds of the respective incurrence of Indebtedness (net
of all reasonable costs associated therewith, including, without limitation,
all due diligence costs and expenses paid for, or reimbursed by, Holdings
and/or any of its Subsidiaries, any underwriting or similar fees, discounts and
commissions, attorneys' fees and expenses paid for, or reimbursed by, Holdings
and/or any of its Subsidiaries, all financing and/or commitment fees and other
direct costs associated therewith) not otherwise applied to make Dividends
permitted pursuant to Section 9.03(xi) shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(h) and (i).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Second
Restatement Effective Date upon which Holdings or any of its Subsidiaries
receives proceeds from any sale of assets (including capital stock and
securities held thereby, but excluding sales of assets to the extent permitted
by Sections 9.02(ii), (v), (vi), (vii), (ix), (xi), (xii), (xiii), (xv), (xvi)
and (xvii)); an amount equal to 100% of the Net Sale Proceeds therefrom shall
be applied as a mandatory repayment and/or commitment reduction in accordance
with the requirements of Sections 4.02(h) and (i), provided, that so long as no
Default or Event of Default then exists, and subject to the operation of
Section 4.02(a)(iii), (i) (x) if such Net Sale Proceeds are received on or
prior to March 31, 1998 and the Leverage Ratio on the date of receipt thereof
is less than 7.00:1.00 or (y)
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<PAGE> 35
if such Net Sale Proceeds are received after March 31, 1998 and the Leverage
Ratio on the date of receipt thereof is less than 6.50:1.00, no such mandatory
commitment reduction shall be required and (ii) the Net Sale Proceeds of the
sale of any of the Stations (whether as an asset sale, stock transfer, merger
or otherwise (including sales or swaps of Stations pursuant to the sales,
Station Swaps or Stock Swaps, respectively effected pursuant to Section
9.02(viii) or (ix))) shall not be required to be so applied on the date of
receipt thereof to the extent the Borrower has delivered a certificate to the
Managing Agent on or prior to such date stating that such Net Sale Proceeds
shall be reinvested or shall be committed to be reinvested in radio stations
(and related assets) or 100% of the capital stock or other equity interests
(whether by merger of the Borrower or any of its Subsidiaries (including
Subsidiaries created pursuant to Section 9.15), or a Stock Swap or a Station
Swap effected pursuant to Section 9.02(ix)) of a Person whose only business is
the ownership of radio stations (and related assets) or equipment to be used at
the Stations (each a "Reinvestment Asset" and together the "Reinvestment
Assets") within 180 days following such date, and, if such proceeds are
received after the repayment of all obligations under the Bridge Financing, the
entire amount of such Net Sale Proceeds shall be deposited with the Managing
Agent pursuant to a cash collateral arrangement reasonably satisfactory to the
Managing Agent whereby such proceeds shall be disbursed to the Borrower to pay
actual costs incurred by it in connection with the acquisition of Reinvestment
Assets or the making of any escrow deposits in connection therewith, provided
further, that at any time an Event of Default has occurred and is continuing
the Required Banks may direct the Managing Agent (in which case the Managing
Agent shall, and is hereby authorized by the Borrower to follow said
directions) to apply any and all proceeds then on deposit in such collateral
account to the repayment of Obligations in the same manner as proceeds would be
applied pursuant to the Amended and Restated Borrower Security Agreement and,
provided farther, that if all or any portion of such Net Sale Proceeds not
applied as a mandatory repayment and/or commitment reduction pursuant to the
preceding proviso are either (a) not so used or committed to be used within 180
days after the date of receipt of such Net Sale Proceeds or (b) if committed to
be so used within 180 days after the date of receipt of such Net Sale Proceeds
and not so used within 360 days after the date of receipt of such Net Sale
Proceeds, then, in either such case, such remaining portion not used or
committed to be used in the case of preceding clause (a) and not used in
the-case of preceding clause (b) shall be applied on the date which is 180 days
following the date of receipt of such Net Sale Proceeds in the case of clause
(a) above, or the date occurring 360 days after the date of receipt of such Net
Sale Proceeds in the case of clause (b) above as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h)
and (i). At the time of the acquisition of any Reinvestment Assets, Holdings
shall comply and shall cause its Subsidiaries to comply with Section 8.12.
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<PAGE> 36
(f) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each Excess Cash Payment Date, an amount equal to 50% of the
Excess Cash Flow for the relevant Excess Cash Payment Period shall be applied
as a mandatory repayment of principal of outstanding Term Loans in accordance
with the requirements of Sections 4.02(h) and (i).
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date
after the Second Restatement Effective Date on which Holdings or any of its
Subsidiaries receives any proceeds from any Recovery Event, an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs including,
without limitation, legal costs and expenses and taxes incurred in connection
with such Recovery Event) shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h)
and (i), provided that (x) so long as no Default or Event of Default then
exists and such proceeds do not exceed $2,500,000, such proceeds shall not be
required to be so applied on such date to the extent that the Borrower has
delivered a certificate to the Managing Agent on or prior to such date stating
that such proceeds shall be used to replace or restore any properties or assets
in respect of which such proceeds were paid within 180 days following the date
of such Recovery Event (which certificate shall set forth the estimates of the
proceeds to be so expended) and (y) so long as no Default or Event of Default
then exists and to the extent that (a) the amount of such proceeds exceeds
$2,500,000, (b) the Borrower has delivered to the Managing Agent a certificate
on or prior to the date the application would otherwise be required pursuant to
this Section 4.02(g) in the form described in clause (x) above and also
certifying the sufficiency of business interruption insurance as required by
succeeding clause (c), and (c) the Borrower has delivered to the Managing Agent
such evidence as the Managing Agent may reasonably request in form and
substance satisfactory to the Managing Agent establishing that the Borrower has
sufficient business interruption insurance and that the Borrower will be
receiving regular payments thereunder in such amounts and at such times as are
necessary to satisfy all obligations and expenses of the Borrower (including,
without limitation, all debt service requirements, including pursuant to this
Agreement), without any delay or extension thereof, for the period from the
date of the respective casualty, condemnation or other event giving rise to the
Recovery Event and continuing through the completion of the replacement or
restoration of respective properties or assets, then the entire amount and not
just the portion in excess of $2,500,000 shall be deposited with the Managing
Agent pursuant to a cash collateral arrangement reasonably satisfactory to the
Managing Agent whereby such proceeds shall be disbursed to the Borrower from
time to time as needed to pay actual costs incurred by it in connection with
the replacement or restoration of the respective properties or assets (pursuant
to such certification requirements as may be established by the Managing
Agent), provided further, that at any time while an Event of Default has
occurred and is continuing (other than an Event
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<PAGE> 37
of Default existing solely as a result of the violation of any or all of
Sections 9.08, 9.09 and 9.10, but in each case only if, and to the extent,
that the violation of said covenant has occurred as a result of the underlying
event giving rise to the Recovery Event), the Required Banks may direct the
Managing Agent (in which case the Managing Agent shall, and is hereby
authorized by the Borrower to, follow said directions) to apply any or all
proceeds then on deposit in such collateral account to the repayment of
Obligations hereunder in the same manner as proceeds would be applied pursuant
to the Amended and Restated Borrower Security Agreement, and, provided further,
that if all or any portion of such proceeds not required to be applied as a
mandatory repayment and/or commitment reduction pursuant to the second
preceding proviso (whether pursuant to clause (x) or (y) thereof) are either
(A) not so used within 180 days after the date of receipt of proceeds from the
respective Recovery Event or (B) if committed to be used within 180 days after
the date of receipt of proceeds from the respective Recovery Event and not so
used within 360 days after the date of receipt of proceeds from the respective
Recovery Event, then, in either case, such remaining portion not used or
committed to be used in the case of the preceding clause (A) and not used in
the case of preceding clause (B), shall be applied on the date which is 180
days following the date of receipt of proceeds from the respective Recovery
Event in the case of clause (A) above, or the date which is 360 days after the
date of receipt of proceeds from the respective Recovery Event in the case of
clause (B) above as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Section 4.02(h) and (i).
(h) Each amount required to be applied to repay Term Loans (i)
pursuant to Section 4.02(f) and (g) shall be applied to reduce the then
remaining Scheduled Repayments pro rata based upon the then remaining number of
Scheduled Repayments after giving effect to all prior reductions thereto (ie.,
each then remaining Scheduled Repayment shall be reduced by an amount equal to
the aggregate amount to be applied to the Term Loans divided by the then
remaining Scheduled Repayments); provided that if the amount to be applied to
any Scheduled Repayment would exceed the then remaining amount of such
Scheduled Repayment, then an amount equal to such excess shall be applied to
reduce the other then remaining Scheduled Repayments, after giving effect to
all prior reductions thereto (including the amount of prepayments theretofore
allocated pursuant to the preceding portion of this sentence), pro rata based
upon the then remaining number of Scheduled Repayments in the manner described
above and (ii) pursuant to Sections 4.02(c) through (e) shall be applied to
reduce the then remaining Scheduled Repayments in inverse order of maturity
based upon the then remaining number of Scheduled Repayments after giving
effect to all prior reductions thereto.
(i) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which
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<PAGE> 38
are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing
or Borrowings of the respective Tranche pursuant to which made, provided that:
(i) repayments of Eurodollar Loans pursuant to this Section 4.02 may only be
made on the last day of an Interest Period applicable thereto unless all
Eurodollar Loans of the respective Tranche with Interest Periods ending on such
date of required repayment and all Base Rate Loans of the respective Tranche
have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant
to a single Borrowing shall reduce the outstanding Eurodollar Loans made
pursuant to such Borrowing to an amount less than (x) in the case of Term
Loans, $2,000,000, and (y) in the case of Revolving Loans, $1,000,000, such
Borrowing shall be converted at the end of the then current Interest Period
into a Borrowing of Base Rate Loans; and (iii) each repayment of any Loans made
pursuant to a Borrowing shall be applied pro rata among the Banks which made
such Loans. In the absence of a designation by the Borrower as described in the
preceding sentence, the Managing Agent shall, subject to the above, make such
designation in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under Section 1.11. Notwithstanding the foregoing
provisions of this Section 4.02, if at any time the mandatory prepayment of
Term Loans pursuant to Sections 4.02(c) through (g) or Revolving Loans pursuant
to Section 4.02(a)(iii) above would result, after giving effect to the
procedures set forth above, in the Borrower incurring breakage costs under
Section 1.11 as a result of Eurodollar Loans being prepaid other than on the
last day of an Interest Period applicable thereto (the "Affected Eurodollar
Loans"), then the Borrower may in its sole discretion initially deposit a
portion (up to 100%) of the amounts that otherwise would have been paid in
respect of the Affected Eurodollar Loans with the Managing Agent (which deposit
must be equal in amount to the amount of Affected Eurodollar Loans not
immediately prepaid) to be held as security for the obligations of the Borrower
hereunder pursuant to a cash collateral agreement to be entered into in form
and substance reasonably satisfactory to the Managing Agent, with such cash
collateral to be directly applied upon the first occurrence (or occurrences)
thereafter of the last day of an Interest Period applicable to the relevant
Loans that are Eurodollar Loans (or such earlier date or dates as shall be
requested by the Borrower), to repay an aggregate principal amount of such
Loans equal to the Affected Eurodollar Loans not initially repaid pursuant to
this sentence, provided that in the case of repayments of Revolving Loans
pursuant to Section 4.02(a)(iii) the Borrower may by notice to the Managing
Agent elect to temporarily reduce the availability by the amount of such
required repayment (such temporary reduction not to effect any calculation of
the Commitment Commission) in lieu of providing cash collateral as provided in
this sentence, which reduction shall continue in effect until such time as the
occurrence thereafter of the last day of an Interest Period or Interest Periods
applicable to such Revolving Loans that are Eurodollar Loans and the repayment
of such amounts by the Borrower. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, all amounts deposited as cash
collateral pursuant to the immediately preceding sentence shall be held for the
sole benefit of the Banks whose Loans would
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<PAGE> 39
otherwise have been immediately repaid with the amounts deposited and upon the
taking of any action by the Managing Agent or the Banks pursuant to the
remedial provisions of Section 10, any amounts held as cash collateral pursuant
to this Section 4.02(i) shall, subject to the requirements of applicable law,
be immediately applied to the relevant Loans.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Managing Agent for the account of the Bank or Banks entitled thereto not
later than 12:00 Noon (New York time) on the date when due and shall be made in
Dollars in immediately available funds at the Payment Office of the Managing
Agent. Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during
such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder or
under any Note will be made without set-off, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income or net profits of a Bank, or
any franchise tax based on the net income or net profits of a Bank, in either
case pursuant to the laws of the United States of America or the jurisdiction
in which it is organized or in which the principal office or applicable lending
office of such Bank is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect thereto (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "Taxes"). If any Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or
on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence of this Section 4.04(a), then the Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes imposed
on or measured by the net income or net profits of such Bank, or any franchise
tax based on the net income or net profits of such Bank, in either case
pursuant to the laws of the jurisdiction in which such bank is organized or in
which the principal office or applicable lending office of such Bank is located
or under the laws of any political subdivision or taxing authority of any such
jurisdiction in which the principal office or applicable lending
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<PAGE> 40
office of such Bank is located and for any withholding of income or similar
taxes imposed by the United States of America as such Bank shall determine in
good faith are payable by, or withheld from, such Bank in respect of such
amounts so paid to or on behalf of such Bank pursuant to the preceding sentence
and in respect of any amounts paid to or on behalf of such Bank pursuant to
this sentence. The Borrower will furnish to the Managing Agent within 45 days
after the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the Borrower. The
Borrower agrees to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes described in the
preceding sentences and subject to payment by Borrower which are so levied or
imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Managing Agent on or prior to the Second Restatement Effective Date, or
in the case of a Bank that is an assignee or transferee of an interest under
this Agreement pursuant to Sections 1.13 or 13.04 (unless the respective Bank
was already a Bank hereunder immediately prior to such assignment or transfer),
on the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or Form
1001 (or successor forms) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or Form 4224 pursuant to
clause (i) above, (x) a certificate substantially in the form of Exhibit D (any
such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Bank agrees
that from time to time after the Second Restatement Effective Date, when a
lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to the Borrower
and the Managing Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or Form 1001, or Form W-8 and a Section
4.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Managing Agent of its inability to deliver any such
form or certificate, in which case such Bank shall not be required to deliver
any such form or certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (x) the Borrower
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shall be entitled, to the extent it is required to do so by law, to deduct or
withhold income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or
other amounts payable hereunder for the account of any Bank which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower
shall not be obligated pursuant to Section 4.04(a) hereof to gross-up payments
to be made to a Bank in respect of income or similar taxes imposed by the
United States if (I) such Bank has not provided to the Borrower the Internal
Revenue Service forms required to be provided to the Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a
Bank described in clause (ii) above, to the extent that such forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 4.04 and except as set forth in Section 13.04(b), the Borrower
agrees to pay additional amounts and to indemnify each Bank in the manner set
forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result
of any changes after the Second Restatement Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes.
(c) Each Bank that is a United States person (as such
term is defined in Section 7701(a)(30) of the Code) will provide an original
signed copy of Internal Revenue Service Form W-9 (or successor form) to each of
the Borrower and the Managing Agent upon the reasonable written request of the
Borrower.
(d) The provisions of this Section 4.04 are subject to
the provisions of Section 13.15 (to the extent applicable).
SECTION 5. Conditions Precedent to Credit Events on the Second
Restatement Effective Date. The occurrence of the Second Restatement Effective
Date pursuant to Section,13.10 and the obligation of each Bank to make or
maintain Loans and to participate in Letters of Credit under this Agreement,
and the obligations of each Issuing Bank to issue Letters of Credit, in each
case on the Second Restatement Effective Date, is subject, at the time of such
Credit Event, to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the
Second Restatement Effective Date (i) this Agreement shall have been executed
and delivered as provided in Section 13.10 and (ii) there shall have been
delivered to the Managing
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Agent for the account of each of the Banks that has requested a Note the
appropriate Term Note and/or Revolving Note executed by the Borrower, in each
case in the amount, maturity and as otherwise provided herein.
5.02 Fees, etc. On the Second Restatement Effective Date, the
Borrower shall have paid to the Managing Agent and the Banks all costs, fees
and expenses (including, without limitation, reasonable legal fees and
expenses) payable to the Managing Agent and the Banks to the extent then due.
5.03 Opinions of Counsel. On the Second Restatement Effective Date,
the Managing Agent shall have received (i) from Weil, Gotshal & Manges LLP,
special counsel to Holdings and its Subsidiaries, an opinion addressed to the
Managing Agent and each of the Banks and dated the Second Restatement Effective
Date covering the matters set forth in Exhibit E-1 and (ii) from Liebowitz &
Associates, FCC counsel to Holdings and its Subsidiaries, an opinion addressed
to the Managing Agent and each of the Banks and dated the Second Restatement
Effective Date covering the matters set forth in Exhibit E-2.
5.04 Corporate Documents; Proceedings; etc. (a) On the Second
Restatement Effective Date, the Managing Agent shall have received a
certificate, dated the Second Restatement Effective Date, signed by an
Authorized Officer of each Credit Party, and attested to by the Secretary or
any Assistant Secretary of such Credit Party, each in the form of Exhibit F
with appropriate insertions, together with copies of the Certificate of
Incorporation, By-Laws and resolutions (or such other administrative approval)
of such Credit Party referred to in such certificate, and the foregoing shall
be reasonably acceptable to the Managing Agent.
(b) On the Second Restatement Effective Date, all corporate and
legal proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Managing Agent and the
Required Banks, and the Managing Agent shall have received all information and
copies of all documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down telegrams or
facsimiles, if any, which the Managing Agent may have reasonably requested in
connection therewith, such documents and papers to be certified where
appropriate by proper corporate or governmental authorities.
5.05 Shareholders' Agreements; Management Agreements; Employment
Agreements; Tax Sharing Agreements. On the Second Restatement Effective Date,
there shall have been delivered to the Managing Agent true and correct copies,
certified as true and complete by an Authorized Officer of Holdings or its
respective Subsidiaries
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of (i) the Stockholders' Agreement and all other agreements entered into by
Holdings or any of its Subsidiaries governing the terms and relative rights of
its capital stock and any agreements entered into by shareholders, relating to
any such entity with respect to its capital stock (collectively, the
"Shareholders' Agreements"), (ii) all agreements with senior members of, or
with respect to, the management of Holdings or any of its Subsidiaries
(collectively, the "Management Agreements"), (iii) the Dinetz Employment
Contract, (iv) all agreements relating to the sharing of tax liabilities and
benefits among Holdings and/or its Subsidiaries (each a "Tax Sharing Agreement"
and collectively, the "Tax Sharing Agreements") and (v) all Existing Debt
Agreements; all of which Shareholders' Agreements, Management Agreements,
Dinetz Employment Contract, Tax Sharing Agreements and Existing Debt Agreements
shall be in form and substance reasonably satisfactory to the Managing Agent
and the Required Banks and shall be in full force and effect on the Second
Restatement Effective Date.
5.06 Absence of Certain Conditions. (a) The Managing Agent
shall be satisfied that Holdings and each of its Subsidiaries (x) has complied
in all material respects with each of the Shareholders' Agreements and all
agreements (the "Existing Debt Agreements") governing Indebtedness permitted to
remain outstanding on and after the Second Restatement Effective Date pursuant
to Section 9.04 (the "Existing Debt") and (y) shall be able to perform all of
their respective obligations under this Agreement and the Bridge Financing
Documents.
(b) Neither any Existing Debt nor, except as specifically
permitted herein, the Bridge Financing, shall be subject to, or as a result of
the consummation of the Transaction become subject to, any mandatory repayment
obligation of Holdings or any of its Subsidiaries prior to the stated maturity
thereof.
5.07 Consummation of the Bridge Financing; Transaction.
(a) On or prior to the Second Restatement Effective Date:
(i)(x) Holdings shall have consummated the Bridge Financing
pursuant to the terms and conditions of the Bridge Financing
Documents, (y) Holdings shall have contributed the entire net proceeds
thereof as a capital contribution to the Borrower and (z) the Borrower
shall have applied all remaining proceeds of the Bridge Financing to
make payments owing in connection with the Transaction before using
the proceeds of any Loans for such purpose;
(ii) the Borrower shall successfully have consummated the
Tender Offer pursuant to the terms and conditions of the Tender Offer
Documents;
(iii) the Supplemental Indenture shall be in full force and
effect;
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(iv) the Borrower shall have acquired (the "Viacom
Acquisition") all of the stock of the Acquired Viacom Subsidiaries
pursuant to the terms and conditions set forth in the Viacom Joint
Purchase Agreement and the other Viacom Acquisition Documents and in
accordance with all applicable laws relating thereto; and
(v) immediately prior to or after giving effect to the
Viacom Acquisition, the License Subsidiary shall hold all the FCC
Licenses in accordance with any rules of, or consents required by the
FCC and on terms and conditions reasonably satisfactory to the
Managing Agent and the Required Banks.
(b) On or prior to the Second Restatement Effective Date,
there shall have been delivered to the Agents copies of all the Transaction
Documents and Bridge Financing Documents, all of which shall be certified by an
Authorized Officer of Holdings and/or its Subsidiaries as true and correct and
be in full force and effect. On the Second Restatement Effective Date, the
Transaction and the Bridge Financing shall have been consummated in accordance
with the Transaction Documents and the Bridge Financing Documents,
respectively, which Transaction Documents and Bridge Financing Documents shall
be reasonably satisfactory to the Agents and the Required Banks, and all
applicable laws relating thereto. All conditions in the Transaction Documents
and Bridge Financing Documents shall have been satisfied, without amendment,
waiver or modification (except with the consent of the Agents and the Required
Banks, which consent shall not be unreasonably withheld), and all covenants in
the Viacom Acquisition Documents shall have been performed in all material
respects, without amendment, waiver or modification (except with the consent of
the Agents and the Required Banks, which consent shall not be unreasonably
withheld), and all representations and warranties contained therein shall be
true and correct in all material respects, without amendment, waiver or
modification (except with the consent of the Agents and the Required Banks,
which consent shall not be unreasonably withheld), and all terms and conditions
of, and documentation for, the Viacom Acquisition, the Tender Offer (including,
without limitation, the Supplemental Indenture) and the Bridge Financing,
including, without limitation, amortization, maturities, interest rates,
covenants, defaults, remedies, subordination provisions and all other terms,
shall be reasonably acceptable to the Agents and the Required Banks.
(c) On or prior to the Second Restatement Effective Date,
all necessary and material governmental (domestic and foreign) and third party
approvals in connection with the Transaction (including, without limitation,
preliminary approval from the FCC (the "FCC Consents") of the transfer of
control of the Viacom FCC Licenses contemplated by the Transaction) and the
transactions contemplated by the Credit Documents and otherwise referred to
herein or therein, shall have been obtained
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and remain in effect, and all applicable waiting periods (excluding appeal
periods with respect to the FCC Consents) shall have expired without any action
being taken by any competent authority which restrains, prevents or imposes, in
the judgment of the Managing Agent, materially adverse conditions upon the
consummation of the Transaction and the transactions contemplated by this
Agreement, provided that, without limiting the foregoing,
(i) no petition for reconsideration or request for
review, rescission or stay or other objection to the grant of the FCC
Consents shall be pending and unresolved before the FCC or any court;
(ii) the FCC Consents shall not be subject to, or impose
upon Holdings, the Borrower or any of their respective Subsidiaries or
any of the Stations (including, but not limited to, Stations to be
acquired in the Viacom Acquisition), any conditions or require the
performance of any obligations that, in the judgment of the Managing
Agent, could have a material and adverse effect upon the value of the
Stations or the ability of the Borrower to perform its obligations
under the Transaction, any of the Credit Documents or the transactions
contemplated by the Credit Agreement;
(iii) to the extent that (A) a basis for the grant by the
FCC of the FCC Consents is a settlement agreement or similar agreement
or (B) Holdings, the Borrower or any of their respective Subsidiaries
is a party to a settlement agreement entered into in connection with
the grant of the FCC Consents or (C) the grant of the FCC Consents is
by written order of the FCC, then the Managing Agent shall have been
furnished a complete copy of such settlement agreement or written
order, together with a copy of any related filings with the FCC, and
neither the terms of such settlement agreement nor the terms of such
written order, in the judgment of the Managing Agent, could have a
material and adverse effect upon the value of the Stations or the
ability of the Borrower to perform its obligations under the
Transaction, any of the Credit Documents or the transactions
contemplated by the Credit Agreement, and Holdings, the Borrower and
their respective Subsidiaries shall be in compliance with such written
order or settlement agreement.
Additionally, except as fully disclosed on Annex 5.07, there shall not exist
any judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the consummation of the Transaction
or the transactions contemplated by this Agreement.
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5.08 Subsidiary Guaranty. On the Second Restatement
Effective Date, each of the Acquired Viacom Subsidiaries shall have duly
authorized, executed and delivered a Subsidiary Guaranty in the form of Exhibit
G hereto (as amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, the "Subsidiary Guaranty").
5.09 Pledge Agreement. (a) On the Second Restatement
Effective Date, each of the Acquired Viacom Subsidiaries shall have duly
authorized, executed and delivered a Subsidiary Pledge Agreement in the form of
Exhibit H (as amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, the "Subsidiary Pledge Agreement") and shall
have delivered to the Collateral Agent, as Pledgee, all the Pledged Securities
referred to therein then owned by such Subsidiary, together with executed and
undated stock powers, in the case of capital stock constituting Pledged
Securities.
5.10 Subsidiary Security Agreement. On the Second
Restatement Effective Date, (i) each of the Acquired Viacom Subsidiaries shall
have duly authorized, executed and delivered a Security Agreement in the form
of Exhibit I (as amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, the "Subsidiary Security Agreement") covering
all of such Subsidiaries' present and future Security Agreement Collateral,
(ii) no filings, recordings, registrations or other actions shall be necessary
or desirable to maintain the perfection and priority of the security interests
granted by the original parties to the Amended and Restated Security Agreements
in the Security Agreement Collateral covered thereby (except to the extent made
pursuant to clauses (c) or (d) below), and (iii) in the case of the Subsidiary
Security Agreement, the Managing Agent shall have received:
(a) executed copies of Financing Statements (Form UCC-1)
in appropriate form for filing under the UCC of each jurisdiction as
may be necessary in the reasonable discretion of the Collateral Agent
to perfect the security interests purported to be created by the
Subsidiary Security Agreement;
(b) certified copies of Requests for Information or
Copies (Form UCC-11), or equivalent reports, listing all effective
financing statements that name Viacom or any Subsidiary of Viacom as
debtor and that are filed in any jurisdiction where a filing may be
necessary or, in the opinion of the Collateral Agent, desirable to
perfect the security interest purported to be created by such
Subsidiary Security Agreement, together with copies of such financing
statements (none of which shall cover the Collateral except to the
extent evidencing Permitted Liens or in respect of which the
Collateral Agent shall have received termination statements (Form
UCC-3) or such other termination statements as shall be required by
local law);
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(c) evidence of the completion of all other recordings
and filings of, or with respect to, the Subsidiary Security Agreement
as may be necessary or, in the reasonable opinion of the Collateral
Agent, desirable to perfect the security interests intended to be
created by such Subsidiary Security Agreement; and
(d) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the
Subsidiary Security Agreement have been taken.
5.11 Existing Mortgages, Title Insurance, etc. On the
Second Restatement Effective Date, the Collateral Agent shall have received:
(a) duly authorized, fully executed, acknowledged, and
delivered deeds of trust, mortgages, leasehold deeds of trust or
leasehold mortgages substantially in the form of Exhibit J (as
amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, each a "Mortgage" and, collectively,
the "Mortgages"), which Mortgages shall cover such of the Real
Property owned or leased by Holdings and/or its Subsidiaries and
listed on Part A of Schedule III as a Mortgaged Property (each, a
"Mortgaged Property" and, collectively, the "Mortgaged Properties");
provided that with respect to those Mortgaged Properties covered by an
Existing Mortgage and designated as Existing Mortgaged Properties on
Part A of Schedule III, the Collateral Agent shall have received, in
lieu of a Mortgage, a fully executed counterpart of an amendment (the
"Mortgage Amendment"), in form and substance satisfactory to the
Managing Agent, to such Existing Mortgage, together with evidence that
counterparts of such Mortgages and Mortgage Amendments have been
delivered to the title insurance company insuring the Lien on the
Mortgages and Existing Mortgages for recording in all places to the
extent necessary, or, in the reasonable opinion of the Collateral
Agent, desirable to effectively create or maintain a valid and
enforceable first priority mortgage lien on the Mortgaged Properties
in favor of the Collateral Agent (or such other trustee as may be
required or desired under local law) for the benefit of the Secured
Creditors;
(b) duly authorized, fully executed, acknowledged, and
delivered subordination, nondisturbance and attornment agreements,
assignments of leases, landlord consents, tenant estoppel
certificates, and such other documents relating to the Mortgages that
the Collateral Agent may reasonably request;
(c) ALTA Lender's extended coverage policies of mortgage
title insurance (or the equivalent in the state where the respective
Mortgaged Property is located) covering each Mortgaged Property,
together with all
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endorsements reasonably requested by the Collateral Agent relating
thereto issued by Commonwealth Land Title Company or such other title
insurers reasonably satisfactory to the Collateral Agent (the
"Mortgage Policies") in amounts reasonably satisfactory to the
Managing Agent (but not in excess of the value of the respective
Mortgaged Property) assuring the Collateral Agent that the Mortgages
on such Mortgaged Properties are valid and enforceable first priority
mortgage liens on the respective Mortgaged Properties, free and clear
of all defects and encumbrances except Permitted Encumbrances and such
Mortgage Policies shall otherwise be in form and substance reasonably
satisfactory to the Managing Agent and the Required Banks and shall
include, as appropriate, an endorsement for future advances under this
Agreement, the Notes and for any other matter that the Collateral
Agent in its reasonable discretion may reasonably request, and such
Mortgage Policies shall not include an exception for mechanics' liens,
and shall provide for affirmative insurance and such reinsurance as
the Collateral Agent in its discretion may reasonably request; and
(d) endorsements of the authorized issuing agent for the
title insurer, which agent shall be reasonably satisfactory to the
Collateral Agent, to each Existing Mortgage Policy assuring the
Collateral Agent that the Existing Mortgages are valid and enforceable
first priority mortgage liens on the respective Existing Mortgaged
Properties, free and clear of all defects and encumbrances other than
Permitted Encumbrances.
5.12 Environmental Indemnity Agreement. On the Second
Restatement Effective Date, the Collateral Agent shall have received a duly
authorized and fully executed Environmental Indemnity Agreement substantially
in the form of Exhibit K (as amended, modified, extended, renewed, replaced,
restated or supplemented from time to time, the "Environmental Indemnity
Agreement") from the Acquired Viacom Subsidiaries.
5.13 Existing Credit Agreement; etc. On the Second
Restatement Effective Date, (i) each Existing Bank shall have surrendered to
the Managing Agent for cancellation the promissory notes issued to it pursuant
to the Existing Credit Agreement in respect of its Existing Loans, (ii) each
Continuing Bank shall have converted its Existing Term Loan and Existing
Revolving Loan as contemplated by Sections 1.01(a) and (b), respectively, (iii)
each Existing Bank which is not a Continuing Bank shall have received payment
in full of all amounts then due and owing to it under the Existing Credit
Agreement, (iv) each Continuing Bank whose Existing Loans outstanding on the
Second Restatement Effective Date exceed the aggregate principal amount of
Loans to be made available by such Continuing Bank on such date shall have
received payment in full of all amounts then due and owing to it as provided
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in Section 13.18(c), (v) the Borrower shall have paid all interest and fees
(including commitment fees) owing under the Existing Credit Agreement through
the Second Restatement Effective Date, and (vi) the Managing Agent shall have
received evidence in form, scope and substance satisfactory to it that the
matters set forth in this Section 5.13 have been satisfied on such date.
5.14 Adverse Change, etc. On the Second Restatement Effective Date,
after giving effect to the Transaction, nothing shall have occurred since
December 31, 1996 which could reasonably be likely to have a material adverse
effect on the rights or remedies of the Banks, or on the ability of the Credit
Parties to perform their respective obligations to the Managing Agent and the
Banks or which could reasonably be likely to have a material adverse effect on
the operations, property, assets, liabilities or condition (financial or
otherwise) of Holdings and its Subsidiaries taken as a whole.
5.15 Solvency Certificate; Environmental Analyses; Insurance. On or
before the Second Restatement Effective Date, the Borrower shall have delivered
or shall cause to be delivered to the Banks (i) a solvency certificate in form
and substance satisfactory to the Agents from the Chief Financial Officer of
Holdings and the Borrower, setting forth the conclusion that, after giving
effect to the Transaction, each of Holdings and its Subsidiaries taken as a
whole, and the Borrower and its Subsidiaries, taken as a whole, is not
insolvent and will not be rendered insolvent by the indebtedness incurred in
connection therewith, and will not be left with unreasonably small capital with
which to engage in their business and will not have incurred debts beyond their
ability to pay debts as they mature, (ii) the Phase I environmental assessments
from Dames & Moore, with respect to certain of the Real Property acquired
pursuant to the Transaction and (iii) evidence of insurance complying with the
requirements of Section 8.03 for the business and properties of Holdings and
its Subsidiaries, in scope, form and substance reasonably satisfactory to the
Managing Agent and the Required Banks and naming the Collateral Agent as an
additional insured and/or loss payee, and stating that such insurance shall not
be cancelled or revised without 30 days' prior written notice by the insurer to
the Collateral Agent.
5.16 Pro Forma Balance Sheet, Projections. (a) On the Second
Restatement Effective Date, the Banks shall have received the unaudited
projected pro forma consolidated balance sheets of Holdings and the Borrower
prepared on a consolidated basis based upon the projected balance sheet at the
Second Restatement Effective Date prepared on a basis consistent with the
Projections and in accordance with the financial statements delivered pursuant
to Section 7.05(a), both immediately before and immediately after giving effect
to the Transaction, the related financing thereof (including, without
limitation, the Bridge Financing) and the other transactions contemplated
hereby and thereby, which projected pro forma consolidated balance
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sheets shall be in form and substance reasonably satisfactory to the Managing
Agent and the Required Banks.
(b) On the Second Restatement Effective Date, the Banks shall have
received the Projections described in Section 7.05(d), which Projections shall
be in form and substance reasonably satisfactory to the Managing Agent and the
Required Banks.
5.17 Acknowledgment, Consent and Amendment. (a) On the Second
Restatement Effective Date, each of the Existing Chancellor Entities shall have
duly authorized, executed and delivered an Acknowledgment, Consent and
Amendment in the form of Exhibit M hereto (as amended, modified, extended,
renewed, replaced, restated or supplemented from time to time, the
"Acknowledgment, Consent and Amendment").
(b) On the Second Restatement Effective Date, the Collateral Agent, as
Pledgee, shall have in its possession all the Pledged Securities referred to in
the Amended and Restated Holdings Pledge Agreement, the Amended and Restated
Borrower Pledge Agreement and the Amended and Restated Subsidiary Pledge
Agreement then owned by the Existing Chancellor Entities, including, without
limitation, the capital stock of the Acquired Viacom Subsidiaries, together
with executed and undated stock powers, in the case of capital stock
constituting Pledged Securities.
(c) On the Second Restatement Effective Date, (i) the Amended and
Restated Holdings Security Agreement, the Amended and Restated Borrower
Security Agreement and the Amended and Restated Subsidiary Security Agreement
shall remain in full force and effect with respect to the Existing Chancellor
Entities, (ii) no filings, recordings, registrations or other actions shall be
necessary or desirable to maintain the perfection and priority of the security
interests granted pursuant to the Amended and Restated Holdings Security
Agreement, the Amended and Restated Borrower Security Agreement and the Amended
and Restated Subsidiary Security Agreement in the Security Agreement Collateral
covered thereby, and (iii) the Banks shall have received:
(x) evidence of the completion of all recordings and filings of, or
with respect to, the Amended and Restated Holdings Security Agreement, the
Amended and Restated Borrower Security Agreement and the Amended and
Restated Subsidiary Security Agreements as may be necessary or, in the
opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created thereby; and
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(y) evidence that all other actions necessary or, in the opinion of
the Collateral Agent, desirable to perfect and protect the security
interests purported to be created by the Amended and Restated Holdings
Security Agreement, the Amended and Restated Borrower Security Agreement
and the Amended and Restated Subsidiary Security Agreement have been
taken.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
of each Bank to make Loans and participate in Letters of Credit (including
Loans made and Letters of Credit issued on the Second Restatement Effective
Date), and the obligation of any Issuing Bank to issue any Letter of Credit
(including any Letter of Credit issued on the Second Restatement Effective
Date), is subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of the making of such Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct
in all material respects only as of such specified date).
6.02 Notice of Borrowing: Letter of Credit Request. (a) Prior to the
making of each Loan, the Managing Agent shall have received the notice required
by Section 1.03.
(b) Prior to the issuance of each Letter of Credit, the Managing Agent
and the respective Issuing Bank shall have received a Letter of Credit Request
meeting the requirements of Section 2.02.
The acceptance of the benefit of each Credit Event shall constitute a
representation and warranty by Holdings and the Borrower to the Managing Agent
and each of the Banks that all the conditions specified in Section 5 and in
this Section 6 and applicable to such Credit Event exist as of that time
(except to the extent that any of the conditions specified in Section 5 are
required to be satisfactory to or determined by any Bank, the Required Banks
and/or the Managing Agent). All of the Notes, certificates, legal opinions and
other documents and papers referred to in Section 5 and in this Section 6,
unless otherwise specified, shall be delivered to the Managing Agent at the
Notice Office for the account of each of the Banks and, except for the Notes,
in suffici-
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ent counterparts or copies for each of the Banks and shall be in form and
substance reasonably satisfactory to the Banks.
Notwithstanding anything to the contrary contained above or in Section
13. 10, if the Second Restatement Effective Date does not occur on or prior to
June 30, 1997, then it shall not thereafter occur (unless the Required Banks
agree in writing to an extension of such date), and this Agreement shall cease
to be of any force or effect and the Existing Credit Agreement shall continue
to be effective, as the same may have been, or may thereafter be, amended,
modified or supplemented from time to time.
SECTION 7. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, each of Holdings
and the Borrower makes the following representations, warranties and
agreements, in each case after giving effect to the Transaction, all of which
shall survive the execution and delivery of this Agreement and the Notes and
the making of the Loans and the issuance of the Letters of Credit, with the
occurrence of each Credit Event on or after the Second Restatement Effective
Date being deemed to constitute a representation and warranty that the matters
specified in this Section 7 are true and correct on and as of the Second
Restatement Effective Date and in all material respects on the date of each
such Credit Event (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date).
7.01 Corporate Status. Holdings, the Borrower and each of their
respective Subsidiaries (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its property
and assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified to do business and is in good
standing in each jurisdiction where the conduct of its business requires such
qualifications except for failures to be so qualified which, individually or in
the aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of Holdings and its
Subsidiaries taken as a whole.
7.02 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and perform the terms and
provisions of each of the Documents to which it is party and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of each of such Documents. Each Credit Party has duly executed and
delivered each of the Documents to which it is party, and each of such
Documents constitutes such Credit Party's legal, valid and binding obligation
enforceable in accordance with its terms, except to the
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extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the material properties
or assets of Holdings, the Borrower or any of their respective Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument, to which Holdings, the Borrower or any of their respective
Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any provision of the
Certificate of Incorporation or By-Laws of Holdings, or any of its
Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the Second Restatement Effective
Date), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Document or (ii) the
legality, validity, binding effect or enforceability of any such Document,
except, in the case of any failure to obtain where such failure to so obtain
would not have a material adverse effect on (x) the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or Holdings and its Subsidiaries taken as a whole or (y) the
ability of the Credit Parties to perform their obligations under the Credit
Documents or the rights and remedies of the Managing Agent and the Banks
thereunder; provided, however, that: (a) subsequent to the date of execution of
the Credit Documents, copies of certain of the Credit Documents are required to
be filed with the FCC; (b) the License Subsidiary will be required from time to
time to obtain certain authorizations of, or to make certain filings with, the
FCC that are required in connection with the ordinary course of business of the
License Subsidiary and the Borrower; (c) subsequent to the Second Restatement
Effective Date, under the Communications Act and the FCC rules, further FCC
approval will be required prior to (A) the transfer of control of the License
Subsidiary, the Borrower or Holdings or (B) the assignment of any of the FCC
Licenses or prior to the exercise of any voting rights or management authority
over the License
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Subsidiary, the Borrower or Holdings; and (d) prior to the exercise of certain
rights or remedies under the Security Documents by the Managing Agent or the
Banks, or their respective successors and assigns, FCC consents and
notifications with respect to such exercise may be required to be timely
obtained or made.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities, Projections; etc. (a) The balance sheets, statements of
operations, statements of stockholders' equity, statements of changes in
stockholders' equity, statements of changes in group deficiency, statements of
operations and division equity, statements of assets and liabilities,
statements of operating revenues and expenses, statements of changes in net
assets, statements of changes in group investment (deficiency) and statements
of cash flows of Holdings and its Subsidiaries previously delivered to the
Managing Agent and the Banks fairly present the financial condition and
operations of the Stations at and for the periods indicated. All such financial
statements are true and correct in all material respects and have been prepared
in accordance with GAAP, consistently applied. After giving effect to the
Transaction, since December 31, 1996, there has been no material adverse change
in the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of Holdings and its
Subsidiaries taken as a whole.
(b) On and as of the Second Restatement Effective Date, after giving
effect to the Transaction and to all Indebtedness incurred, and to be incurred,
and Liens created, and to be created, by Holdings and its Subsidiaries in
connection therewith, (a) the sum of the assets, at a fair valuation, of each
of Holdings and its Subsidiaries, and the Borrower and its Subsidiaries, will
exceed their debts; (b) each of Holdings and its Subsidiaries, and the Borrower
and its Subsidiaries, has not incurred and does not intend to incur, and does
not believe that they will incur, debts beyond their ability to pay such debts
as such debts mature; and (c) each of Holdings and its Subsidiaries, and the
Borrower and its Subsidiaries, will have sufficient capital with which to
conduct their businesses. For purposes of this Section 7.05(b), "debt" means
any liability on a claim, and "claim" means (i) right to payment, whether or
not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a), there were as of the Second Restatement Effective
Date no liabilities or obligations with respect to Holdings or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
would be material to the Borrower or to
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Holdings and its Subsidiaries taken as a whole. As of the Second Restatement
Effective Date, neither Holdings nor the Borrower knows of any basis for the
assertion against it of any liability or obligation of any nature whatsoever
that is not fully disclosed in the financial statements delivered pursuant to
Section 7.05(a) which, either individually or in the aggregate, could be
material to Holdings and its Subsidiaries or the Borrower.
(d) On and as of the Second Restatement Effective Date, the financial
projections contained in the Confidential Memorandum dated as of May, 1997 (the
"Projections") previously delivered to the Managing Agent and the Banks have
been prepared on a basis consistent with the financial statements dated
December 31, 1996 delivered pursuant to Section 7.05(a) (other than as set
forth or presented in such Projections), and there are no statements or
conclusions in any of the Projections which are based upon or include
information known to the Borrower to be misleading in any material respect or
which fail to take into account material information regarding the matters
reported therein. On the Second Restatement Effective Date, the Borrower
believed that the Projections were reasonable and attainable, but the Banks
acknowledge that actual results may vary from the Projections and such
variations may be significant.
7.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of Holdings and the Borrower, threatened (i) with
respect to any Document or (ii) that could reasonably be expected to materially
and adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or of Holdings
and its Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of Holdings or the Borrower in writing to the
Managing Agent or any Bank (including, without limitation, all information
contained in the Documents, but excluding the Projections) for purposes of or
in connection with this Agreement, the other Credit Documents or any
transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower in writing to the Managing Agent or any Bank will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary
to make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such information
was provided.
7.08 Use of Proceeds, Margin Regulations. (a) The proceeds of the
Loans made on the Second Restatement Effective Date shall be used by the
Borrower (i) to repay all Existing Loans and terminate all Commitments under
the Existing Credit Agreement, (ii) to finance the Tender Offer, (iii) to
finance the Viacom Acquisition and (iv) to pay fees and expenses related to the
Transaction.
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(b) The proceeds of Revolving Loans made after the Second Restatement
Effective Date shall be used by the Borrower (i) to finance, in part, the
Transaction, (ii) to pay fees and expenses related to the Transaction, (iii) to
make acquisitions permitted under Section 9.02(xiii) and (iv) to finance the
working capital and general corporate needs of the Borrower and its
Subsidiaries.
(c) Notwithstanding anything to the contrary contained in clauses (a)
or (b) above, the aggregate amount of proceeds of Revolving Loans which are
used by the Borrower to finance the Transaction and pay fees and expenses
relating thereto shall not exceed $250,000,000.
(d) No part of the proceeds of any Loan will be used to purchase or
carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock. Neither the making of any Loan nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
7.09 Tax Returns and Payments. Each of Holdings, the Borrower and each
of their Subsidiaries have timely filed or caused to be timely filed, on the
due dates thereof or within applicable grace periods, with the appropriate
taxing -authority, all Federal and all material state returns, statements,
forms and reports for taxes (the "Returns") required to be filed by or with
respect to the income, properties or operations of Holdings and/or any of its
Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of Holdings, the Borrower and their respective
Subsidiaries, as the case may be, for the periods covered thereby. Each of
Holdings, the Borrower and their respective Subsidiaries have paid all material
taxes payable by them other than taxes which are not delinquent, and other than
those contested in good faith and for which adequate reserves have been
established in accordance with GAAP. Except as disclosed in the financial
statements referred to in Section 7.05(a), there is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the best
knowledge of Holdings or the Borrower, threatened by any authority regarding
any taxes relating to Holdings, the Borrower or any of their respective
Subsidiaries. As of the Second Restatement Effective Date, none of Holdings,
the Borrower nor any of their respective Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of Holdings, the Borrower or any of their respective Subsidiaries, or is
aware of any circumstances that would cause the taxable years or other taxable
periods of Holdings, the Borrower or any of their respective Subsidiaries not
to be subject to the normally applicable statute of limitations. None of
Holdings, the Borrower nor any of their respective Subsidiaries has incurred,
or will incur, any material tax liability in connection with the Transaction
and the other transactions contemplated hereby.
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7.10 Compliance with ERISA. Each Plan is in substantial compliance
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; all contributions required to be made with respect to a Plan have been
timely made; none of Holdings, the Borrower nor any of their respective
Subsidiaries nor any ERISA Affiliate has incurred any material liability to or
on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or
4980 of the Code or reasonably expects to incur any material liability under
any of the foregoing Sections with respect to any Plan; no proceedings have
been instituted to terminate or appoint a trustee to administer any Plan; no
condition exists which presents a material risk to Holdings, the Borrower or
any of their respective Subsidiaries or any ERISA Affiliate of incurring a
material liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; using actuarial assumptions and computation
methods consistent with Part I of subtitle E of Title IV of ERISA, the
aggregate liabilities of Holdings, the Borrower, their respective Subsidiaries
and their ERISA Affiliates to all Plans which are multiemployer plans (as
defined in Section 4001(a)(3) of ERISA) in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such Plan
ended prior to the date of the most recent Credit Event, would not exceed
$50,000; no lien imposed under the Code or ERISA on the assets of Holdings, the
Borrower or any of their respective Subsidiaries or any ERISA Affiliate exists
or is reasonably likely to arise on account of any Plan; and Holdings, the
Borrower and their respective Subsidiaries do not maintain or contribute to any
employee welfare benefit plan (as defined in Section 3(l) of ERISA) which
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA) the obligations with respect to which could
reasonably be expected to have a material adverse effect on the ability of
Holdings, the Borrower or any of its Subsidiaries to perform their respective
obligations under the Credit Documents to which they are a party.
7.11 The Security Documents. (a) The provisions of the Security
Agreements are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Security Agreements, upon the
filing of Form UCC-1 financing statements or the appropriate equivalent (which
filing, if this representation is being made more than 10 days after the Second
Restatement Effective Date, has been made), create a fully perfected first lien
on, and security interest in, all right, title and interest in all of the
Security Agreement Collateral described therein, subject to no other Liens
other than
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Permitted Liens. Each of the Credit Parties party to an Security Agreement has
good and indefeasible title to all Security Agreement Collateral described
therein, free and clear of all Liens except those described above in this
clause (a).
(b) The security interests created in favor of the Collateral Agent,
as Pledgee, for the benefit of the Secured Creditors under the Pledge
Agreements constitute first priority perfected security interests in the
Pledged Securities described in the Pledge Agreements, subject to no security
interests of any other Person. No filings or recordings are required in order
to perfect (or maintain the perfection or priority of) the security interests
created in the Pledged Securities and the proceeds thereof under the Pledge
Agreements.
(c) The Mortgages create, as security for the obligations purported to
be secured thereby, a valid and enforceable perfected security interest in and
mortgage lien on all of the Mortgaged Properties in favor of the Collateral
Agent (or such other trustee as may be required or desired under local law) for
the benefit of the Secured Creditors, superior to and prior to the rights of
all third persons (except that the security interest and mortgage lien created
in the Mortgaged Properties may be subject to Permitted Encumbrances) and
subject to no other Liens (other than Liens permitted under Section 9.01).
Parts A and B of Schedule III contain a true and complete list of each parcel
of Real Property owned or leased by Holdings, the Borrower and their respective
Subsidiaries on the Second Restatement Effective Date, and the type of interest
therein held by Holdings, the Borrower or such Subsidiary. Holdings, the
Borrower and each of their respective Subsidiaries have good and indefeasible
title to all Mortgaged Properties free and clear of all Liens except those
described in the first sentence of this subsection (c).
7.12 Representations and Warranties in Documents. All representations
and warranties set forth in the other Documents were true and correct in all
material respects at the time as of which such representations and warranties
were made (or deemed made). Notwithstanding anything to the contrary contained
in the immediately preceding sentence, it shall not be a misrepresentation
pursuant to this Section 7.12 if a representation or warranty made by a Person
other than a Credit Party pursuant to a Document (other than a Credit Document)
is not true and correct in all material respects, but only if (A)(i) the
damages to Holdings and its Subsidiaries as a result of the incorrectness of
such representation or warranty are fully covered to the extent in excess of
$2,500,000 by (x) the escrow of cash or Cash Equivalents pursuant to an escrow
arrangement established for the benefit of Holdings and its Subsidiaries or (y)
a guaranty or indemnity issued by a solvent guarantor or indemnitor (with such
solvency to be determined after giving effect to the required guaranty or
indemnity in respect of the incorrectness of such representations and
warranties) and (ii) Holdings or the Borrower, as the case may be, is
proceeding in good faith to collect the amounts
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owing pursuant to the respective escrow arrangement, guaranty or indemnity as a
result of the incorrectness of the respective representation or warranty (which
action shall be required to include, at such time, if any, as the respective
escrow monies are not made available in accordance with the terms of the
respective escrow arrangement or the respective guarantor or indemnitor has
resisted requests for payment, contesting in good faith and by appropriate
proceedings the amounts owing to Holdings and its Subsidiaries) or (B)(i) the
period of time expressly provided in such Document for the survival of such
representation or warranty has expired, (ii) such representation or warranty is
made by a Person other than a Credit Party and (iii) the damages resulting from
the incorrectness of such representation or warranty could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financed or otherwise) or prospects
of the Borrower or Holdings and its Subsidiaries taken as a whole.
7.13 Properties. Holdings, the Borrower and each of their respective
Subsidiaries have good and indefeasible title to all properties (or a valid
leasehold estate with respect to leased properties) owned by them after giving
effect to the Transaction in accordance with the Documents, including all
property reflected in the balance sheet of the Borrower referred to in Section
7.05(a) and in the pro forma balance sheet referred to in Section 5.16, free
and clear of all Liens, other than (i) as referred to in the balance sheet or
in the notes thereto or in the pro forma balance sheet or (ii) Permitted Liens.
7.14 Capitalization. (a) On or about the Second Restatement Effective
Date and after giving effect to the Transaction and the other transactions
contemplated hereby, the authorized capital stock of Holdings shall consist of
approximately (i) 40,000,000 shares of Class A Common Stock, $.01 par value per
share ("Holdings Class A Common Stock"), of which 9,937,320 shares shall be
issued and outstanding, (ii) 10,000,000 shares of Class B Common Stock
("Holdings Class B Common Stock"), $.01 par value per share, 8,547,910 shares
of which shall be issued and outstanding, (iii) 10,000,000 shares of Class C
Common Stock, $.01 par value per share ("Holdings Class C Common Stock"), none
of which are outstanding and (iv) 10,000,000 shares of preferred stock, $.01
par value per share, 2,300,000 shares of which shall be designated 7%
Convertible Preferred Stock, of which 2,000,000 shares shall be issued and
outstanding. All such outstanding shares have been duly and validly issued, are
fully paid and non-assessable and have been issued free of preemptive rights.
As of the Second Restatement Effective Date, Holdings does not have outstanding
any securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock, in each case other than (x) the options outstanding or
to be issued pursuant to the Dinetz Employment Contract, the
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Employee Stock Option Plan or the agreements granting certain options to
purchase Holdings Class A Common Stock to Ms. Matrice Ellis-Kirk, Mr. Marvin
Dinetz, Mr. Eric W. Neumann, Mr. Jeffrey A. Marcus and Mr. John H. Massey and
(y) the Convertible Preferred Stock.
(b) On the Second Restatement Effective Date and after giving effect
to the Transaction and the other transactions contemplated hereby, the
authorized capital stock of the Borrower shall consist of (x) 1,000 shares of
common stock, $.01 par value per share, all of which shall be issued and
outstanding, and (y) 10,000,000 shares of preferred stock, $.01 par value per
share, (i) 1,000,000 shares of which are designated Series A Exchangeable
Preferred Stock, all of which shall be issued and outstanding and (ii)
3,600,000 shares of which are designated 12% Exchangeable Preferred Stock, of
which 2,000,000 shares shall be issued and outstanding. All such outstanding
shares have been duly and validly issued, are fully paid and nonassessable, are
free of preemptive rights and, in the case of all such outstanding shares of
common stock, have been pledged pursuant to the Holdings Pledge Agreement. As
of the Second Restatement Effective Date, the Borrower does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent
or otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock, other than the Series A Exchangeable Preferred Stock and
the Exchangeable Preferred Stock.
7.15 Subsidiaries. As of the Second Restatement Effective Date and
after giving effect to the Transaction, Holdings will have no direct or
indirect Subsidiaries other than the Borrower, Chancellor Broadcasting
Licensee, Trefoil, Shamrock, Shamrock Radio, Shamrock Broadcasting Licenses,
Shamrock Broadcasting of Texas, Inc., a Texas corporation, Radio 100 L.L.C., a
Delaware limited liability company, KIBB, KYSR, WLIT and WDRQ.
7.16 Compliance with Statutes, etc. Except for matters relating to the
compliance by Holdings and its Subsidiaries with Environmental Laws, which
matters are governed by the Amended and Restated Environmental Indemnity
Agreement and the Environmental Indemnity Agreement, each of Holdings and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except such noncompliances as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or of Holdings
and its Subsidiaries taken as a whole.
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7.17 Investment Company Act. None of Holdings, the Borrower nor any of
their respective Subsidiaries is an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
7.18 Public Utility Holding Company Act. None of Holdings, the
Borrower nor any of their respective Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
7.19 Labor Relations. None of Holdings, the Borrower nor any of their
respective Subsidiaries is engaged in any unfair labor practice that could
reasonably be expected to have a material adverse effect on the Borrower or on
Holdings and its Subsidiaries taken as a whole. There is (i) no unfair labor
practice complaint pending against Holdings or any of its Subsidiaries or, to
the best knowledge of Holdings or the Borrower, threatened against any of them,
before the National Labor Relations Board, and no significant grievance or
significant arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against Holdings or any of its Subsidiaries
or, to the best knowledge of Holdings or the Borrower, threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
Holdings or any of its Subsidiaries or, to the best knowledge of Holdings and
the Borrower, threatened against Holdings or any of its Subsidiaries and (iii)
to the best knowledge of Holdings and the Borrower, no union representation
question existing with respect to the employees of Holdings or any of its
Subsidiaries, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of Borrower or of Holdings and its Subsidiaries taken as a whole.
7.20 Patents, Licenses, Franchises and Formulas. Each of Holdings and
its Subsidiaries owns all material patents, trademarks, permits, service marks,
trade names, copyrights, licenses, franchises and formulas, or rights with
respect to the foregoing, and has obtained assignments of all leases and other
rights of whatever nature, necessary for the present conduct of its business,
without any known conflict with the rights of others, except such failures to
own or obtain and/or conflicts as could not reasonably be likely to result in a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Holdings and its Subsidiaries taken as a whole.
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7.21 Transaction; Bridge Financing. The Transaction and the Bridge
Financing have been consummated in all material respects in accordance with the
terms of the respective Documents and all applicable laws. All consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities
(including the consent from the FCC approving the transfer of the FCC Licenses
contemplated by the Documents which consent shall have become final) required
in order to make or consummate the Transaction or the Bridge Financing will
have been obtained, given, filed or taken and are or will be in full force and
effect (or effective judicial relief with respect thereto has been obtained),
except where the failure to so obtain, give, file or take would not have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Holdings and its Subsidiaries taken as whole. All applicable waiting periods
with respect thereto have or, prior to the time when required, will have,
expired without, in all such cases, any action being taken by any competent
authority which restrains, prevents, or imposes material adverse conditions
upon the Transaction or the Bridge Financing. Additionally, there does not
exist any judgment, order or injunction prohibiting or imposing material
adverse conditions upon the Transaction, the Bridge Financing, or any Credit
Event or the performance by any Credit Party of its obligations under the
respective Documents. All actions taken by each Credit Party pursuant to or in
furtherance of the Transaction or the Bridge Financing have been taken in
compliance with the respective Documents and all applicable laws.
7.22 Special Purpose Corporations. Holdings was formed for the purpose
of holding all of the capital stock of the Borrower and is authorized to effect
the Transaction and the Bridge Financing and, except in connection with the
foregoing (or as may be permitted by this Agreement), Holdings engages in no
business activities and has no significant assets (other than the stock of the
Borrower) or liabilities (other than liabilities which are expressly permitted
under this Agreement). Chancellor Broadcasting Licensee was formed for the
purpose of holding all rights, title and interests in certain of the FCC
Licenses to be used by the Borrower and its Subsidiaries in connection with
their respective businesses and otherwise engages in no business activities and
has no significant assets or liabilities.
7.23 FCC Licenses. After giving effect to the Transaction, the License
Subsidiary holds such validly issued FCC licenses and authorizations as are
necessary to operate the Stations as they are currently operated (collectively,
the "FCC Licenses"), each of which is in full force and effect. The FCC
Licenses as of the Second Restatement Effective Date are listed on Schedule IV
(with the Viacom FCC Licenses being designated as such on Schedule IV), each of
which FCC Licenses has the expiration date indicated on Schedule IV. Neither
Holdings nor the Borrower has knowledge of any material adverse condition
imposed by the FCC as part of any FCC
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License which is neither set forth on the face thereof as issued by the FCC nor
contained in the rules and regulations of the FCC applicable generally to
stations of the type, nature, class or location of each Station. Except as set
forth on Annex 5.07, each Station is being operated in all material respects in
accordance with the terms and conditions of the FCC Licenses applicable to it
and in accordance with the rules and regulations of the FCC and the
Communications Act of 1934, as amended (the "Communications Act"). Except as
set forth on Annex 5.07, no proceedings are pending or, to the knowledge of
Holdings or the Borrower, are threatened which may reasonably be expected to
result in the revocation, modification, non-renewal or suspension of any of the
FCC Licenses, the denial of any pending applications, the issuance of any cease
and desist order or the imposition of any material fines, forfeitures or other
administrative actions by the FCC with respect to the Stations or their
operation, other than proceedings affecting the radio broadcasting industry in
general. Except as set forth on Annex 5.07, reports, applications and other
documents required to be filed by any Credit Party with the FCC with respect to
the Stations have in all material respects been timely filed and all such
reports, applications and documents are true, correct and complete in all
material respects, and neither Holdings nor the Borrower has knowledge of any
matters (i) which could reasonably be expected to result in the suspension or
revocation of or the refusal to renew any of the FCC Licenses or the imposition
of any material fines or forfeitures by the FCC upon any Credit Party or (ii)
which could reasonably be expected to result in the modification or revocation
of any FM Station's authorization to operate as currently authorized, or any AM
Station's authorization to operate as currently authorized, as applicable,
under the rules and regulations of the FCC. There are no unsatisfied or
otherwise outstanding notices of apparent liability or violations issued by the
FCC with respect to any Station or its operations. The Borrower has delivered
to the Banks true and complete copies of the FCC Licenses (including any and
all amendments and other modifications thereto).
7.24 Subordinated Notes. As of the Second Restatement Effective Date,
the subordination provisions contained in the Existing Senior Subordinated
Notes (if any), the 12-1/4% Junior Exchange Debentures and the 12% Junior
Exchange Debentures are enforceable by the Banks against the Borrower and any
holders thereof, and all Obligations of the Borrower hereunder or under the
other Credit Documents are or will be within the definition of "Senior Debt"
included in such provisions of the Existing Senior Subordinated Note Documents
or the documents relating to the 12-1/4% Junior Exchange Debentures or 12%
Junior Exchange Debentures.
SECTION 8. Affirmative Covenants. Holdings and the Borrower hereby
covenant and agree that on and after the Second Restatement Effective Date and
until the Total Commitments and all Letters of Credit have terminated and the
Loans,
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Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. Holdings and/or the Borrower will furnish
to each Bank:
(a) Monthly Reports. Within 30 days after the end of each fiscal month
(other than the fiscal months ending March, June, September and December)
of Holdings, (i) the combined and combining balance sheets of Holdings and
its Consolidated Subsidiaries for each fiscal month, each as of the end of
such month and the related combined and combining statements of income and
statements of cash flows for such month and for the last elapsed portion
of the fiscal year ended with the last day of such month, in each case
setting forth in the statements of income only, the comparative figures
for the corresponding month in the prior fiscal year and the budgeted
figures for such month as set forth in the respective budgets delivered
pursuant to Section 8.01(e) and (ii) the balance sheets of each of the
Stations on an individual basis as of the end of such month and the
related statements of income and statements of cash flows for such month
and for the elapsed portion of the fiscal year ended with the last day of
such month, in each case setting forth in the statements of income only,
the comparative figures for the corresponding month in the prior fiscal
year and the budgeted figures for such month as set forth in the
respective budgets delivered pursuant to Section 8.01(e).
(b) Quarterly Financial Statements. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of Holdings, (i) the combined and
combining balance sheets of Holdings and its Consolidated Subsidiaries for
each fiscal quarter, each as of the end of such quarter and the related
combined and combining statements of income and statements of cash flows
for such quarter and for the last elapsed portion of the fiscal year ended
with the last day of such quarter and setting forth in the statements of
income only, the comparative figures for the corresponding quarter in the
prior fiscal year and the budgeted figures for such quarter as set forth
in the respective budgets delivered pursuant to Section 8.01(e), and (ii)
the balance sheets of each of the Stations as of the end of such quarter
and the related statements of income and statements of cash flows for such
quarter and for the elapsed portion of the fiscal year ended with the last
day of such quarter, in each case setting forth in the statements of
income only, the comparative figures for the corresponding quarter in the
prior fiscal year and the budgeted figures for such quarter as set forth
in the respective budgets delivered pursuant to Section 8.01(e).
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(c) Annual Financial Statements. Within 95 days after the close of
each fiscal year of Holdings, (i) the consolidated and consolidating
balance sheets of Holdings and its Consolidated Subsidiaries for each
fiscal year, each as at the end of such fiscal year and the related
statements of income and retained earnings and of cash flows for such
fiscal year and, setting forth comparative figures for the preceding
fiscal year and certified, in the case of such consolidated statements, by
Coopers & Lybrand L.L.P. or such other independent certified public
accountants of recognized national standing reasonably acceptable to the
Managing Agent, together with a report of such accounting firm (which
report shall be unqualified as to scope) stating that in the course of its
regular audit of the financial statements of Holdings and its
Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge of
any Default or Event of Default under Sections 9.03, 9.04, 9.05 and 9.07
through 9.10, inclusive, which has occurred and is continuing or, if in
the opinion of such accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof, (ii) the
balance sheets of each of the Stations at the end of such fiscal year and
the related statement of income and retained earnings and statement of
cash flows for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year for income statements only, and
(iii) management's discussions and analysis of the important operational
and financial developments during such fiscal year in respect of Holdings
and its Subsidiaries.
(d) Management Letters. Promptly after the receipt thereof by Holdings
or any of its Subsidiaries, a copy of any final "management letter"
received by Holdings or such Subsidiary from its certified public
accountants and a copy of management's responses thereto.
(e) Budgets. No later than 30 days following the commencement of the
first day of each fiscal year of Holdings, a budget in form satisfactory
to the Managing Agent prepared by Holdings for (x) in the case of budgeted
statements of income, each of the twelve months of such fiscal year
prepared in detail, and (y) in the case of budgeted statements of sources
and uses of cash and balance sheets, for such fiscal year on an annual
basis and prepared in detail and for each of the four years immediately
following such fiscal year prepared in summary form, in each case, of each
of Holdings and its Subsidiaries and each of the Stations on an individual
basis accompanied by the statement of the President, Chief Financial
Officer or Senior Vice President of Finance of the Borrower to the effect
that, to the best of his knowledge, the budget is a reasonable estimate
for the period covered thereby.
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(f) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of an Authorized Officer of the Borrower to the effect that,
to the best of such officer's knowledge, no Default or Event of Default
has occurred and is continuing or, if any Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof,
which certificate shall, in the case of any such financial statements
delivered in respect of a period ending on the last day of a fiscal
quarter or year of Holdings, (x) set forth the calculations required to
establish whether the Borrower was in compliance with the provisions of
Sections 9.03, 9.04, 9.05, and 9.07 through 9.10, inclusive, at the end
of such fiscal quarter or year, as the case may be and (y) if delivered
with the financial statements required by Section 8.01(c), set forth the
calculations required to establish whether the Borrower was in compliance
with the provisions of Section 4.02(f) and set forth the amount of Excess
Cash Flow (if any) for the respective Excess Cash Payment Period.
(g) Notice of Default or Litigation. Promptly, and in any event within
three Business Days after an officer of Holdings or the Borrower obtains
knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or Event of Default and (ii) any litigation or
governmental investigation or proceeding pending (x) against Holdings or
any of its Subsidiaries which could reasonably be expected to materially
and adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower or Holdings and its Subsidiaries taken as a whole, (y) with
respect to any material Indebtedness of the Borrower and its Subsidiaries
taken as a whole or (z) with respect to any other Document which could
reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of Holdings and its
Subsidiaries taken as a whole.
(h) Other Reports and Filings. Promptly, copies of all (x) financial
information, proxy materials and other information and reports, if any,
which Holdings or any of its Subsidiaries shall file with the Securities
and Exchange Commission or any successor thereto (the "SEC") including,
without limitation, in connection with the issuance of the Existing Senior
Subordinated Notes or, if issued, the 12-1/4% Junior Exchange Debentures,
the 12% Junior Exchange Debentures or any securities issued pursuant to
the OmniAmerica Equity Issuance, or deliver to holders of its Indebtedness
pursuant to the terms of the documentation governing such Indebtedness (or
any trustee, agent or other representative therefor) and (y) material
filings or communications with the FCC or under, or as required by, the
Communications Act.
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(i) Annual Meetings with Banks. At the request of the Managing Agent
or the Required Banks, Holdings shall within 120 days after the close of
each fiscal year of Holdings hold a meeting at a time and place selected
by Holdings and acceptable to the Managing Agent with all of the Banks at
which meeting shall be reviewed the financial results of the previous
fiscal year and the financial condition of Holdings and the budgets
presented for the current fiscal year of Holdings and its Subsidiaries.
(j) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to Holdings or its
Subsidiaries as any Bank may reasonably request in writing.
8.02 Books, Records and Inspections. Holdings will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries in conformity with GAAP and all requirements of
law shall be made of all dealings and transactions in relation to its business
and activities. Holdings will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of the Managing Agent or any
Bank to visit and inspect, during regular business hours and under guidance of
officers of Holdings, the Borrower or such Subsidiary, any of the properties of
Holdings, the Borrower or such Subsidiary, and to examine the books of account
of Holdings, the Borrower or such Subsidiary and discuss the affairs, finances
and accounts of Holdings, the Borrower or such Subsidiary with, and be advised
as to the same by, its and their officers and independent accountants, all at
such reasonable times and intervals and to such reasonable extent as the
Managing Agent or such Bank may request.
8.03 Maintenance of Property; Insurance. (a) Schedule V sets forth a
true and complete listing of all insurance maintained by Holdings, and its
Subsidiaries as of the Second Restatement Effective Date. Holdings will, and
will cause each of its Subsidiaries to, (i) keep all property necessary in its
business in good working order and condition (ordinary wear and tear excepted),
(ii) maintain insurance on all its property in at least such amounts and
against at least such risks as is consistent and in accordance with industry
practice and (iii) furnish to each Bank, upon written request, full information
as to the insurance carried. In addition to the requirements of the immediately
preceding sentence, Holdings and the Borrower will at all times cause insurance
of the types described in Schedule V to be maintained (with the same scope of
coverage as that described in Schedule V) at levels which are at least as great
as the respective amount described opposite the respective type of insurance on
Schedule V under the column headed "Minimum to be Maintained. "
(b) Holdings will, and will cause its Subsidiaries to, at all times
keep their respective property insured in favor of the Collateral Agent, and
all policies or
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certificates (or certified copies thereof) with respect to such insurance (and
any other insurance maintained by Holdings or any of its Subsidiaries) (i)
shall be endorsed to the Collateral Agent's satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral Agent
as loss payee or as an additional insured), (ii) shall state that such
insurance policies shall not be cancelled without 30 days' prior written notice
thereof by the respective insurer to the Collateral Agent, (iii) shall provide
that the respective insurers irrevocably waive any and all rights of
subrogation with respect to the Collateral Agent and the Secured Creditors,
(iv) shall contain the standard non-contributory mortgagee clause endorsement
in favor of the Collateral Agent with respect to hazard insurance coverage, (v)
shall, except in the case of public liability insurance and workers'
compensation insurance, provide that any losses shall be payable
notwithstanding (A) any act or neglect of Holdings or any of its Subsidiaries,
(B) the occupation or use of the properties for purposes more hazardous than
those permitted by the terms of the respective policy if such coverage is
obtainable at commercially reasonable rates and is of the kind from time to
time customarily insured against by Persons owning or using similar property
and in such amounts as are customary, (C) any foreclosure or other proceeding
relating to the insured properties if such coverage is available at
commercially reasonable rates or (D) any change in the title to or ownership or
possession of the insured properties if such coverage is available at
commercially reasonable rates and (vi) shall be deposited with the Collateral
Agent.
(c) If Holdings or any of its Subsidiaries shall fail to maintain all
insurance in accordance with this Section 8.03, or if Holdings or any of its
Subsidiaries shall fail to so endorse and deposit all policies or certificates
with respect thereto, the Managing Agent and/or the Collateral Agent shall have
the right (but shall be under no obligation) to procure such insurance and the
Borrower agrees to reimburse the Managing Agent or the Collateral Agent as the
case may be, for all costs and expenses of procuring such insurance.
8.04 Corporate Franchises. Holdings will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights,
franchises, licenses and patents (including the rights of the Borrower and the
License Subsidiary under the Asset Use and Operating Agreement dated January
10, 1994 and the two separate Asset Use and Operating Agreements dated October
12, 1994, respectively) (each an "Operating Agreement," and, collectively, the
"Operating Agreements"); provided that nothing in this Section 8.04 shall
prevent (i) sales of assets by Holdings or any of its Subsidiaries in
accordance with Section 9.02 or (ii) the withdrawal by Holdings or any of its
Subsidiaries of their qualification as a foreign corporation in any
jurisdiction where such withdrawal could not reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of the Borrower or of
Holdings and its Subsidiaries taken as a whole.
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8.05 Compliance with Statutes, etc. Except for matters relating to
compliance by Holdings and its Subsidiaries with Environmental Laws, which
matters are governed by the Amended and Restated Environmental Indemnity
Agreement and the Environmental Indemnity Agreement, Holdings will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliances as could
not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Holdings and its Subsidiaries taken as a whole.
8.06 ERISA. As soon as possible and, in any event, within 20 days
after Holdings, the Borrower or any of their respective Subsidiaries or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following, Holdings or the Borrower will deliver to each of the Banks a
certificate of an Authorized Officer of Holdings or the Borrower setting forth
details as to such occurrence and the action, if any, that Holdings, the
Borrower, such Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given to or filed
with or by Holdings, the Borrower, such Subsidiary, the ERISA Affiliate, the
PBGC, or a Plan participant or the Plan administrator with respect thereto:
that a Reportable Event has occurred; that an accumulated funding deficiency
has been incurred or an application is likely to be or has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that
a contribution required to be made to a Plan has not been timely made; that a
Plan has been or is reasonably expected to be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability giving rise to a lien under ERISA or the Code; that
proceedings are likely to be or have been instituted or notice has been given
to terminate or appoint a trustee to administer a Plan, that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that Holdings, the Borrower, any of their respective
Subsidiaries or any ERISA Affiliate will or is reasonably expected to incur any
liability (including any contingent or secondary liability) to or on account of
the termination of or withdrawal from a Plan under Section 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section
401(a)(29), 4971 or 4975 of the Code or Section 409 or 502(i) or 502(l) of
ERISA; or that Holdings, the Borrower or any Subsidiary may incur any material
liability pursuant to any employee welfare benefit plan (as defined in Section
3(l) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any employee
pension benefit plan (as defined in Section 3(2) of ERISA). Upon request the
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Borrower will deliver to each of the Banks a complete copy of the annual report
(Form 5500) of each Plan required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Banks
pursuant to the first sentence hereof, copies of annual reports and any
material notices received by Holdings, the Borrower or any of their respective
Subsidiaries or any ERISA Affiliate with respect to any Plan shall be delivered
to the Banks no later than 20 days after the date such report has been filed
with the Internal Revenue Service or such notice has been received by Holdings,
the Borrower, the Subsidiary or the ERISA Affiliate, as applicable.
8.07 End of Fiscal Years; Fiscal Quarters. Holdings shall cause (i)
each of its, and each of its Subsidiaries', fiscal years to end on December 31,
and (ii) each of its, and each of its Subsidiaries', fiscal quarters to end on
March 31, June 30 and September 30.
8.08 Performance of Obligations. Holdings will, and will cause each of
its Subsidiaries to, perform all of their obligations under the terms of each
mortgage, indenture, security agreement and other debt instrument by which it
is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of Holdings and its Subsidiaries
taken as a whole.
8.09 Payment of Taxes. Holdings will pay and discharge or cause to be
paid and discharged, and will cause each of its Subsidiaries to pay and
discharge, all material taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any material properties
belonging to it, in each case on a timely basis, and all lawful claims which,
if unpaid, might become a lien or charge upon any properties of Holdings or any
of its Subsidiaries; provided that none of Holdings nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
8.10 Maintenance of Separateness. Holdings will, and will cause each
of its Subsidiaries to, satisfy customary corporate formalities including the
holding of regular board of directors' and shareholders' meetings and the
maintenance of corporate offices and records. None of the Borrower nor any of
its Subsidiaries shall make any payment to a creditor of Holdings in respect of
any liability of Holdings which is not a liability of the Borrower or such
Subsidiary, and no bank account of Holdings shall be commingled with any bank
account of the Borrower or any of its Subsidiaries. Any financial statements
distributed to any creditors of Holdings shall, to the extent permitted by
GAAP, clearly establish the corporate separateness of Holdings from the
Borrower and its Subsidiaries. Finally, neither Holdings nor any of its
Subsidiaries shall
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take any action, or conduct its affairs in a manner, which is likely to result
in the corporate existence of Holdings being ignored, or in the assets and
liabilities of the Borrower or any of its Subsidiaries being substantively
consolidated with those of Holdings in a bankruptcy, reorganization or other
insolvency proceeding.
8.11 Dividends on Series A Exchangeable Preferred Stock and
Exchangeable Preferred Stock, Interest on Bridge Financing . The Borrower will
pay all dividends on (x) the Series A Exchangeable Preferred Stock through the
accretion of the liquidation preference on the Series A Exchangeable Preferred
Stock rather than in cash, except as otherwise permitted to be paid in cash
pursuant to Section 9.03(x), and (y) the Exchangeable Preferred Stock
(including at any time on or after January 15, 2002) solely through the
issuance of additional shares of Exchangeable Preferred Stock rather than in
cash, except as permitted to be paid in cash pursuant to Section 9.03(x).
8.12 Additional Security, Further Assurances. (a) Holdings and the
Borrower will, and will cause each of their respective Subsidiaries to, grant
to the Collateral Agent security interests in Reinvestment Assets at the time
of the acquisition thereof as described in this clause (a). To the extent
Reinvestment Assets are acquired by the Borrower and/or its Subsidiaries, the
Borrower or such Subsidiary shall grant a Lien on and a security interest in
such Reinvestment Assets on the same terms as set forth in the Security
Documents and as otherwise set forth in this Section 8.12. To the extent
Reinvestment Assets are acquired by a merger or the acquisition of capital
stock, the Borrower shall cause the Person acquiring such Reinvestment Assets
to become a Subsidiary of the Borrower and/or its Subsidiaries, and shall
pledge or cause to be pledged all capital stock of any such Person so acquired
pursuant to the Amended and Restated Borrower Pledge Agreement or the Amended
and Restated Subsidiary Pledge Agreement and cause such Person to enter into an
additional guaranty substantially similar to the Subsidiary Guaranty and
additional security documents substantially similar to the Security Documents,
all as otherwise as set forth in this Section 8.12; provided that, absent a
change in the relevant sections of the Code or the rules, regulations, rulings,
notices or other official pronouncements issued or promulgated thereunder, the
Borrower and its Subsidiaries shall be required to only pledge 65% of the
voting capital stock of a foreign Subsidiary and no foreign Subsidiary shall be
required to enter into such guaranty or Security Documents; provided further,
the Borrower and its Subsidiaries shall not be required to grant a security
interest in any Reinvestment Assets that are acquired subject to a Lien
permitted by Section 9.01(vii), (viii) or (xx).
(b) Holdings will, and will cause each of its Subsidiaries to, grant
to the Collateral Agent security interests and mortgages (an "Additional
Mortgage") in such Real Property of Holdings or any of its Subsidiaries as are
not covered by the Existing Mortgages or Mortgages to the extent acquired after
the Second Restatement Effective Date, and as may reasonably be requested from
time to time by the Managing Agent
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or the Required Banks (each such Real Property, an "Additional Mortgaged
Property"). All such Additional Mortgages shall be granted pursuant to
documentation substantially in the form of the Mortgages or in such other form
as is reasonably satisfactory to the Managing Agent and shall constitute valid
and enforceable perfected Liens superior to and prior to the rights of all
third Persons and subject to no other Liens except as are permitted by Section
9.01 at the time of perfection thereof. The Additional Mortgages or instruments
related thereto shall have been duly recorded or filed in such manner and in
such places as are required by law to establish, perfect, preserve and protect
the Liens in favor of the Collateral Agent required to be granted pursuant to
the Additional Mortgages and all taxes, fees and other charges payable in
connection therewith shall have been paid in full. Notwithstanding anything to
the contrary stated above in this clause (b), Holdings and its Subsidiaries
shall be required to only grant Additional Mortgages in fee owned Real Property
with a fair market value at the time of acquisition thereof in excess of
$500,000.
(c) Holdings will, and will cause each of its Subsidiaries to, grant
to the Collateral Agent security interests in assets acquired pursuant to
Sections 9.02(ix), (xiii) and (xv) at the time of the acquisition thereof as
described in this clause (c). To the extent assets are acquired by the Borrower
or any of its Subsidiaries pursuant to such Sections, the Borrower or such
Subsidiary shall grant a Lien on and a security interest in such assets on the
same terms as set forth in the Security Documents and as otherwise set forth in
this Section 8.12. In connection with the acquisition of the capital stock of a
Person pursuant to such Sections, the Borrower shall cause such Person to
become a direct or indirect Subsidiary of the Borrower, and shall pledge or
cause to be pledged all capital stock of any such Person so acquired pursuant
to the Amended and Restated Borrower Pledge Agreement, the Amended and Restated
Subsidiary Pledge Agreement or the Subsidiary Pledge Agreement, as applicable,
and cause such Person to enter into an additional guaranty substantially
similar to the Subsidiary Guaranty and additional security documents
substantially similar to the Security Documents, all as otherwise set forth in
this Section 8.12; provided that, absent a change in the relevant sections of
the Code or the rules, regulations, rulings, notices or other official
pronouncements issued or promulgated thereunder, the Borrower and its
Subsidiaries shall be required to only pledge 65% of the voting capital stock
of a foreign Subsidiary and no foreign Subsidiary shall be required to enter
into such guaranty or Security Documents; provided further, that the Borrower
and its Subsidiaries shall not be required to grant a security interest in such
assets that are acquired subject to a Lien permitted by Section 9.01(vii),
(viii) or (xx). Notwithstanding anything to the contrary contained above,
Holdings and its Subsidiaries shall be required to only grant Additional
Mortgages in fee owned Real Property with a fair market value at the time of
acquisition in excess of $500,000.
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(d) Holdings will, and will cause each of its Subsidiaries to, at the
expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, real property surveys,
reports and other assurances or instruments and take such further steps
relating to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require pursuant to this Section 8.12.
Furthermore, Holdings and the Borrower shall cause to be delivered to the
Collateral Agent such opinions of counsel, title insurance and other related
documents as may be requested by the Collateral Agent to assure itself that
this Section 8.12 has been complied with.
(e) Holdings will cause each Subsidiary established or created in
accordance with Section 9.15 to execute and deliver a guaranty of all
Obligations and all obligations under Interest Rate Protection Agreements in
substantially the form of the Subsidiary Guaranty; provided that absent a
change in the relevant sections of the Code or the rules, regulations, rulings,
notices or other official pronouncements issued or promulgated thereunder, no
foreign Subsidiary shall be required to enter into such guaranty.
(f) Holdings will cause each Subsidiary established or created in
accordance with Section 9.15 to grant to the Collateral Agent a first priority
Lien on all property (tangible and intangible) of such Subsidiary upon terms
similar to those set forth in the Security Documents as appropriate, and
satisfactory in form and substance to the Collateral Agent and Required Banks;
provided that, absent a change in the relevant sections of the Code or the
rules, regulations, rulings, notices or other official pronouncements issued or
promulgated thereunder, no foreign Subsidiary shall be required to enter into
such Security Documents; provided further, that the Borrower and its
Subsidiaries shall not be required to grant a security interest in such assets
that are acquired subject to a Lien permitted by Section 9.01(vii), (viii) or
(xx); provided further, that such Subsidiary shall be required to only grant
Additional Mortgages in fee owned Real Property with a fair market value at the
time of acquisition in excess of $500,000. Holdings and the Borrower will cause
each Subsidiary, at its own expense, to execute; acknowledge and deliver, or
cause the execution, acknowledgment and delivery of, and thereafter register,
file or record in any appropriate governmental office, any document or
instrument reasonably deemed by the Collateral Agent to be necessary or
desirable for the creation and perfection of the foregoing Liens. Holdings and
the Borrower will cause each of its Subsidiaries to take all actions requested
by the Collateral Agent (including, without limitation, the filing of UCC-1's)
in connection with the granting of such security interests.
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(g) The security interests required to be granted pursuant to this
Section 8.12 shall be granted pursuant to security documentation (which shall
be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable) or otherwise
satisfactory in form and substance to the Managing Agent and shall constitute
valid and enforceable perfected security interests prior to the rights of all
third Persons and subject to no other Liens except such Liens as are permitted
by Section 9.01. The Additional Security Documents and other instruments
related thereto shall be duly recorded or filed in such manner and in such
places and at such times as are required by law to establish, perfect, preserve
and protect the Liens, in favor of the Collateral Agent for the benefit of the
respective Secured Creditors, required to be granted pursuant to the Additional
Security Documents and all taxes, fees and other charges payable in connection
therewith shall be paid in full by the Borrower. At the time of the execution
and delivery of the Additional Security Documents, the Borrower shall cause to
be delivered to the Collateral Agent such opinions of counsel, Mortgage
Policies, title surveys, real estate appraisals and other related documents as
may be reasonably requested by the Managing Agent or the Required Banks to
assure themselves that this Section 8.12 has been complied with.
(h) Each of Holdings and the Borrower agrees that each action required
above by Section 8.12(d) shall be completed as soon as possible, but in no
event later than 60 days after such action is requested to be taken by the
Managing Agent or the Required Banks. Each of Holdings and the Borrower further
agrees that each action required by Sections 8.12(a) (to the extent applicable
in connection with the creation or acquisition of a new Subsidiary), (c), (e),
(f) and (g) with respect to Additional Collateral shall be completed
contemporaneously with the creation of such new Subsidiary.
8.13 Designation of Agent. If for any reason the agent designated by
Holdings and the Borrower in Section 13.08(a) shall cease to be available to
act in such capacity, Holdings and the Borrower shall designate, appoint and
empower a new agent in the City of New York satisfactory to the Managing Agent
on the terms and for the purposes set forth in Section 13.08(a).
SECTION 9. Negative Covenants. Holdings and the Borrower covenant and
agree that on and after the Second Restatement Effective Date and until the
Total Commitments and all Letters of Credit have terminated and the Loans,
Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
9.01 Liens. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any
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property or assets (real or personal, tangible or intangible) of Holdings or
any of its Subsidiaries, whether now owned or hereafter acquired, or sell any
such property or assets subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets (including sales of accounts
receivable with recourse to Holdings or any of its Subsidiaries), or assign any
right to receive income or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute; provided that the provisions of this Section 9.01 shall not
prevent the creation, incurrence, assumption or existence of the following
(Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP;
(ii) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such
as carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Borrower's
or such Subsidiary's property or assets or materially impair the use
thereof in the operation of the business of the Borrower or such
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Second Restatement Effective Date
which are listed, and the property subject thereto described, in Schedule
VI, but only to the respective date, if any, set forth in such Schedule VI
for the removal and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set forth on
Schedule VI, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that
amount outstanding at the time of any such renewal, replacement or
extension and (y) any such renewal, replacement or extension does not
encumber any additional assets or properties of Holdings or any of its
Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
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(vi) licenses, leases or subleases granted to other Persons in a
manner consistent with past practice or the radio industry generally not
materially interfering with the conduct of the business of Holdings and
its Subsidiaries taken as a whole;
(vii) Liens upon assets subject to Capitalized Lease Obligations to
the extent permitted by Section 9.04, provided that (x) such Liens only
serve to secure the payment of Indebtedness arising under such Capitalized
Lease Obligation and (y) the Lien encumbering the asset giving rise to the
Capitalized Lease Obligation does not encumber any other asset of the
Borrower or any Subsidiary of the Borrower;
(viii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Borrower or any of its Subsidiaries at the time
of acquisition thereof by the Borrower or any such Subsidiary or within
120 days thereafter to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof and all renewals, replacements or
extensions thereof, provided that (x) the aggregate outstanding principal
amount of all Indebtedness secured by Liens permitted by this clause
(viii) shall not at any time exceed $5,000,000 and (y) in all events, the
Lien encumbering the equipment or machinery so acquired does not encumber
any other asset of the Borrower or such Subsidiary;
(ix) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness and not materially
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;
(x) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by Holdings or any of its
Subsidiaries in the ordinary course of business;
(xi) Liens arising out of the existence of judgments or awards not
constituting an Event of Default under Section 10.09, provided that no
cash or property is deposited or delivered to secure the respective
judgment or award (or any appeal bond in respect thereof, other than
appeal bonds secured by deposits not to exceed $5,000,000 in the
aggregate);
(xii) statutory, contractual and common law landlords' liens under
leases to which the Borrower or any of its Subsidiaries is a party;
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(xiii) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety, stay, customs bonds, statutory bonds (other than appeal bonds),
bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(xiv) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement;
(xv) Liens in favor of a banking institution arising as a matter of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(xvi) deposits made in the ordinary course of business to secure
liabilities for premiums to insurance carriers, provided that such
deposits do not exceed in the aggregate an amount equal to $2,500,000 at
any time;
(xvii) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business, in
accordance with past practices of the Borrower and its Subsidiaries;
(xviii) Liens created to secure obligations permitted by Section
9.02(xi);
(xix) cash earnest money deposits in connection with acquisitions
otherwise permitted by Section 9.02 in an amount not to exceed that
amount, when added to the Stated Amount of all Letters of Credit issued to
provide assurance of performance in connection with acquisitions otherwise
permitted by Section 9.02, which equals $40,000,000 at any time
outstanding;
(xx) Liens on property or assets in existence at the time such
property or assets are acquired pursuant to Section 9.02(ix), (xiii) or
(xiv), provided that (x) any Indebtedness that is secured by such Liens is
permitted to exist under Section 9.04(xv) and (y) such Liens are not
incurred in connection with, or in contemplation or anticipation of, such
acquisition and do not attach to any other asset of Holdings or any of its
Subsidiaries; and
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(xxi) Liens not otherwise permitted under this Section 9.01 to the
extent attaching to properties and assets with an aggregate fair market
value not in excess of, and securing liabilities not in excess of,
$2,500,000 in the aggregate at any time outstanding.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. Holdings
will not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or merge, consolidate, convey, sell, lease or otherwise
dispose of all or any part of its property or assets, or enter into any
sale-leaseback transactions, or purchase or other-wise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, equipment and
intangible assets, including property acquired by way of trade or barter
agreements, in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures made by the Borrower and its Subsidiaries
shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary
course of business, sell, lease or otherwise dispose of any assets
provided that the aggregate Net Sale Proceeds of all assets subject to
sales or other dispositions pursuant to this clause (ii) shall not exceed
$2,500,000 in any fiscal year of the Borrower;
(iii) investments may be made to the extent permitted by Section 9.05;
(iv) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
such lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 9.04(v));
(v) each of the Borrower and its Subsidiaries may make sales or other
transfers of airtime in the ordinary course of business and consistent
with past practices;
(vi) licenses or sublicenses by the Borrower and its Subsidiaries of
software, trademarks and other intellectual property and general
intangibles and licenses, leases or subleases of other property in the
ordinary course of business and which do not materially interfere with the
business of the Borrower or any Subsidiary;
(vii) the Borrower or any Wholly-Owned Subsidiary of the Borrower may
transfer assets to or lease assets to or acquire or lease assets from the
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Borrower or any Wholly-Owned Subsidiary (so long as the security interests
granted pursuant to the Security Documents are not, in the judgment of the
Collateral Agent, adversely affected thereby) or any Subsidiary of the
Borrower may be merged or consolidated with or into, or be liquidated or
dissolved into, the Borrower or any Wholly-Owned Subsidiary of the
Borrower (so long as the Borrower or such Wholly-Owned Subsidiary is the
surviving corporation);
(viii) (x) the sale or other disposition of Stations of the Borrower
or its Subsidiaries shall be permitted for cash at fair market value (as
determined in good faith by the Borrower or its Subsidiaries) so long as
the proceeds thereof are applied in accordance with Section 4.02(e),
provided that the Broadcast Cash Flow attributable to the Stations so sold
or disposed during any fiscal year of the Borrower or such Subsidiary
shall not exceed 20% of Consolidated Broadcast Cash Flow for such fiscal
year and (y) the acquisition for no more than fair market value of
Reinvestment Assets shall be permitted in accordance with Sections 4.02(e)
and 8.12;
(ix) so long as (x) no Default or Event of Default then exists or
would arise therefrom and (y) Holdings shall be in compliance with the
financial covenants contained in Sections 9.08 through 9.10, inclusive,
with such financial covenants to be calculated on a pro forma basis as if
such Stock Swap and/or Station Swap had been consummated on the first day
of the then most recently ended Test Period (and any Indebtedness
incurred, issued or assumed in connection therewith had been incurred on
the first day of, and remained outstanding throughout, such Test Period),
the Borrower may, and may permit its Subsidiaries to, simultaneously
exchange (for reasonably equivalent value, a portion thereof which may
include cash) (x) 100% of the capital stock of any Subsidiary of such
Person (the "Stock Swapped Station") for 100% of the capital stock of any
Person (the "Stock Target Station") owning a station (each such occurrence
a "Stock Swap") or (y) all or substantially all of the assets of a radio
Station or group of Stations (the "Asset Swapped Station," with each Stock
Swapped Station and Asset Swapped Station, a "Swapped Station") for all or
substantially all of the assets of another radio station or group of
stations (the "Asset Target Station," with each Stock Target Station and
each Asset Target Station, a "Target Station") (each such occurrence a
"Station Swap"), provided that at the time of such Stock Swap or Station
Swap the Borrower and/or such Subsidiary, and the newly acquired entity,
shall comply with Section 8.12, provided further, that any cash proceeds
received by the Borrower or any of its Subsidiaries in connection with any
such Station Swap shall be applied in accordance with the requirements of
Section 4.02(e);
(x) the Viacom Acquisition shall be permitted;
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(xi) the Borrower and its Subsidiaries may sell or discount, accounts
receivable arising in the ordinary course of business (x) which are
overdue or (y) which the Borrower may reasonably determine are difficult
to collect, but only in connection with the compromise or collection
thereof consistent with customary industry practice (and not as part of
any bulk sale or financing of receivables);
(xii) transfers of condemned property to the respective governmental
authority or agency that have condemned same (whether by deed in lieu of
condemnation or otherwise), and transfers of properties that have been
subject to a casualty to the respective insurer of such property or its
designee as part of an insurance settlement, so long as the proceeds
thereof are applied as required by Section 4.02(g);
(xiii) so long as no Default or Event of Default then exists or would
arise therefrom, the Borrower may and may permit its Subsidiaries to,
acquire the capital stock or assets of any Person so long as (x) any such
acquisition is for all the capital stock or all or substantially all of
the business of, or an operating division or a business unit of, such
Person, (y) the aggregate consideration paid (including Indebtedness
assumed in connection therewith) pursuant to this clause (xiii) does not
exceed $200,000,000 and (z) Holdings shall be in compliance with the
financial covenants contained in Sections 9.08 through 9.10, inclusive,
with such financial covenants to be calculated on a pro forma basis as if
such acquisition had been consummated on the first day of the then most
recently ended Test Period (and any Indebtedness incurred, issued or
assumed in connection therewith had been incurred on the first day of, and
remained outstanding throughout, such Test Period);
(xiv) in addition to the acquisitions permitted pursuant to preceding
clause (xiii), the Borrower and its Subsidiaries may acquire all or
substantially all of the business of, or operating division or a business
unit of, any Person with the reinvestment of Excess Cash Flow for the
relevant Excess Cash Payment Period to the extent, (w) not required to be
applied to repay Loans pursuant to Section 4.02(f), (x) not used to prepay
Holdings Subordinated Notes pursuant to Section 9.11 (ii), (y) not used to
make Capital Expenditures pursuant to Section 9.07(c)(iii) and (z) not
used to make investments pursuant to Section 9.05(x);
(xv) the WDRQ Detroit Disposition shall be permitted;
(xvi) the SFX Exchange shall be permitted; and
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(xvii) each of the Borrower and its Subsidiaries may sell or otherwise
dispose of equipment in the ordinary course of business which, in the
reasonable judgment of such Person, is obsolete, worn out or otherwise no
longer useful, in the conduct of such Person's business.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted
by this Section 9.02 (other than clause (vii) thereof), such Collateral shall
be sold free and clear of the Liens created by the Security Documents, and the
Managing Agent and Collateral Agent shall be authorized to take any actions
deemed appropriate in order to effect the foregoing.
9.03 Dividends. Holdings shall not, and shall not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to
Holdings or any of its Subsidiaries except that:
(i) any Subsidiary of the Borrower may pay Dividends to the Borrower
or any Wholly-Owned Subsidiary of the Borrower;
(ii) the Borrower may pay cash Dividends to Holdings for the purpose
of paying, so long as all proceeds thereof are promptly used by Holdings
to pay, its operating expenses incurred in the ordinary course of business
and other corporate overhead costs and expenses (including, without
limitation, legal and accounting expenses and similar expenses) in a
maximum principal amount of $2,000,000 per annum;
(iii) Holdings may pay cash Dividends, and the Borrower may pay cash
Dividends to Holdings to enable Holdings, to make payments (A) to pay
management fees or executive compensation to the extent such management
fees or executive compensation are permitted by Section 9.06(v) and (vi)
and pursuant to the Monitoring and Oversight Agreements, to the extent
permitted pursuant to Section 9.06(iv), (B) to repurchase Holdings Common
Stock and/or options to purchase Holdings Common Stock held by (x) Dinetz
pursuant to the Dinetz Employment Contract or (y) directors, executives,
officers, members of management, or employees of Holdings, the Borrower or
any of its Subsidiaries upon the exercise of options in accordance with
the Employee Stock Option Plan, or (z) other stockholders of Holdings so
long as the purpose of such purchase is to acquire Holdings Common Stock
for reissuance to new employees of Holdings and its Subsidiaries to the
extent so reissued within 12 months of any such purchase so long as the
aggregate amount of cash expended by Holdings pursuant to subclause (B) of
this clause (iii) shall not exceed $2,500,000 in any fiscal year or
$5,000,000 in the aggregate (plus the amount of cash proceeds paid by any
new employee in consideration for reissuance of
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Holdings Common Stock repurchased by Holdings to the extent received by
Holdings within 12 months following any such repurchase, minus the amount
of cash paid in respect of Holdings Subordinated Notes permitted under
Section 9.11 (ii)) and (C) on the Holdings Subordinated Notes, to the
extent permitted under Section 9.11 (ii), so long as in the case of
subclauses (B) and (C) of this clause (iii), no Default or Event of
Default exists or would result therefrom;
(iv) the Borrower may pay cash Dividends to Holdings for the purpose
of paying, so long as all proceeds thereof are promptly used by Holdings
to pay franchise taxes and federal, state and local income taxes and
interest, and penalties with respect thereto, if any, payable by Holdings,
provided that any refund shall be promptly returned by Holdings to the
Borrower;
(v) the Borrower may pay cash Dividends to Holdings to enable Holdings
to pay cash Dividends to redeem fractional shares of its common stock so
long as the aggregate amount thereof does not exceed $5,000;
(vi) the Borrower may pay regularly scheduled Dividends on its
Exchangeable Preferred Stock pursuant to the terms thereof solely through
the issuance of additional shares of Exchangeable Preferred Stock;
(vii) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may pay cash Dividends to Holdings for the
purpose of paying, so long as all proceeds thereof are promptly used by
Holdings to pay, regularly scheduled Dividends on its Convertible
Preferred Stock; provided, that (x) the aggregate amount of cash Dividends
paid pursuant to this clause (vii) shall not exceed 7% per annum of the
original aggregate liquidation preference of the Convertible Preferred
Stock in any fiscal year of the Borrower and (y) such payment of cash
Dividends is permitted under the Series A Exchangeable Preferred Stock
Documents, the Exchangeable Preferred Stock Documents and any other
indenture, certificate of designation or other agreement which may
restrict such payments;
(viii) the Borrower may pay cash Dividends to Holdings for the purpose
of making, so long as all proceeds thereof are promptly used by Holdings
to make, cash payments in lieu of issuing fractional shares of Holdings
Common Stock upon the conversion of the Convertible Preferred Stock in an
aggregate amount not to exceed $150,000;
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(ix) the Borrower may pay cash Dividends on its Exchangeable Preferred
Stock in lieu of issuing fractional shares of Exchangeable Preferred
Stock;
(x) so long as (x) no Default or Event of Default then exists or would
result therefrom, (y) the Leverage Ratio on the date of payment thereof is
less than 4.00: 1.00 and (z) such payment of cash Dividends is permitted
under the indentures, certificates of designation and other agreements
which may restrict such payments, the Borrower may pay regularly scheduled
Dividends on its Series A Exchangeable Preferred Stock and Exchangeable
Preferred Stock; and
(xi) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may pay cash Dividends to Holdings for the
purpose of making, so long as all proceeds thereof are promptly used by
Holdings to make, payments (including voluntary prepayments) in respect of
principal and/or accrued interest under the Bridge Financing.
9.04 Indebtedness. Holdings will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Indebtedness existing on the Second Restatement Effective Date
shall be permitted to the extent the same is listed on Schedule VII, and
extensions, replacements, refinancings or renewals thereof, provided that
no such extension, replacement, refinancing or renewal shall increase the
principal amount thereof;
(iii) the Bridge Financing, but no extensions, replacements,
refinancings or renewals thereof;
(iv) Indebtedness under Interest Rate Protection Agreements to the
extent entered into pursuant to Section 9.05(iv);
(v) Indebtedness evidenced by Capitalized Lease Obligations to the
extent permitted pursuant to Section 9.07;
(vi) Indebtedness subject to Liens permitted under Section 9.01(viii);
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(vii) Indebtedness of Holdings not to exceed $2,500,000 at any time
outstanding evidenced by subordinated notes in form and upon terms
reasonably satisfactory to the Managing Agent (the "Holdings Subordinated
Notes") issued to effectuate the stock repurchases described in Section
9.03(iii);
(viii) Indebtedness (x) of the Borrower evidenced by the Existing
Senior Subordinated Notes in an aggregate principal amount not to exceed
$200,000,000, after giving effect to the Tender Offer and repurchase of
such notes and (y) arising under guaranties by the Subsidiaries of the
Borrower of the remaining obligations of the Borrower (if any) under the
Existing Senior Subordinated Notes after giving effect to the Tender Offer
and repurchase of such notes;
(ix) additional Indebtedness of the Borrower and its Subsidiaries not
otherwise permitted under this Section 9.04 not to exceed $5,000,000 in
aggregate principal amount outstanding at any time;
(x) Contingent Obligations of the Borrower or any Subsidiary as a
guarantor of the lessee under any lease pursuant to which the Borrower or
a Subsidiary is the lessee so long as such lease is otherwise permitted
hereunder;
(xi) intercompany Indebtedness of any Wholly-Owned Subsidiary of
Holdings owing to the Borrower or any other Wholly-Owned Subsidiary of
Holdings, or of the Borrower owing to any Wholly-Owned Subsidiary of
Holdings, to the extent permitted by Section 9.05(xi);
(xii) as long as no Default or Event of Default then exists or would
arise therefrom, with the consent of the Total Supermajority Banks, the
Borrower may exchange all of the Series A Exchangeable Preferred Stock
into the 12-1/4% Junior Exchange Debentures in accordance with the terms
of the Series A Exchangeable Preferred Stock Documents;
(xiii) so long as no Default or Event of Default then exists or would
arise therefrom, with the consent of the Total Supermajority Banks, the
Borrower may exchange all of the Exchangeable Preferred Stock into the 12%
Junior Exchange Debentures in accordance with the terms of the
Exchangeable Preferred Stock Documents;
(xiv) so long as (i) the Borrower shall have delivered a certificate
of an Authorized Officer of the Borrower to the effect that, to the best
of such officer's knowledge, (x) no Default or Event of Default has
occurred and is continuing (or would result from the incurrence of the
additional Indebtedness con-
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templated by this Section 9.04(xiv)), and (y) all representations and
warranties herein or in any other Credit Document are true and correct in
all material respects with the same effect as if these representations and
warranties had been made on the date of the incurrence of Indebtedness
contemplated by this Section 9.04(xiv) (it being understood and agreed
that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects only as of such specified date) and (ii) new Notes and other
documentation necessary to incur such Indebtedness are delivered in form
and substance satisfactory to the Managing Agent pursuant to Sections
13.04 and 13.12, then the Borrower may, with the consent of the Banks
providing such additional amount, increase the Total Revolving Loan
Commitment by an amount not to exceed $100,000,000 in the aggregate;
(xv) (A) unsecured Indebtedness of the Borrower and its Subsidiaries
owing to the seller in any acquisition permitted pursuant to Sections
9.02(ix), (xiii) and (xiv) in an aggregate principal amount not to exceed
$15,000,000 at any time outstanding or (B) Indebtedness of the Borrower
and its Subsidiaries assumed in connection with any such acquisition of an
asset securing such Indebtedness in an aggregate principal amount not to
exceed $15,000,000 at any time outstanding, provided that such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such acquisition;
(xvi) Contingent Obligations of the Borrower or any of its
Subsidiaries (other than License Subsidiary) as a guarantor of
Indebtedness permitted pursuant to Section 9.04(ii) existing on the Second
Restatement Effective Date and extensions, replacements, refinancings and
renewals thereof, provided that no such extension, replacement,
refinancing or renewal shall (x) amend, modify or supplement the
subordination provisions, if any, contained in such guaranty in a manner
adverse to interests of the Banks or (y) increase the principal amount of
such Indebtedness guaranteed by the original guaranty;
(xvii) guarantees (other than guarantees of Indebtedness which is not
a Capitalized Lease Obligation) made in the ordinary course of business,
provided that such guarantees could not, individually or in the aggregate,
have a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
the Borrower or of Holdings and its Subsidiaries taken as a whole; and
(xviii) Indebtedness of the Borrower evidenced by the 8-3/4% Senior
Subordinated Notes in an aggregate principal amount not to exceed
$200,000,000.
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Notwithstanding anything to the contrary contained in this Agreement,
in no event shall the License Subsidiary contract, create, incur, assume or
suffer to exist any Indebtedness (other than the Indebtedness incurred pursuant
to the Subsidiary Guaranty).
9.05 Advances, Investments and Loans. Holdings will not, and will not
permit any of its Subsidiaries to, directly or indirectly, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations
or securities of, or any other interest in, or make any capital contribution
to, any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash or Cash Equivalents,
except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents, provided that during any time that Revolving Loans of
Non-Defaulting Banks are outstanding, the aggregate amount of cash and Cash
Equivalents permitted to be held by the Borrower and its Subsidiaries
shall not exceed $5,000,000 for any period of five consecutive days
(exclusive of any cash held by the Borrower pursuant to an earnest money
escrow account to the extent such account is permitted by Section
9.01(xix);
(iii) the Borrower and its Subsidiaries may make loans and advances in
the ordinary course of business to their respective officers, directors
and employees so long as the aggregate principal amount thereof at any
time outstanding (determined without regard to any write-downs or
write-offs of such loans and advances) shall not exceed $1,000,000;
(iv) the Borrower may enter into Interest Protection Agreements on
terms reasonably satisfactory to the Managing Agent;
(v) Holdings may repurchase Holdings Common Stock to the extent
permitted by Section 9.03;
(vi) Holdings and any of its Subsidiaries may make investments in
accordance with Section 4.02(e) (including investments necessary to form
Subsidiaries under Section 9.15);
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(vii) promissory notes and other similar non-cash consideration
received by the Borrower and its Subsidiaries in connection with
dispositions permitted by Section 9.02 so long as the aggregate principal
amount thereof does not exceed $1,000,000 at any one time outstanding;
(viii) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(ix) investments by the Borrower in any Wholly-Owned Subsidiary;
(x) investments by the Borrower and its Subsidiaries consisting of
the reinvestment of Excess Cash Flow for the relevant Excess Cash Payment
Period to the extent (v) not required to be applied to repay the Loans
pursuant to Section 4.02(f), (w) not used to prepay Holdings Subordinated
Notes pursuant to Section 9.11 (ii), (x) not used to make Capital
Expenditures pursuant to Section 9.07(c)(iii), (y) not used to make
acquisitions pursuant to Section 9.02(xiv) and (z) such investments (other
than investments resulting in the ownership by the Borrower and/or its
Subsidiaries of 100% of the capital stock of the Person in which such
investment is made) in an aggregate principal amount not to exceed
$10,000,000;
(xi) any Wholly-Owned Subsidiary may make intercompany loans and
advances to the Borrower or any Wholly-Owned Subsidiary and the Borrower
may make intercompany loans and advances to any Wholly-Owned Subsidiary,
provided that if such intercompany loans are evidenced by an intercompany
promissory note, such note is pledged by the Borrower or such Wholly-Owned
Subsidiary as Collateral pursuant to the applicable Pledge Agreement;
(xii) investments by the Borrower or any of its Subsidiaries to the
extent permitted by Section 9.07;
(xiii) advances, loans and investments made by the Borrower and its
Subsidiaries in existence on the Second Restatement Effective Date and set
forth on Schedule VIII shall be permitted, without giving effect to any
additions thereto or replacements thereof;
(xiv) guarantees of Indebtedness made by the Borrower or any of its
Subsidiaries to the extent otherwise permitted by Section 9.04; and
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(xv) in addition to investments permitted by clauses (i) through (xiv)
of this Section 9.05, the Borrower and its Subsidiaries may make
additional loans, advances and investments in an aggregate principal
amount not to exceed $2,500,000 at any time outstanding.
9.06 Transactions with Affiliates. Holdings will not, and will not
permit any of its Subsidiaries to enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Holdings or any of its Subsidiaries, other than in the
ordinary course of business and on terms and conditions substantially as
favorable to Holdings or such Subsidiary as would reasonably be obtained by
Holdings or such Subsidiary at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section 9.03;
(ii) loans may be made and other transactions may be entered into by
the Borrower and its Subsidiaries to the extent permitted by Sections
9.02, 9.04 and 9.05;
(iii) customary fees and reimbursement of expenses may be paid to
directors of Holdings;
(iv) Holdings or to the extent not paid by Holdings, the Borrower may
pay to Hicks, Muse & Co. Partners, L.P., its Affiliates or any successor
thereto controlled by Jack D. Furst, Charles W. Tate, Thomas O. Hicks
and/or John R. Muse, the amounts set forth in the Amended and Restated
Financial Monitoring and Oversight Agreement dated as of January 1, 1996,
among Holdings, the Borrower and Hicks, Muse & Co. Partners, L.P. and the
Financial Advisory Agreement (together with the Amended and Restated
Financial Monitoring and Oversight Agreement, the "Monitoring and
Oversight Agreements") dated as of January 1, 1996 among HM2/Management
Partners L.P., the Company and Holdings in the form delivered to the Banks
on or prior to the Second Restatement Effective Date, as it may be
modified thereafter but without giving effect to any modifications thereto
which in any way adversely affects the interests of the Banks without the
consent of the Managing Agent and the Required Banks; provided that,
notwithstanding anything to the contrary above in this clause (iv), the
Amended and Restated Financial Monitoring and Oversight Agreement may be
amended to increase the base fee paid to Hicks, Muse & Co. Partners, L.P.
to an amount not to exceed $1,000,000 without obtaining the consent of the
Managing Agent or the Required Banks;
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(v) Holdings and its Subsidiaries may enter into and make payments
pursuant to employment arrangements with executive officers and senior
management employees in the ordinary course of business and may enter into
employment termination agreements in connection with the Viacom
Acquisition and the Evergreen Merger;
(vi) Holdings and its Subsidiaries may make payments pursuant to
employment agreements existing on the Second Restatement Effective Date;
(vii) Holdings and its Subsidiaries may make payments pursuant to the
Tax Sharing Agreements;
(viii) the Borrower and the License Subsidiary may maintain their
present Operating Agreements; and
(ix) Holdings may make capital contributions to the Borrower.
Except as specifically provided above, no management or similar fees
shall be paid or payable by Holdings or any of its Subsidiaries to any Person
other than the Borrower.
9.07 Capital Expenditures. (a) Holdings will not, and will not permit
any of its Subsidiaries to, make any Capital Expenditures, except that during
any fiscal period set forth below (taken as one accounting period) the Borrower
and its Subsidiaries may make Capital Expenditures so long as the aggregate
amount of such Capital Expenditures made under this Section 9.07(a) does not
exceed in any period set forth below the amount set forth opposite such period
below:
<TABLE>
<CAPTION>
Period Amount
------ ------
<S> <C>
Second Restatement Effective Date to $3,500,000
and including the last day
of the Fiscal Year ending
December 31, 1997
Fiscal Year ending $7,500,000
December 31, 1998
Fiscal Year ending $8,000,000
December 31, 1999
Fiscal Year ending $8,000,000
December 31, 2000
</TABLE>
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<TABLE>
<S> <C>
Fiscal Year ending $8,500,000
December 31, 2001
Fiscal Year ending $9,000,000
December 31, 2002
Fiscal Year ending $9,000,000
December 31, 2003
January 1, 2004 to and $9,000,000
including the Maturity Date.
</TABLE>
(b) Notwithstanding anything to the contrary contained in clause (a)
above, to the extent that the Capital Expenditures made by the Borrower and its
Subsidiaries (i) in any period set forth in clause (a) above are less than the
amount permitted to be made in such period (without giving effect to any
additional amount available as a result of this clause (b) or clause (c)
below), the amount of such difference may be carried forward and used to make
Capital Expenditures in the immediately succeeding fiscal year of the Borrower
or (ii) from January 1, 1997 to and including the Second Restatement Effective
Date are less than $3,000,000, the amount of such difference may be carried
forward and used to make Capital Expenditures in the period from the Second
Restatement Effective Date to and including the last day of the fiscal year
ending December 31, 1997, with such carried forward amount to be pooled with
permitted expenditures for such fiscal year ending December 31, 1997 for
purposes of calculating carry over amounts into the fiscal year ending December
31, 1998.
(c) In addition to the Capital Expenditures permitted pursuant to
preceding clauses (a) and (b), the Borrower and its Subsidiaries may make
additional Capital Expenditures consisting of (i) the reinvestment of Net Sale
Proceeds of asset sales not required to be applied to prepay the Loans pursuant
to Section 4.02(e) as a result of the first proviso contained therein, (ii) the
reinvestment of proceeds of Recovery Events not required to be applied to repay
the Loans pursuant to Section 4.02(g) and (iii) the reinvestment of the amounts
of Excess Cash Flow (w) not required to be applied to repay the Loans pursuant
to Section 4.02(f), (x) not used to prepay the Holdings Subordinated Notes
pursuant to Section 9.11(ii), (y) not used to make acquisitions pursuant to
Section 9.02(xiv) or (z) not used to make investments pursuant to Section
9.05(x).
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9.08 Maximum Leverage Ratio. Holdings will not permit the Leverage
Ratio at any time during a period set forth below to be greater than the ratio
set forth opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Fiscal quarter ended June 30, 1997 7.00:1.00
Fiscal quarter ended September 30, 1997 7.00:1.00
Fiscal quarter ended December 31, 1997 7.00:1.00
Fiscal quarter ended March 31, 1998 7.00:1.00
Fiscal quarter ended June 30, 1998 7.00:1.00
Fiscal quarter ended September 30, 1998 6.80:1.00
Fiscal quarter ended December 31, 1998 6.75:1.00
Fiscal quarter ended March 31, 1999 6.50:1.00
Fiscal quarter ended June 30, 1999 6.25:1.00
Fiscal quarter ended September 30, 1999 6.00:1.00
Fiscal quarter ended December 31, 1999 5.75:1.00
Fiscal quarter ended March 31, 2000 5.50:1.00
Fiscal quarter ended June 30, 2000 5.25:1.00
Fiscal quarter ended September 30, 2000 5.00:1.00
Fiscal quarter ended December 31, 2000 4.80:1.00
Fiscal quarter ended March 31, 2001 4.60:1.00
Fiscal quarter ended June 30, 2001 4.50:1.00
Fiscal quarter ended September 30, 2001 4.25:1.00
Fiscal quarter ended December 31, 2001 4.00:1.00
Fiscal quarter ended March 31, 2002 4.00:1.00
Fiscal quarter ended June 30, 2002 3.75:1.00
Fiscal quarter ended September 30, 2002 3.75:1.00
Fiscal quarter ended December 31, 2002 3.50:1.00
Fiscal quarter ended March 31, 2003 3.50:1.00
Fiscal quarter ended June 30, 2003 3.50:1.00
Fiscal quarter ended September 30, 2003 3.50:1.00
Fiscal quarter ended December 31, 2003 3.50:1.00
Fiscal quarter ended March 31, 2004 3.50:1.00
</TABLE>
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<PAGE> 92
9.09 Minimum Consolidated EBITDA. Holdings will not permit
Consolidated EBITDA for any period of four consecutive fiscal quarters (or, if
shorter, the period beginning on the Second Restatement Effective Date and
ending on the last day of a fiscal quarter ended thereafter), in each case
taken as one accounting period, ended on the last day of any fiscal quarter set
forth below to be less than the amount set forth opposite such fiscal quarter
below:
<TABLE>
<CAPTION>
Fiscal Quarter Amount
-------------- ------
<S> <C>
Fiscal quarter ended September 30, 1997 $ 31,000,000
Fiscal quarter ended December 31, 1997 $ 68,400,000
Fiscal quarter ended March 31, 1998 $ 95,000,000
Fiscal quarter ended June 30, 1998 $128,300,000
Fiscal quarter ended September 30, 1998 $130,400,000
Fiscal quarter ended December 31, 1998 $133,100,000
Fiscal quarter ended March 31, 1999 $135,300,000
Fiscal quarter ended June 30, 1999 $138,100,000
Fiscal quarter ended September 30, 1999 $140,800,000
Fiscal quarter ended December 31, 1999 $144,200,000
Fiscal quarter ended March 31, 2000 $146,600,000
Fiscal quarter ended June 30, 2000 $149,700,000
Fiscal quarter ended September 30, 2000 $152,800,000
Fiscal quarter ended December 31, 2000 $156,400,000
Fiscal quarter ended March 31, 2001 $159,100,000
Fiscal quarter ended June 30, 2001 $162,300,000
Fiscal quarter ended September 30, 2001 $165,600,000
Fiscal quarter ended December 31, 2001 $169,500,000
Fiscal quarter ended March 31, 2002 $172,200,000
Fiscal quarter ended June 30, 2002 $175,400,000
Fiscal quarter ended September 30, 2002 $178,700,000
Fiscal quarter ended December 31, 2002 $182,700,000
Fiscal quarter ended March 31, 2003 $185,500,000
Fiscal quarter ended June 30, 2003 $189,100,000
Fiscal quarter ended September 30, 2003 $192,600,000
Fiscal quarter ended December 31, 2003 $196,900,000
Fiscal quarter ended March 31, 2004 $199,100,000
</TABLE>
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<PAGE> 93
9.10 Consolidated EBITDA to Consolidated Net Cash Interest Expense.
Holdings will not permit the ratio of Consolidated EBITDA to Consolidated Net
Cash Interest Expense for any period of four consecutive fiscal quarters (or,
if shorter, the period beginning on the Second Restatement Effective Date and
ending on the last day of a fiscal quarter ended thereafter), in each case
taken as one accounting period, ended on the last day of any fiscal quarter set
forth below to be less than the amount set forth opposite such fiscal quarter
below:
<TABLE>
<CAPTION>
Fiscal Quarter Ratio
-------------- -----
<S> <C>
Fiscal quarter ended September 30, 1997 1.75:1.00
Fiscal quarter ended December 31, 1997 1.75:1.00
Fiscal quarter ended March 31, 1998 1.75:1.00
Fiscal quarter ended June 30, 1998 1.75:1.00
Fiscal quarter ended September 30, 1998 1.75:1.00
Fiscal quarter ended December 31, 1998 1.75:1.00
Fiscal quarter ended March 31, 1999 1.75:1.00
Fiscal quarter ended June 30, 1999 1.80:1.00
Fiscal quarter ended September 30, 1999 1.80:1.00
Fiscal quarter ended December 31, 1999 1.85:1.00
Fiscal quarter ended March 31, 2000 2.00:1.00
Fiscal quarter ended June 30, 2000 2.10:1.00
Fiscal quarter ended September 30, 2000 2.20:1.00
Fiscal quarter ended December 31, 2000 2.30:1.00
Fiscal quarter ended March 31, 2001 2.40:1.00
Fiscal quarter ended June 30, 2001 2.50:1.00
Fiscal quarter ended September 30, 2001 2.65:1.00
Fiscal quarter ended December 31, 2001 2.75:1.00
Fiscal quarter ended March 31, 2002 2.90:1.00
Fiscal quarter ended June 30, 2002 3.00:1.00
Fiscal quarter ended September 30, 2002 3.00:1.00
Fiscal quarter ended December 31, 2002 3.00:1.00
Fiscal quarter ended March 31, 2003 3.00:1.00
Fiscal quarter ended June 30, 2003 3.00:1.00
</TABLE>
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<PAGE> 94
<TABLE>
<S> <C>
Fiscal quarter ended September 30, 2003 3.00:1.00
Fiscal quarter ended December 31, 2003 3.00:1.00
Fiscal quarter ended March 31, 2004 3.00:1.00
</TABLE>
9.11 Limitation on Modifications of Certificate of Incorporation,
ByLaws and Certain Other Agreements; Limitations of Prepayments and
Modifications of Indebtedness; etc. Holdings will not, and will not permit any
of its Subsidiaries to (i) make (or give any notice with respect of) any
voluntary or optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of paying
when due), after the issuance thereof, any 12-1/4% Junior Exchange Debentures,
12% Junior Exchange Debentures, the Bridge Financing (except such payments in
respect of principal of and accrued interest on the Bridge Financing as are
permitted by Section 9.03(xi)), the 8-3/4% Senior Subordinated Notes or any
Existing Senior Subordinated Notes (after giving effect to the Tender Offer),
(ii) make any cash payments whatsoever in respect of Holdings Subordinated
Notes issued pursuant to Section 9.04(vii) unless the aggregate amount of such
payments made in respect of such Holdings Subordinated Notes, when added to the
aggregate amount of Dividends theretofore paid pursuant to Section
9.03(iii)(B), do not exceed $2,500,000 in any fiscal year or $5,000,000 in the
aggregate (plus the amount of cash proceeds paid by any new employee in
consideration for reissuance of Holdings Common Stock repurchased by Holdings
to the extent received by Holdings within six months following any such
repurchase), (iii) amend or modify, or permit the amendment or modification of
any provision of the foregoing Indebtedness (including, without limitation, the
Supplemental Indenture), the Series A Exchangeable Preferred Stock Documents
(including as relating to the 12-1/4% Junior Exchange Debentures), the
Exchangeable Preferred Stock Documents (including as relating to the 12% Junior
Exchange Debentures), the 8-3/4% Senior Subordinated Note Documents, the Bridge
Financing Documents, the Tax Sharing Agreement, the Viacom Joint Purchase
Agreement, the SFX Exchange Documents, (other than, in the case of the Tax
Sharing Agreement, the Viacom Joint Purchase Agreement, the SFX Exchange
Documents or the WDRQ Detroit Disposition Documents, in a manner not reasonably
likely to be materially adverse to the interest of the Banks) or (iv) amend,
modify or change its Certificate of Incorporation (including, without
limitation, by the filing or modification of any certificate of designation) or
By-Laws, or any agreement entered into by it, as the case may be, with respect
to its capital stock (including any Stockholders' Agreement), or enter into any
new agreement with respect to its capital stock, other than any amendments,
modifications or changes pursuant to this clause or any such new agreements
which do not in any way adversely affect the interests of the Banks.
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9.12 Limitation on Certain Restrictions on Subsidiaries. Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any
Subsidiary of the Borrower, or pay any Indebtedness owed to the Borrower or any
Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any
Subsidiary of the Borrower or (c) transfer any of its properties or assets to
the Borrower or any Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement, the other Credit Documents, the Bridge Financing Documents, and the
Viacom Acquisition Documents, (iii) customary provisions restricting subletting
or assignment of any lease governing a leasehold interest of the Borrower or
any Subsidiary of the Borrower, (iv) customary provisions restricting
assignment of any licensing agreement entered into by the Borrower or any
Subsidiary of the Borrower in the ordinary course of business and (v) customary
restrictions in any industrial revenue bond, purchase money financing, capital
lease or any other agreement permitted by this Agreement.
9.13 Limitation on Issuance of Capital Stock. (a) Holdings will not
issue (i) any preferred stock or (ii) any class of redeemable common stock,
other than Permitted Issuances.
(b) The Borrower will not issue, or permit any of its Subsidiaries to
issue, any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and similar issuances which do
not decrease the percentage ownership of Holdings or any of its Subsidiaries in
any class of the capital stock of the Borrower or such Subsidiary, (iii) to
qualify directors to the extent required by applicable law, (iv) the Borrower
may issue additional shares of common stock to Holdings, so long as all such
shares are immediately delivered to the Collateral Agent and pledged pursuant
to the Amended and Restated Holdings Pledge Agreement, (v) Series A
Exchangeable Preferred Stock, provided that the Borrower may not exchange the
Series A Exchangeable Preferred Stock for 12-1/4% Junior Exchange Debentures
other than in accordance with Section 9.04(xii), (vi) Exchangeable Preferred
Stock, provided that the Borrower may not exchange the Exchangeable Preferred
Stock for 12% Junior Exchange Debentures other than in accordance with Section
9.04(xiii), and (vii) in connection with the creation of Subsidiaries of the
Borrower in compliance with Section 9.15.
9.14 Business. (a) Holdings shall engage in no types of business and
shall have no assets or liabilities, other than its ownership of the capital
stock of the
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Borrower and liabilities incident thereto, and liabilities expressly permitted
under this Agreement.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage (directly or indirectly) in any business other than the type of
business in which the Borrower and its Subsidiaries are engaged on the Second
Restatement Effective Date and reasonable extensions thereof.
(c) Chancellor Broadcasting Licensee shall engage in no business
activities and have no assets or liabilities, other than the holding of certain
of the FCC Licenses and its operations pursuant to Operating Agreements with
the Borrower and liabilities incident thereto.
9.15 Limitation on Creation of Subsidiaries. Holdings shall not and
will not permit any Subsidiary to establish, create or acquire any additional
Subsidiaries after the Second Restatement Effective Date without the prior
written consent of the Required Banks, except that the Borrower may create or
otherwise acquire new Subsidiaries in connection with the acquisition of
Stations in compliance with Sections 4.02(e), 9.02(ix), 9.02(xiii), 9.02(xiv),
9.05(x) or 9.05(xii).
9.16 No Other Designated Senior Debt. Holdings will not, and will not
permit any Subsidiary to, create or permit the creation after the Second
Restatement Effective Date of, any class of "Designated Senior Debt," or any
Indebtedness with similar rights, including pursuant to clause (ii) of the
definition of "Designated Senior Debt" appearing in the Second Senior
Subordinated Note Indenture, the 12-1/4% Junior Exchange Debenture Indenture or
the 12% Junior Exchangeable Debenture Indenture.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more Business Days, in the payment when
due of any Unpaid Drawings or interest on any Loan or Note, or any Fees or any
other amounts owing hereunder, thereunder or under any other Credit Document;
or
10.02 Representations, etc. Any representation, warranty or statement
made by any Credit Party herein or in any other Credit Document or in any
certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
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10.03 Covenants. Holdings or the Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(g)(i), 8.07, 8.11, 8.12(d), 8.13 or Section 9 or (ii) default in
the due performance or observance by it of any other term, covenant or
agreement contained in this Agreement (other than as described in Section
10.01, 10.02 or 10.03(i)), and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Managing Agent or
any Bank; or
10.04 Default Under Other Agreements. Holdings or any of its
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause
(determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity, or (iii) any
Indebtedness (other than the Obligations) of Holdings or any of its
Subsidiaries shall be declared to be due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof, provided that (x) it shall not be a Default or Event of
Default under this Section 10.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) through (iii), inclusive, is
at least $1,500,000; or
10.05 Bankruptcy, etc. Holdings or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title II of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Holdings or any of its Subsidiaries and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Holdings or any of its
Subsidiaries, or Holdings or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Holdings or any of
its Subsidiaries, or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days;
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or Holdings or any of its Subsidiaries makes a general assignment for the
benefit of creditors; or any corporate action is taken by Holdings or any of
its Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code, any Plan shall have had or, in the reasonable opinion
of the Required Banks, is likely to have a trustee appointed to administer such
Plan, any Plan is, shall have been or is likely to be terminated or to be the
subject of termination proceedings under ERISA, any Plan shall have an Unfunded
Current Liability, a contribution required to be made to a Plan has not been
made, Holdings, the Borrower or any of their respective Subsidiaries or any
ERISA Affiliate has incurred or is likely to incur a liability to or on account
of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or
Holdings, the Borrower or any of their respective Subsidiaries has incurred or
is likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(l) of ERISA) which provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or employee pension benefit plans (as defined in Section 3(2) of ERISA);
(b) there shall result from any such event or events the imposition of a lien,
the granting of a security interest, or a liability or a material risk of
incurring a liability; and in each case in clauses (a) and (b) above, such
lien, security interest or liability, in the reasonable opinion of the Required
Banks, will have a material adverse effect upon the business, operations,
property, assets, liabilities or condition (financial or otherwise) of
Holdings, the Borrower or of Holdings and its Subsidiaries taken as a whole; or
10.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect, or shall cease in any material respect to give the Collateral Agent for
the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected
security interest in, and Lien on, all of the Collateral), in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.01), and subject to no other Liens (except as
permitted by Section 9.01), or any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any of the Security Documents and such
default shall continue beyond any grace period specifically applicable thereto
pursuant to the terms of such Security Document; or
10.08 Guaranty. Any Guaranty or any provision thereof shall cease to
be in full force or effect as to the relevant Guarantor or other party
thereunder (other
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than in accordance with the express terms thereof) or any Guarantor or other
party thereunder or Person acting by or on behalf of such Guarantor or such
party shall deny or disaffirm such Guarantor's or such party's obligations
under the relevant Guaranty, or any Guarantor or such party shall default in
the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to any Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
against Holdings or any of its Subsidiaries involving in the aggregate for
Holdings and its Subsidiaries a liability (not paid or fully covered by a
reputable and solvent insurance company) and such judgments and decrees either
shall be final and non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of 60 consecutive days, and the
aggregate amount of all such judgments exceeds $2,000,000; or
10.10 Change of Ownership. A Change of Ownership shall occur; or
10.11 Environmental Matters. At any time after the Second Restatement
Effective Date, the Amended and Restated Environmental Indemnity Agreement or
any provision thereof, or the Environmental Indemnity Agreement or any
provision thereof, shall cease to be in full force or effect as to Holdings or
any of its Subsidiaries, as applicable, or Holdings or any of its Subsidiaries
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to the Amended and
Restated Environmental Indemnity Agreement or the Environmental Indemnity
Agreement, as applicable, and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Managing Agent or
any Bank;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Managing Agent, upon the written request
of the Required Banks, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Managing
Agent, any Bank or the holder of any Note to enforce its claims against any
Credit Party (provided that, if an Event of Default specified in Section 10.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Managing Agent to the Borrower as specified in
clauses (i) and (ii) below shall occur automatically without the giving of any
such notice): (i) declare the Total Commitments terminated, whereupon all
Commitments of each Bank shall forthwith terminate immediately and any
Commitment Commission shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest
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or other notice of any kind, all of which are hereby waived by each Credit
Party; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 10.05 with respect to the Borrower, it will pay)
to the Collateral Agent at the Payment Office such additional amount of cash,
to be held as security by the Collateral Agent, as is equal to the aggregate
Stated Amount of all Letters of Credit issued for the account of the Borrower
and then outstanding; (v) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Security Documents and (vi) apply
any cash collateral held pursuant to Section 4.02 in satisfaction of the
Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ABC" shall mean ABC, Inc., a New York corporation.
"Acquired Viacom Stations" shall mean the stations acquired by the
Borrower from Viacom pursuant to the Viacom Joint Purchase Agreement, including
KYSR-FM, KIBB-FM, WLIT-FM and WDRQ-FM.
"Acknowledgment, Consent and Amendment" shall have the meaning
provided in Section 5.17.
"Acquired Viacom Subsidiaries" shall mean KIBB, KYSR, WDRQ and WLIT,
each a Subsidiary of Viacom, which collectively own the Acquired Viacom
Stations.
"Additional Collateral" shall mean all property (whether real or
personal) in which security interests are granted (or have been purported to be
granted) (and continue to be in effect at the time of determination) pursuant
to Section 8.12 (which shall in any event exclude any interest in the FCC
Licenses to the extent prohibited by applicable law).
"Additional Mortgage" shall have the meaning provided in Section
8.12(b).
"Additional Mortgaged Property" shall have the meaning provided in
Section 8.12(b).
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"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 8.12 with respect to Additional Collateral.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the sum
(rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing
(x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled
"Select Interest Rates," published weekly on Form H.15 as of the date hereof,
or if such publication or a substitute containing the foregoing rate
information shall not be published by the Federal Reserve System for any week,
the weekly average offering rate determined by the Managing Agent on the basis
of quotations for such certificates received by it from three certificate of
deposit dealers in New York of recognized standing or, if such quotations are
unavailable, then on the basis of other sources reasonably selected by the
Managing Agent, by (y) a percentage equal to 100% minus the stated maximum rate
of all reserve requirements as specified in Regulation D applicable on such day
to a three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily
net annual assessment rate as estimated by the Managing Agent for determining
the current annual assessment payable by the Managing Agent to the Federal
Deposit Insurance Corporation for insuring three-month certificates of deposit.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense,
but excluding any net non-cash charges reflected in Adjusted Consolidated
Working Capital) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less the sum of the amount of all net
non-cash gains (exclusive of such non-cash items reflected in Adjusted
Consolidated Working Capital) included in arriving at Consolidated Net Income
for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted RL Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank, such Bank's RL Percentage and (y) at a time when a Bank
Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
in the case of such Bank's RL Percentage, such Bank's Revolving Loan Commitment
at such time by
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the Adjusted Total Revolving Loan Commitment at such time, it being understood
that all references herein to Revolving Loan Commitments and the Adjusted Total
Revolving Loan Commitment at a time when the Total Revolving Loan Commitment or
Adjusted Total Revolving Loan Commitment, as the case may be, has been
terminated shall be references to the Revolving Loan Commitments or Adjusted
Total Revolving Loan Commitment, as the case may be, in effect immediately
prior to such termination, provided that (A) no Bank's Adjusted RL Percentage
shall change upon the occurrence of a Bank Default from that in effect
immediately prior to such Bank Default if after giving effect to such Bank
Default, and any repayment of Revolving Loans at such time pursuant to Section
4.02(a) or otherwise, the sum of the aggregate outstanding principal amount of
Revolving Loans of all Non-Defaulting Banks plus the Letter of Credit
Outstandings, exceed the Adjusted Total Revolving Loan Commitment; (B) the
changes to the Adjusted RL Percentage that would have become effective upon the
occurrence of a Bank Default but that did not become effective as a result of
the preceding clause (A) shall become effective on the first date after the
occurrence of the relevant Bank Default on which the sum of the aggregate
outstanding principal amount of the Revolving Loans of all Non-Defaulting Banks
plus the Letter of Credit Outstandings is equal to or less than the Adjusted
Total Revolving Loan Commitment; and (C) if (i) a Non-Defaulting Bank's
Adjusted RL Percentage is changed pursuant to the preceding clause (B) and (ii)
any repayment of such Bank's Revolving Loans, or of Unpaid Drawings with
respect to Letters of Credit, that were made during the period commencing after
the date of the relevant Bank Default and ending on the date of such change to
its Adjusted RL Percentage. must be returned to the Borrower as a preferential
or similar payment in any bankruptcy or similar proceeding of the Borrower,
then the change to such Non-Defaulting Bank's Adjusted RL Percentage effected
pursuant to said clause (B) shall be reduced to that positive change, if any,
as would have been made to its Adjusted RL Percentage if (x) such repayments
had not been made and (y) the maximum change to its Adjusted RL Percentage
would have resulted in the sum of the outstanding principal of Revolving Loans
made by such Bank plus such Bank's new Adjusted RL Percentage of the
outstanding principal amount of Letter of Credit Outstandings equalling such
Bank's Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any time the
Total Revolving Loan Commitment less the aggregate Revolving Loan Commitments
of all Defaulting Banks.
"Affected Eurodollar Loans" shall have the meaning provided in Section
4.02(i).
"Affiliate" shall mean, with respect to any Person, any other Person
(including for purposes of Section 9.06 only, all directors, officers and
partners of such Person) directly or indirectly controlling, controlled by, or
under direct or indirect com-
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mon control with, such Person; provided, however, that for purposes of Section
9.06, an Affiliate of Holdings shall include any Person that directly or
indirectly owns more than 10% of any class of the capital stock of Holdings. A
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agents" shall mean the Managing Agent and each of Goldman Sachs
Credit Partners L.P., as Documentation Agent, and NationsBank of Texas, N.A.
and Toronto Dominion (Texas), Inc., as Syndication Agents, so long as each
remains a Bank.
"Agreement" shall mean this Amended and Restated Credit Agreement, as
amended, modified, extended, renewed, replaced, restated or supplemented from
time to time.
"Amended and Restated Borrower Pledge Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Amended and Restated Borrower Security Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Amended and Restated Environmental Indemnity Agreement" shall have
the meaning provided in the Existing Credit Agreement.
"Amended and Restated Holdings Pledge Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Amended and Restated Holdings Security Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Amended and Restated Security Agreements" shall mean the Amended and
Restated Holdings Security Agreement, the Amended and Restated Borrower
Security Agreement and the Amended and Restated Subsidiary Security Agreement.
"Amended and Restated Subsidiary Guaranty" shall have the meaning
provided in the Existing Credit Agreement.
"Amended and Restated Subsidiary Pledge Agreement" shall have the
meaning provided in the Existing Credit Agreement.
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"Amended and Restated Subsidiary Security Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Applicable Margin" shall mean (A) for the period from and including
the Second Restatement Effective Date to and including the date which is six
months after the Second Restatement Effective Date, a percentage per annum
equal to (x) in the case of Base Rate Loans, 1.125 % and (y) in the case of
Eurodollar Loans, 2.125 % and (B) thereafter, from and after each day of
delivery of any certificate delivered in accordance with the following sentence
(each a "Start Date") to and including the applicable End Date described below,
a percentage per annum based on the then-existing Leverage Ratio as set forth
below:
<TABLE>
<CAPTION>
Base Rate Eurodollar
Leverage Ratio Loans Loans
- -------------- ----- -----
<S> <C> <C>
Equal to or greater
than 6.5:1 1.125% 2.125%
Equal to or greater
than 6.0:1 but less
than 6.5:1 .75% 1.75%
Equal to or greater
than 5.5:1 but less
than 6.O:l .50% 1.50%
Equal to or greater
than 5.0:1 but less
than 5.5:1 .25% 1.25%
Equal to or greater
than 4.5:1 but less
than 5.0:1 0% 1.00%
Less than 4.5:1 0% 0.75%
</TABLE>
The Leverage Ratio, for purposes of calculating the Applicable Margin, shall be
determined based on the delivery of a certificate of the Borrower to the
Managing Agent (with a copy to be sent by the Managing Agent to each Bank),
certified by an Authorized Officer of the Borrower within 30 days after the
last day of any fiscal quarter of the Borrower (commencing with its fiscal
quarter ending December 31,
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1997), which certificate shall set forth the calculation of the Leverage Ratio
for the Test Period ended immediately prior to the relevant Start Date and the
Applicable Margin which shall be thereafter applicable (until same is changed
or ceases to apply in accordance with the following sentences). The Applicable
Margin so determined shall apply, except as set forth in the succeeding
sentence, from the Start Date to the earlier of (x) the date on which the next
certificate is delivered to the Managing Agent and (y) the date which is 30
days following the last day of the fiscal quarter in which the previous Start
Date occurred (the "End Date"), at which time, if no certificate has been
delivered to the Managing Agent indicating an entitlement to an Applicable
Margin other than in the case of Base Rate Loans, 1.125%, and in the case of
Eurodollar Loans, 2.125% (and thus commencing a new Start Date), the Applicable
Margin shall be, in the case of Base Rate Loans, 1.125%, and, in the case of
Eurodollar Loans, 2.125%. Notwithstanding anything to the contrary contained
above in this definition, the Applicable Margin shall be, in the case of Base
Rate Loans, 1.125% and, in the case of Eurodollar Loans, 2.125% at all times
during which there shall exist a Default or an Event of Default.
"Asset Swapped Station" shall have the meaning provided in Section
9.02(ix).
"Asset Target Station" shall have the meaning provided in Section
9.02(ix).
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"Authorized Officer" of any Credit Party shall mean any of the
Chairman of the Board, the President, the Chief Executive Officer, any Vice
President, the Treasurer, the Secretary, any Assistant Secretary, any Assistant
Treasurer, the Chief Financial Officer or the Controller of such Credit Party
or any other officer of such Credit Party which is designated in writing to the
Managing Agent and the Issuing Bank or any of the foregoing officers of such
Credit Party as being authorized to give such notices under this Agreement.
"Bank" shall mean each financial institution listed on Schedule I, as
well as any Person which becomes a "Bank" hereunder pursuant to Sections 1.13
and 13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.03(c) or (ii) a Bank
having notified in writing the Borrower and/or the Managing Agent that it does
not intend to comply with its
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obligations under Section 1.01(a), 1.01(b) or 2, in the case of either clause
(i) or (ii) as a result of any takeover of such Bank by any regulatory
authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1% in
excess of the Adjusted Certificate of Deposit Rate and (ii) the Prime Lending
Rate.
"Base Rate Loan" shall mean each Loan designated or deemed designated
as such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
" Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Banks having Commitments of the respective Tranche on a
given date (or resulting from a conversion or conversions on such date) having
in the case of Eurodollar Loans the same Interest Period, provided that Base
Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of
the related Borrowing of Eurodollar Loans.
"Bridge Financing" shall mean the incurrence by Holdings of up to
$170,000,000 in unsecured senior Indebtedness from Bankers Trust New York
Corporation pursuant to the terms of the Bridge Financing Documents, the
proceeds of which shall be used to finance the Transaction.
"Bridge Financing Documents" shall mean the Senior Credit Agreement,
dated of even date herewith, among the Holdings, the Lenders named therein and
Bankers Trust New York Corporation, as Agent, the Notes as defined therein, and
any additional documents delivered in connection therewith, each as amended,
modified, restated or supplemented, from time to time, in accordance with the
terms hereof and thereof.
"Broadcast Cash Flow" shall mean, with respect to any Station during
any period, the sum of (x) EBITDA of such Station for such period (provided
that for purposes of calculating compliance with Section 9.08, non-cash
expenses relating to options to purchase common stock of Holdings issued by
Holdings in 1994 to Steven Dinetz, the President and Chief Executive Officer of
the Borrower, and certain Directors of the Borrower shall not be included in
the determination of Broadcast Cash Flow for any period occurring on or after
the Second Restatement Effective Date) and (y) corporate overhead expense
allocated to such Station for such period; it being
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understood that the Broadcast Cash Flow of any Person shall mean the total
Broadcast Cash Flow of all Stations owned by such Person.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall
be in New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and
between banks in the New York interbank Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures (excluding barter transactions effected in the ordinary course of
business consistent with past practices) by such Person which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
GAAP) and the amount of Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under GAAP, are or will be required to be capitalized on the
books of such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
one year from the date of acquisition, (ii) time deposits and certificates of
deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States, any State thereof, the District of Columbia or any foreign jurisdiction
having capital, surplus and undivided profits aggregating in excess of
$200,000,000, with maturities of not more than one year from the date of
acquisition by such Person, (iii) repurchase obligations with a term of not
more than 90 days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications specified in
clause (ii) above, (iv) commercial paper issued by any Person incorporated in
the United States rated at least A-1 or the equivalent thereof by Standard &
Poor's Corporation or at least P-1 or the equivalent thereof by Moody's
Investors Service, Inc. and in each case maturing not more than one year
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after the date of acquisition by such Person, (v) investments in money market
funds substantially all of whose assets are comprised of securities of the
types described in clauses (i) through (iv) above and (vi) demand deposit
accounts maintained in the ordinary course of business not in excess of
$100,000 in the aggregate.
"Chancellor Broadcasting Licensee" shall mean Chancellor Broadcasting
Licensee Company, a Delaware corporation.
"Change of Ownership" shall mean (i) Holdings shall cease to own
beneficially 100% of the capital stock (other than the Series A Exchangeable
Preferred Stock and the Exchangeable Preferred Stock) of the Borrower, or the
Borrower or a Wholly-Owned Subsidiary of the Borrower shall cease to own
beneficially 100% of the capital stock of the Chancellor Broadcasting Licensee,
(ii) for any reason whatsoever any "Person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), excluding HM Group, is or
becomes the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than the greater of (x) 15%
of the then outstanding Voting Stock of Holdings or (y) the percentage of the
then outstanding Voting Stock of Holdings owned beneficially by the HM Group,
(iii) the Board of Directors of Holdings shall cease to consist of a majority
of Continuing Directors, (iv) a "Change of Control" under and as defined in the
Series A Exchangeable Preferred Stock Documents, the Exchangeable Preferred
Stock Documents, or after any issuance thereof, the 12-1/4% Junior Exchange
Debentures or 12% Junior Exchange Debentures shall have occurred or (v) the
Evergreen Merger shall have become effective.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
Second Restatement Effective Date, and to any subsequent provision of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties and all cash and Cash Equivalents delivered as collateral pursuant
to Section 4.02 or Section 10 hereof and all Additional Collateral, if any (all
of which shall in any event exclude any interest in the FCC Licenses to the
extent prohibited by applicable law).
"Collateral Agent" shall mean the Managing Agent acting as collateral
agent for the Secured Creditors pursuant to the Security Documents.
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"Commitment" shall mean any of the commitments of any Bank, i.e.,
whether the Term Loan Commitment or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Communications Act" shall have the meaning provided in Section 7.23.
"Consolidated Broadcast Cash Flow" shall mean, for any period, the
Broadcast Cash Flow of Holdings and its Consolidated Subsidiaries determined on
a consolidated basis in accordance with GAAP during such period.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of Holdings and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP plus the Total
Unutilized Revolving Loan Commitment at such time.
"Consolidated Current Liabilities" shall mean, at any time, the
consolidated current liabilities of Holdings and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP at such time, but
excluding (i) the current portion of any Indebtedness under this Agreement and
any other long-term Indebtedness which would otherwise be included therein,
(ii) accrued but unpaid interest with respect to the Indebtedness described in
clause (i), and (iii) the current portion of Capitalized Lease Obligations.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of Holdings and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP, before Consolidated Net Interest
Expense and provision for taxes and without giving effect to any extraordinary
gains or losses or gains or losses from sales of assets other than inventory
sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation that were deducted in arriving at Consolidated EBIT for such
period, provided, that for any period ending in the first calendar year
following the Second Restatement Effective Date, Consolidated EBITDA shall be
calculated on a pro forma basis as if all Stations owned at the end of such
period were owned for the entire period, provided, further, for purposes of
calculating compliance with Sections 9.08, 9.09 and 9.10, in the event that
any sale or other disposition of Stations is made in compliance with Section
9.02, and the proceeds thereof are not applied to repay Loans, all in
accordance with Section 4.02(e), for the period (not to exceed 180 days) that
the proceeds thereof are held as
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cash collateral pursuant to Section 4.02(e), the amount equal to the Broadcast
Cash Flow of the Stations so sold or so disposed at the end of the most recent
fiscal quarter prior to such sale or disposition for the four fiscal quarters
prior thereto shall be included in the determination of Consolidated EBITDA
during such period, provided, further, that for purposes of calculating
compliance with Sections 9.08, 9.09 and 9.10, non-cash expenses relating to
options to purchase common stock of Holdings issued by Holdings in 1994 to
Steven Dinetz, the President and Chief Executive Officer of the Borrower, Ms.
Matrice Ellis-Kirk, Mr. Marvin Dinetz, Mr. Eric W. Neumann, Mr. Jeffrey A.
Marcus, Mr. John H. Massey and certain Directors of the Borrower shall not be
included in the determination of Consolidated EBITDA for any period occurring
on or after the Second Restatement Effective Date.
"Consolidated Indebtedness" shall mean, at any time, without
duplication, the sum of the aggregate outstanding principal amount of all
Indebtedness for borrowed money and the principal component of Capitalized
Lease Obligations of Holdings and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Cash Interest Expense" shall mean, for any period,
the total consolidated cash interest expense of Holdings and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP for
such period plus, without duplication, that portion of Capitalized Lease
Obligations of Holdings and its Consolidated Subsidiaries representing the
interest factor for such period in each case net of the total consolidated cash
interest income of Holdings, its Consolidated Subsidiaries for such period.
"Consolidated Net Income" shall mean, for any period, net after tax
income of Holdings and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Interest Expense" shall mean, for any period, the
total consolidated interest expense of Holdings and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of Holdings and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP representing the interest factor for
such period in each case net of the total consolidated cash interest income of
Holdings and its Consolidated Subsidiaries for such period, but excluding the
amortization of any deferred financing costs incurred in connection with this
Agreement.
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"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
holder of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of
the instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Continuing Bank" shall mean each Existing Bank with a Commitment
under this Agreement (immediately upon giving effect to the Second Restatement
Effective Date).
"Continuing Directors" shall mean the directors of Holdings on the
Second Restatement Effective Date and each other director, if such director's
nomination for election to the Board of Directors of Holdings is recommended by
a majority of the then Continuing Directors or any other nominee of the HM
Group.
"Convertible Preferred Stock" shall mean Holding's 7% Convertible
Preferred Stock.
"Credit Documents" shall mean this Agreement and, after the execution
and delivery thereof pursuant to the terms of this Agreement, each Note, each
Security Document, the Amended and Restated Environmental Indemnity Agreement,
the
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Environmental Indemnity Agreement, the Amended and Restated Subsidiary Guaranty
and the Subsidiary Guarantee.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean Holdings, the Borrower and each Subsidiary
thereof party to a Credit Document.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Dinetz" shall mean Mr. Steven Dinetz.
"Dinetz Employment Contract" shall mean the contract between Holdings
and Dinetz.
"Dividend" with respect to any Person shall mean that such Person has
declared or paid a dividend or returned any equity capital to its stockholders
or authorized or made any other distribution, payment or delivery of property
(other than common stock of such Person) or cash to its stockholders as such,
or redeemed, retired, purchased or otherwise acquired, directly or indirectly,
for consideration any shares of any class of its capital stock outstanding on
or after the Second Restatement Effective Date (or any options or warrants
issued by such Person with respect to its capital stock), or set aside any
funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of such Person outstanding on or after the
Second Restatement Effective Date (or any options or warrants issued by such
Person with respect to its capital stock).
"Documentation Agent" shall mean Goldman Sachs Credit Partners L.P.,
in its capacity as Documentation Agent for the Banks hereunder.
"Documents" shall mean the Transaction Documents, the Bridge Financing
Documents and the Evergreen Acquisition Documents.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
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"Drawing" shall have the meaning provided in Section 2.04(b).
"EBIT" shall mean, for any period, net after tax income of any
Person before Net Interest Expense and provision for taxes and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"EBITDA" shall mean, for any period, EBIT, adjusted by adding
thereto the amount of all amortization of intangibles and depreciation that
were deducted in arriving at EBIT for such period.
"8 3/4% Senior Subordinated Note Documents" shall mean and
include each of the documents and other agreements entered into (including,
without limitation, the 8 3/4% Senior Subordinated Note Indenture relating to
the issuance by the Borrower of the 8 3/4% Senior Subordinated Notes, as in
effect on the Second Restatement Effective Date and as the same may be entered
into, modified, supplemented or amended from time to time pursuant to the terms
hereof and thereof.
"8 3/4% Senior Subordinated Note Indenture" shall mean the
indenture, dated as of June 24, 1997, between the Borrower and United States
Trust Company of Texas, as Trustee, as amended, modified, extended, reserved,
replaced, restated or supplemented from time to time pursuant to the terms
hereof and thereof.
"8 3/4% Senior Subordinated Notes" shall mean the Borrower's
8 3/4% Senior Subordinated Notes due 2007 issued pursuant to the 8 3/4% Senior
Subordinated Note Indenture.
"Eligible Transferee" shall mean and include a commercial
bank, mutual funds, financial institution or other institutional "accredited
investor" (as defined in Regulation D of the Securities Act).
"Employee Stock Option Plan" shall mean (i) the Chancellor
Corporation Stock Award Plan, (ii) the 1994 Directors Stock Option Plan and
(iii) any plan, to be entered into after the Second Restatement Effective Date,
for the compensation of management of Holdings or any of its Subsidiaries, or
any arrangement for the benefit of management of Holdings or any of its
Subsidiaries, in form and substance reasonably acceptable to the Managing
Agent.
"EMHC" shall mean Evergreen Mezzanine Holdings Corporation, a
Delaware corporation, which, no later than the date upon which the Evergreen
Merger is consummated, shall own all of the issued and outstanding capital
stock of Evergreen Media of LA.
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"End Date" shall have the meaning provided in the definition of
Applicable Margin.
"Environmental Claims" shall have the meaning provided in the Amended
and Restated Environmental Indemnity Agreement and the Environmental Indemnity
Agreement.
"Environmental Indemnity Agreement" shall have the meaning provided in
Section 5.12.
"Environmental Law" shall have the meaning provided in the Amended and
Restated Environmental Indemnity Agreement and the Environmental Indemnity
Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the Second Restatement Effective Date and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or any Subsidiary of the Borrower
would be deemed to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean each Loan designated as such by the
Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean the offered quotation to first-class banks
in the New York interbank Eurodollar market by BTCo for Dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the Eurodollar Loan of BTCo with maturities comparable to the
Interest Period applicable to such Eurodollar Loan commencing two Business Days
thereafter as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period, divided (and rounded
off to the nearest 1/16 of 1%) by a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves required by
applicable law) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
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"Evergreen" shall mean Evergreen Media Corporation, a Delaware
corporation.
"Evergreen Acquisition Documents" shall mean the Evergreen Merger
Agreement and all other agreements and documents relating to the Evergreen
Merger.
"Evergreen Administrative Agent" shall have the meaning provided in
Section 1.01(c).
"Evergreen Loan Agreement" shall have the meaning provided in Section
1.01(c).
"Evergreen Merger" shall mean the merger of Holdings with and into
EMHC and the merger of the Borrower with and into Evergreen Media of LA, with
EMHC and Evergreen of LA being the surviving corporations, pursuant to the
Evergreen Merger Agreement.
"Evergreen Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of February 19, 1997 by and among Holdings, the Company,
Evergreen and Evergreen Media of LA.
"Evergreen Media of LA" shall mean Evergreen Media Corporation of Los
Angeles, a Delaware corporation.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of (i) Adjusted Consolidated Net Income for such period and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Capital Expenditures made by the Borrower and its Subsidiaries on a
consolidated basis during such period pursuant to and in accordance with
Section 9.07(a) and (b), except to the extent financed with the proceeds of
Indebtedness or pursuant to Capitalized Lease Obligations, (ii) the aggregate
amount of permanent principal payments of Indebtedness for borrowed money of
the Borrower and the permanent repayment of the principal component of
Capitalized Lease Obligations of the Borrower and its Subsidiaries (excluding
(1) payments with proceeds of issuances of Indebtedness or equity or with
proceeds of asset sales and (2) payments of Loans or other Obligations),
provided that repayments of Loans shall be deducted in determining Excess Cash
Flow if such repayments were (x) required as a result of a Scheduled Repayment
under Section 4.02(b) (but not as a reduction to the amount of Scheduled
Repayments pursuant to another provision of this Agreement) or (y) made as a
voluntary prepayment pursuant to Section 4.01 with internally generated funds
(but in the case of a voluntary prepayment of Revolving Loans, only to the
extent accompanied by a voluntary reduction to the Total Revolving Loan
Commitment)) dur-
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ing such period, (iii) the increase, if any, in Adjusted Consolidated Working
Capital from the first day to the last day of such period, (iv) the amount of
all expenses (including expenses incurred in connection with acquisitions) that
have been paid during such period to the extent that such expenses have been
capitalized in accordance with GAAP but only to the extent that the payment
thereof does not otherwise reduce Adjusted Consolidated Net Income and (v) the
aggregate amount of any payments made by Holdings to reduce the principal
amount of Indebtedness under the Bridge Financing.
"Excess Cash Payment Date" shall mean the date occurring 90 days after
the last day of each fiscal year of the Borrower (beginning with its fiscal
year ending December 31, 1997).
"Excess Cash Payment Period" shall mean with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal
year of the Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchangeable Preferred Stock" shall mean the Borrower's 12%
Exchangeable Preferred Stock due 2009.
"Exchangeable Preferred Stock Documents" shall mean each document
relating to the Exchangeable Preferred Stock (including, without limitation,
the 12% Junior Exchange Debenture Indenture and all documents relating
thereto).
"Existing Banks" shall mean each Person which was a Bank under, and as
defined in, the Existing Credit Agreement.
"Existing Chancellor Entities" shall mean Holdings, the Borrower and
each of the Borrower's Subsidiaries prior to giving effect to the Viacom
Acquisition.
"Existing Credit Agreement" shall have the meaning provided in the
first Whereas clause of this Agreement.
"Existing Debt" shall have the meaning provided in Section 5.06(a).
"Existing Debt Agreements" shall have the meaning provided in Section
5.06(a).
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"Existing Letters of Credit" shall mean those letters of credit
outstanding under the Existing Credit Agreement prior to the Second Restatement
Effective Date and which remain outstanding following the Second Restatement
Effective Date, as disclosed on Schedule II.
"Existing Loans" shall mean, collectively the Existing Term Loans and
the Existing Revolving Loans.
"Existing Mortgage Policies" shall mean the "Mortgage Policies" under,
and as defined in, the Existing Credit Agreement.
"Existing Mortgaged Properties" shall mean all Real Property of the
Borrower and its Subsidiaries listed on Part A of Schedule II and designated as
"Existing Mortgaged Properties" therein.
"Existing Mortgages" shall mean all "Mortgages" (as defined in the
Existing Credit Agreement), "Existing Mortgages" (as defined in the Existing
Credit Agreement) and "Additional Mortgages" (as defined in the Existing Credit
Agreement) granted by the Borrower and its Subsidiaries or assumed pursuant to
the Existing Credit Agreement which have not been released by the lenders
thereunder prior to the Second Restatement Effective Date.
"Existing Revolving Loans" shall mean the "Revolving Loans" under, and
as defined in the Existing Credit Agreement.
"Existing Senior Subordinated Note Documents" shall mean and include
each of the documents and other agreements entered into (including, without
limitation, the Existing Senior Subordinated Note Indenture, the Second Senior
Subordinated Note Indenture and the Supplemental Indenture) relating to the
issuance by the Borrower of the Existing Senior Subordinated Notes, as in
effect on the Second Restatement Effective Date and as the same may be entered
into, modified, supplemented or amended from time to time pursuant to the terms
hereof and thereof.
"Existing Senior Subordinated Note Indenture" shall mean that certain
indenture dated as of October 12, 1994 by and between the Borrower and United
States Trust Company of Texas, as Trustee, as amended, modified, extended,
renewed, replaced, restated or supplemented prior to the effectiveness of the
Indenture Amendment.
"Existing Senior Subordinated Notes" shall mean the Borrower's 9 3/8%
Senior Subordinated Notes due 2004 issued pursuant to the Second Senior
Subordinated Note Indenture and any of the Borrower's 12 1/2% Senior
Subordinated Notes due 2004
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issued pursuant to the Existing Senior Subordinated Note Indenture which remain
outstanding following the Tender Offer.
"Existing Term Loans" shall mean the "Term Loans" under, and as
defined in, the Existing Credit Agreement.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"FCC" shall mean the Federal Communications Commission, or any
successor thereto.
"FCC Consent" shall have the meaning provided in Section 5.07(c).
"FCC Licenses" shall have the meaning provided in Section 7.23.
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Managing Agent from three Federal Funds brokers of
recognized standing selected by the Managing Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Guaranteed Obligations" shall mean (i) the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of the
principal and interest on each Note issued by the Borrower to such Bank, and
Loans made, under the Credit Agreement and all reimbursement obligations and
Unpaid Drawings with respect to Letters of Credit, together with all the other
obligations and liabilities (including, without limitation, indemnities, fees
and interest thereon) of the Borrower to such Bank now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement or
any other Credit Document and the due performance and compliance with all the
terms, conditions and agreements contained in the Credit Documents by the
Borrower and (ii) the full and prompt payment when due (whether by acceleration
or otherwise) of all obligations of the Borrower owing under any Interest Rate
Protection Agreement, whether now in existence or hereafter arising, and
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the due performance and compliance with all terms, conditions and agreements
contained therein.
"Guarantor" shall mean Holdings and any guarantor that is party to the
Amended and Restated Subsidiary Guaranty or the Subsidiary Guaranty.
"Guaranty" shall mean the guaranty made by Holdings pursuant to
Section 14, the Amended and Restated Subsidiary Guaranty, the Subsidiary
Guaranty and any guaranty executed pursuant to Section 8.12(e).
"Hazardous Materials" shall have the meaning provided in the Amended
and Restated Environmental Indemnity Agreement and the Environmental Indemnity
Agreement.
"HM Group" shall mean, collectively, (i) Hicks, Muse, Tate & Furst
Incorporated, its Affiliates and Dinetz taken as a whole, (ii) so long as
Hicks, Muse, Tate & Furst Incorporated, its Affiliates and Dinetz taken as a
whole possess sole voting right with respect to the Voting Stock held by each
such individual, such individuals who are or were employees, officers,
directors or partners of Hicks, Muse, Tate & Furst Incorporated or such
Affiliate and the family members of such individuals or trusts created for the
sole benefit of such family members and (iii) so long as Hicks, Muse, Tate &
Furst Incorporated, its Affiliates and Dinetz taken as a whole possess sole
voting right with respect to the Voting Stock of Holdings held by each such
Person, any Person not otherwise described by clause (i) and (ii) above,
provided that the aggregate number of shares held by all such Persons in
accordance with this clause (iii) at any time shall not exceed 3% of the
aggregate number of shares held by the Persons described in clause (i) and (ii)
above at such time.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Class A Common Stock" shall have the meaning provided in
Section 7.14(a).
"Holdings Class B Common Stock" shall have the meaning provided in
Section 7.14(a).
"Holdings Class C Common Stock" shall have the meaning provided in
Section 7.14(a).
"Holdings Common Stock" shall mean Holdings Class A Common Stock,
Holdings Class B Common Stock and Holdings Class C Common Stock.
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"Holdings Guaranty" shall mean the guaranty provided to the Banks
pursuant to Section 14.
"Holdings Subordinated Notes" shall have the meaning set forth in
Section 9.04(vii).
"Indebtedness" shall mean, as to any Person, without duplication, (1)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services due more than 90 days after acquisition of the property or receipt of
services or which is otherwise represented by a note, (ii) the maximum amount
available to be drawn under all letters of credit issued for the account of
such Person and all unpaid drawings in respect of such letters of credit, (iii)
all Indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or
(vii) of this definition secured by any Lien on any property owned by such
Person, whether or not such Indebtedness has been assumed by such Person (to
the extent of the lesser of the amount of such Indebtedness and the value of
the respective property), (iv) Capitalized Lease Obligations, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person and (vii) all
obligations under any Interest Rate Protection Agreement or under any similar
type of agreement; provided that Indebtedness shall not include trade payables
and accrued expenses, in each case arising in the ordinary course of business.
"Indenture Amendment" shall mean the amendment to the Existing Senior
Subordinated Note Indenture (as so amended and as the same may be further
amended, modified, restated or supplemented from time to time, the
"Supplemental Indenture") eliminating substantially all of the restrictive
covenants therein, as described in the Offer to Purchase and Consent
Solicitation Statement.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Issuing Bank" shall mean, BTCO and any Bank which at the request of
the Borrower and with the consent of the Managing Agent agrees, in such Bank's
sole discretion, to become an Issuing Bank for the purpose of issuing Letters
of Credit
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pursuant to Section 2. The sole Issuing Bank on the Second Restatement
Effective Date is BTCo.
"KIBB" shall mean KIBB Inc., a Delaware corporation.
"KYSR" shall mean KYSR Inc., a Delaware corporation.
"L/C Supportable Obligations" shall mean (i) obligations of
the Borrower or its Subsidiaries incurred in the ordinary course of business
with respect to insurance obligations and workers' compensation, surety bonds
and other similar statutory obligations and (ii) such other obligations of the
Borrower or any of its Subsidiaries as are reasonably acceptable to the
respective Issuing Bank and otherwise permitted to exist pursuant to the terms
of this Agreement.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lenders" shall have the meaning provided in Section 1.01(c).
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings relating to Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean on the date of determination
thereof the ratio of (x) Consolidated Indebtedness on such date less the
outstanding principal amount of the Bridge Financing on such date to (y) (i) in
the case of any date occurring on or after the Test Period ending June 30, 1997
(but prior to the last date of the next succeeding Test Period), Consolidated
EBITDA for such Test Period multiplied by 4, (ii) in the case of any date
occurring on or after the Test Period ending September 30, 1997 (but prior to
the last date of the next succeeding Test Period), Consolidated EBITDA for such
Test Period multiplied by 2, (iii) in the case of any date occurring on or
after the Test Period ending December 31, 1997 (but prior to the last date of
the next succeeding Test Period), Consolidated EBITDA for such Test Period
multiplied
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by 4/3 and (iv) thereafter Consolidated EBITDA for the Test Period most
recently ended (taken as one accounting period) and ending on such date,
provided that, with respect to periods prior to June 30, 1998, for purposes of
calculating the Leverage Ratio, Consolidated EBITDA shall include Broadcast
Cash Flow of all Stations owned on the date of determination for less than the
entirety of such Test Period as if such Stations had been owned by the Borrower
or its Subsidiaries for the full Test Period, less corporate overhead
attributable to such Stations for such Test Period. Notwithstanding anything to
the contrary contained in the immediately preceding sentence, for purposes of
determining the Leverage Ratio in connection with Sections 3.01(a), the
denominator shall be Consolidated EBITDA for the then most recently ended Test
Period.
"License Subsidiary" shall mean Chancellor Broadcasting
Licensee, Shamrock, Shamrock Radio, Shamrock Broadcasting Licenses and Trefoil,
KIBB, KYSR, WDRQ and WLIT.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Term Loan and each Revolving Loan.
"Management Agreements" shall have the meaning provided in
Section 5.05.
"Managing Agent" shall mean Bankers Trust Company, in its
capacity as Managing Agent for the Banks hereunder, and shall include any
successor to the Managing Agent appointed pursuant to Section 12.09.
"Margin Stock" shall have the meaning provided in
Regulation U.
"Maturity Date" shall mean the earlier of (x) the date of
consummation of the Evergreen Merger and (y) July 2, 2004.
"Monitoring and Oversight Agreements" shall have the meaning
provided in Section 9.06(iv).
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"Mortgage" shall have the meaning provided in Section 5.11(a),
and, after the execution and delivery thereof, shall include each Additional
Mortgage delivered pursuant to Section 8.12.
"Mortgage Amendment" shall have the meaning provided in
Section 5.11(a).
"Mortgage Policies" shall have the meaning provided in Section
5.11(c).
"Mortgaged Properties" shall have the meaning provided in
Section 5.11(a) and shall include any real property mortgaged pursuant to
Section 8.12.
"Net Interest Expense" shall mean, for any period, the total
interest expense of any Person for such period (calculated without regard to
any limitations on the payment thereof) plus, without duplication, that portion
of Capitalized Lease Obligations of such Person representing the interest
factor for such period in each case net of the total consolidated cash interest
income of such Person for such period, but excluding the amortization of any
deferred financing costs incurred in connection with this Agreement.
"Net Sale Proceeds" shall mean for any sale, lease, transfer
or other disposition of assets, the gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note, receivable
or otherwise, but only as and when received) received by Holdings and/or any of
its Subsidiaries from such sale, lease, transfer or other disposition, net of
reasonable transaction costs (including, without limitation, any underwriting,
brokerage or other customary selling commissions and reasonable legal, advisory
and other fees and expenses, including title and recording expenses and
reasonable expenses incurred for preparing such assets for sale, associated
therewith) and payments of unassumed liabilities relating to the assets sold at
the time of, or within 30 days after, the date of such sale, the amount of such
gross cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Banks pursuant to this Agreement) which is secured by the
respective assets which were sold, and the estimated marginal increase in
income taxes which will be payable by Holdings' consolidated group with respect
to the fiscal year in which the sale occurs as a result of such sale; but
excluding any portion of any such gross cash proceeds which Holdings determines
in good faith should be reserved for post-closing adjustments (to the extent
Holdings' delivers to the Banks a certificate signed by an Authorized Officer
as to such determination), it being understood and agreed that on the day that
all such post-closing adjustments have been determined (which shall not be
later than six months following the date of the respective asset sale), the
amount (if any) by which the reserved amount in respect of such sale or
disposition exceeds the actual
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post-closing adjustments payable by Holdings or any of its Subsidiaries shall
constitute Net Sale Proceeds on such date).
"New Banks" shall mean each of the Persons listed on Schedule
I hereto which is not a Continuing Bank.
"Non-Continuing Bank" shall have the meaning provided in
Section 13.18.
"Non-Defaulting Bank" shall mean and include each Bank which
is not a Defaulting Bank.
"Note" shall mean each Term Note and each Revolving Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Managing Agent
located at 130 Liberty Street, New York, New York 10006, Attention: Mary Kay
Coyle, or such other office as the Managing Agent may hereafter designate in
writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the Managing
Agent, the Collateral Agent or any Bank pursuant to the terms of this Agreement
or any other Credit Document.
"Offer to Purchase and Consent Solicitation Statement" shall
mean the Offer to Purchase and Consent Solicitation Statement, dated as of May
2, 1997, mailed to the holders of the Existing Senior Subordinated Notes on or
about May 2, 1997 in connection with the Tender Offer and Indenture Amendment.
"OmniAmerica Equity Issuance" shall mean the issuance by
Holdings of Class A Common Stock to the OmniAmerica Group pursuant to the
acquisition by the Borrower of certain Stations previously owned by the
OmniAmerica Group.
"OmniAmerica Stations" shall have the meaning provided in the
Existing Credit Agreement.
"Operating Agreement" shall have the meaning provided in
Section 8.04.
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"Original Credit Agreement" shall mean the Credit Agreement,
dated as of February 19, 1996, among Holdings, the Borrower, the Banks (as
defined therein) from time to time party thereto and the Managing Agent.
"Participant" shall have the meaning provided in Section
2.03(a).
"Payment Office" shall mean the office of the Managing Agent
located at 130 Liberty Street, New York, New York 10006, Attention: Mary Kay
Coyle, or such other office as the Managing Agent may hereafter designate in
writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto, all of
which exceptions must be acceptable to the Managing Agent in its reasonable
discretion.
"Permitted Issuance" shall mean (a) the issuance by Holdings
of options or other equity securities of Holdings to outside directors, members
of management or employees of Holdings or any Subsidiary of Holdings, (b) the
issuance of securities as interest or dividends on pay-in-kind debt or
preferred equity securities permitted hereunder and under the other Credit
Documents, (c) the issuance to Holdings or any Subsidiary (or any director,
with respect to directors' qualifying shares) by any of its Subsidiaries of any
of their respective capital stock, in each case with respect to this clause (c)
to the extent such capital stock is pledged to the Collateral Agent pursuant to
the applicable Pledge Agreement (provided that only 65% of the voting capital
stock of a foreign Subsidiary of the Borrower is required to be so pledged) and
(d) the issuance by Holdings of shares of capital stock of Holdings to infuse
additional capital into Holdings in an aggregate amount not to exceed
$25,000,000.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Person" shall mean any individual, partnership, joint
venture, limited liability company, firm, corporation, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan,
as defined in Section 4001 of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), the Borrower or a
Subsidiary of the Borrower or an
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ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed or had an obligation to
contribute to such plan.
"Pledge Agreements" shall mean the Subsidiary Pledge
Agreement, the Amended and Restated Holdings Pledge Agreement, the Amended and
Restated Borrower Pledge Agreement and the Amended and Restated Subsidiary
Pledge Agreement.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in each of the Pledge Agreements.
"Pledged Securities" shall mean "Pledged Securities" as
defined in each of the Pledge Agreements.
"Prime Lending Rate" shall mean the rate which Bankers Trust
Company announces from time to time as its prime lending rate, the Prime
Lending Rate to change when and as such prime lending rate changes. The Prime
Lending Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. Bankers Trust Company may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Projections" shall have the meaning provided in Section
7.05(d).
"Quarterly Payment Date" shall mean the last Business Day of
each January, April, July and October occurring after the Second Restatement
Effective Date.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Recovery Event" shall mean the receipt by Holdings or any of
its Subsidiaries of any (i) cash insurance proceeds payable (x) by reason of
theft, loss, physical destruction or damage or any other similar event with
respect to any property or assets of Holdings or any of its Subsidiaries and
(y) under any policy of insurance required to be maintained under Section 8.03
or (ii) condemnation award payable by reason of eminent domain or deed in lieu
thereof.
"Register" shall have the meaning set forth in Section 13.17.
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"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Reinvestment Assets" shall have the meaning provided in
Section 4.02(e).
"Release" shall have meaning provided on the Amended and
Restated Environmental Indemnity Agreement and the Environmental Indemnity
Agreement.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(b) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Repurchased Notes" shall have the meaning provided in the
definition of Tender Offer.
"Required Banks" shall mean Non-Defaulting Banks, the sum of
whose outstanding Term Loans and Revolving Loan Commitments represent an amount
greater than 50% of the sum of (x) all outstanding Term Loans of Non-Defaulting
Banks and (y) the Total Revolving Loan Commitment of Non-Defaulting Banks (or,
if the Total
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Revolving Loan Commitment has been terminated, the outstanding Revolving Loans
of each Bank).
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(b).
"Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment," as same may be (x) reduced
from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Revolving Loan Conversion" shall have the meaning set forth
in Section 1.01(b).
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined
immediately prior (and without giving effect) to such termination.
"Scheduled Repayments" shall have the meaning provided in
Section 4.02(b).
"SEC" shall have the meaning provided in Section 8.01(h).
"Second Restatement Effective Date" shall have the meaning
provided in Section 13.10.
"Second Senior Subordinated Note Indenture" shall mean that
certain indenture dated as of February 8, 1996 by and between the Borrower, the
Licensee Subsidiary, as Guarantor and U.S. Trust Company of Texas, N.A., as
Trustee.
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
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"Secured Creditors" shall have the meaning assigned that term
in the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Security Agreements" shall mean and include the Subsidiary
Security Agreement, the Amended and Restated Holdings Security Agreement, the
Amended and Restated Borrower Security Agreement, the Amended and Restated
Subsidiary Security Agreement and any Additional Security Document delivered
pursuant to Section 8.12.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in each Security Agreement (which shall in any event exclude any
interests in the FCC Licenses to the extent prohibited or ineffectual under
applicable law).
"Security Document" shall mean and include each Pledge
Agreement, each Security Agreement, each Mortgage and, after the execution and
delivery thereof, each Additional Mortgage and each Additional Security
Document required to be delivered pursuant to Section 8.12.
"Series A Exchangeable Preferred Stock" shall mean the
Borrower's 12 1/4% Series A Senior Cumulative Exchangeable Preferred Stock due
2008 issued concurrently with the Original Credit Agreement.
"Series A Exchangeable Preferred Stock Documents" shall mean
each document relating to the Series A Exchangeable Preferred Stock (including,
without limitation, the 12-1/4% Junior Exchange Debenture Indenture and all
documents relating thereto).
"SFX" shall mean WBLI, Inc., WHFM, Inc., WBAB, Inc. and WGBB,
Inc., all New York corporations, together with WBLI-FM, Inc. and SFX
Broadcasting, Inc., two Delaware corporations.
"SFX Exchange" shall mean the simultaneous exchange by the
Borrower of two of the OmniAmerica Stations (Stations WFYV (FM), Atlantic Beach
and WAPE (FM), Jacksonville, Florida) and approximately $11,000,000 in cash for
Stations WGBB (AM), Freeport, WBAB-FM, Babylon, WBLI (FM), Patchogue and WHFM
(FM), Southampton, New York (the "SFX Stations") in accordance with the terms
and provisions of the SFX Exchange Documents.
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"SFX Exchange Documents" shall mean the agreement, dated as of
July 1, 1996, between the Borrower and SFX, as in effect on the Second
Restatement Effective Date, and all other agreements and documents relating to
the SFX Exchange.
"SFX Stations" shall have the meaning provided in the
definition of SFX Exchange.
"Shamrock" shall mean Shamrock Broadcasting, Inc., a Delaware
corporation.
"Shamrock Broadcasting Licenses" shall mean Shamrock
Broadcasting Licenses of Denver, Inc., a Delaware corporation.
"Shamrock Radio" shall mean Shamrock Radio Licenses, Inc., a
Delaware corporation.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.05.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01 (a).
"Start Date" shall have the meaning provided in the definition
of Applicable Margin.
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Station Swap" shall have the meaning provided in Section
9.02(ix).
"Stations" shall mean and include all of the radio stations
owned and operated by Holdings and its Subsidiaries on the Second Restatement
Effective Date, after giving effect to the Viacom Acquisition, and any radio
stations acquired pursuant to Section 9.02.
"Stock Swapped Station" shall have the meaning provided in
Section 9.02(ix).
"Stock Swaps" shall have the meaning provided in Section
9.02(ix).
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"Stock Target Station" shall have the meaning provided in
Section 9.02(ix).
"Stockholders Agreement" shall mean the amended and restated
stockholders agreement dated as of February 14, 1996, among Holdings and the
stockholders of Holdings party thereto, as amended through the Second
Restatement Effective Date.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, association,
joint venture or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantee" shall have the meaning provided in
Section 5.08.
"Subsidiary Pledge Agreement" shall have the meaning provided
in Section 5.09.
"Subsidiary Security Agreement" shall have the meaning
provided in Section 5.10.
"Supermajority Banks" shall mean Non-Defaulting Banks the sum
of whose outstanding Term Loans represent an amount greater than 66 2/3% of
outstanding Term Loans of Non-Defaulting Banks.
"Supplemental Indenture" shall have the meaning provided in
the definition of Indenture Amendment.
"Swapped Station" shall have the meaning provided in Section
9.02(ix).
"Syndication Agent" shall mean each of NationsBank of Texas,
N.A. and Toronto Dominion (Texas), Inc., each in its capacity as Syndication
Agent for the Banks hereunder.
"Target Station" shall have the meaning provided in Section
9.02(ix).
"Tax Sharing Agreement" shall have the meaning provided in
Section 5.05.
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"Taxes" shall have the meaning provided in Section 4.04(a).
"Tender Offer" shall mean (i) the Borrower's offer to
purchase, in accordance with all applicable laws and the terms of the Tender
Offer Documents, all of its outstanding 12 1/2% Senior Subordinated Notes due
2004 issued pursuant to the Existing Senior Subordinated Note Indenture (the
"Repurchased Notes") and (ii) the valid tender of Repurchased Notes to the
Borrower (and actual purchase by the Borrower thereof) of more than $30,001,000
in aggregate principal amount of Repurchased Notes.
"Tender Offer Documents" shall mean the Offer to Purchase and
Consent Solicitation Statement and the Supplemental Indenture.
"Term Loan" shall have the meaning provided in Section
1.01(a).
"Term Loan Commitment" shall mean for each Bank the amount set
forth opposite such Bank's name in Schedule I hereto in the column entitled
"Tenn Loan Commitment" as same may be (x) reduced from time to time pursuant to
Sections 3.03, 4.02 and/or 10 or (y) adjusted from time to time as a result of
assignments to or from such Bank pursuant to Section 1.13 or 13.04(b).
"Term Loan Conversion" shall have the meaning set forth in
Section 1.01(a).
"Term Notes" shall have the meaning provided in Section
1.05(a).
"Test Period" shall mean (i) for any determination made prior
to June 30, 1998, the period from March 31, 1997 to the last day of the fiscal
quarter then last ended and (ii) for any determination made thereafter, the
four consecutive fiscal quarters then last ended (taken as one accounting
period).
"Total Commitment" shall mean the sum of the Total Term Loan
Commitment and the Total Revolving Loan Commitment.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
"Total Supermajority Banks" shall mean Non-Defaulting Banks
the sum of whose outstanding Term Loans and Revolving Commitments (or after the
termination thereof, outstanding Revolving Loans and Adjusted RL Percentage or
Letter of Credit Outstandings) represent an amount greater than 66-2/3% of
outstanding Term Loans and Revolving Commitments (or after the termination
thereof, outstanding Revolving
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Loans and Adjusted RL Percentage or Letter of Credit Outstandings) of
Non-Defaulting Banks.
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Term Loan Commitments of each Bank.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, the sum of the Unutilized Revolving Loan Commitments of each of the
Banks.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01 (a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being two separate Tranches,
i.e., Term Loans and Revolving Loans.
"Transaction" shall mean and include the Viacom Acquisition,
the Indenture Amendment, the Tender Offer, the amendment and restatement of the
Existing Credit Agreement and related guaranties and security documents as
provided herein, the Loans incurred on the Second Restatement Effective Date
and the payment of fees and expenses in connection with the foregoing.
"Transaction Documents" shall mean the Tender Offer Documents,
the Viacom Acquisition Documents, the Credit Documents and all other documents
effectuating the Transaction or executed in connection therewith.
"Trefoil" shall mean Trefoil Communications, Inc., a Delaware
corporation.
"12% Junior Exchange Debenture Indenture" shall mean that
certain indenture dated as of the date of issuance of the 12% Junior Exchange
Debentures, by and between the Borrower and the United States Trust Company of
Texas, N.A., as trustee.
"12% Junior Exchange Debentures" shall mean the Borrower's
Subordinated Notes due 2009 issued pursuant to the 12% Junior Exchange
Debenture Indenture.
"12-1/4% Junior Exchange Debenture Indenture" shall I mean
that certain indenture dated as of the date of issuance of the 12-1/4% Junior
Exchange Debentures, by and between the Borrower and United States Trust
Company of Texas, as trustee.
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"12-1/4% Junior Exchange Debentures" shall mean the Borrower's
Subordinated Notes due 2006 issued pursuant to the 12-1/4% Junior Exchange
Debenture Indenture.
"12-1/4% Senior Cumulative Preferred Stock" shall mean the
Borrower's Series A Senior Cumulative Exchangeable Preferred Stock due 2008.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated benefits under the
Plan as of the close of its most recent plan year, determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets allocable
thereto, determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any
Bank, at any time, shall mean such Bank's Revolving Loan Commitment at such
time less the sum of (i) the aggregate outstanding principal amount of
Revolving Loans made by such Bank plus (ii) such Bank's Adjusted RL Percentage
of all Letter of Credit Outstandings.
"Viacom" shall mean Viacom International, Inc. and its
affiliates.
"Viacom Acquisition" shall have the meaning provided in
Section 5.07(a)(iv).
"Viacom Acquisition Documents" shall mean the Viacom Joint
Purchase Agreement, the Stock Purchase Agreement dated as of February 16, 1997
between Viacom and Evergreen Media of LA and all other agreements and documents
relating to the Viacom Acquisition.
"Viacom FCC Licenses" shall mean the FCC Licenses acquired by
the Borrower pursuant to the Viacom Acquisition.
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"Viacom Joint Purchase Agreement" shall mean the Joint
Purchase Agreement, dated as of February 19, 1997 by and among Holdings, the
Borrower, Evergreen Media of LA and Evergreen.
"Voting Stock" shall mean, as to any Person, any class or
classes of capital stock of such Person pursuant to which the holders thereof
have the general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors of such Person, or any class or classes of
capital stock convertible into such stock at the option of the holders thereof.
"WDRQ" shall mean WDRQ Inc., a Delaware corporation.
"WDRQ Detroit Disposition" shall mean the sale of WDRQ to ABC
for approximately $37,000,000 of gross cash proceeds subsequent to the Second
Restatement Effective Date pursuant to the WDRQ Detroit Disposition Documents.
"WDRQ Detroit Disposition Documents" shall mean the Asset
Purchase Agreement dated as of April 11, 1997 between the Borrower and ABC.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time. Any
reference to a Wholly-Owned Subsidiary, unless expressly to a Wholly-Owned
Subsidiary of another Person, shall mean a Wholly-Owned Subsidiary of the
Borrower.
"WLIT" shall mean WLIT Inc., a Delaware corporation.
SECTION 12. The Managing Agent.
12.01 Appointment. The Banks hereby designate BTCo as
Managing Agent (for purposes of this Section 12, the term "Managing Agent"
shall include BTCo in its capacity as Collateral Agent pursuant to the Security
Documents) to act as specified herein and in the other Credit Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the Managing
Agent to take such action on its behalf under the provisions of this Agreement,
the other Credit Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Managing Agent by the terms hereof and thereof and such other powers as are
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reasonably incidental thereto. The Managing Agent may perform any of its duties
hereunder by or through its respective officers, directors, agents, employees
or affiliates. The Documentation Agent and Syndication Agent shall have no
duties or liabilities in acting in such capacities hereunder.
12.02 Nature of Duties. The Managing Agent shall not have
any duties or responsibilities except those expressly set forth in this
Agreement and the Security Documents. Neither the Managing Agent nor any of its
respective officers, directors, agents, employees or affiliates shall be liable
for any action taken or omitted by it or them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the Managing Agent
shall be mechanical and administrative in nature; the Managing Agent shall not
have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Bank or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon the Managing Agent any
obligations in respect of this Agreement or any other Credit Document except as
expressly set forth herein or therein.
12.03 Lack of Reliance on the Managing Agent. Independently
and without reliance upon the Managing Agent, each Bank and the holder of each
Note, to the extent it deems appropriate, has made and shall continue to make
(i) its own independent investigation of the financial condition and affairs of
Holdings and its Subsidiaries in connection with the making and the continuance
of the Loans and the taking or not taking of any action in connection herewith
and (ii) its own appraisal of the creditworthiness of Holdings and its
Subsidiaries and, except as expressly provided in this Agreement, the Managing
Agent shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank or the holder of any Note with any credit
or other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter. The Managing
Agent shall not be responsible to any Bank or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Credit Document or the financial condition of Holdings and its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document, or the financial condition of Holdings
and its Subsidiaries or the existence or possible existence of any Default or
Event of Default.
12.04 Certain Rights of the Managing Agent. If the Managing
Agent shall request instructions from the Required Banks with respect to any
act or action
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(including failure to act) in connection with this Agreement or any other
Credit Document, the Managing Agent shall be entitled to refrain from such act
or taking such action unless and until the Managing Agent shall have received
instructions from the Required Banks; and the Managing Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, neither any Bank nor the holder of any Note shall have any right of
action whatsoever against the Managing Agent as a result of the Managing Agent
acting or refraining from acting hereunder or under any other Credit Document
in accordance with the instructions of the Required Banks.
12.05 Reliance. The Managing Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Managing Agent believed to be the
proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and
thereunder, upon advice of counsel selected by the Managing Agent.
12.06 Indemnification. To the extent the Managing Agent is
not reimbursed and indemnified by the Borrower, the Banks will reimburse and
indemnify the Managing Agent, in proportion to their respective "percentages"
as used in determining the Required Banks, for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Managing Agent in
performing its respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Managing Agent's
gross negligence or willful misconduct.
12.07 The Managing Agent in Its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the Managing
Agent shall have the rights and powers specified herein for a "Bank" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Banks," "Required Banks," "holders of Notes" or
any similar terms shall, unless the context clearly otherwise indicates,
include the Managing Agent in its individual capacity. The Managing Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Credit Party or any Affiliate of any
Credit Party as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Borrower or any other Credit Party
for services in connection with this Agreement and otherwise without having to
account for the same to the Banks.
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12.08 Holders. The Managing Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the
case may be, shall have been filed with the Managing Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Managing Agent. (a) The Managing
Agent may resign from the performance of all its functions and duties hereunder
and/or under the other Credit Documents at any time by giving 15 Business Days'
prior written notice to the Borrower and the Banks. Such resignation shall take
effect upon the appointment of a successor Managing Agent pursuant to clauses
(b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall
appoint a successor Managing Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Managing Agent shall not have been so
appointed within such 15 Business Day period, the Managing Agent, with the
consent of the Borrower, shall then appoint a successor Managing Agent who
shall serve as Managing Agent hereunder or thereunder until such time, if any,
as the Banks appoint a successor Managing Agent as provided above.
(d) If no successor Managing Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date
such notice of resignation was given by the Managing Agent, the Managing
Agent's resignation shall become effective and the Required Banks shall
thereafter perform all the duties of the Managing Agent hereunder and/or under
any other Credit Document until such time, if any, as the Banks appoint a
successor Managing Agent as provided above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. (a) The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Managing Agent (including,
without limitation, the reasonable fees and disbursements of White & Case and
local counsel) in connection with the preparation, execution and delivery of
this Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto, of the Managing Agent in
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connection with its syndication efforts with respect to this Agreement and of
the Managing Agent and, following an Event of Default, each of the Banks in
connection with the enforcement of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
(including, without limitation, the reasonable fees and disbursements of
counsel for the Managing Agent and, following an Event of Default, for each of
the Banks including any reasonable allocated costs of in-house counsel); (ii)
pay and hold each of the Banks harmless from and against any and all present
and future stamp, excise and other similar taxes with respect to the foregoing
matters and save each of the Banks harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Bank) to pay such taxes; and (iii) indemnify
the Managing Agent and each Bank, and each of their respective officers,
directors, employees, representatives, trustees and agents from and hold each
of them harmless against any and all liabilities, obligations (including
removal or remedial actions), losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements (including reasonable
attorneys' and consultants' fees and disbursements) incurred by, imposed on or
assessed against any of them as a result of, or arising out of, or in any way
related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not the Managing Agent or any Bank is a party thereto)
related to the entering into and/or performance of this Agreement or any other
Credit Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of any transactions contemplated herein or in any
of the Transaction Documents (including, without limitation, the Viacom
Acquisition Documents and the Tender Offer Documents) or in any other Credit
Document or the exercise of any of their rights or remedies provided herein or
in the other Credit Documents, or (b) the non-compliance of any Real Property
with foreign, federal, state and local laws, regulations, and ordinances
(including applicable permits thereunder) applicable to any Real Property,
(excluding Environmental Laws which are governed by the Amended and Restated
Environmental Indemnity Agreement and the Environmental Indemnity Agreement)
owned or at any time operated by Holdings or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel and other consultants incurred in connection with any
such investigation, litigation or other proceeding (but excluding any losses,
liabilities, claims, damages or expenses to the extent incurred by reason of
the gross negligence or willful misconduct of the Person to be indemnified). To
the extent that the undertaking to indemnify, pay or hold harmless the Managing
Agent or any Bank set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Borrower shall make
the maximum contribution to the payment and satisfaction of each of the
indemnified liabilities which is permissible under applicable law.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the indemnification provided for in this Section 13.01 shall not
apply to
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Environmental Claims, Hazardous Materials or Releases, all of which shall be
governed exclusively by the Amended and Restated Environmental Indemnity
Agreement and the Environmental Indemnity Agreement.
13.02 Right of Setoff; Collateral Matters. (a) In addition
to any rights now or hereafter granted under applicable law or otherwise, and
not by way of limitation of any such rights, upon the occurrence of an Event of
Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to Holdings or
the Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of Holdings or the Borrower
against and on account of the Obligations and liabilities of Holdings or the
Borrower to such Bank under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations
purchased by such Bank pursuant to Section 13.06(b), and all other claims of
any nature or description arising out of or connected with this Agreement or
any other Credit Document, irrespective of whether or not such Bank shall have
made any demand hereunder and although said Obligations, liabilities or claims,
or any of them, shall be contingent or unmatured.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY
TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY
LOCATED IN CALIFORNIA, NO BANK SHALL EXERCISE A RIGHT OF SETOFF, BANKER'S LIEN
OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY
PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE THAT IS NOT
TAKEN BY THE REQUIRED BANKS OR APPROVED IN WRITING BY THE REQUIRED BANKS IF
SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO SECTIONS 580a,
580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF
THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE
VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL
AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND
OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY BANK OF ANY SUCH
RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED BANKS SHALL BE NULL AND
VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE
MANAGING AGENT, THE COLLATERAL AGENT AND THE BANKS HEREUNDER AND SHALL NOT
CREATE ANY RIGHTS FOR THE BENEFIT OF ANY CREDIT PARTY OR ANY OTHER PERSON.
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13.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, telecopier or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered: if to Holdings,
at Holdings' address specified opposite its signature below; if to the
Borrower, at the Borrower's address specified opposite its signature below; if
to any Bank, at its address specified opposite its name below; and if to the
Managing Agent, at its Notice Office; or, as to any Credit Party or the
Managing Agent, at such other address as shall be designated by such party in a
written notice to the other parties hereto and, as to each Bank, at such other
address as shall be designated by such Bank in a written notice to the Borrower
and the Managing Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company,
cable company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Managing Agent and
the Borrower shall not be effective until received by the Managing Agent or the
Borrower, as the case may be.
13.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit
Party may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document without the prior written consent
of the Banks and, provided further, that, although any Bank may transfer,
assign or grant participations in its rights hereunder, such Bank shall remain
a "Bank" for all purposes hereunder (and may not transfer or assign all or any
portion of its Commitments hereunder except as provided in Section 13.04(b))
and the transferee, assignee or participant, as the case may be, shall not
constitute a "Bank" hereunder and, provided further, that no Bank shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Maturity Date) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of
applicability of any postdefault increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan and an increase
in the available portion of any Commitment of any Bank shall be permitted
without the consent of any participant if the participant's participation is
not increased as a result thereof), (ii) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement or
(iii) release all or substantially all of the
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Collateral under all of the Security Documents (except as expressly provided in
the Credit Documents) supporting the Loans hereunder in which such participant
is participating. In the case of any such participation, the participant shall
not have any rights under this Agreement or any of the other Credit Documents
(the participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Commitments (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans to (i) its parent company and/or any affiliate of such
Bank which is at least 50% owned by such Bank or its parent company or to one
or more Banks or (ii) in the case of any Bank that is a fund that invests in
bank loans, any other fund that invests in bank loans and is managed by the
same investment advisor of such Bank or by an Affiliate of such investment
advisor or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of such
Revolving Loan Commitments and outstanding principal amount of Term Loans
hereunder to one or more Eligible Transferees (treating any fund that invests
in bank loans and any other fund that invests in bank loans and is managed by
the same investment advisor of such fund or by an Affiliate of such investment
advisor as a single Eligible Transferee), each of which assignees shall become
a party to this Agreement as a Bank by execution of an Assignment and
Assumption Agreement, provided that, (i) at such time Schedule I shall be
deemed modified to reflect the Commitments (and/or outstanding Term Loans, as
the case may be) of such new Bank and of the existing Banks, (ii) upon
surrender of the old Notes, new Notes will be issued, at the Borrower's
expense, to such new Bank and to the assigning Bank, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments (and/or
outstanding Term Loans, as the case may be), (iii) the consent of the Managing
Agent shall be required in connection with any such assignment (which consent
shall not be unreasonably withheld) and (iv) the Managing Agent shall receive
at the time of each such assignment, from the assigning or assignee Bank, the
payment of a non-refundable assignment fee of $3,500 and, provided further,
that such transfer or assignment will not be effective until recorded by the
Managing Agent on the Register pursuant to Section 13.17 hereof. To
the extent of any assignment pursuant to this Section 13.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to its
assigned Commitments. At the time of each assignment pursuant to this Section
13.04(b) to a Person which is not already a Bank hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Bank shall
provide to the Borrower and
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the Managing Agent the appropriate Internal Revenue Service Forms (and, if
applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To
the extent that an assignment of all or any portion of a Bank's Commitments and
related outstanding Obligations pursuant to Section 1.13 or this Section
13.04(b) would, at the time of such assignment, result in increased costs under
Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective
assigning Bank prior to such assignment, then the Borrower shall not be
obligated to pay such increased costs (although the Borrower shall be obligated
to pay any other increased costs of the type described above resulting from
changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit
any Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank
in support of borrowings made by such Bank from such Federal Reserve Bank and,
with the consent of the Agent, any Bank which is a fund may pledge all or any
portion of its Loans and Notes to its trustee in support of its obligations to
its trustee. No pledge pursuant to this clause (c) shall release the transferor
Bank from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay
on the part of the Managing Agent or any Bank or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit
Party and the Managing Agent or any Bank or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document expressly provided are cumulative and not
exclusive of any rights, powers or remedies which the Managing Agent or any
Bank or the holder of any Note would otherwise have. No notice to or demand on
any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Managing Agent or any Bank or the holder of any
Note to any other or further action in any circumstances without notice or
demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided
in this Agreement, the Managing Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise
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of the right of setoff or banker's lien, by counterclaim or cross action, by
the enforcement of any right under the Credit Documents, or otherwise), which
is applicable to the payment of the principal of, or interest on, the Loans,
Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a sum which
with respect to the related sum or sums received by other Banks is in a greater
proportion than the total of such Obligation then owed and due to such Bank
bears to the total of such Obligation then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such excess payment
shall purchase for cash without recourse or warranty from the other Banks an
interest in the Obligations of the respective Credit Party to such Banks in
such amount as shall result in a proportional participation by all the Banks in
such amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 13.06(a) and (b) shall be
subject to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Banks as opposed to Defaulting
Banks.
13.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Banks); provided that, except as otherwise specifically
provided herein, all computations of Excess Cash Flow and all computations
determining compliance with Sections 9.07 through 9.10, inclusive, shall
utilize accounting principles and policies in conformity with those used to
prepare the historical financial statements delivered to the Banks pursuant to
Section 7.05(a) (with the foregoing generally accepted accounting principles,
subject to the preceding proviso, herein called "GAAP").
(b) All computations of interest, Commitment Commission
and Fees hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, Commitment Commission or Fees
are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAWS OF
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THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF HOLDINGS AND
THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY DESIGNATES,
APPOINTS AND EMPOWERS BILL EDWARDS, THE VICE PRESIDENT AND GENERAL MANAGER AT
WALK=AM/FM, 66 COLONIAL DRIVE, PATCHOGUE, NEW YORK 11772 AS ITS DESIGNEE,
APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF
FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE
TO ACT AS SUCH, EACH CREDIT PARTY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE
AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION
SATISFACTORY TO THE MANAGING AGENT UNDER THIS AGREEMENT. EACH OF HOLDINGS AND
THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY CREDIT
PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE MANAGING AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF ANY
NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
(b) EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES
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NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Borrower and the Managing Agent.
13.10 Effectiveness. (a) This Agreement shall become
effective on the date (the "Second Restatement Effective Date") on which (i)
each of the Borrower, each Agent, each Continuing Bank and each New Bank shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile device) the same to the
Managing Agent at its Notice Office and (ii) the conditions contained in
Sections 5, 6 and 13.10(b) are met to the satisfaction of the Managing Agent and
the Required Banks (determined immediately after the occurrence of the Second
Restatement Effective Date). Unless the Managing Agent has received actual
notice from any Bank that the conditions contained in Sections 5 and 6 have not
been met to its satisfaction, upon the satisfaction of the condition described
in clause (i) of the immediately preceding sentence and upon the Managing
Agent's good faith determination that the conditions described in clause (ii) of
the immediately preceding sentence have been met, then the Second Restatement
Effective Date shall have been deemed to have occurred, regardless of any
subsequent determination that one or more of the conditions thereto had not been
met (although the occurrence of the Second Restatement Effective Date shall not
release the Borrower from any liability for failure to satisfy one or more of
the applicable conditions contained in Section 5 or 6). The Managing Agent will
give the Borrower and each Bank prompt written notice of the occurrence of the
Second Restatement Effective Date.
(b) On the Second Restatement Effective Date, each New
Bank and each Continuing Bank shall have delivered to the Managing Agent for
the account of the Borrower an amount equal to (i) in the case of each New
Bank, the Term Loans and Revolving Loans to be made by such New Bank on the
Second Restatement Effective Date and (ii) in the case of each Continuing Bank,
the amount by which the principal amount of Loans to be made and/or converted
by such Continuing Bank on the Second
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Restatement Effective Date exceeds the amount of the Existing Loans of such
Continuing Bank outstanding on the Second Restatement Effective Date.
Notwithstanding anything to the contrary contained in this Section 13.10(b), in
satisfying the foregoing condition, unless the Managing Agent shall have been
notified by any Bank prior to the occurrence of the Second Restatement
Effective Date that such Bank does not intend to make available to the Managing
Agent such Bank's Term Loans and Revolving Loans required to be made by it on
such date, then the Managing Agent may, in reliance on such assumption, make
available to the Borrower the corresponding amounts in accordance with the
provisions of Section 1.04 of this Agreement, and the making available by the
Managing Agent of such amounts shall satisfy the condition contained in this
Section 13.10(b).
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement
nor any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks, provided that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank) (with Obligations being directly affected), (i) extend the final
scheduled maturity, or Scheduled Repayment of any Loan or Note or extend the
stated maturity of any Letter of Credit beyond July 2, 2004, or reduce the rate
or extend the time of payment of interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in interest rates),
or reduce the principal amount thereof (except to the extent repaid in cash),
(ii) release all or substantially all of the Collateral (except as expressly
provided in the Credit Documents) under all the Security Documents, (iii)
amend, modify or waive any provision of this Section 13.12, (iv) reduce the
percentage specified in the definition of Required Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Banks on substantially the same basis as the extensions of Term Loans and
Revolving Loan Commitments are included on the Second Restatement Effective
Date) or (v) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement; provided further, that no such
change, waiver, discharge or termination shall (u) increase the Commitments of
any Bank over the amount thereof then in effect without the consent of such
Bank (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the Total Commitment shall not constitute an increase of the Commitment of
any Bank, and that an increase in the available portion of any Commitment of
any Bank shall not constitute an increase in the Commitment of
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such Bank), (v) without the consent of the Managing Agent and each other
Issuing Bank, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (w) without the
consent of the Managing Agent, amend, modify or waive any provision of Section
12 as same applies to such Managing Agent or any other provision as same
relates to the rights or obligations of such Managing Agent, (x) without the
consent of the Collateral Agent, amend, modify or waive, any provision relating
to the rights or obligations of the Collateral Agent, (y) without the consent
of the Supermajority Banks, amend, modify or waive the definition of
Supermajority Banks or this clause (y), and (z) without the consent of the
Total Supermajority Banks, amend, modify or waive Section 9.04(xii) or
9.04(xiii), reduce the percentage specified in the definition of Total
Supermajority Banks (it being understood that, with the consent of the Total
Supermajority Banks, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Total Supermajority Banks on
substantially the same basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Second Restatement Effective Date) or this
clause (z). Notwithstanding anything to the contrary contained herein, the
Managing Agent may enter into documentation (including any changes to this
Agreement or the other Credit Documents) necessary to effect the increase in
the Total Revolving Commitment pursuant to Section 9.04(xiv).
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks are
treated as described in clauses (A) or (B) below, to either (A) replace each
such non-consenting Bank or Banks with one or more Replacement Banks pursuant
to Section 1.13 so long as at the time of such replacement, each such
Replacement Bank consents to the proposed change, waiver, discharge or
termination or (B) terminate such non-consenting Bank's Revolving Loan
Commitment and repay its Loans, in accordance with Sections 3.02(b) and
4.01(v), respectively, provided that in any event the Borrower shall not have
the right to replace a Bank, terminate its Revolving Loan Commitment or repay
its Loans solely as a result of the exercise of such Bank's rights ("and the
withholding of any required consent by such Bank) pursuant to the second
proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01 shall,
subject to Section 13.15 (to the extent applicable), survive the execution,
delivery and termination of this Agreement and the Notes the making and
repayment of the Loans and the assignment by any Bank of its Commitment in
accordance with Section 13.04(b).
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13.14 Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Bank. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11,
2.05 or 4.04 from those being charged by the respective Bank prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes giving rise to such increased
costs after the date of the respective transfer).
13.15 Limitation on Additional Amounts, etc.
Notwithstanding anything to the contrary contained in Section 1.10, 1.11, 2.05
or 4.04 of this Agreement, unless a Bank gives notice to the Borrower that it
is obligated to pay an amount under the respective Section within one year
after the later of (x) the date the Bank incurs the respective increased costs,
Taxes, loss, expense or liability, reduction in amounts received or receivable
or reduction in return on capital or (y) the date such Bank has actual
knowledge of its incurrence of the respective increased costs, Taxes, loss,
expense or liability, reductions in amounts received or receivable or reduction
in return on capital, then such Bank shall only be entitled to be compensated
for such amount by the Borrower pursuant to said Section 1.10, 1.11, 2.05 or
4.04, as the case may be, to the extent the costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return
on capital are incurred or suffered on or after the date which occurs one year
prior to such Bank giving notice to the Borrower that it is obligated to pay
the respective amounts pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as
the case may be. This Section 13.15 shall have no applicability to any Section
of this Agreement other than said Sections 1.10, 1.11, 2.05 and 4.04.
13.16 Confidentiality. (a) Subject to the provisions of
clause (b) of this Section 13.16, each Bank agrees that it will use its best
efforts not to disclose without the prior consent of Holdings or the Borrower
(other than to its employees, auditors, advisors or counsel or to another Bank
if the Bank or such Bank's holding or parent company in its sole discretion
determines that any such party should have access to such information, provided
such Persons shall be subject to the provisions of this Section 13.16 to the
same extent as such Bank) any information with respect to Holdings or any of
its Subsidiaries which is now or in the future furnished pursuant to this
Agreement or any other Credit Document and which is designated by Holdings to
the Banks in writing as confidential, provided that any Bank may disclose any
such information (a) as has become generally available to the public, (b) as
may be required or appropriate in any report, statement or testimony submitted
to any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be
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required or appropriate in respect to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order, regulation or
ruling applicable to such Bank, (e) to the Managing Agent or the Collateral
Agent and (f) to any prospective or actual transferee or participant in
connection with any contemplated transfer or participation of any of the Notes
or Commitments or any interest therein by such Bank or to any direct or
indirect contractual counterparties in swap agreements or such contractual
counterparties' professional advisors, provided that such prospective
transferee, swap counterparty or swap counterparty's professional advisor
agrees to abide by the provisions of this Section 13.16.
(b) Each of Holdings and the Borrower hereby acknowledges
and agrees that each Bank may share with any of its affiliates any information
related to Holdings or any of its Subsidiaries (including, without limitation,
any nonpublic customer information regarding the creditworthiness of Holdings
and its Subsidiaries, provided such Persons shall be subject to the provisions
of this Section 13.16 to the same extent as such Bank).
13.17 Register. The Borrower hereby designates the Managing
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.17, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Banks, the Loans made by each of
the Banks and each repayment in respect of the principal amount of the Loans of
each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such Bank
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Managing Agent with respect to ownership of such
Commitments and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Managing Agent on the Register
only upon the acceptance by the Managing Agent of a properly executed and
delivered Assignment and Assumption Agreement pursuant to Section 13.04(b).
Coincident with the delivery of such an Assignment and Assumption Agreement to
the Managing Agent for acceptance and registration of assignment or transfer of
all or part of a Loan, or as soon thereafter as practicable, the assigning or
transferor Bank shall surrender the Note evidencing such Loan, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Bank and/or the new Bank. The Borrower agrees to
indemnify the Managing Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Managing Agent in performing its duties under this
Section 13-17.
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<PAGE> 151
13.18 Additions of New Banks; Conversion of Existing Loans
of Continuing Banks; Termination of Commitments of Non-Continuing Banks. (a) On
and as of the occurrence of the Second Restatement Effective Date in accordance
with Section 13.10 hereof, each New Bank shall become a "Bank" under, and for
all purposes of, this Agreement and the other Credit Documents.
(b) The parties hereto acknowledge that each Existing
Bank has been offered the opportunity to participate in this Agreement, after
the occurrence of the Second Restatement Effective Date, as a Continuing Bank
hereunder, but that no Existing Bank is obligated to be a Continuing Bank.
(c) Notwithstanding anything to the contrary contained in
the Existing Credit Agreement, this Agreement or any other Credit Document, the
Borrower and each of the Banks hereby agree that on the Second Restatement
Effective Date, (i) each Bank with a Commitment as set forth on Schedule I
(after giving effect to the Second Restatement Effective Date) shall make or
maintain (including by way of conversion) that principal amount of Term Loans
and/or Revolving Loans to the Borrower as is required by Section 1.01, provided
that if the Existing Loans of any Continuing Bank outstanding on the Second
Restatement Effective Date (immediately before giving effect thereto) exceed
the aggregate principal amount of Loans required to be made available by such
Bank on such date (after giving effect to the Second Restatement Effective
Date), then Existing Loans of such Continuing Bank in an amount equal to such
excess shall be repaid on the Second Restatement Effective Date, together with
interest thereon, to such Continuing Bank and (ii) in the case of each
Non-Continuing Bank, all of such Non-Continuing Bank's Existing Loans
outstanding on the Second Restatement Effective Date shall be repaid in full on
such date, together with interest thereon and all accrued Fees (and any other
amounts) owing to such Non-Continuing Bank, and the Term Loan Commitment and/or
Revolving Loan Commitment (under, and as defined in, the Existing Credit
Agreement) of such Non-Continuing Bank, if any, shall be terminated, effective
upon the occurrence of the Second Restatement Effective Date. Notwithstanding
anything to the contrary contained in the Existing Credit Agreement, this
Agreement or any other Credit Document, the parties hereto consent to the
repayments and reductions required above, and agree that in the event that any
Existing Bank shall fail to execute a counterpart of this Agreement prior to
the occurrence of the Second Restatement Effective Date, such Existing Bank
shall be deemed to be a Non-Continuing Bank and, concurrently with the
occurrence of the Second Restatement Effective Date, the Revolving Loan
Commitment (under, and as defined in, the Existing Credit Agreement) of such
Existing Bank, if any, shall be terminated, all Existing Loans of such Existing
Bank outstanding on the Second Restatement Effective Date shall be repaid in
full, together with interest thereon and all accrued Fees (as defined in the
Existing Credit Agreement) (and any other amounts) owing to such Existing Bank
under the Existing Credit Agreement, and concurrently with the occurrence of
the
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<PAGE> 152
Second Restatement Effective Date, such Existing Bank shall no longer
constitute a "Bank" under this Agreement and the other Credit Documents,
provided that all indemnities of the Credit Parties under the Existing Credit
Agreement and the other Credit Documents (as in effect prior to the Second
Restatement Effective Date) for the benefit of such Existing Bank shall survive
in accordance with the terms thereof.
SECTION 14. Holdings Guaranty.
14.01 The Guaranty. In order to induce the Banks to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by Holdings from the proceeds of the Loans and
the issuance of the Letters of Credit and to induce the Banks or any of their
respective Affiliates to enter into Interest Rate Protection Agreements,
Holdings hereby agrees with the Banks as follows: Holdings hereby
unconditionally and irrevocably guarantees as primary obligor and not merely as
surety the full and prompt payment when due, whether upon maturity, by
acceleration or otherwise, of any and all of the Guaranteed Obligations of the
Borrower to the Secured Creditors. If any or all of the Guaranteed Obligations
of the Borrower to the Secured Creditors becomes due and payable hereunder,
Holdings unconditionally promises to pay such indebtedness to the Secured
Creditors, or order, on demand, together with any and all reasonable expenses
which may be incurred by the Managing Agent or the Secured Creditors in
collecting any of the Guaranteed Obligations.
14.02 Bankruptcy. Additionally, Holdings unconditionally
and irrevocably guarantees the payment of any and all of the Guaranteed
Obligations of the Borrower to the Secured Creditors whether or not then due or
payable by the Borrower upon the occurrence in respect of the Borrower of any
of the events specified in Section 10.05, and unconditionally and irrevocably
promises to pay such Guaranteed Obligations to the Secured Creditors, or order,
on demand, in lawful money of the United States.
14.03 Nature of Liability. The liability of Holdings
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations of the Borrower whether executed by Holdings, any
other guarantor or by any other party, and the liability of Holdings hereunder
shall not be affected or impaired by (a) any direction as to application of
payment by the Borrower or by any other party, or (b) any other continuing or
other guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the Guaranteed Obligations of the Borrower, or (c) any payment on
or in reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel by the
Borrower, or (e) any payment made to the Managing Agent or the Secured
Creditors on the indebtedness which the Managing Agent or such Secured
Creditors repay the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, mora-
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<PAGE> 153
torium or other debtor relief proceeding, and Holdings waives any right to the
deferral or modification of its obligations hereunder by reason of any such
proceeding.
14.04 Independent Obligation. The obligations of Holdings
hereunder are independent of the obligations of any other guarantor or the
Borrower, and a separate action or actions may be brought and prosecuted
against Holdings whether or not action is brought against any other guarantor
or the Borrower and whether or not any other guarantor or the Borrower be
joined in any such action or actions. Holdings waives, to the fullest extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by the Borrower or
other circumstance which operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations as to Holdings. This
Guaranty is a continuing one and all liabilities to which it applies or may
apply under the terms hereof shall be conclusively presumed to have been
created in reliance hereon.
14.05 Authorization. Holdings authorizes the Managing Agent
and the Secured Creditors without notice or demand (except as shall be required
by applicable statute and cannot be waived), and without affecting or impairing
its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment
of, and/or change or extend the time of payment of, renew,
increase, accelerate or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the
Guaranty herein made shall apply to the Guaranteed Obligations
as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any
rights against the Borrower or others or otherwise act or
refrain from acting;
(d) release or substitute any one or more
endorsers, guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including
any of those hereunder) incurred directly or
-146-
<PAGE> 154
indirectly in respect thereof or hereof, and may subordinate
the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its
creditors other than the Banks;
(f) apply any sums by whomsoever paid or
howsoever realized to any liability or liabilities of the
Borrower to the Secured Creditors regardless of what liability
or liabilities of Holdings or the Borrower remain unpaid;
(g) consent to or waive any breach of, or any
act, omission or default under, this Agreement or any of the
instruments or agreements referred to herein, or otherwise
amend, modify or supplement this Agreement or any of such
other instruments or agreements; and/or
(h) take any other action which would, under
otherwise applicable principles of common law, give rise to a
legal or equitable discharge of Holdings from its liabilities
under the Holdings Guaranty.
14.06 Reliance. It is not necessary for the Managing Agent
or the Secured Creditors to inquire into the capacity or powers of the Borrower
or its Subsidiaries or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any Guaranteed Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
14.07 Subordination. Any of the indebtedness of the
Borrower relating to the Guaranteed Obligations now or hereafter owing to
Holdings is hereby subordinated to the Guaranteed Obligations of the Borrower
owing to the Managing Agent and the Secured Creditors; and if the Managing
Agent so requests at a time when an Event of Default exists, all such
indebtedness relating to the Guaranteed Obligations of the Borrower to Holdings
shall be collected, enforced and received by Holdings for the benefit of the
Secured Creditors and be paid over to the Managing Agent on behalf of the
Secured Creditors on account of the Guaranteed Obligations of the Borrower to
the Secured Creditors, but without affecting or impairing in any manner the
liability of Holdings under the other provisions of this Guaranty. Prior to
the transfer by Holdings of any note or negotiable instrument evidencing any of
the indebtedness relating to the Guaranteed Obligations of the Borrower to
Holdings, Holdings shall mark such note or negotiable instrument with a legend
that the same is subject to this subordination. The provisions of this Section
14.07 (and any claims of Holdings as described above) are subject to the
provisions of Section 14.08(c) and (d).
14.08 Waiver. (a) Holdings waives any right (except as shall be
required by applicable statute and cannot be waived) to require the Managing
Agent or the Secured Creditors to (1) proceed against the Borrower, any other
guarantor or any
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<PAGE> 155
other party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party or (iii) pursue any other
remedy in the Managing Agent's or the Secured Creditors' power whatsoever.
Holdings waives any defense based on or arising out of any defense of the
Borrower, any other guarantor or any other party, other than payment in full of
the Guaranteed Obligations, based on or arising out of the disability of the
Borrower, any other guarantor or any other party, or the unenforceability of
the Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Borrower other than payment in full of
the Guaranteed Obligations. The Managing Agent and the Secured Creditors may,
at their election, foreclose on any security held by the Managing Agent, the
Collateral Agent or the Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law, including,
but not limited to, the Communications Act), or exercise any other right or
remedy the Managing Agent and the Secured Creditors may have against the
Borrower or any other party, or any security, without affecting or impairing in
any way the liability of Holdings hereunder except to the extent the Guaranteed
Obligations have been paid. Holdings waives any defense arising out of any such
election by the Managing Agent and the Secured Creditors, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of Holdings against any Borrower or any
other party or any security.
(b) Holdings waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Holdings assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks which
Holdings assumes and incurs hereunder, and agrees that the Managing Agent and
the Secured Creditors shall have no duty to advise Holdings of information
known to them regarding such circumstances or risks.
(c) Holdings understands that to the extent the
Guaranteed Obligations are secured by Real Property, Holdings shall be liable
for the full amount of the liability hereunder notwithstanding foreclosure on
any such Real Property by trustee sale or any other reason impairing Holdings'
or any secured creditors' right to proceed against the Borrower. Holdings
hereby waives, to the fullest extent permitted by applicable laws, all rights
and benefits under Sections 580a, 580b, 580d and 726 of the California Code of
Civil Procedure. In addition, Holdings hereby waives, to the fullest extent
permitted by applicable laws, without limiting the generality of the foregoing
or any other provision hereof, all rights and benefits which might otherwise be
available
-148-
<PAGE> 156
to Holdings under California Civil Code Sections 2787 through 2855 inclusive,
2899 and 3433.
(d) Holdings understands, is aware and hereby
acknowledges that if the Banks elect to foreclose on any of the Mortgaged
Property security nonjudicially, any right of subrogation of Holdings against
the Borrower may be impaired or extinguished and that as a result of such
impairment or extinguishment of subrogation rights, Holdings may have a defense
to a deficiency judgment arising out of the operation of Section 580d of the
California Code of Civil Procedure and related principles of estoppel. Holdings
waives all rights and defenses arising out of an election of remedies by the
Banks, even though that election of remedies, such as a nonjudicial foreclosure
with respect to security for a guaranteed obligation, has destroyed the
guarantor's rights of subrogation and reimbursement against the principal by
the operation of Section 580d of the California Code of Civil Procedure or
otherwise.
14.09 Nature of Liability. It is the desire and intent of
Holdings and the Secured Creditors that this Holdings Guaranty shall be
enforced against Holdings to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
If, however, and to the extent that, the obligations of Holdings under this
Holdings Guaranty shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers), then the amount
of the Guaranteed Obligations of Holdings shall be deemed to be reduced and
Holdings shall pay the maximum amount of the Guaranteed Obligations which would
be permissible under applicable law.
-149-
<PAGE> 157
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this Agreement as of the
date first above written.
<TABLE>
<CAPTION>
Address:
<S> <C>
12655 North Central Expwy. CHANCELLOR BROADCASTING COMPANY
Suite 405
Dallas, TX 75243
Attention: Chief Financial Officer By
Telephone: (972) 239-6220 ----------------------------------
Telecopy: (972) 239-0220 Name:
Title:
with a copy to:
Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Lawrence D. Stuart, Jr.
Telephone: (214) 740-7300
Telecopy: (214) 740-7355
12655 North Central Expwy. CHANCELLOR RADIO BROADCASTING
Suite 405 COMPANY
Dallas, TX 75243
Attention: Chief Financial Officer
Telephone: (972) 239-6220 By
Telecopy: (972) 239-0220 ----------------------------------
Name:
Title:
with a copy to:
Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Lawrence D. Stuart, Jr.
Telephone: (214) 740-7300
Telecopy: (214) 740-7355
130 Liberty Street BANKERS TRUST COMPANY,
New York, New York 10006 Individually and as Managing Agent
Tel: (212) 250-7188
Fax: (212) 250-7218
Attention: Thomas P. Prior By
----------------------------------
Name:
Title:
</TABLE>
<PAGE> 158
<TABLE>
<S> <C>
85 Broad Street GOLDMAN SACHS CREDIT PARTNERS L.P.,
New York, New York 10004 Individually and as Documentation Agent
Tel: (212) 902-1608
Fax: (212) 346-3552
Attention: Ed Forst By
----------------------------------
Name:
Title:
901 Main Street NATIONSBANK OF TEXAS, N.A.,
Dallas, Texas 75202 Individually and as Syndication Agent
Tel: (214) 508-2445
Fax: (214) 508-9390
Attention: David James By
----------------------------------
Name:
Title:
31 West 52nd Street TORONTO DOMINION (TEXAS), INC.,
New York, New York 10019 Individually and as Syndication Agent
Tel: (212) 468-0300
Attention: Tom Westdyk
By
----------------------------------
Name:
Title:
ABN AMRO Bank N.V. Houston Agency
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
</TABLE>
<PAGE> 159
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
----------------------------------
Name:
Title:
BANK OF MONTREAL
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
----------------------------------
Name:
Title:
<PAGE> 160
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By:
----------------------------------
Name:
Title:
BANQUE PARIBAS
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
<PAGE> 161
BARCLAYS BANK PLC
By:
----------------------------------
Name:
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By:
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
----------------------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
<PAGE> 162
CORESTATES BANK, N.A.
By:
----------------------------------
Name:
Title:
CITIBANK, N.A.
By:
----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
CYPRESSTREE INVESTMENT MANAGEMENT,
INC.
(As attorney in fact and on
behalf of First Allmerica
Financial Life Insurance Co.)
By:
----------------------------------
Name:
Title:
<PAGE> 163
THE DAI ICHI KANGYO BANK, LTD.
NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
BANKBOSTON, N.A.
By:
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
BY:
----------------------------------
Name:
Title:
FLEET BANK, N.A.
By:
----------------------------------
Name:
Title:
<PAGE> 164
THE FUJI BANK, LIMITED
By:
----------------------------------
Name:
Title:
HELLER FINANCIAL, INC.
By:
----------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
KZH-ING-1 CORPORATION
By:
----------------------------------
Name:
Title:
<PAGE> 165
THE LONG TERM CREDIT BANK OF
JAPAN, LIMITED
By:
----------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
----------------------------------
Name:
Title:
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By:
----------------------------------
Name:
Title:
MERITA BANK LTD
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
<PAGE> 166
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
----------------------------------
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase
Manhattan Bank)
By:
----------------------------------
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By:
----------------------------------
Name:
Title:
PRIME INCOME TRUST
By:
----------------------------------
Name:
Title:
<PAGE> 167
SENIOR DEBT PORTFOLIO,
by Boston Management and Research.
as Investment Advisor
By:
----------------------------------
Name:
Title:
SOCIETE GENERALE
By:
----------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
----------------------------------
Name:
Title:
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
----------------------------------
Name:
Title:
<PAGE> 168
SCHEDULE I
COMMITMENTS
<TABLE>
<CAPTION>
Term Loan Revolving Loan
Bank Commitment Commitment Total
---- ---------- -------------- -----
<S> <C> <C> <C>
Bankers Trust Company $ 20,000,000.00 $ 17,500,000.00 $ 47,500,000.00
Goldman Sachs Credit Partners $ 14,400,000.00 $ 12,600,000.00 $ 27,000,000.00
L.P.
NationsBank of Texas, N.A. $ 14,400,000.00 $ 12,600,000.00 $ 27,000,000.00
Toronto Dominion (Texas), Inc. $ 14,400,000.00 $ 12,600,000.00 $ 27,000,000.00
Bank of America National Trust $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
and Savings Association
BankBoston, N.A. $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Banque Paribas $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
The Chase Manhattan Bank $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Societe Generate $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Union Bank of California, N.A. $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Barclays Bank, PLC $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Bank of Montreal $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Bank of New York $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
The Bank of Nova Scotia $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Banque Francaise Du Commerce $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Exterieur
Corestates Bank, N.A. $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
</TABLE>
<PAGE> 169
<TABLE>
<CAPTION>
Term Loan Revolving Loan
Bank Commitment Commitment Total
---- ---------- -------------- -----
<S> <C> <C> <C>
Fuji Bank, Limited $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Industrial Bank of Japan, $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Limited, New York Branch
Merrill Lynch Senior Floating $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Rate Fund, Inc.
Mitsubishi Trust and Banking $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Corporation
Van Kampen American Capital $ 26,666,666.67 $ 23,333,333.33 $ 50,000,000.00
Prime Rate Income Trust
ABN AMRO Bank, N.V. Houston $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
Agency
Compagnie Financiere De CIC Et $ 9,333,333.34 $ 8,166,666.66 $ 17,500,000.00
De L'Union Europeenne
Citibank, N.A. $ 9,333,333.34 $ 8,166,666.66 $ 17,500,000.00
Caisse Nationale De Credit $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
Agricole
Credit Suisse First Boston $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
CypressTree Investment $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
Management
The Dai Ichi Kangyo Bank, Ltd. $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
Prime Income Trust $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
First Union National Bank $ 9,333,333.33 $ 8,166,666.67 $ 17,500,000.00
Fleet Bank, N.A. $ 9,333,333.33 $ 8,166,666.67 $ 17,500,000.00
Heller Financial, Inc. $ 4,800,000.00 $ 4,200,000.00 $ 9,000,000.00
KZH-ING-1 Corporation $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
</TABLE>
<PAGE> 170
<TABLE>
<CAPTION>
Term Loan Revolving Loan
Bank Commitment Commitment Total
---- ---------- -------------- -----
<S> <C> <C> <C>
Long Term Credit Bank of Japan, $ 5,333,333.33 $ 4,666,666.67 $ 10,000,000.00
Limited
Mellon Bank, N.A. $ 4,800,000.00 $ 4,200,000.00 $ 9,000,000.00
Merita Bank Ltd $ 5,333,333.33 $ 4,666,666.67 $ 10,000,000.00
Octagon Credit Investors Loan $ 9,333,333.33 $ 8,166,666.67 $ 17,500,000.00
Portfolio
Paribas Capital Funding LLC $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
TOTAL $400,000,000.00 $350,000,000.00 $750,000,000.00
</TABLE>
<PAGE> 171
SCHEDULE II
EXISTING LETTERS OF CREDIT
1. [Bankers Trust Company letters of credit to remain in place after closing.]
<PAGE> 172
SCHEDULE III
REAL PROPERTY
I. MORTGAGED PROPERTY
A. REAL PROPERTY OWNED BY CHANCELLOR RADIO BROADCASTING COMPANY:
1. A parcel located at 840 North Central Avenue, Phoenix,
Maricopa County, Arizona, including broadcast studios and
offices (KYOT-FM, KZON-FM, KOY-AM and KISO-AM Site).
2. A parcel located at 6500 South 36th Street, Phoenix, Maricopa
County, Arizona, including a transmitter facility and tower
(KOY-AM Site).
3. A parcel located at 2345 West Buckeye Road, Phoenix, Maricopa
County, Arizona, including a transmitter facility and tower
(KISO-AM Site).
4. A parcel located in San Bernardino County, California,
including a transmitter building and three towers (KMEN
Transmitter/Studio Site).
5. A parcel located in El Dorado County, California, including a
transmitter building and four towers (KHYL Transmitter Site).
6. A parcel located in Sutter County, California, including a
transmitter building and a tower (Sutter County Site).
7. A parcel located at 16925 Black Rock Road, Germantown,
Montgomery County, Maryland, including a transmitter facility
and 4 towers (WTEM-AM Site).
8. A parcel located at Highway 47, Anoka County, Minnesota,
including a transmitter facility and tower (KQQL-FM site).
<PAGE> 173
9. A vacant parcel located in Dakota County, Minnesota (Minnesota
Property).
10. A parcel located in Suffolk County, New York, including two
transmitter buildings and a tower (WALK Transmitter Site).
11. A parcel located at 66 Colonial Drive, Patchogue, Suffolk
County, New York, including a studio building and a tower (WALK
Studio/Office Site).
12. A parcel located in Butler County, Ohio, including a building
and a tower (WUBE Backup Transmitter Site).
B. REAL PROPERTY OWNED BY SHAMROCK BROADCASTING, INC.:
1. A parcel located at 12040 N. 15th Drive, Shaw Butte, Phoenix,
AZ (Transmitter Backup Site).
2. A parcel located at 2201 W. Indiana, Los Angeles, CA (AM
Transmitter Site).
3. A parcel located at 6450 South Pennsylvania Street, Littleton,
CO (AM transmitter site).
4. A parcel located at 5510 Union Church Road, Flowery Branch
(Hall County), GA (Transmitter Site).
[5. A parcel located at 20979 Flag Street, Prior Lake, MN (AM
Transmitter Site).]
6. A parcel located at Cemetery Lane, Ross Township, Pittsburgh,
PA (AM Transmitter Site).
C. REAL PROPERTY OWNED BY KYSR INC.
1. A parcel located at 2555 Briarcrest Road, Los Angeles, CA
(KYSR-FM Transmitter Site).
2
<PAGE> 174
II. LEASEHOLD PROPERTY
A. REAL PROPERTY LEASED BY CHANCELLOR RADIO BROADCASTING COMPANY:
1. KOOL Main Broadcast Studio & Offices Lease, 4745 N. 7th
Street, Suite 204, Phoenix, AZ (Valley Commerce Building)
Owned by: Valley Commerce Center Limited
Partnership
2. KOOL Transmitter Lease (Communications Site
License) Phoenix South Mountain Park, Arizona
Owned by: City of Phoenix, Arizona
3. KOOL Auxiliary Transmitter, Communication Site 7,
South Mountain, Arizona
Owned by: NW Communications
4. KOOL Remote Lease, Shaw Butte, Arizona
Owned by: Shamrock Broadcasting, Inc.
5. KYOT-FM Transmitter Site License, Phoenix South Mountain Park,
Arizona
Owned by: City of Phoenix, Arizona
6. KZON-FM Transmitter Site License, Phoenix South Mountain Park,
Arizona
Owned by: City of Phoenix, Arizona
7. Remote Pick-up Antenna and Radio Receiver located at Shaw
Butte, Arizona
Owned by: Shamrock Broadcasting, Inc.
8. KHYL Studio Office Lease, 2435 Marconi Avenue, Suite A,
Sacramento, California
Owned by: James Dong Mark, Trustee for the
James Dong Mark Revocable Living
Trust
3
<PAGE> 175
9. KGGI FM Tower Lease, Running Springs, California
Owned by: Kruse Microwave
10. KGGI FM Backup Tower Ground Lease, Riverside, California
Owned by: Henry Broadcasting Company
11. KMEN/KGGI Office/Studio Lease, 2001 Iowa Avenue, Riverside,
Riverside County, California
Owned by: Hunter Park Office Plaza, L.P.
12. WOMX Tower Lease, 22000 Fort Christmas Road, Bithlo, FL.
Owned by: TowerCom, Limited
13. WOMX Studio/Office Lease, 1801 Lee Road, Suite 201, Winter
Park, FL.
Owned by: Winter Park Joint Venture
14. WJHM Studio/Office Lease, 37 Sky Line Drive, Suite 4200,
Suntech Commerce Park, Lake Mary, FL.
Owned by: First Atlanta Services Corp.
15. WJHM Tower Antenna License, 520 Miller Road, Orange City, FL
Owned by: Lodestar Tower Orlando, LTD.
16. WXXL Tower Lease, 435 West Story Road, Winter Garden,
FL.
Owned by: J.J. Taylor Companies, Inc.
17. WXXL Studio/Office Lease, Suite 1024, Altamonte Springs,
Seminole County, FL.
Owned by: Teachers' Retirements System of the
State of Illinois
18. WOCL FM Tower License, Volusia County, Florida
Owned by: Lodestar Tower Orlando Ltd.
19. WOCL FM Studio/Office Lease, 2101 West Hwy. 434, Longwood,
Seminole County, Florida
Owned by: Spring Offices, Ltd.
4
<PAGE> 176
20. WFYV Ground Lease, located between Hogan Road and Newton
Road in Duval County, FL.
Owned by: Lodestar Towers, Inc.
21. WFYV Tower License, 8541 Newton Road, Atlantic Beach, FL.
Owned by: Lodestar Tower Jacksonville, Ltd.
22. WAPE Main Tower Site Lease, 1094 East Adams Street,
Jacksonville, FL.
Owned by: Big League Tower Associates
23. WTEM/WBIG/WGMS Studio Office I-ease, 11300 Rockville Pike,
Rockville, NM
Owned by: One Central Plaza Joint Venture
24. KTCJ AM Tower License, Hennepin County, Minnesota
Owned by: City of New Hope, Minnesota
25. KTCJ AM Transmitter Building Ground Lease, Hennepin County,
Minnesota
Owned by: Robert P. Kinney and Mary E. Kinney
26. KTCZ FM Tower Lease, Shoreview, Ramsey County, Minnesota
Owned by: United Television,Inc. and Chancellor
Broadcasting Company is actually a
general partner of Shoreview FM
Group which is the lessee under this
lease
27. KTCZ/KTCJ Studio/Office Lease, Minneapolis, Hennepin County,
Minnesota
Owned by: Butler Properties, LLC.
28. KDWB Studio Lease, South Third Street, Minneapolis,
Minnesota
5
<PAGE> 177
29. KDWB Tower Lease, Shoreview, Minnesota
Owned by: United Television, Inc.
30. KQQL/WBOB Studio Office Lease, 920 Dain Plaza, 60 South
6th Street, Minneapolis, MN.
Owned by: Brookfield Development California,
Inc.
31. WBOB Transmitter Lease, Shoreview, MN.
Owned by: United Television
32. WBOB Auxiliary Transmitter Lease, The University of
Minnesota
Owned by: Regents of the University of
Minnesota
33. Storage Space Leases at 10830 Greenbrier (KQQL) and 300 N.
5th Street (WBOB), Minneapolis, Minnesota
Owned by: Minikahda Mini Storage
34. WYGY Transmitter Lease, Hamilton, Ohio
Owned by: Jacor Communications, Inc.
35. WUBE, FM Tower/Transmitter Lease, Cincinnati, Hamilton
County, Ohio
Owned by: Scripps-Howard Broadcasting
36. WUBE/ WYGY Studio/Office Lease, 225 E. Sixth Street,
Cincinnati, Ohio
Owned by: R.E. Dietz & Company, Inc.
37. WUBE AM Tower Lease, 1430 Martin Drive, Cincinnati, Ohio
Owned by: City of Cincinnati
38. WBIG Transmitter Lease, 5232 Lee Highway, Arlington, VA
Owned by: WAVA Building Limited Partnership
39. WGMS/WBIG Auxiliary Transmitter Lease, 5321 First Place,
N.E., Washington, DC
Owned by: Colfax Towers, Inc.
6
<PAGE> 178
40. WGMS Transmitter Lease, America University, Washington, DC
Owned by: The America University
B. REAL PROPERTY LEASED BY SHAMROCK BROADCASTING INC.:
1. KMLE Radio Station Lease, 645 East Missouri Avenue, Suite 244,
Phoenix, AZ
Owned by: CBS Investment Realty, Inc.
2. KMLE Radio Station Lease, South Mountain Park, Phoenix, AZ
Owned by: KSAZ-TV
3. KMLE Radio Station Lease, South Mountain Park, Phoenix, AZ
Owned by: City of Pheonix
4. Corporate Office Lease, 4444 Lakeside Drive, 2nd Floor,
Burbank, CA
Owned by: Shamrock Holdings of California
5. KZLA Radio Station Lease, 330 North Brand Boulevard, Suite
800, Glendale, CA
Owned by: WRC Properties, Inc.
6. KZLA Radio Station Lease, 123 CBS Lane, Mt. Wilson, CA
Owned by: CBS, Inc.
7. KZLA Radio Station Lease, Flint Peak, Glendale, CA
Owned by: Peak Property Corporation
8. KABL Radio Station Lease, Sand Island, Oakland, CA
Owned by: Port of Oakland
9. KABL-KBGG Radio Station Lease, 1025 Battery Street, San
Francisco, CA
Owned by: Soraya Imports, Inc.
7
<PAGE> 179
10. KBGG Radio Station Lease, Mount Beacon, Sausalito, CA
Owned by: Sundial Broadcasting
11. KBGG Radio Station Lease, Sunol Ridge, Pleasanton, CA
Owned by: Sunol Development Company
12. KBGG Radio Station Lease, 2500 Vineyard Avenue, Alameda
County, CA
Owned by: Dennis Homer
13. KSAN and KNEW Radio Station Lease, 750 Battery Street, San
Francisco, CA
Owned by: James P. Edmondson
14. KBGG and KSAN Radio Stations Lease, 724 Battery Street, San
Francisco, CA
Owned by: Russell Reese
15. KNEW Radio Station Lease, Pt. Isabel, Richmond, CA
Owned by: City of Richmond
16. KNEW Radio Station Lease, Pt. Isabel Treatment Plant,
Richmond, CA
Owned by: East Bay Municipal Utility District
17. KSAN Radio Station Lease, Radio Road, San Bruno Mountain, San
Mateo County, CA
Owned by: Watson Communication Systems, Inc.
18. KBGG and KSAN Radio Station Lease, Mount Diablo, Contra Costa
County, CA
Owned by: The RDS Company
19. KALC/KIMN Studio/Office Lease, The Tabor Center, 1200 17th
Street, Suite 2300, Denver, CO.
Owned by: Tabor Center Associates
20. KXXL Radio Station Lease, One Civic Center Plaza, 1560
Broadway, Suite 1100, Denver, CO
Owned by: Hamilton Oil Building Partnership
8
<PAGE> 180
21. KXKL Radio Station Lease, Mount Chief, Jefferson County, CO
Owned by: Mikes-Stone Joint Venture
22. KXKL Radio Station Lease, 6091 Marshall Road, Boulder, CO
Owned by: Russell W. Schaffer
23. KZDG Radio Station Lease, 6750 Weld County Road 17, Weld
County, CO
Owned by: Tsunami Communications
24. WFOX Radio Station Lease, 2000 Riveredge Parkway, Suite 797,
Atlanta, GA
Owned by: Carlyle Real Estate Partnership]
25. KEEY and KFAN Radio Stations Lease, Norwest Financial Center,
7900 Xerxes Avenue, Suite 102, Bloomington, MN
Owned by: Zeller - Minnesota Limited
26. KEEY Radio Station Lease, 550 Gramsle Road, Shoreview, MN
Owned by: United Television
27. KEEY Radio Station Lease, 805 8th Street, IDS Building,
Minneapolis, MN
Owned by: Broadcast Services, Inc.
28. KEEY and KFAN Radio Stations Lease, 611 Frontenac Place, St.
Paul, MN
Owned by: 1400, Inc.
29. WHTZ Radio Station Lease, Harmon Tower South, 5th Floor, 333
Meadowlands Parkway, Secaucus, NJ
Owned by: Hartz Mountain Associates
9
<PAGE> 181
30. WHTZ Radio Station Lease, 737 Third Avenue, 32nd Floor, New
York, NY
Owned by: Alper Securities, inc.
31. WHTZ Radio Station Lease, Empire State Building, New York, NY
Owned by: Empire State Building Company
32. WWSW Radio Station Lease, One Allegheny Square, Suite 800,
Pittsburgh, PA
Owned by: Allegheny Center Associates
33. WWSW Radio Station Lease, 11 Television Hill, Pittsburgh, PA
Owned by: WPXI, Inc.
C. REAL PROPERTY LEASED BY WLIT INC.
1. WLIT Office/Studio Lease, 150 N. Michigan Avenue, Suite 1135,
Chicago, IL
Owned by: Park Place Associates
2. WLIT Main Transmitter Lease, 233 S. Wacker Drive, Sears Tower,
102nd floor, Chicago, IL
Owned by: Sears, Roebuck and Co.
3. WLIT Backup Transmitter Lease, 875 N. Michigan Avenue, John
Hancock Center - Room #9322, Chicago, IL
Owned by:
--------------------------------
10
<PAGE> 182
D. REAL PROPERTY LEASED BY KYSR INC. AND KIBB INC.
1. KYSR/KIBB Office/Studio Lease, 3500 West Olive Avenue, Suite
250, Burbank, CA
Owned by: Toluca Lake Financial Center
2. KIBB Main Transmitter Lem, located at Mount Wilson, Los
Angeles, CA
Owned by:
-------------------------------
3. KIBB-FM Translator Lease, located at Loop Canyon, Orange
County, CA
Owned by: Commercial Activities Company
11
<PAGE> 183
SCHEDULE IV
FCC LICENSES
Part A. Chancellor Broadcasting License Company
KFBK(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KFBK(AM), SACRAMENTO, CALIFORNIA
<TABLE>
<CAPTION>
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
<S> <C> <C> <C> <C>
Main Station License KFBK(AM) BAL-931201E1 12/30/93 12/01/97
- -----------------------------------------------------------------------------------
Renewal of License KFBK(AM) BR-900730YT 11/26/90 12/01/97
(short form)
- -----------------------------------------------------------------------------------
License KFBK(AM) BL-861217AA 02/10/87 12/01/97
(long form)
- -----------------------------------------------------------------------------------
Emergency Broadcast System KFBK(AM) Issued 05/25/72 -- 12/01/97
Authorization
===================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KFBK(AM), SACRAMENTO, CALIFORNIA
<TABLE>
<CAPTION>
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
<S> <C> <C> <C> <C>
Remote Pickup KPK-421 BPLRE-910304MA 07/29/91 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup KLP-415 BLRE-16595 12/04/68 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup KA-88936 BMLRE-890616ME 08/01/89 12/01/97
- -----------------------------------------------------------------------------------
Aural Studio Transmitter Link WGI-267 BPLST-88101lMD 12/09/88 12/01/97
- -----------------------------------------------------------------------------------
Aural Studio Transmitter Link WLI-688 BPLST-881011ML 12/05/88 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup(1) WHE-795 BPLRE-900123ME 05/10/90 12/01/97
===================================================================================
</TABLE>
- --------------------------
1. Authorization cannot be located in FCC files.
<PAGE> 184
<TABLE>
<CAPTION>
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
<S> <C> <C> <C> <C>
Remote Pickup KQQ-308 9301480153 03/09/93 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup KPE-890 BPLRE-850320ME 05/13/85 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup KPE-800 BPLRE-830315MK 08/13/84 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup KPE-866 BPLRE-850320MC 05/06/85 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup KPE-870 BPLRE-850320MD 05/06/85 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup KB-96924 BLNRE-871125MB 01/15/88 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup KEH-389 BMLRE-841011ME 11/07/84 12/01/97
===================================================================================
</TABLE>
KGBY(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KGBY(FM), SACRAMENTO, CALIFORNIA
<TABLE>
<CAPTION>
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
<S> <C> <C> <C> <C>
Main Station License KGBY(FM) BALH-931201EJ 12/30/93 12/01/97
- ----------------------------------------------------------------------------------
License for Auxiliary Antenna KGBY(FM) BLH-911021KC 06/05/92 12/01/97
- ----------------------------------------------------------------------------------
Renewal of License then, BRH-900730A7 11/21/90 12/01/97
(short form) KAER(FM)
- ----------------------------------------------------------------------------------
License then, BLH-850412KK 09/30/85 12/01/97
(long form) KAER(FM)
- ----------------------------------------------------------------------------------
Emergency Broadcast System then, Issued 10/10/78 -- 12/01/97
Authorization KAER(FM)
===================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KGBY(FM), SACRAMENTO, CALIFORNIA
<TABLE>
<CAPTION>
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
<S> <C> <C> <C> <C>
Aural Studio Transmitter Link WLH-424 BPLST-851023MB 12/06/85 12/01/97
- -----------------------------------------------------------------------------------
Remote Pickup(2) KPK-422 BPLRE-900123MF 05/10/90 12/01/97
===================================================================================
</TABLE>
- -------------------------
2. Authorization cannot be located in FCC files.
2
<PAGE> 185
KHYL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION (FM), AUBURN, CALIFORNIA
<TABLE>
<CAPTION>
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
<S> <C> <C> <C> <C>
Main Station license KHYL BALH-9404220GT 8/9/94 N/A
WLD-518
- -----------------------------------------------------------------------------------
Auxiliary Antenna License KHYL BLH-930329KC 9/15/93 12/01/97
- -----------------------------------------------------------------------------------
Transfer of Control KHYL BTCH-930316GL 3/29/93 N/A
From: Arthur Kern WLD-518
To: Arthur K. Kern
Revocable Trust
- -----------------------------------------------------------------------------------
Assignment of License KHYL BALH-920515EE 8/7/92 N/A
From: Elliot B. Evers, WLD-518
Receiver
To: National Radio
Partners, L.P.
- -----------------------------------------------------------------------------------
Renewal of I.License KHYL BRH-9007317L 8/7/92 12/01/97
WLD-518
- -----------------------------------------------------------------------------------
License KHYL BLH-850521KC 07/30/85 12/01/97
Reissued
11/19/92 for
corrections
- -----------------------------------------------------------------------------------
License for Auxiliary KHYL BLH-800208AG 12/2/80 12/01/97
Antenna and
Transmitter(3)
- -----------------------------------------------------------------------------------
Emergency Broadcast System KHYL N/A Issued 12/0l/97
Authorization 7/1/77
===================================================================================
</TABLE>
- --------------------
3. A copy of this authorization was not obtained. The file in which the
authorization is contained was transferred to Gettysburg, Pennsylvania.
3
<PAGE> 186
CURRENT BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KHYL(FM), AUBURN, CALIFORNIA
<TABLE>
<CAPTION>
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
<S> <C> <C> <C> <C>
Aural STL License WLD-518 BPLST-890907MI 10/20/89 12/01/97
===================================================================================
</TABLE>
WALK(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WALK(AM), PATCHOGUE, NEW YORK
<TABLE>
<CAPTION>
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
<S> <C> <C> <C> <C>
Main Station License WALK(AM) BAL-940422GU 07/29/94 06/01/98
WALK(FM) BALH-940422GV Consent
and Corrected and
Auxiliaries Reissued
08/17/94
- ---------------------------------------------------------------------------------------
Consent to Transfer Control of WALK(AM) BTC-930419EG 04/29/93 N/A
American Media, Inc. WALK(FM) BTCH-930419EH
From: Arthur H. Kern and
To: Arthur H. Kern Auxiliaries
Revocable Trust
- ---------------------------------------------------------------------------------------
License Renewal Authorization WALK(AM) BR-910108UC 08/29/91 06/01/98
and
Auxiliaries
- ---------------------------------------------------------------------------------------
AM Broadcast Station License WALK(AM) BZ-851213AR 01/30/86 06/01/98
The "hours of operation are
specified in previous
authorization," which is
Modification of License
BZ-830909AH accompanied by
Standard Broadcast Station
License BR-810202H5/BZ-811022AI
- ---------------------------------------------------------------------------------------
Order to Show Cause Modifying WALK(AM) N/A Issued 06/01/98
License to Specify Nighttime 11/18/87
Operation with Nominal power of Effective
102 Watts 12/01/87
=======================================================================================
</TABLE>
4
<PAGE> 187
<TABLE>
<CAPTION>
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
<S> <C> <C> <C> <C>
Notice of Parameters for Operation WALK(AM) N/A Reissued 06/01/98
Under Pre-Sunrise Authority 04/26/94
(PSRA)
- ---------------------------------------------------------------------------------------
Revised Parameters for Operation WALK(AM) N/A Reissued 06/01/98
Under Post-Sunset Authority 04/26/94
(PSSA)
- ---------------------------------------------------------------------------------------
Emergency Broadcast System WALK(AM) EBSA 06/12/72 06/01/98
Authorization
=======================================================================================
</TABLE>
CURRENT BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WALK(AM), PATCHOGUE, NEW YORK
FCC records indicate there are no auxiliary station licenses associated with
WALK(AM).
WALK-FM AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WALK-FM, PATCHOGUE, NEW YORK
<TABLE>
<CAPTION>
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
<S> <C> <C> <C> <C>
Main Station License WALK-FM BALH-940422GV 07/29/94 06/01/98
WALK(AM) BAL-940422GU Consent
and Corrected
Auxiliaries and
Reissued
08/17/94
- ---------------------------------------------------------------------------------------
Consent to Transfer Control of WALK-FM BTCH-930419EH 04/29/93 N/A
American Media, Inc. WALK(AM) BTC-930419EG
From: Arthur H. Kern and
To: Arthur H. Kern Auxiliaries
Revocable Trust
- ---------------------------------------------------------------------------------------
FM Broadcast Station License, WALK-FM BLH-930714KA 10/14/93 06/01/98
Auxiliary Antenna
- ---------------------------------------------------------------------------------------
FM Broadcast Station License, Main WALK-FM BRH-910108UB 05/17/91 06/01/98
Antenna and
Auxiliaries
=======================================================================================
</TABLE>
5
<PAGE> 188
<TABLE>
<CAPTION>
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
<S> <C> <C> <C> <C>
License Renewal Authorization WALK-FM BRH-910108UB 05/17/91 06/01/98
and
Auxiliaries
- ---------------------------------------------------------------------------------------
Subsidiary Communications WALK-FM BRSCA-810202A2 05/29/81 06/01/98
Authorization BSCA-384 05/31/78
- ---------------------------------------------------------------------------------------
Emergency Broadcast System WALK-FM EBSA 05/22/72 06/01/98
Authorization
=======================================================================================
</TABLE>
CURRENT BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WALK-FM, PATCHOGUE, NEW YORK
<TABLE>
<CAPTION>
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
<S> <C> <C> <C> <C>
Aural STL License WGW-987 BMLST-920303MM 06/25/92 06/01/98
- ---------------------------------------------------------------------------------------
Aural Inter-City Relay (ICR) License WMF-954 BPLIC-921221ME 05/13/93 06/01/98
- ---------------------------------------------------------------------------------------
Remote Pickup Base Mobile System KPF-856 BPLRE-881020MF 12/09/88 06/01/98
License
Base No. 2
- ---------------------------------------------------------------------------------------
Remote Pickup Mobile System KC-23745 BLNRE-881020ME 12/05/88 06/01/98
License
=======================================================================================
</TABLE>
WUBE(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WUBE(AM), CINCINNATI, OHIO
<TABLE>
<CAPTION>
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
<S> <C> <C> <C> <C>
Main Station License WUBE(AM) BAL-940422GO 07/29/94 10/l/2004
- ---------------------------------------------------------------------------------------
Consent to Transfer Control WUBE(AM) BTC-930316GH 03/29/93 N/A
From: Arthur H. Kern
To: Arthur H. Kern
Revocable Trust
=======================================================================================
</TABLE>
6
<PAGE> 189
<TABLE>
<CAPTION>
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
<S> <C> <C> <C> <C>
Consent to Assignment of License WUBE(AM) BAL-911122HO 01/02/92 N/A
From: American Media, Inc.
To: National Radio Partners,
L.P.
- ---------------------------------------------------------------------------------------
Renewal of License WUBE(AM) BR-890516UC 09/26/89 10/01/96
(short form)
- ---------------------------------------------------------------------------------------
License WUBE BL-890731AB 11/09/89 N/A
- ---------------------------------------------------------------------------------------
Emergency Broadcast System WUBE N/A Issued 10/01/96
Authorization 05/25/72
=======================================================================================
</TABLE>
WUBE-FM AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WUBE(FM), CINCINNATI, OHIO
<TABLE>
<CAPTION>
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
<S> <C> <C> <C> <C>
Main Station License WUBE-FM BALH-940422GQ 07/29/94 10/l/2004
- ---------------------------------------------------------------------------------------
Renewal of License WUBE-FM BRH-890516UD 09/28/89 10/01/96
(short-form)
- ---------------------------------------------------------------------------------------
Consent to Transfer Control WUBE-FM BTCH-930316GK 03/29/93 N/A
From: Arthur H. Kern
To: Arthur H. Kern
Revocable Trust
- ---------------------------------------------------------------------------------------
Consent to Assignment of License WUBE-FM BALH-911122HP 01/02/92 N/A
From: American Media, Inc.
To: National Radio Partners,
L.P.
- ---------------------------------------------------------------------------------------
License WUBE-FM BLH-930707KB 10/07/93 10/01/96
- ---------------------------------------------------------------------------------------
Construction Permit WUBE-FM BPH-9304141D 06/16/93 12/16/94
- ---------------------------------------------------------------------------------------
Emergency Broadcast System WUBE-FM N/A 05/22/72 N/A
Authorization
=======================================================================================
</TABLE>
7
<PAGE> 190
CURRENT BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WUBE-FM, CINCINNATI, OHIO
<TABLE>
<CAPTION>
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
<S> <C> <C> <C> <C>
Aural STL License WMU-278 BMLST-930723MD 10/08/93 10/01/96
=======================================================================================
</TABLE>
WYGY(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WYGY(FM), HAMILTON, OHIO
<TABLE>
<CAPTION>
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
<S> <C> <C> <C> <C>
Main Station License WYGY BALH-940422GS 07/29/94 10/l/2004
KB-96945
- ---------------------------------------------------------------------------------------
Transfer of Control WYGY BTCH-930316GG 03/29/93 N/A
From: Arthur H. Kern KB-96945
To: Arthur H. Kern
Revocable Trust
- ---------------------------------------------------------------------------------------
Assignment of License WZRZ BALH-921021HH 12/17/92 N/A
From: Reams Broadcasting KB-96945
Corporation
To: National Radio
Partners, L.P.
- ---------------------------------------------------------------------------------------
Renewal of License WBVE BRH-890531WC 10/2/89 10/01/96
KB-96945
- ---------------------------------------------------------------------------------------
License WBVE BLH-860428KD 10/21/86 10/01/96
- ---------------------------------------------------------------------------------------
Emergency Broadcast System WSKS N/A Issued 10/01/96
Authorization
=======================================================================================
</TABLE>
(NOTE: "WZRZ", "WBVE", AND "WSKS" are the former call letters of "WYGY". Old
authorizations will reflect these former call letters.)
8
<PAGE> 191
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WYGY(FM), HAMILTON, OHIO
<TABLE>
<CAPTION>
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
<S> <C> <C> <C> <C>
R/P Mobile System License KB-96945 BLNRE-880519 7/25/88 10/01/2004
=======================================================================================
</TABLE>
WKYN(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WKYN(AM), FLORENCE, KENTUCKY
<TABLE>
<CAPTION>
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
<S> <C> <C> <C> <C>
Main Station License WKYN(AM) * 10/01/2004
=======================================================================================
</TABLE>
KTCJ(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KTCJ(AM), MINNEAPOLIS, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Direct Measurement KTCJ BZ-940111AB 09/28/93 04/01/2005
- -----------------------------------------------------------------------------------------
Main Station license KICJ BALH-940422GP 07/29/94 N/A
and
auxiliaries
- -----------------------------------------------------------------------------------------
Consent to Transfer of Control KTCJ BTC-930316GJ 03/29/93 N/A
From: Arthur H. Kern and
To: Arthur H. Ker auxiliaries
Revocable Trust
- -----------------------------------------------------------------------------------------
Consent to Assignment of Permit and KTCJ BAPL-920515EF 07/07/92 N/A
License and
From: Elliot B. Evers auxiliaries
Receiver
To: National Radio Partners,
L.P.
=========================================================================================
</TABLE>
9
<PAGE> 192
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Consent to Assignment of license KTCJ BAL-920501EC 05/12/92 N/A
From: Parker Communications - and
Minneapolis, Inc. auxiliaries
To: Elliott B. Evers
Receiver
- -----------------------------------------------------------------------------------------
Renewal of License (short form) KTCJ BR-891130A2 03/23/90 04/01/97
- -----------------------------------------------------------------------------------------
Pre-Sunrise/Post-Sunset KTCJ N/A Issued 04/01/97
Authorization 04/20/94
- -----------------------------------------------------------------------------------------
Emergency Broadcast System KICJ N/A Issued N/A
Authorization 06/12/72
=========================================================================================
</TABLE>
KTCZ-FM AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KTCZ-FM, MINNEAPOLIS, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KTCZ-FM BALH-940422GR 07/29/94 4/01/2005
and
auxiliaries
- -----------------------------------------------------------------------------------------
Consent to Transfer of Control KTCZ-FM BTCH-930316GM 03/29/93 N/A
From: Arthur H. Kern and
To: Arthur H. Kern auxiliaries
Revocable Trust
- -----------------------------------------------------------------------------------------
Consent to Assignment of License KTCZ-FM BALH-920515EG 07/07/92 N/A
From: Elliot B. Evers and
Receiver auxiliaries
To: National Radio Partners,
L.P.
- -----------------------------------------------------------------------------------------
Consent to Assignment of license KTCZ-FM BALH-920501ED 05/12/92 N/A
From: Parker Communications - and
Minneapolis, Inc. auxiliaries
To: Elliott B. Evers
Receiver
- -----------------------------------------------------------------------------------------
License KTCZ-FM BLH-910814KC 02/27/92 04/01/97
=========================================================================================
</TABLE>
10
<PAGE> 193
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Renewal of License (short form) KTCZ-FM BRH-891130A2 03/23/90 04/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Antenna KTCZ-FM BMLH-910827KG 03/02/92 04/01/97
- -----------------------------------------------------------------------------------------
Emergency Broadcast System KTCZ-FM N/A 05/22/72 N/A
Authorization
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KTCZ-FM, MINNEAPOLIS, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WIJ-814 BPLST-871109MF 01/15/88 04/01/2005
=========================================================================================
</TABLE>
WOCL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WOCL(FM), DELAND, FLORIDA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station license WOCL BALH-940422GN 07/29/94 2/01/2003
and
Auxiliaries
- -----------------------------------------------------------------------------------------
Transfers of Control WOCL BTCH-930316GP 03/29/93(4) N/A
From: Arthur H. Kern and
To: Arthur H. Kern Auxiliaries
Revocable Trust
- -----------------------------------------------------------------------------------------
Auxiliary Antenna WOCL BLH-90022OKD 12/21/90 10/ 1/95(5)
=========================================================================================
</TABLE>
4. The FAIR notes a different grant date of July 12, 1993.
5. The expiration date on the authorization is correct.
11
<PAGE> 194
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Renewal WOCL BRH-880927ZG 1/31/90 2/l/96
and
Auxiliaries
- -----------------------------------------------------------------------------------------
License WOCL BLH-870721KC 3/24/88 2/01/96
- -----------------------------------------------------------------------------------------
Assignment of license' WOCL BALH-86021GGG 03/03/86 N/A
From: American Media, Inc. and
To: Mid-Florida Radio, Inc. Auxiliaries
- -----------------------------------------------------------------------------------------
Emergency Broadcast System WDLF N/A Issued 2/l/96
Authorization 12/22/80
=========================================================================================
</TABLE>
(Note: "WDLF" are former call letters of "WOCL". Old Authorizations will
reflect these former call letters.)
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WOCL, DELAND, FLORIDA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL License WLG-699 BPLST-851119MB 03/19/86 2/01/2003
- -----------------------------------------------------------------------------------------
Aural STL License WLG-789 BPLST-851119MA 03/19/86 10/01/96
- -----------------------------------------------------------------------------------------
R/P Mobile System License KB-96847 BLNRE-870108MA 5/06/87 10/01/96
- -----------------------------------------------------------------------------------------
R/P Base Station License KPJ-322 BPLRE-851119MC 3/19/86 10/01/96
- -----------------------------------------------------------------------------------------
R/P Mobile System license KB-97378 BLNRE-860725MJ 12/12/86 10101196
=========================================================================================
</TABLE>
WAPE(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WAPE(FM), JACKSONVILLE, FLORIDA
- --------------------
6. A copy of this authorization was not obtained. The file in which this
authorization is contained was retired to the Federal Records Center.
12
<PAGE> 195
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station license WAPE(FM) * 2/01/2003
=========================================================================================
</TABLE>
WFYV(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WFYV(FM), JACKSONVILLE, FLORIDA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WFYV(AM) * 2/01/2003
=========================================================================================
</TABLE>
KMEN AND ASSOCIATED AUXILIARY STATIONS
KMEN(AM), SAN BERNARDINO, CALIFORNIA
MAIN STATION
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station license KMEN BAL-940422HE 07/29/94 12/l/97
- -----------------------------------------------------------------------------------------
License KMEN BZ-940224AB 06/30/94 12/l/97
- -----------------------------------------------------------------------------------------
License Modification KMEN BRC-94051 I AC 6/16/94 12/l/97
- -----------------------------------------------------------------------------------------
Emergency Broadcast Service KMEN N/A 05/22/72 12/l/97
=========================================================================================
</TABLE>
CURRENT BROADCAST AUXILIARY FCC AUTHORIZATIONS
ISSUED TO KMEN(AM), SAN BERNARDINO, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WLP-543 BPLST-910227 06/17/91 12/01/97
=========================================================================================
</TABLE>
13
<PAGE> 196
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WLP-572 BPLST-910227MB 7/25/91 12/l/97
=========================================================================================
</TABLE>
KGGI AND ASSOCIATED AUXILIARY STATIONS
KGGI(FM), RIVERSIDE, CALIFORNIA
MAIN STATION
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station license KGGI BAL-940422HF 07/29/94 12/l/97
License KGGI BLH-910802KF 03/17/92 12/l/97
Emergency Broadcast Service KGGI N/A 07/15/79 12/1/97
</TABLE>
CURRENT BROADCAST AUXILIARY FCC AUTHORIZATIONS
KGGI(FM), RIVERSIDE, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WLD-672 BPLST-RC1104TO 03/11/85 12/01/97
- -----------------------------------------------------------------------------------------
Aural STL WFW-618 BPIST-910227ME 6/17/91 12/1/97
=========================================================================================
</TABLE>
KSTE(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KSTE(AM), RANCHO CORDOVA, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KSTE(AM) * 12/01/97
=========================================================================================
</TABLE>
14
<PAGE> 197
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
=========================================================================================
</TABLE>
KDWB(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KDWB(FM), RICHFIELD, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KDWB(FM) BLH-910814KA 4/l/2005
- -----------------------------------------------------------------------------------------
Auxiliary Antenna License KDWB(FM) BLH-920603KA 4/l/2005
=========================================================================================
</TABLE>
CURRENT BROADCAST AUXILIARY FCC AUTHORIZATIONS
KDWB(FM), RICHFIELD, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WLE-769 * 4/l/2005
- -----------------------------------------------------------------------------------------
Aural STL WLP-728 * 4/l/2005
=========================================================================================
</TABLE>
WTEM(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WTEM(AM), BETHESDA, MD
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WTEM(AM) * 10/01/2003
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPM-471 * 10/01/2003
- -----------------------------------------------------------------------------------------
Aural STL WLO-430 * 10/01/2003
- -----------------------------------------------------------------------------------------
Remote Pickup Base Mobile KPK-259 * 10/01/2003
=========================================================================================
</TABLE>
15
<PAGE> 198
WBIG(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WBIG(FM), ROCKVILLE, ME[)
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WBIG(FM) * 10/01/2003
- -----------------------------------------------------------------------------------------
Auxiliary Antenna WBIG(FM) * 10/01/2003
- -----------------------------------------------------------------------------------------
Aural STL WME-606 * 10/01/2003
=========================================================================================
</TABLE>
WGMS(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WGMS(FM), WASHINGTON DC
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WGMS(FM) * 10/01/2003
- -----------------------------------------------------------------------------------------
Auxiliary Antenna WGMS(FM) * 10/01/2003
- -----------------------------------------------------------------------------------------
Aural STL WLO-429 * 10/01/2003
=========================================================================================
</TABLE>
KOQL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KQQL(FM), ANOKA, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KQQL-(FM) * 4/01/2005
- -----------------------------------------------------------------------------------------
Application for minor KQQL(FM) BPH-960603IA 4/01/2005
modification of construction
permit to requestauthority
to construct a new auxiliary
antenna facility filed on
June 3, 1996
- -----------------------------------------------------------------------------------------
Aural STL WLF-665 * 4/01/2005
=========================================================================================
</TABLE>
- -------------------------
* Confirmation Pending
16
<PAGE> 199
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WIJ-391 * 4/01/2005
- -----------------------------------------------------------------------------------------
Aural STL WLF-669 * 4/01/2005
=========================================================================================
</TABLE>
WBOB(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WBOB(FM), MINNEAPOLIS, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WBOB(FM) * Renewal
Pending
- -----------------------------------------------------------------------------------------
Auxiliary Antenna Construction WBOB-FM BPH-9504071B Renewal
Permit BPH-9504071B Pending
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPF-879 * Renewal
Pending
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPN-715 * Renewal
Pending
- -----------------------------------------------------------------------------------------
Aural STL WMF-893 * Renewal
Pending
=========================================================================================
</TABLE>
KOOL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KOOL(FM), PHOENIX, ARIZONA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KOOL(FM) * 10/01/97
- -----------------------------------------------------------------------------------------
Aural STL WDD-710 * 10/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup WHE-837(7) * 10/01/97
=========================================================================================
</TABLE>
- -----------------------
(7) Not listed in Catalog.
17
<PAGE> 200
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Intercity Relay WLD-681(8) 10/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPJ-938(8) 10/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPJ-983(9) * 10/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KA-35291 * 10/01/97
=========================================================================================
</TABLE>
KZON(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KZON(FM), PHOENIX, ARIZONA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KZON(FM) * 10/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Antenna KZON(FM) * 10/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPL,417 10/01/97
- -----------------------------------------------------------------------------------------
Aural STL WKS-92 * 10/01/97
=========================================================================================
</TABLE>
- ---------------------
8. License indicates that auxiliary is associated with Station KOOL(AM).
Application will be filed to change associated broadcast station to KOOL-FM.
9. Modification application filed July 8, 1996.
- -----------------
* Cofirmation Pending
18
<PAGE> 201
KOY(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KOY(AM), PHOENIX, ARIZONA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KOY(AM) * 10/01/97
- -----------------------------------------------------------------------------------------
Aural STL WFW-714 * 10/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KTJ-600 * 10/01/97
- -----------------------------------------------------------------------------------------
Low Power Broadcast Station BLP-00888 * 10/01/97
- -----------------------------------------------------------------------------------------
Broadcast Auxiliary KY-5633(10) * 10/01/97
- -----------------------------------------------------------------------------------------
Broadcast Auxiliary KY-5634(10) * 10/01/97
- -----------------------------------------------------------------------------------------
Broadcast Auxiliary KY-5635(10) * 10/01/97
- -----------------------------------------------------------------------------------------
Broadcast Auxiliary KV-4890(10) 10/01/97
- -----------------------------------------------------------------------------------------
Broadcast Auxiliary KP-9376(10) 10/01/97
- -----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KBH-744(10) * 10/01/97
=========================================================================================
</TABLE>
KYOT(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KYOT(FM), PHOENIX, ARIZONA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KYOT(FM) * 10/01/97
- -----------------------------------------------------------------------------------------
Aural STL WAX-38 * 10/01/97
- -----------------------------------------------------------------------------------------
Aural STL WHY-286 10/01/97
=========================================================================================
</TABLE>
- -------------
10. Schedule 1.2(a) to the Asset Purchase Agreement by and among Sundance
Broadcasting, Inc., Sundance Broadcasting of Idaho, Inc., David E. Reese and
Louise F. Reese and Radio 95 of Phoenix Limited Partnership indicates that this
authorization is no longer in use. No notice of cancellation has been filed.
- ------------
* Confirmation Pending
19
<PAGE> 202
KISO(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KISO(AM), PHOENIX, ARIZONA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KISO(AM) * 10/01/97
=========================================================================================
</TABLE>
PART B. SHAMROCK BROADCASTING, INC.
WWSW(AM) AND ASSOCIATED ASSOCIATED STATIONS
MAIN STATION WWSW(AM), PITTSBURGH, PENNSYLVANIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WWSW(AM) * 8/1/98
=========================================================================================
</TABLE>
WWSW(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WWSW(FM), PITTSBURGH, PENNSYLVANIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WWSW(FM) * 8/1/98
- -----------------------------------------------------------------------------------------
License for Auxiliary Antenna WWSW(FM) * 8/l/98
=========================================================================================
</TABLE>
- -----------------
* Confirmation Pending
20
<PAGE> 203
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WWSW(FM), PITTSBURGH, PENNSYLVANIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Remote Pickup Base KGB-258 * 8/l/98
- -----------------------------------------------------------------------------------------
Aural STL WFD-489 * 8/l/98
- -----------------------------------------------------------------------------------------
Aural STL WFD-545 * 8/l/98
- -----------------------------------------------------------------------------------------
Aural STL WFD-546 * 8/l/98
- -----------------------------------------------------------------------------------------
Remote Pickup-Automatic Relay WZB-714 * 8/1/98
- -----------------------------------------------------------------------------------------
Receive Only Earth Station E-6966 * 8/19/98
- -----------------------------------------------------------------------------------------
Business Radio WNVY-920 * 11/03/98
=========================================================================================
</TABLE>
KVOD(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KVOD(FM), GREELEY, COLORADO
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KVOD(FM) * 4/01/2005
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KVOD(FM) GREELEY, COLORADO
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Auxiliary license KPM-379 * 4/01/2005
- -----------------------------------------------------------------------------------------
Auxiliary license KB-96246 * 4/01/2005
- -----------------------------------------------------------------------------------------
Auxiliary license WLF-617 * 4/01/2005
- -----------------------------------------------------------------------------------------
Auxiliary license WLO-631 * 4/01/2005
=========================================================================================
</TABLE>
- ----------
* Cofirmation Pending
21
<PAGE> 204
KRRF(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION (AM, DENVER, COLORADO
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KRRF(AM) * 4/l/2005
=========================================================================================
</TABLE>
KRRG(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KRRF(FM), DENVER, COLORADO
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KRRF(FM) * 4/l/2005
- -----------------------------------------------------------------------------------------
License for Auxiliary Antenna KRRF(FM) * 4/l/2005
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
(FM), DENVER, COLORADO
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
FM Booster KRRF(FM) * 4/l/2005
- -----------------------------------------------------------------------------------------
Aural STL WHY-442 * 4/l/2005
- -----------------------------------------------------------------------------------------
Aural STL WHY-443 * 4/l/2005
- -----------------------------------------------------------------------------------------
Remote Pickup Base KPF-237 * 4/l/2005
=========================================================================================
</TABLE>
- ----------------
* Confirmation Pending
22
<PAGE> 205
KMLE(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KMLE(FM), CHANDLER, ARIZONA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KMLE(FM) * 10/l/97
- -----------------------------------------------------------------------------------------
License for Auxiliary Antenna KMLE(FM) * 10/l/97
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KMLE(FM), CHANDLER, ARIZONA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WLI-670 * 10/l/97
- -----------------------------------------------------------------------------------------
Aural STL WGI-232 * 10/1/97
- -----------------------------------------------------------------------------------------
Remote Pickup-Mobile KS-62911 * 10/l/97
=========================================================================================
</TABLE>
KLAC(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KLAC(AAI), LOS ANGELES, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KLAC(AM) * 12/l/97
=========================================================================================
</TABLE>
KZLA(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KZLA(FM), LOS ANGELES, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KZLA(FM) * 12/1/97
- -----------------------------------------------------------------------------------------
License for Auxiliary Antenna KZLA(FM) * 12/l/97
=========================================================================================
</TABLE>
- -------------
* Confirmation Pending
23
<PAGE> 206
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KZLA(FM), LOS ANGELES, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WLF-542 * 12/l/97
- -----------------------------------------------------------------------------------------
POFMS WLF-835 * 6/l/98
=========================================================================================
</TABLE>
KABL(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KABL(AM), OAKLAND, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KABL(AM) * 12/1/97
=========================================================================================
</TABLE>
KBGG(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KBGG(FM), SAN FRANCISCO, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KBGG(FM) * 12/l/97
- -----------------------------------------------------------------------------------------
FM Booster (Walnut Creek) KABL(FM1) * 12/l/97
- -----------------------------------------------------------------------------------------
FM Booster (Pleasanton) KABL(FM2) * 12/l/97
- -----------------------------------------------------------------------------------------
Construction Permit for FM KBGG(FM1) * 1/20/97
Booster (Concord)
- -----------------------------------------------------------------------------------------
Remote Pickup-Base KOS-332 * 12/l/97
- -----------------------------------------------------------------------------------------
Remote Pickup-Base/Mobile KRS-519 * 12/l/97
- -----------------------------------------------------------------------------------------
Aural STL KVB-60 * 12/l/97
- -----------------------------------------------------------------------------------------
Aural later-City Relay WLP-333 * 12/l/97
=========================================================================================
</TABLE> f
- ------------
* Confirmation Pending
24
<PAGE> 207
KNEW(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KNEW(AM), OAKLAND, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KNEW(AM) * 12/l/97
=========================================================================================
</TABLE>
KSAN(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KSAN(FM), SAN FRANCISCO, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KSAN(FM) * 12/l/97
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KSAN(FM), SAN FRANCISCO, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
FM Booster KSAN(FM1) * 12/l/97
- -----------------------------------------------------------------------------------------
Aural STL WCY-22 * 12/l/97
- -----------------------------------------------------------------------------------------
Aural STL WLD-656 * 12/l/97
=========================================================================================
</TABLE>
- ----------------
* Confirmation Pending
25
<PAGE> 208
KFAN(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KFAN(AM), MINNEAPOLIS, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
License Application Pending KFAN(AM) BL-940802AF Renewal
Pending
- -----------------------------------------------------------------------------------------
Construction Permit Pending KFAN BP-940802A-C
=========================================================================================
</TABLE>
KFEY(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KEEY(FM), MINNEAPOLIS, MINNESOTA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KEEY(FM) * 4/l/2005
- ------------------------------------------------------------------------------------------
Auxiliary Antenna KEEY(AM) * Renewal
Pending
- ------------------------------------------------------------------------------------------
Remote Pickup-Mobile KA-74989 * Renewal
Pending
- ------------------------------------------------------------------------------------------
Aural STL W-G-247 * Renewal
Pending
- ------------------------------------------------------------------------------------------
Remote Pickup-Mobile KK-7690 * Renewal
Pending
- ------------------------------------------------------------------------------------------
RP Automatic Relay KGJ-999 * Renewal
Pending
- ------------------------------------------------------------------------------------------
Auxiliary KPF-980 * Renewal
Pending
- ------------------------------------------------------------------------------------------
Remote Pickup-Base/Mobile KFZ-941 * Renewal
Pending
=========================================================================================
</TABLE>
- ---------------
* Confirmation Pending
26
<PAGE> 209
WHTZ(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WHTZ(FM), NEW YORK, NEW YORK
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station license WHTZ(FM) * 6/l/98
- -----------------------------------------------------------------------------------------
Auxiliary Antenna (application to WHTZ(FM) BMLH-941114KH 6/l/98
modify license pending)
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WHTZ(FM), NEW YORK, NEW YORK
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Aural STL WLF-541 * 6/l/98
- -----------------------------------------------------------------------------------------
POFMS WNEG-653 * 6/2/98
- -----------------------------------------------------------------------------------------
POFMS WNEI-922 * 6/2/98
=========================================================================================
</TABLE>
WFOX(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WFOX(FM), GAINESVILLE, GEORGIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WFOX(FM) * 4/01/2004
=========================================================================================
</TABLE>
- -----------------
* Confirmation Pending
27
<PAGE> 210
WOMX(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WOMX(FM), ORLANDO, FLORIDA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WOMX(FM) * 2/01/2003
=========================================================================================
</TABLE>
WXXL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WJHM(FM), DAYTONA BEACH, FLORIDA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WJHM(FM) * 2/01/2003
=========================================================================================
</TABLE>
WXXL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION (FM), LEESBURG, FLORIDA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WXXL(FM) * 2/01/2003
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATION ASSOCIATED WITH
WXXL(FM) LEESBURG, FLORIDA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Auxiliary License WHB-992 * 2/01/2003
- -----------------------------------------------------------------------------------------
Auxiliary license WLJ-566 * 2/01/2003
- -----------------------------------------------------------------------------------------
Auxiliary License KB-55884 * 2/01/2003
=========================================================================================
</TABLE>
PART C. WLIT INC.
- -------------
* Confirmation Pending
28
<PAGE> 211
WLIT(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WLIT (FM), CHICAGO, ILLINOIS
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License WLIT(FM) 12/01/2004
=========================================================================================
</TABLE>
PART D. KIBB INC.
KIBB(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KIBB(FM), LOS ANGELES, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KIBB(FM) * 12/01/97
- -----------------------------------------------------------------------------------------
FM Translator K261AB * 12/01/97
- -----------------------------------------------------------------------------------------
FM Translator (Renewal) BRFT61126YS 12/01/97
- -----------------------------------------------------------------------------------------
License to cover BLH961210KA 12/01/97
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KIBB(FM), LOS ANGELES, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
KSZ-63 * 12/01/97
=========================================================================================
</TABLE>
- -----------
* Confirmation Pending
29
<PAGE> 212
PART E. KYSR INC.
KYSR AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KYSR(FM), LOS ANGELES, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KYSR(FM) * 12/01/97
- -----------------------------------------------------------------------------------------
Commercial Paging SCA 2574-CD-P/ML-01-
95
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KYSR(FM), LOS ANGELES, CALIFORNIA
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
WHY-988 * 12/01/97
=========================================================================================
</TABLE>
- ----------
* Confirmation Pending
30
<PAGE> 213
PART F. SHAMROCK BROADCASTING LICENSES OF DENVER, INC.
KIMN(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION (FW), DENVER, COLORADO
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KIMN(FM) * Renewal
Pending
=========================================================================================
</TABLE>
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KIMN(FM) DENVER, COLORADO
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
FM Booster KIMN-FM(1) * Renewal
Pending
- -----------------------------------------------------------------------------------------
Auxiliary License WCD-984 * Renewal
Pending
=========================================================================================
</TABLE>
KALC(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KALC(FM), DENVER, COLORADO
<TABLE>
<CAPTION>
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
<S> <C> <C> <C> <C>
Main Station License KALC(FM) * Renewal
Pending
=========================================================================================
</TABLE>
- ---------------------
* Confirmation Pending
<PAGE> 214
SCHEDULE V
INSURANCE
(See Attached)
<PAGE> 215
ISSUE DATE (MM/DD/YY)
[ACORD LOGO] CERTIFICATE OF INSURANCE [ ] 6/24/97
<TABLE>
<CAPTION>
PRODUCER -------------------------------------------
<S> <C>
THIS CERTIFICATE IS USED AS A MATTER OF
Aon Risk Services of MO, Inc. INFORMATION ONLY AND CONFERS NO RIGHTS UPON
8182 Maryland Avenue THE CERTIFICATE HOLDER. THIS CERTIFICATE
St. Louis, MO 63105 DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE
Contact: Mark Smith AFFORDED BY THE POLICIES BELOW.
314-721-5100 --------------------------------------------
COMPANIES AFFORDING COVERAGE
--------------------------------------------
- ---------------------------------- COMPANY
INSURED LETTER A Federal Insurance Company
--------------------------------------------
Chancellor Broadcasting Co. COMPANY
Attn: Eric Neumann LETTER B Westchester Fire Ins. Co.
12655 N. Central Expwy, #405 --------------------------------------------
Dallas COMPANY
TX 75243 LETTER C National Casualty Company
--------------------------------------------
- ---------------------------------- COMPANY
LETTER D
--------------------------------------------
COMPANY
LETTER E
--------------------------------------------
</TABLE>
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED
TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT
TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED
BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND
CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
O6 POLICY EFFECTIVE POLICY EXPIRATION
LTR TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
GENERAL LIABILITY
A [X] COMMERCIAL GENERAL LIABILITY 73210058 4/01/97 4/01/98
[ ][ ] CLAIMS MADE [X] OCCUR.
[ ] OWNER'S & CONTRACTOR'S PROT.
[ ]
---------------------------
- --------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
A [X] ANY AUTO 73210057 4/01/97 4/01/98
[ ] ALL OWNED AUTOS
[ ] SCHEDULED AUTOS 73210059 (TX) 4/01/97 4/01/98
[X] HIRED AUTOS
[X] NON-OWNED AUTOS COMP. - $500 DEDUCT.
[ ] GARAGE LIABILITY
[ ] COLL. - $500 DEDUCT.
- --------------------------------------------------------------------------------------------
EXCESS LIABILITY
B [X] UMBRELLA FORM CUA1036790 4/01/97 4/01/98
[ ] OTHER THAN UMBRELLA FORM
- --------------------------------------------------------------------------------------------
WORKER'S COMPENSATION
A AND 71632579 4/01/97 4/01/98
EMPLOYERS' LIABILITY
- --------------------------------------------------------------------------------------------
OTHER
C Broadcasters Liab. LS741225C 12/01/96 12/01/97
- --------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
06
LTR LIMITS
- --------------------------------------------------------------------------------------------
<S> <C> <C>
GENERAL LIABILITY GENERAL AGGREGATE $ 2,000,000
--------------------------------------------------------
PRODUCTS-COMP/OP AGG. $ 1,000,000
--------------------------------------------------------
PERSONAL & ADV. INJURY $ 1,000,000
--------------------------------------------------------
EACH OCCURRENCE $ 1,000,000
--------------------------------------------------------
FIRE DAMAGE (Any one fire) $ 1,000,000
--------------------------------------------------------
MED. EXPENSE (Any one person) $ 10,000
- --------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY COMBINED SINGLE
LIMIT $ 1,000,000
--------------------------------------------------------
BODILY INJURY
(Per person)
--------------------------------------------------------
BODILY INJURY
(Per accident)
--------------------------------------------------------
PROPERTY DAMAGE
- --------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH OCCURRENCE $ 5,000,000
--------------------------------------------------------
AGGREGATE $ 5,000,000
--------------------------------------------------------
- --------------------------------------------------------------------------------------------
WORKER'S COMPENSATION [ ] STATUTORY LIMITS
AND --------------------------------------------------------
EMPLOYERS' LIABILITY EACH ACCIDENT $ 1,000,000
--------------------------------------------------------
DISEASE-POLICY LIMIT $ 1,000,000
--------------------------------------------------------
DISEASE-EACH EMPLOYEE $ 1,000,000
- --------------------------------------------------------------------------------------------
OTHER $2,000,000 Ea. Loss
- --------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
Certificate Holder is added as an additional insured with respects to their
financial interest in the acquisition of four (4) Viacom stations.
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
CERTIFICATE HOLDER CANCELLATION
<S> <C>
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES
BE CANCELLED BEFORE THE EXPIRATION DATE
THEREOF, THE ISSUING COMPANY WILL ENDEAVOR
TO MAIL 30 DAYS WRITTEN NOTICE TO THE
Bankers Trust Company, as CERTIFICATE HOLDER NAMED TO THE LEFT, BUT
Managing Agent and Arranger FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO
130 Liberty Street OBLIGATION OR LIABILITY OF ANY KIND UPON
New York, NY 10006 THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
</TABLE>
AUTHORIZED REPRESENTATIVE
/s/ J. CURTIS ENGLER 730080009
<PAGE> 216
DATE (MM/DD/YY)
[ACORD LOGO] EVIDENCE OF PROPERTY INSURANCE [ ] 6/25/97
THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED,
IS IN FORCE, AND CONVEYS ALL THE RIGHTS AND PRIVILEGES AFFORDED UNDER
THE POLICY.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
PRODUCER COMPANY
<S> <C>
Aon Risk Services of MO Lexington Insurance Co. (DE)
8182 Maryland Avenue American International Group
St. Louis, MO 63105 100 Summer Street
Boston, MA 02110
314-721-5100
CODE SUB-CODE
</TABLE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
INSURED LOAN NUMBER POLICY NUMBER
<S> <C> <C> <C> <C>
Chancellor Broadcasting Co. 8793049
Attn: Eric Neumann ----------------------------------------------------
12655 N. Central Expwy, #405 EFFECTIVE DATE EXPIRATION DATE CONT. UNTIL
Dallas (MM/DD/YY) (MM/DD/YY) TERMINATED
TX 75243 4/01/97 4/01/98 IF CHECKED [ ]
----------------------------------------------------
THIS REPLACES PRIOR EVIDENCE DATED:
- ---------------------------------------------------------------------------------------------------------- ----
</TABLE>
PROPERTY INFORMATION
LOCATION/DESCRIPTION
Four (4) Viacom stations
- --------------------------------------------------------------------------------
COVERAGE INFORMATION
<TABLE>
<CAPTION>
COVERAGE/PERILS/FORMS AMOUNT OF INSURANCE DEDUCTIBLE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Building, Personal Property, 5,000
Business Interruption
Boiler & Machinery
All Risk including theft
Subject to policy terms,
conditions and exclusions
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
REMARKS (Including Special Conditions)
See attached addendum for policy layering of the Master Property
Program for Hicks, Muse, Tate & Furst $400,000,000 Policy Limit
- --------------------------------------------------------------------------------
CANCELLATION
THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR
EACH POLICY PERIOD. SHOULD THE POLICY BE TERMINATED, THE COMPANY WILL
GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW 30 DAYS WRITTEN NOTICE,
AND WILL SEND NOTIFICATION OF ANY CHANGES TO THE POLICY THAT WOULD
AFFECT THAT INTEREST, IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS
REQUIRED BY LAW.
- --------------------------------------------------------------------------------
ADDITIONAL INTEREST
NAME AND ADDRESS NATURE OF INTEREST
[ ] MORTGAGEE [ ] ADDITIONAL INSURED
Bankers Trust Company, as [X] LOSS PAYEE [ ] (OTHER)
Managing Agent and Arranger ---------
130 Liberty Street
New York NY 10006 ----------------------------------------
SIGNATURE OF AUTHORIZED AGENT OF COMPANY
/s/ J. CURTIS ENGLE 730090 9
ACORD 27 (2/88) ACORD CORPORATION 1988
<PAGE> 217
SCHEDULE VI
EXISTING LIENS
I. Shamrock Broadcasting, Inc.
<TABLE>
<CAPTION>
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- --------------------------
<S> <C> <C> <C>
ARIZONA: SOS 827154 4/12/95 AT&T
CALIFORNIA: SOS 86232680 9/15/86 Leasing Service Corp.
cont. 6/17/91
86321096 12/26/86 Leasing Service Corp.
cont. 9/9/91
9514660807 5/25/95 The Bennett Funding Group, Inc.
9529360805 10/18/95 Orix USA Corp.
MICHIGAN: SOS B846160 9/16/86 Leasing Service Corporation
cont. 6/17/91
C490755
TEXAS: SOS 86271373 9/16/86 Leasing Service Corporation
cont. 6/17/91
50102704
87037353 2/9/87 Credit Alliance Corporation
cont. 11/4/91
50172087
94102637 5/23/94 Southwestern Bell
Telecommunications, Inc.
</TABLE>
II. Chancellor Radio Broadcasting Company(1)
<TABLE>
<CAPTION>
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- ------------------------------
<S> <C> <C> <C>
ARIZONA: SOS 896146 5/2/96 Advanta Business Services Corp.
amendment 9/12/96
</TABLE>
- -------------------------
1. Radio 95 of Phoenix Limited Partnership is currently the debtor.
<PAGE> 218
III. KIBB Inc.
<TABLE>
<CAPTION>
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- -------------
<S> <C> <C> <C>
None
</TABLE>
IV. KYSR Inc.
<TABLE>
<CAPTION>
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- -------------
<S> <C> <C> <C>
CALIFORNIA: SOS 93049234(2) 3/10/93 Westlake Audit, Inc.
</TABLE>
V. WLIT Inc.
<TABLE>
<CAPTION>
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- -------------
<S> <C> <C> <C>
ILLINOIS: SOS 3075856(3) 1/21/93 Ameritech Credit Corporation
</TABLE>
VI. WDRQ Inc.
<TABLE>
<CAPTION>
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- -------------
<S> <C> <C> <C>
None
</TABLE>
- -------------------------
2. Debtor has satisfied all obligations in connection with the Equipment
secured by the UCC-1. UCC-3 to be provided by Secured Party.
3. Viacom International Inc. is currently the Debtor.
<PAGE> 219
SCHEDULE VII
EXISTING INDEBTEDNESS
1. Acquisition of the transmitter tower and transmitter site of WKYN-AM.
<PAGE> 220
ANNEX 5.07
1. Indecency compliant has been lodged with the FCC against Station KALC
(FM) Denver, Colorado. This complaint has not advanced to a stage
where the licensee has an opportunity to review and respond to the
allegations.
2. WXXI Public Broadcasting Council filed with the FCC a Petition for
Issuance of Order to Show Cause ("Petition") against radio station
WALK (AM), Patchogue, New York, seeking to reduce the nighttime power
of that station from 102 watts to 41.8 watts.
3. Station KFAN (AM), Minneapolis, Minnesota is operating under an STA
with parameters at variance pending completion of adjustments to its
directional antenna pattern.
4. The tower for Station WUBE (AM), Cincinnati, Ohio was constructed at a
location that varies slightly from the coordinates specified in its
license. This was discovered in connection with the FCC's tower
registration process and appropriate applications have been filed with
the FCC to correct this discrepancy.
5. The towers for Stations KISO, Phoenix, Arizona and WFOX, Gainsville,
Georgia have been constructed at locations varying slightly from the
coordinates in their licenses. This was discovered in connection with
the FCC's tower registration process. Applications correcting these
discrepancies have not yet been filed.
<PAGE> 221
12655 North Central Expwy. CHANCELLOR RADIO BROADCASTING
Suite 405 COMPANY
Dallas, TX 75243
By /s/JACQUES KERREST
-----------------------------
Jacques Kerrest
with a copy to: Senior Vice President
Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Thomas 0. Hicks,
John R. Muse,
Jack D. Furst and
Lawrence D. Stuart, Jr.
Telephone: (214) 740-7300
Telecopy: (214) 740-7313
and
Hicks, Muse, Tate & Furst
Incorporated
1325 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Mr. Charles W. Tate
Telephone: (212) 424-1400
Telecopy: (212) 424-1450
<PAGE> 222
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
12655 North Central Expwy. CHANCELLOR BROADCASTING COMPANY
Suite 405
Dallas, TX 75243
By /s/ JACQUES KERREST
--------------------------------
Jacques Kerrest
with a copy to: Senior Vice President
Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Thomas 0. Hicks,
John R. Muse,
Jack D. Furst and
Lawrence D. Stuart, Jr.
Telephone: (214) 740-7300
Telecopy: (214) 740-7313
and
Hicks, Muse, Tate & Furst
Incorporated
1325 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Mr. Charles W. Tate
Telephone: (212) 424-1400
Telecopy: (212) 424-1450
<PAGE> 223
130 Liberty Street BANKERS TRUST COMPANY,
Individually and as Managing Agent
New York, New York 10006
Tel: (212) 250-7188
Fax: (212) 250-7218
Attention: Thomas P. Prior By /s/ MARY KAY COYLE
-----------------------------------
Name: Mary Kay Coyle
Title: Managing Director
<PAGE> 224
KZH-ING-1 CORPORATION
By: /s/ ROBERT GOODWIN
-----------------------------------
Name: Robert Goodwin
Title: Authorized Agent
<PAGE> 225
CAISSE NATIONALE DE CREDIT
AGRICOLE
By: /s/ ILLEGIBLE
-----------------------------------
Name:
Title:
<PAGE> 226
SOCIETE GENERALE
By: /s/ MARK VIGIL
-----------------------------------
Name: Mark Vigil
Title: Vice President
<PAGE> 227
SOCIETE GENERALE
By: /s/ CHRISTOPHER J. SPELTZ
-----------------------------------
Name: Christopher J. Speltz
Title: V.P. and Manager
<PAGE> 228
FLEET BANK, N.A.
By: /s/ ALLISON KING
-----------------------------------
Name: Allison King
Title: Banking Officer
<PAGE> 229
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: /s/ ANTHONY R. CLEMENTE
-----------------------------------
Name: Anthony R. Clemente
Title: Authorized Signatory
<PAGE> 230
FIRST UNION NATIONAL BANK
By: /s/ BRUCE W. LOFTIN
-----------------------------------
Name: Bruce W. Loftin
Title: Senior Vice President
<PAGE> 231
31 West 52nd Street TORONTO DOMINION (TEXAS), INC.,
New York, New York 10019 Individually and as Syndication Agent
Tel: (212) 468-0300
Attention: Tom Westdyk
By: /s/ DARLENE REIDEL
-----------------------------------
Name: Darlene Reidel
Title: Vice President
<PAGE> 232
HELLER FINANCIAL, INC.
By: /s/ PATRICK HAYES
-----------------------------------
Name: Patrick Hayes
Title: Vice President
<PAGE> 233
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/ JEFFREY COLE
-----------------------------------
Name: Jeffrey Cole
Title: Senior Vice President
<PAGE> 234
BANK OF AMERICA NATTIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ MATTHEW J. KOENIG
-----------------------------------
Name: Matthew J. Koenig
Title: Vice President
<PAGE> 235
85 Broad Street GOLDMAN SACHS CREDIT PARTNERS L.P.,
New York, New York 10004 Individually and as Documentation Agent
Tel: (212) 902-1608
Fax: (212) 346-3552
Attention: Ed Forst By:
-----------------------------------
Name:
Title:
901 Main Street -- 64th Floor NATIONSBANK OF TEXAS, N.A.,
Dallas, Texas 75202 Individually and as Syndication Agent
Tel: (214) 508-2752
Fax: (214) 508-9390 By: /s/ JENNIFER F. ZYDNEY
Attention: Jennifer Zydney -----------------------------------
Name: Jennifer F. Zydney
Title: Vice President
<PAGE> 236
THE BANK OF NOVA SCOTIA
By: /s/ MARGOT C. BRIGHT
-----------------------------------
Name: Margot C. Bright
Title: Authorized Signatory
<PAGE> 237
THE FUJI BANK, LIMITED
By: /s/ PHILIP C. LAUINGER III
-----------------------------------
Name: Philip C. Lauinger III
Title: Vice President & Manager
<PAGE> 238
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: /s/ KEVIN DOOLEY
----------------------
Name: Kevin Dooley
Title: Vice President
/s/ WILLIAM C. MAIER
----------------------
William C. Maier
VP-Group Manager
<PAGE> 239
BANKBOSTON, N.A.
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Director
<PAGE> 240
ABN AMRO Bank N.V. Houston Agency
By: /s/ LAURIE C. TUZO
-----------------------------------
Name: Laurie C. Tuzo
Title: Group Vice President
By: /s/ DIEGO PUIGGARI
-----------------------------------
Name: Diego Puiggari
Title: Vice President
<PAGE> 241
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ KATHLEEN A. ZARN
-----------------------------------
Name: Kathleen A. Zarn
Title: Vice President
<PAGE> 242
UNION BANK OF CALIFORNIA, N.A.
By: /s/ BRYAN G. PETERMANN
-----------------------------------
Name: Bryan G. Petermann
Title: Vice President
SCHEDULE I
<PAGE> 243
PARIBAS CAPITAL FUNDING LLC
By: /s/ [ILLEGIBLE]
-----------------------------------
Name:
Title:
<PAGE> 244
BARCLAYS BANK PLC
By: /s/ LES BEK
-----------------------------------
Name: Les Bek
Title: Director
<PAGE> 245
CITIBANK, N.A.
By: /s/ HANS L. CHRISTENSEN
-----------------------------------
Name: Hans L. Christensen
Title: Vice President
<PAGE> 246
CORESTATES BANK, N.A.
By: /s/ DOUGLAS E. BLACKMAN
-----------------------------------
Name: Douglas E. Blackman
Title: Vice President
<PAGE> 247
85 Broad Street GOLDMAN SACHS CREDIT PARTNERS L.P.,
New York, New York 10004 Individually and as Documentation Agent
Tel: (212) 902-1608
Fax: (212) 346-3552
Attention: Ed Forst By: /s/ STEPHEN J. MCGUINNESS
-----------------------------------
Name: Stephen J. McGuinness
Title: Authorized Signatory
<PAGE> 248
MELLON BANK, N.A.
By: /s/ STEPHEN D. LACKEY
-----------------------------------
Name: Stephen D. Lackey
Title: Senior Vice President
<PAGE> 249
THE BANK OF NEW YORK
By: /s/ JOSEPH P. MATTEO
-----------------------------------
Name: Joseph P. Matteo
Title: Vice President
Re: Chancellor 6/26/97
Agreements
<PAGE> 250
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ PATRICIA LORET DE MOLA
-----------------------------------
Name: Patricia Loret de Mola
Title: Senior Vice President
<PAGE> 251
BANQUE PARIBAS
By: /s/ JOHN G. ACKER
-----------------------------------
Name: John G. Acker
Title: Group Vice President,
Media Group
By: /s/ TOM G. BRANDT
-----------------------------------
Name: Tom G. Brandt
Title: Vice President, Media Group
<PAGE> 252
OCTAGON CREDIT INVESTORS LAON
PORTFOLIO (a unit of The Chase
Manhattan Bank)
By: /s/ ANDREW D. GORDON
-----------------------------------
Name: Andrew D. Gordon
Title: Managing Director
<PAGE> 253
THE LONG TERM CREDIT BANK OF
JAPAN, LIMITED
By: /s/ JOHN J. SULLIVAN
-----------------------------------
Name: John J. Sullivan
Title: Joint General Manager
<PAGE> 254
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of
First Allmerica Financial Life
Insurance Company
By: /s/ JOHN W. FRASER
-----------------------------------
Name: John W. Fraser
Title: Managing Director
<PAGE> 255
CREDIT SUISSE FIRST BOSTON
By: /s/ TODD C. MORGAN
-----------------------------------
Name: Todd C. Morgan
Title: Vice President
By: /s/ JUDITH E. SMITH
-----------------------------------
Name: Judith E. Smith
Title: Director
<PAGE> 256
BANK OF MONTREAL
By: /s/ W.T. CALDER
-----------------------------------
Name: W.T. Calder
Title: Director
<PAGE> 257
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
<PAGE> 258
THE DAI ICHI KANGYO BANK, LTD.
NEW YORK BRANCH
By: /s/ KAZUKI SHIMIZU
-----------------------------------
Name: Kazuki Shimizu
Title: Assistant Vice President
<PAGE> 259
MERITA BANK LTD
NEW YORK BRANCH
By: /s/ FRANK MAFFEI
-----------------------------------
Name: Frank Maffei
Title: Vice President
By: /s/ CLIFFORD ABRAMSKY
-----------------------------------
Name: Clifford Abramsky
Title: Vice President
<PAGE> 1
EXHIBIT 10.2
================================================================================
SENIOR CREDIT AGREEMENT
dated as of
June 26, 1997
among
CHANCELLOR BROADCASTING COMPANY,
as Borrower,
THE LENDERS named herein
and
BANKERS TRUST NEW YORK CORPORATION, as Agent
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Heading Page
- ------- ------- ----
<S> <C>
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1.3. Other Definitional Provisions; Anniversaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2 AMOUNT AND TERMS OF BRIDGE LOAN COMMITMENT AND BRIDGE LOAN; NOTES . . . . . . . . . . . . . . . . . . . . 27
2.1. Bridge Loan and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. Bridge Loan Commitment; Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
C. Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
D. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
E. Maturity of Bridge Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
F. Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.2. Interest on the Bridge Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
A. Rate of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
B. Interest Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
C. Post-Maturity Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.3. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.4. Prepayments and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
A. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
B. Manner and Time of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
C. Payments on Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
D. Notation of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.5. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A. Bridge Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
B. Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3 CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.1. Conditions to Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.1. Organization and Good Standing; Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.2. Authorization and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.3. No Conflicts or Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.4. Enforceable Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.5. Properties; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.6. Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.7. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
-i-
<PAGE> 3
<TABLE>
Section Heading Page
- ------- ------- ----
<S> <C>
4.8. No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.9. Compliance with Contracts, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.10. No Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.11. Use of Proceeds; Margin Stock, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.13. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.14. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.15. Government Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.16. Capital Structure and Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.17. Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4.18. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4.19. Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.20. Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.21. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.22. Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.23. Broker's or Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5 AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.1. Financial Statements and Other Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.2. Corporate Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.3. Payment of Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.4. Maintenance of Properties; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.5. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.6. Equal Security for Loan and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.7. Compliance with Laws, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5.8. Maintenance of Accurate Records, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5.9. ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5.10. Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.11 Environmental Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6.1. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6.2. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.3. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.4. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.5. Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.6. Restriction on Fundamental Changes, Asset Purchases or Sales . . . . . . . . . . . . . . . . . . . . . 67
6.7. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries . . . . . . . . . . . . . 68
6.8. Restrictions on Additional Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.9. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.10. Subsidiary Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.11. Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
6.12. Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
</TABLE>
-ii-
<PAGE> 4
<TABLE>
Section Heading Page
- ------- ------- ----
<S> <C>
SECTION 7 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
7.1. Failure To Make Payments When Due . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
7.2. Default in Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.3. Breach of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.4. Breach of Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.5. Other Defaults Under This Agreement or the Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.6. FCC Denial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.7. Involuntary Bankruptcy; Appointment of Custodian, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 74
7.8. Voluntary Bankruptcy; Appointment of Custodian, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.9. Judgments and Attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.10. Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8 THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.1. Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.2. Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.3. Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
8.4. Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
8.5. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
8.6. Nonreliance on Agent and Other Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
8.7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.8. Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.9. Resignation of the Agent; Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 9 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
9.1. Representation of the Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
9.2. Participations in and Assignments or Syndication of the Bridge Loan and Notes . . . . . . . . . . . . . 79
9.3. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
9.4. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
9.5. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.6. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.7. Independence of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.8. Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.10. Survival of Warranties and Certain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.11. Failure or Indulgence Not Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . 85
9.12. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.13. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.14. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.15. Successors and Assigns; Subsequent Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.16. Counterparts; Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
</TABLE>
-iii-
<PAGE> 5
<TABLE>
Section Heading Page
- ------- ------- ----
<S> <C>
9.17. Consent to Jurisdiction; Venue; Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.18. Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.19. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.20. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
9.21. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
9.22. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.23. Replacement of Lenders Under Certain Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . 92
SIGNATURE PAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
A EXISTING LIENS
B EXISTING INVESTMENTS
C INTELLECTUAL PROPERTY
D ENVIRONMENTAL MATTERS
E PERMITS
F EXISTING INDEBTEDNESS
EXHIBITS
I FORM OF BRIDGE NOTE
II FORM OF COMPLIANCE CERTIFICATE
III FORM OF NOTICE OF BORROWING
IV FORM OF OPINION OF WEIL, GOTSHAL & MANGES LLP -
COUNSEL FOR THE COMPANY
V FORM OF OPINION OF CAHILL GORDON & REINDEL - COUNSEL FOR THE LENDER
VI OFFICERS' CERTIFICATE
VII SECRETARY CERTIFICATE
</TABLE>
-iv-
<PAGE> 6
This Senior Credit Agreement is dated as of June 26, 1997, and
entered into by and among CHANCELLOR BROADCASTING COMPANY, a Delaware
corporation (the "Company"), the Lenders named on the signature pages hereto
(collectively, the "Lenders") and Bankers Trust New York Corporation ("Bankers
Trust"), as agent for the Lenders (in such capacity, the "Agent").
RECITALS
WHEREAS, the Company desires that the Lenders extend a senior credit
facility to the Company in connection with the Acquisition (as defined herein);
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereby agree as follows:
SECTION 1 DEFINITIONS
1.1. Certain Defined Terms
The following terms used in this Agreement shall have the following
meanings:
"Acquisition" means the acquisition pursuant to the Acquisition
Agreement by Chancellor of certain subsidiaries of Viacom International Inc.
that own and operate radio broadcast stations in Los Angeles, California,
Chicago, Illinois, and Detroit, Michigan.
"Acquisition Agreement" means the Joint Purchase Agreement dated
February 19, 1997 by and between the Company, Chancellor, Evergreen and
Evergreen L.A. relating to the Acquisition.
"Affiliate," as applied to any Person, means any other Person directly
or indirectly controlling, controlled by or under common control with, that
Person. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as applied to any Person, means (i) the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities or by contract or otherwise, or (ii) the ownership of more than 10%
of the voting securities of that Person; provided that neither Bankers Trust
nor any of its Affiliates shall be treated as an Affiliate of the Company or of
any Subsidiary of the Company.
"Agent" has the meaning ascribed to such term in the introduction to
this Agreement.
<PAGE> 7
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"Agreement" means this Senior Credit Agreement dated as of June 26,
1997, as it may be amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof.
"Amount of Unfunded Benefit Liability" means, with respect to any
Pension Plan, (i) if set forth on the most recent actuarial valuation report
with respect to such Pension Plan, the amount of unfunded benefit liabilities
(as defined in Section 4001(a)(18) of ERISA) and (ii) otherwise, the excess of
(a) the greater of the current liability (as defined in Section 412(l)(7) of
the Internal Revenue Code) or the actuarial present value of the accrued
benefits with respect to such Pension Plan over (b) the market value of the
assets of such Pension Plan.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
lease, assignment, transfer or other disposition for value (including, without
limitation, pursuant to any amalgamation, merger or consolidation or pursuant
to any sale-and-leaseback transaction, but excluding the granting of any Lien),
not including the granting of a Lien, by the Company or by any of its
Subsidiaries to any Person other than the Company or any of its Wholly Owned
Subsidiaries (any such transaction, a "disposition") of (i) any of the stock of
any of the Company's Subsidiaries, (ii) substantially all of the assets of any
division or line of business of the Company or of any of its Subsidiaries or
(iii) any other assets (whether tangible or intangible) of the Company or of
any of its Subsidiaries; excluding any disposition of stock or assets in any
single transaction or related series of transactions the aggregate value of
which is equal to $1,000,000 or less.
"Bank Financing" means the secured loan facilities made available to
Chancellor in the committed amount of $750 million pursuant to the Bank
Financing Documents.
"Bank Financing Document" means the Amended and Restated Credit
Agreement among the Company, Chancellor, various Banks, Goldman Sachs Credit
Partners L.P., as Documentation Agent, NationsBank of Texas, N.A. and Toronto
Dominion (Texas), Inc., as Syndication Agent and Bankers Trust Company, as
Managing Agent and Arranger, dated as of February 14, 1996 and Amended and
Restated as of January 23, 1997 and further Amended and Restated as of July 2,
1997, relating to the Bank Financing and the other related documents executed
in connection therewith, in each case as in effect on the Closing Date.
"Bankers Trust" means Bankers Trust New York Corporation, as Agent for
the Lenders hereunder.
<PAGE> 8
-3-
"Bankruptcy Law" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute or any
other United States federal, state or local law or the law of any other
jurisdiction relating to bankruptcy, insolvency, winding-up, liquidation,
reorganization or relief of debtors, whether in effect on the date hereof or
hereafter.
"Bankruptcy Order" means any court order made in a proceeding pursuant
to or within the meaning of any Bankruptcy Law, containing an adjudication of
bankruptcy or insolvency, or providing for liquidation, winding-up, dissolution
or reorganization, or appointing a custodian of a debtor or of all or any
substantial part of a debtor's property, or providing for the staying,
arrangement, adjustment or composition of indebtedness or other relief of a
debtor.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any duly authorized committee of that Board.
"Borrowing" shall mean the borrowing of a Bridge Loan from all of the
Lenders having a Bridge Loan Commitment on a given date.
"Bridge Commitment Letter" means the letter dated May 30, 1997
governing the commitment of Bankers Trust to provide the Bridge Loan to the
Company.
"Bridge Loan" has the meaning ascribed to such term in Section 2.1A.
"Bridge Loan Commitment" has the meaning ascribed to such term in
Section 2.1A.
"Business Day" means any day excluding Saturday, Sunday and any day
that is a legal holiday under the laws of New York, New York or is a day on
which banking institutions therein located are authorized or required by law or
other governmental action to close.
"Capital Lease," as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is required to be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including,
without limitation, each class of Common Stock and Preferred Stock of such
Person
<PAGE> 9
-4-
and (ii) with respect to any Person that is not a corporation, any and all
partnership or other equity interests of such Person.
"Capitalized Lease Obligation" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebtedness represented by such obligations shall be
the capitalized amount of such obligations determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Moody's Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Corporation or at least P-1 from Moody's
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any U.S. branch of a foreign bank
having at the date of acquisition thereof combined capital and surplus of not
less than $200,000,000; (v) repurchase obligations with a term of not more than
ninety days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(iv) above; and (vi) investments in money market funds that invest
substantially all their assets in securities of the types described in clauses
(i) through (v) above.
"Cash Proceeds" means, with respect to any Asset Sale, cash payments
(including any cash received by way of deferred payment pursuant to, or
amortization of, a note receivable or otherwise but only as and when so
received) received from such Asset Sale.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as the same may be amended from time to time, 42
U.S.C. Section 9601 et seq.
<PAGE> 10
-5-
"Chancellor" means Chancellor Radio Broadcasting Company, a Delaware
corporation and wholly owned subsidiary of the Company.
"Chancellor Broadcasting Licensee" means Chancellor Broadcasting
Licensee Company, a Delaware corporation.
"Chancellor Indentures" means the indenture dated as of February 14,
1996 by and among Chancellor, the guarantor named therein and U.S. Trust
Company of Texas, N.A. as trustee, under which Chancellor's 9 3/8% Senior
Subordinated Notes due 2004 were issued as in effect on the date hereof and the
indenture dated as of June 24, 1997 by and among Chancellor, the guarantors
named therein and U.S. Trust Company of Texas, N.A. as trustee, under which
Chancellor's 8 3/4% Senior Subordinated Notes due 2007 were issued as in effect
on the date hereof.
"Chancellor Media" means Chancellor Media Corporation as the survivor
of the Evergreen Merger.
"Change of Control" means (i) the Company shall cease to own
beneficially 100% of the capital stock (other than the Series A Exchangeable
Preferred Stock and the Exchangeable Preferred Stock) of Chancellor, or
Chancellor or a Wholly Owned Subsidiary of the Company shall cease to own
beneficially 100% of the capital stock of the Chancellor Broadcasting Licensee,
(ii) for any reason whatsoever any "Person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), excluding HM Group, is or
becomes the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than the greater of (x) 15%
of the then outstanding Voting Stock of the Company or (y) the percentage of
the then outstanding Voting Stock of the Company owned beneficially by the HM
Group, (iii) the Board of Directors of the Company shall cease to consist of a
majority of Continuing Directors, (iv) a "Change of Control" under and as
defined in the Series A Exchangeable Preferred Stock Documents, the
Exchangeable Preferred Stock Documents or after any issuance thereof, the
12-1/4% Junior Exchange Debentures or 12% Junior Exchange Debentures shall have
occurred or (v) the Evergreen Transaction shall have been consummated.
"Change of Control Date" has the meaning ascribed to such term in
Section 2.4A(iv).
"Change of Control Offer" has the meaning ascribed to such term in
Section 2.4A(iv).
"Closing Date" means July 2, 1997.
"Commission" means the Securities and Exchange Commission.
<PAGE> 11
-6-
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of, such Person's common stock, whether outstanding on
the Closing Date or issued after the Closing Date, and includes, without
limitation, all series and classes of such common stock.
"Communications Act" means the Communications Act of 1934, as amended,
and any successor statute.
"Company" has the meaning ascribed to such term in the introduction to
this Agreement.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit II delivered to the Agent by the Company pursuant to Section
5.1(vi)(b).
"Contested Claim" means any Tax, Indebtedness or other claim or
liability (i) the validity or amount of which is being diligently contested in
good faith, (ii) for which adequate reserve, or other appropriate provision, if
any, as required in conformity with GAAP shall have been made and (iii) with
respect to which any right to execute upon or sell any assets of the Company or
of any of its Subsidiaries has not matured or has been and continues to be
effectively enjoined, superseded or stayed.
"Contingent Obligation," as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or
as to which that Person is otherwise liable for reimbursement of drawings or
(iii) under Interest Rate Agreements and Currency Agreements. Contingent
Obligations shall include, without limitation, (a) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by
any other party or parties to an agreement, and (c) any liability of such
Person for the obligation of another through any agreement (contingent or
otherwise) (X) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or dis-
<PAGE> 12
-7-
charge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (Y) to maintain the solvency
or any balance sheet item, level of income or financial condition of another
if, in the case of any agreement described under subclauses (X) or (Y) of this
sentence, the primary purpose or intent thereof is as described in the
preceding sentence, provided, however, that the term "Contingent Obligation"
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
equal to the amount of the obligation so guaranteed or otherwise supported or,
if less, the maximum reasonably anticipated liability in respect thereto
(assuming the primary obligor is required to perform thereunder) as determined
in good faith.
"Continuing Director" means, as of the date of determination, any
Person who (i) was a member of the Board of Directors of the Company on the
Closing Date, (ii) was nominated for election or elected to the Board of
Directors of the Company with the affirmative vote of a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination or election or (iii) is a member of the HM Group.
"Contractual Obligation," as applied to any Person, means any
provision of any Securities issued by that Person or of any indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument
to which that Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject.
"Controlled Group" means (i) a controlled group of corporations as
defined in Section 1563(a) of the Internal Revenue Code or (ii) a group of
trades or businesses under common control, as defined in Section 414(c) of the
Internal Revenue Code, of which the Company is a part or becomes a part.
"Covered Taxes" shall have the meaning ascribed to such term in
Section 9.19.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement designed to protect the Company against
fluctuations in currency values.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, sequestrator or similar official
charged with maintaining possession or control over property for one or more
creditors, whether under any Bankruptcy Law or otherwise.
<PAGE> 13
-8-
"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Dinetz" means Mr. Steven Dinetz.
"Disqualified Capital Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event (other than an
event that would constitute a Change of Control), (i) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the sole option of the holder thereof (except upon the occurrence
of a Change of Control), in whole or in part, on or prior to the final maturity
date of the Notes or (ii) is convertible into or exchangeable for (at the
option of the holder thereof) (a) debt securities or (b) any Capital Stock
referred to in (i) above, in each case at any time prior to the final maturity
of the Notes; provided that only the portion of Capital Stock that so matures
or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such final maturity
date shall be deemed to be Disqualified Capital Stock.
"Dollars" or the sign "$" means the lawful money of the United States
of America.
"Eligible Assignee" means (A) (i) a commercial bank organized under
the laws of the United States of America or any state thereof; (ii) a savings
and loan association or savings bank organized under the laws of the United
States or any state thereof; (iii) a commercial bank organized under the laws
of any other country or a political subdivision thereof; provided that (x) such
bank is acting through a branch or agency located in the United States or (y)
such bank is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity that is an "accredited
investor" (as defined in Regulation D under the Securities Act of 1933) that
extends credit or buys loans as one of its businesses, including, but not
limited to, insurance companies, mutual funds and lease financing companies, in
each case (under clauses (i) through (iv) above) that is reasonably acceptable
to the Company and the Agent; and (B) the Lenders and any Affiliate of the
Lenders.
"EMHC" means Evergreen Mezzanine Holdings Corporation, a Delaware
corporation and wholly owned subsidiary of Evergreen.
"Employee Benefit Plan" means any "employee benefit plan" as defined
in Section 3(3) of ERISA (i) that is, or, at any time within the five calendar
years immediately preceding
<PAGE> 14
-9-
the date hereof, was at any time, maintained or contributed to by the Company
or Chancellor or any of their respective ERISA Affiliates or (ii) with respect
to which the Company or its Subsidiaries retains any liability, including any
potential joint and several liability as a result of an affiliation with an
ERISA Affiliate or a party that would be an ERISA Affiliate except for the fact
the affiliation ceased more than five calendar years prior to the date hereof.
"Environmental Claim" means any and all administrative, regulatory or
judicial actions, suits, demand letters, directives, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any way
to any Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (hereafter, "Claims"), including, without limitation,
(a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
(including, without limitation, natural resource damages), cost recovery, or
fines or other penalties pursuant to any applicable Environmental Law, and (b)
and all Claims by any third party seeking damages including, without
limitation, natural resource damages), cost recovery, or fines or other
penalties], contribution, indemnification, cost recovery, compensation,
injunctive relief in connection with alleged injury or threat of injury to
health, safety or the environment due to the presence of Hazardous Materials
(including, without limitation, the emission, discharge, release, threatened
release, use, handling, transportation, storage or disposal of Hazardous
Materials).
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, binding and enforceable
guideline or written policy, and any rule of common law, in the case of each of
the foregoing now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, to the extent such order,
decree or judgment is binding on the Company or Chancellor, relating to the
environment, employee health and safety or Hazardous Material, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act
of 1990, 33 U.S.C. Section 2701 et seq.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section [11001] et seq.; the
Hazardous materials Transportation Act, 49 U.S.C. Section 1801 et seq.; and
the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; (to the
extent it regulates occupational exposure to Hazardous Materials); and any
state or local coun-
<PAGE> 15
-10-
terparts or equivalents, in each case as amended from time to time.
"Environmental Lien" means a Lien in favor of a Tribunal or other
Person (i) for any liability under an Environmental Law or (ii) for damages
arising from or costs incurred by such Tribunal or other Person in response to
a release or threatened release of hazardous or toxic waste, substance or
constituent into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA Affiliate," as applied to any Person, means (i) any corporation
that is, or was at any time within the five calendar years immediately
preceding the date hereof, a member of a controlled group of corporations
within the meaning of Section 414(b) of the Internal Revenue Code of which that
Person is, or was at any time within the five calendar years immediately
preceding the date hereof, a member; (ii) any trade or business (whether or not
incorporated) that is, or was at any time within the five calendar years
immediately preceding the date hereof, a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of the
Internal Revenue Code of which that Person is, or was at any time within the
five calendar years immediately preceding the date hereof, a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is, or was at any time within the five calendar years immediately
preceding the date hereof, a member.
"ERISA Event" means (i) a Reportable Event; (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
required installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of ERISA; (iv)
the withdrawal by the Company or any of its respective ERISA Affiliates from
any Pension Plan with two or more contributing sponsors or the termination of
any such Pension Plan resulting in liability pursuant to Sections 4063 or 4064
of ERISA; (v) the institution by the PBGC of
<PAGE> 16
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proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which might reasonably be expected to constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on the Company or any of its
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by
reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal by
the Company or any of its respective ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor, or the receipt
by the Company or any of its respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an
act or omission that could reasonably be expected to give rise to the
imposition on the Company or any of its respective ERISA Affiliates of material
fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409 or 502(c), (i) or (l) or 4071 of ERISA in
respect of any Employee Benefit Plan; (ix) the assertion of a material claim
(other than routine claims for benefits) against any Employee Benefit Plan
other than a Multiemployer Plan or the assets thereof, or against the Company
or any of its respective ERISA Affiliates in connection with any such Employee
Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the
failure of any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a
material Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue
Code or pursuant to ERISA with respect to any Pension Plan.
"Event of Default" means each of the events set forth in Section 7.
"Evergreen" means Evergreen Media Corporation, a Delaware corporation
and the direct or indirect holding company of Evergreen L.A.
"Evergreen L.A." means Evergreen Media Corporation of Los Angeles, a
Delaware corporation.
"Evergreen Merger" means each of (i) the merger of the Company with
and into EMHC with EMHC as the surviving company and the merger of Chancellor
with and into Evergreen L.A. with Evergreen L.A. as the surviving company,
each pursuant to the Merger Agreement.
<PAGE> 17
-12-
"Evergreen-Viacom Acquisition" means the acquisition by Evergreen of
the radio broadcasting assets of Viacom International Inc. relating to
operations in New York, New York, and Washington, D.C.
"Evergreen-Viacom Acquisition Agreements" has the meaning ascribed to
such term in Section 3.1H.
"Evergreen-Viacom Transactions" means the Evergreen Viacom Acquisition
and the related financing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
"Exchangeable Preferred Stock" shall mean Chancellor's 12%
Exchangeable Preferred Stock due 2009.
"Exchangeable Preferred Stock Documents" shall mean each document
relating to the Exchangeable Preferred Stock (including, without limitation,
the 12% Junior Exchange Debenture Indenture and all documents relating
thereto).
"Facilities" means any and all real property (including, without
limitation, all buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by the Company, its
Subsidiaries or any of their respective predecessors in interest.
"FCC" shall mean the Federal Communications Commission or any
successor thereto.
"Foreign Plans" means any plan, program, policy, arrangement or
agreement maintained or contributed to by, or entered into with, either the
Company or Chancellor with respect to employees employed outside the United
States.
"GAAP" means those generally accepted accounting principles and
practices that are recognized as such by The Financial Accounting Standards
Board and that are consistently applied for all periods after the date hereof
so as to properly reflect the financial conditions, and the results of
operations and changes in financial position, of the Company and its
Subsidiaries, except that any accounting principle or practice changed with
the concurrence of the Company's independent public accountants or required to
be changed in order to continue as a generally accepted accounting principle or
practice may be so changed.
"Hazardous Material" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric
<PAGE> 18
-13-
fluid containing levels of polychlorinated biphenyls, and radon gas, and (b)
any chemicals, materials or substances defined as or included in the definition
of "hazardous substances," "hazardous waste," "hazardous materials," "extremely
hazardous substances," "restricted hazardous waste," "toxic substances," "toxic
pollutants," "contaminants," or "pollutants," or words of similar import, under
any applicable Environmental Law.
"HM Group" shall mean, collectively, (i) Hicks, Muse, Tate & Furst
Incorporated, its Affiliates and Dinetz taken as a whole, (ii) so long as
Hicks, Muse, Tate & Furst Incorporated, its Affiliates and Dinetz taken as a
whole possess sole voting right with respect to the Voting Stock held by each
such individual, such individuals who are or were employees, officers,
directors or partners of Hicks, Muse, Tate & Furst Incorporated or such
Affiliate and the family members of such individuals or trusts created for the
sole benefit of such family members and (iii) so long as Hicks, Muse, Tate &
Furst Incorporated, its Affiliates and Dinetz taken as a whole possess sole
voting right with respect to the Voting Stock of Holdings held by each such
Person, any Person not otherwise described by clauses (i) and (ii) above,
provided that the aggregate number of shares held by all such Persons in
accordance with this clause (iii) at any time shall not exceed 3% of the
aggregate number of shares held by the Persons described in clauses (i) and
(ii) above at such time.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Indebtedness or other obligation on the balance sheet of such
Person (and "Incurrence," "Incurred," "Incurrable" and "Incurring" shall have
meanings correlative to the foregoing); provided that any amendment,
modification or waiver of any document pursuant to which Indebtedness was
previously Incurred shall only be deemed to be an Incurrence of Indebtedness if
and to the extent such amendment, modification or waiver (i) increases the
principal thereof or interest rate or premium payable thereon or (ii) changes
to an earlier date the stated maturity thereof or accelerates the time within
which such Indebtedness shall be redeemed other then in connection with a
Permitted Refinancing; provided, further, that any Indebtedness of a Person
existing at the time such Person becomes a Subsidiary of the Company (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Subsidiary at the time it becomes a Subsidiary of the Company.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness, obligations and li-
<PAGE> 19
-14-
abilities of such Person for borrowed money, (ii) that portion of obligations
with respect to Capital Leases that is properly classified as a liability on a
balance sheet of such Person in conformity with GAAP, (iii) notes payable and
drafts accepted representing extensions of credit, whether or not representing
obligations for borrowed money, of such Person, (iv) any indebtedness,
obligation or liability of such Person owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA), which purchase price is (a) due more than six months (or a longer
period of up to one year, if such terms are available from suppliers in the
ordinary course of business) from the date of incurrence of the obligation in
respect thereof or (b) evidenced by a note or similar written instrument, (v)
all indebtedness, obligations and liabilities secured by any Lien on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person, except that "Indebtedness" shall not
include trade payables and accrued liabilities incurred in the ordinary course
of business for the purchase of goods or services that are not secured by a
Lien other than Liens permitted under Section 6.2 and obligations under
Interest Rate Agreements and Currency Agreements (which constitute Contingent
Obligations, not Indebtedness), (vi) guarantees of such Person in respect of
Indebtedness of other Persons and (vii) all Disqualified Capital Stock issued
by such Person with the amount of Indebtedness represented by such Disqualified
Capital Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but excluding
accrued dividends, if any. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Capital Stock that does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to this
Agreement, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value to be
determined reasonably and in good faith by the board of directors of the issuer
of such Disqualified Capital Stock.
"Indemnified Liabilities" has the meaning ascribed to such term in
Section 9.4.
"Indemnitees" has the meaning ascribed to such term in Section 9.4.
"Independent Financial Advisor" means a firm (i) that does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company or its Subsidiaries and (ii) that,
in the judg-
<PAGE> 20
-15-
ment of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of the Company and its Subsidiaries as currently
conducted or as proposed to be conducted that are material to the condition
(financial or otherwise), business, operations or prospects of the Company and
its Subsidiaries, taken as a whole.
"Intercompany Indebtedness" means any Indebtedness of the Company or
any Subsidiary of the Company that, in the case of the Company, is owing to any
Wholly Owned Subsidiary of the Company and that, in the case of any such
Subsidiary, is owing to the Company or any Wholly Owned Subsidiary of the
Company; provided that if as of any date any Person other than the Company or a
Wholly Owned Subsidiary of the Company owns or holds such Indebtedness, or
holds any Lien in respect thereof, such Indebtedness shall no longer be
Intercompany Indebtedness permitted to be Incurred pursuant to Section 6.1(iv).
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect Company or any of its Subsidiaries
against fluctuations in interest rates.
"Interest Rate Determination Date" means, with respect to any
Quarterly Period, the second Business Day on which banks in New York and London
are open prior to the first Business Day of such Quarterly Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor code or statute.
"Investment" means (i) any direct or indirect purchase or other
acquisition of, or of a beneficial interest in, any Securities of any other
Person or (ii) any direct or indirect loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business), extension of credit
or capital contribution to any other Person, including all indebtedness and
accounts receivable from that other Person that are not current assets or did
not arise from sales to that other Person in the ordinary course of business.
The amount of any Investment shall be the original cost of such Investment plus
the cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment.
<PAGE> 21
-16-
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that, as to any such arrangement in corporate form, such corporation shall not,
as to any Person of which such corporation is a Subsidiary, be considered to be
a Joint Venture to which such Person is a party.
"Judgment Currency" shall have the meaning ascribed to such term in
Section 9.22.
"Laws" means all applicable statutes, laws, ordinances, regulations,
rules, orders, judgments, writs, injunctions or decrees of any state,
commonwealth, nation, territory, possession, province, county, parish, town,
township, village, municipality or Tribunal, and "Law" means each of the
foregoing.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing or (ii) a
Lender having notified in writing the Borrower and/or the Agent that it does
not intend to comply with its obligations under Section 2.1A as a result of any
takeover of such Lender by any regulatory authority or agency.
"Lenders" has the meaning ascribed to that term in the introduction to
this Agreement and shall include any assignee of the Bridge Loan, the Notes or
the Bridge Loan Commitment to the extent of such assignment.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LIBOR" means for each Quarterly Period, the rate determined on the
basis of the offered rates for deposits in Dollars for a period of three months
that appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time, on
the Interest Rate Determination Date for such Quarterly Period. If at least
two rates appear on the Reuters Screen LIBO Page, the rate for such Quarterly
Period will be the arithmetic mean of such rates rounded upwards, if necessary,
to the nearest 1/16 of 1%. If fewer than two rates appear on the Reuters
Screen LIBO Page, then such rate shall equal the arithmetic mean (rounded
upward to the nearest 1/16 of 1%) of the interest rates per annum at which
deposits in Dollars for a period of three months are offered by Bankers Trust
or its designees at approximately 11:00
<PAGE> 22
-17-
a.m., London time, on such Interest Rate Determination Date to first class
banks in the London interbank market.
"Litigation" means any action, suit, proceeding, claim, lawsuit and/or
investigation conducted by or before any Tribunal.
"Loan Documents" means this Agreement and the Notes.
"Margin Stock" has the meaning assigned to that term in Regulation U
and Regulation G of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"Material Adverse Change" means a material adverse change in the
business, operations, properties, assets, prospects or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole.
"Material Adverse Effect" means (i) a material adverse effect upon the
business, operations, properties, assets, prospects or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole, or (ii) the
impairment of the ability of the Company and its Subsidiaries, taken as a
whole, to perform, or the impairment of the ability of the Agent or Lenders to
enforce, the Obligations.
"Material Subsidiary" means, with respect to any accounting period,
any Subsidiary of the Company (i) whose revenues constitute greater than 10% of
the aggregate dollar value of the revenues of Company and its Subsidiaries,
taken as a whole, for such accounting period or (ii) the fair market value of
whose assets at any time during such accounting period is greater than 10% of
the fair market value of all of the assets of Company and its Subsidiaries at
such time.
"Maturity Date" has the meaning ascribed to such term in Section 2.1E.
"Maximum Cash Interest Rate" means an interest rate of 18% per annum;
provided that in computing such interest rate, fees paid to the Lenders shall
not be deemed an interest payment.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
February 19, 1997 among Chancellor, the Company, Evergreen and Evergreen L.A.,
as such agreement may be amended, modified or supplemented from time to time.
"Monitoring and Oversight Agreements" has the meaning ascribed to such
term in Section 6.9(iv).
<PAGE> 23
-18-
"Multiemployer Plan" means a Pension Plan that is a "multiemployer
plan" as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to any Asset Sale, (a) Cash
Proceeds of such Asset Sale net of bona fide direct costs of such sale
including, but not limited to, (i) income taxes reasonably estimated to be
actually payable as a result of such Asset Sale within two years of the date of
such Asset Sale, (ii) payment of the outstanding principal amount of, premium
or penalty, if any, and interest on, any Indebtedness that is secured by a Lien
on the stock or assets in question and (iii) reasonable transaction costs
(including, without limitation, an underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses and reasonable expenses incurred for
preparing such assets for sale, associated therewith), and (b) excluding any
portion of any such Cash Proceeds that the Company determines in good faith
should be reserved for post-closing adjustments (to the extent that the Company
delivers to the Lenders a certificate signed by an Officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than
six months following the date of the respective asset sale), the amount (if
any) by which the reserved amount in respect of such sale or disposition
exceeds the actual post-closing adjustments payable by the Company or any of
its Subsidiaries shall constitute Net Cash Proceeds on such date).
"Notes" has the meaning ascribed to such term in Section 2.1D and
shall include any Notes executed in connection with any assignment of the
Bridge Loan, the Notes or the Bridge Loan Commitment, as applicable.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit III with respect to a proposed borrowing.
"Obligations" means all obligations of every nature of the Company
from time to time owed to the Lenders under the Loan Documents, whether for
principal, reimbursements, interest, fees, expenses, indemnities or otherwise,
and whether primary, secondary, direct, indirect, contingent, fixed or
otherwise (including obligations of performance).
"Offer Payment Date" has the meaning ascribed to such term in Section
2.4A(iv).
"Officer" means, as applicable to any corporation, the Chairman of
the Board, the President, any Vice President, the Chief Financial Officer, the
Controller, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of such corporation.
<PAGE> 24
-19-
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by two Officers; provided
that every Officers' Certificate with respect to the compliance with a
condition precedent to the making of the Bridge Loan hereunder shall include
(i) a statement that the officer or officers making or giving such Officers'
Certificate have read such condition and any definitions or other provisions
contained in this Agreement relating thereto, (ii) a statement that, in the
opinion of the signers, they have made or have caused to be made such
examination or investigation as is necessary to enable them to express an
informed opinion as to whether or not such condition has been complied with and
(iii) a statement as to whether, in the opinion of the signers, such condition
has been complied with.
"Original Credit Agreement" shall mean the Credit Agreement dated as
of February 19, 1996 among the Company, Chancellor, the Banks (as defined
therein) from time to time party thereto, and Bankers Trust Company, as
Managing Agent.
"Other Taxes" has the meaning ascribed to such term in Section 9.19.
"Pari Passu Indebtedness" means, with respect to the Company,
Indebtedness that ranks pari passu in right of payment with the Bridge Loan.
"Payment Office" shall mean the office of the Agent located at One
Bankers Trust Plaza, New York, New York 10006 or such other office as the Agent
may designate to the Company and the Lenders from time to time.
"Payment Restriction" has the meaning ascribed to such term in Section
6.7.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor to all or any of the Pension Benefit Guaranty Corporation's functions
under ERISA.
"Pension Plan" means an employee pension benefit plan as defined in
Section 3(2) of ERISA that is subject to the provisions of Title IV of ERISA
and that is maintained for employees of the Company, any Subsidiary of the
Company or any member of the Controlled Group.
"Permits" has the meaning ascribed to such term in Section 4.20.
"Permitted Encumbrances" means (i) Liens existing on the Closing Date
set forth on Schedule A to the extent and in the manner such Liens are in
effect on the Closing Date; (ii) Liens for taxes, assessments or governmental
charges or
<PAGE> 25
-20-
claims the payment of which is not, at the time, required by Section 5.3; (iii)
statutory Liens of landlords and banks and rights of offset, and Liens of
carriers, warehousemen, workmen, repairmen, mechanics and materialmen and other
Liens imposed by law incurred in the ordinary course of business to secure such
Indebtedness; provided, that such Liens (x) do not in the aggregate materially
detract from the value of the Company's or such Subsidiary's property or assets
or materially impair the use thereof in the operation of the business of the
Company or such Subsidiary or (y) are the subject of a Contested Claim; (iv)
Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts, trade
contracts, utility payments, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money); (v) any attachment or judgment Lien not constituting an Event of
Default; (vi) licenses, leases or subleases granted to others not interfering
in any material respect with the ordinary conduct of the business of the
Company and its Subsidiaries, taken as a whole; (vii) easements, rights-of-way,
restrictions, minor defects, encroachments or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with
the ordinary conduct of the business of the Company and its Subsidiaries, taken
as a whole; (viii) any (a) interest or title of a lessor or sublessor, licensee
or licensor under any lease or licenses agreement, (b) restriction or
encumbrance that the interest or title of such lessor or sublessor, licensee or
licensor may be subject to (including without limitation licenses agreements,
ground leases or other prior leases of the demised premises, mortgages,
mechanics' liens, tax liens, and easements), or (c) subordination of the
interest of the lessee or sublessee under such lease to any restrictions or
encumbrance referred to in the preceding clause (b); (ix) Liens arising from
filing UCC financing statements for precautionary purposes relating solely to
true leases of personal property permitted by this Agreement under which the
Company or any of its Subsidiaries is a lessee; (x) any zoning or similar law
or right reserved to or vested in any governmental office or agency to control
or regulate the use of any real property; (xi) Liens securing obligations
(other than obligations representing Indebtedness for borrowed money) under
operating, reciprocal easement or similar agreements entered into in the
ordinary course of business of the Company and its Subsidiaries; (xii) Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person's obligations in respect of bankers' acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods in the ordinary course of business;
(xiii) Liens securing reimbursement obligations
<PAGE> 26
-21-
with respect to letters of credit that encumber documents and other property
relating to such letters of credit and the products and proceeds thereof; (xiv)
Liens encumbering customary initial deposits and margin deposits, and other
Liens incurred in the ordinary course of business that are within the general
parameters customary in the industry, in each case securing Indebtedness under
interest swap obligations and foreign exchange agreements and forward
contracts, option futures contracts, futures options or similar agreements or
arrangements designed to protect the Company or any Subsidiary from
fluctuations in the price of commodities; (xv) Liens arising out of consignment
or similar arrangements for the sale of goods entered into by the Company or
any Subsidiary in the ordinary course of business in accordance with past
practices; (xvi) Liens to secure Permitted Refinancing Indebtedness to the
extent the Indebtedness Refinanced was secured and such Liens do not extend to
any property other than the property that was subject to the Lien under the
Indebtedness being Refinanced; (xvii) licenses of patents, trademarks and other
intellectual property rights granted by the Company or any of its Subsidiaries
in the ordinary course of business and not interfering in any material respect
with the ordinary conduct of the business of the Company or any such
Subsidiary; (xx) statutory, contractual and common law landlords' liens under
leases to which the Company or any of its Subsidiaries is a party; and (xxi)
Liens securing purchase money indebtedness.
"Permitted Holders" means Hicks, Muse, Tate & Furst Incorporated and
its Affiliates.
"Permitted Indebtedness" has the meaning assigned to such term in
Section 6.1.
"Permitted Investments" means (a) Investments in cash and Cash
Equivalents; (b) Investments by the Company or by any Subsidiary of the Company
in any Person that is or will become immediately after such Investment a Wholly
Owned Subsidiary of the Company that has not Incurred (and will not Incur as a
result of or in connection with such transaction) any Indebtedness (other than
Indebtedness permitted to be Incurred by such Subsidiary under Section 6.1);
provided that (x) such Investment shall be a Permitted Investment only for so
long as any such Subsidiary in which the Investment has been made meets the
conditions set forth above and (y) no Investment in any such Person or
Subsidiary (including any transaction pursuant to which any Person becomes a
Subsidiary of the Company) will be a Permitted Investment if and for so long as
such Subsidiary is or would be subject to any Payment Restriction not permitted
by Section 6.7; (c) any Investments in the Company by any Subsidiary of the
Company; provided that any Indebtedness of the Company for payment in respect
of such Investment is subordinated in right of payment, pursuant to a written
agreement, to the
<PAGE> 27
-22-
Company's Obligations; (d) Investments made by the Company or by its
Subsidiaries out of the Net Cash Proceeds of an Asset Sale made in compliance
with Section 6.12; and (e) Intercompany Indebtedness by and between the Company
and its Subsidiaries.
"Permitted Refinancing Indebtedness" means (A) any Refinancing by the
Company of Indebtedness of the Company or of its Subsidiaries (other than
Indebtedness Incurred or outstanding pursuant to clause (x) of Section 6.1,
which Indebtedness shall remain subject to the maximum aggregate amounts
outstanding as set forth therein) and (B) any Indebtedness incurred pursuant to
a Refinancing by any Subsidiary of the Company of Indebtedness Incurred by such
Subsidiary (other than Indebtedness Incurred or outstanding pursuant to clause
(x) of Section 6.1, which Indebtedness shall remain subject to the maximum
aggregate amounts outstanding as set forth therein), in the case of each of (A)
and (B), that does not (1) result in an increase in the total of the aggregate
principal amount of the Indebtedness of such Person being Refinanced as of the
date of such proposed Refinancing (if such Indebtedness that is Refinancing the
existing Indebtedness is issued at a price less than 100% of the principal
amount thereof, an increase shall not be deemed to have occurred unless the
gross proceeds of such Indebtedness that is Refinancing the existing
Indebtedness is in excess of the total of the aggregate principal amount of the
Indebtedness being Refinanced as of the date of such proposed Refinancing) or
(2) create Indebtedness with a Weighted Average Life to Maturity that is less
than the Weighted Average Life to Maturity of the Indebtedness being
Refinanced; provided that (x) if such Indebtedness being Refinanced is
Indebtedness of the Company, then such Refinancing Indebtedness shall be
Indebtedness solely of the Company, (y) if such Indebtedness being Refinanced
is subordinate or junior in right of payment to the Bridge Loan, as the case
may be, or if recourse in respect of the Indebtedness being Refinanced is
limited in any respect, then such Indebtedness proposed to be Incurred to
Refinance the existing Indebtedness shall be subordinate in right of payment to
the Bridge Loan and recourse with respect thereto shall be limited at least to
the same extent and in the same manner as the Indebtedness being Refinanced and
(z) if such Indebtedness being Refinanced is Pari Passu Indebtedness, then such
Indebtedness proposed to be incurred to Refinance the existing Indebtedness
shall be Pari Passu Indebtedness.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions
thereof.
<PAGE> 28
-23-
"Plan" means an employee benefit plan as defined in Section 3(3) of
ERISA maintained by the Company or any of its Subsidiaries for employees of the
Company or any of its Subsidiaries.
"Potential Event of Default" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default if that
condition or event were not cured or removed within any applicable grace or
cure period.
"preferred stock" of any Person means any Capital Stock of such Person
that has preferential rights (as compared to any other Capital Stock of such
Person) with respect to dividends or redemptions or upon liquidation.
"pro forma" means, with respect to any calculation made or required to
be made pursuant to the terms of this Agreement, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act of 1933, as amended,
as interpreted by the Company's chief financial officer or Board of Directors
in consultation with its independent certified public accountants.
"Proceedings" has the meaning ascribed to such term in Section
5.1(xi).
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Quarterly Period" shall mean the period commencing on the first
calendar day of each three-month period, if such day is a Business Day, or if
such day is not a Business Day, the first Business Day succeeding the first
calendar day of each three-month period and ending on the day next preceding
the first Business Day of the following Quarterly Period.
"RCRA" means the Resource Conservation and Recovery Act, as the same
may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" means real property, including, without limitation,
improvements and fixtures thereon, owned, leased or operated by the Company or
Chancellor. The term "Real Property" as used herein shall include the
groundwater, surface water, soil and airspace at, in, on, under or adjacent to
such Real Property.
"Real Property Assets" means interests in land, buildings,
improvements, and fixtures attached thereto or used in the operation thereof,
in each case owned or leased (as lessee) by the Company or its Subsidiaries.
<PAGE> 29
-24-
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund or defease, or to issue a security or
Indebtedness in exchange or replacement for, such security or Indebtedness in
whole or in part. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Register" has the meaning ascribed to such term in Section 5.10.
"Regulation G," "Regulation T," "Regulation U" and "Regulation X"
shall mean Regulation G, T, U or X, as the case may be, of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Related Business" means any capital expenditure or Investment in
properties and assets that replace the properties and assets that were the
subject of an Asset Sale or in properties and assets that will be used in the
business of the Company and its Subsidiaries as existing on the Closing Date or
in businesses reasonably related thereto.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Reportable Event" has the meaning set forth in Section 4043 of ERISA,
but excluding any event for which the 30-day notice requirement has been waived
by applicable regulations of the PBGC.
"Required Lenders" means Lenders holding in the aggregate more than
50% of the outstanding principal amount of the Notes.
"Restricted Payment" has the meaning ascribed to such term in Section
6.3.
"Restricted Payment Capacity" has the meaning ascribed to such term in
Section 3.1G.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any profit
sharing agreement or arrangement, bonds, debentures, options, warrants, notes,
or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
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"Series A Exchangeable Preferred Stock" shall mean Chancellor's 12
1/4% Series A Cumulative Exchangeable Preferred Stock due 2008 issued
concurrently with the Original Credit Agreement.
"Series A Exchangeable Preferred Stock Documents" shall mean each
document relating to the Series A Exchangeable Preferred Stock (including,
without limitation, the 12-1/4% Junior Exchange Debenture Indenture and all
documents relating thereto).
"Stations" means and includes all of the radio stations owned and
operated by the Company and Chancellor on the Closing Date, after giving effect
to the Acquisition.
"Subordinated Indebtedness" means Indebtedness of the Company that is
expressly subordinated in right of payment to the Bridge Loan and the Notes.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of stock or other equity interest entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereto is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided that for all purposes of this
Agreement, unless the context otherwise requires, the Subsidiaries of the
Company shall include Chancellor.
"Syndicate Group" shall mean the initial group of participants in the
Bridge Loan.
"Tax Certificate" has the meaning ascribed to such term in Section
9.19F.
"Tax Sharing Agreements" means all agreements relating to the sharing
of tax liabilities and benefits among the Company and/or its Subsidiaries.
"Taxes" means all taxes, assessments, fees, levies, imposts, duties,
penalties, deductions, liabilities, withholdings or other charges of any nature
whatsoever, including interest penalties, from time to time or at any time
imposed by any Law or any Tribunal.
"Total Bridge Loan Commitment" has the meaning ascribed to such term
in Section 2.1A.
"Transaction Costs" means the fees, costs and expenses payable by the
Company pursuant hereto and other fees,
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costs and expenses payable by the Company in connection with the Transactions,
including transaction or financial advisory fees payable to Permitted Holders
and Greenhill & Co., LLC.
"Transactions" shall mean, collectively, (i) the incurrence of the
Bridge Loan hereunder on the Closing Date, (ii) the Acquisition, (iii) the Bank
Financing, (iv) any other transaction on the Closing Date contemplated in
relation to the foregoing and (v) the payment of fees and expenses in
connection with the foregoing.
"Transferee" has the meaning ascribed to such term in Section 9.19.
"Tribunal" means any government, any arbitration panel, any court or
any governmental department, commission, board, bureau, agency, authority or
instrumentality of the United States or any state, province, commonwealth,
nation, territory, possession, county, parish, town, township, village or
municipality, whether now or hereafter constituted and/or existing.
"12% Junior Exchange Debenture Indenture" shall mean that certain
indenture dated as of the date of issuance of the 12% Junior Exchange
Debentures, by and between the Borrower and the United States Trust Company of
Texas, N.A., as trustee which shall be in form and substance satisfactory to
the Managing Agent.
"12% Junior Exchange Debentures" shall mean the Borrower's
Subordinated Notes due 2009 issued pursuant to the 12% Junior Exchange
Debenture Indenture.
"12-1/4% Junior Exchange Debenture Indenture" shall mean that certain
indenture dated as of the date of issuance of the 12-1/4% Junior Exchange
Debentures, by and between the Borrower and United States Trust Company of
Texas, as trustee.
"12-1/4% Junior Exchange Debentures" shall mean the Borrower's
Subordinated Notes due 2006 issued pursuant to the 12-1/4% Junior Exchange
Debenture Indenture.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the relevant jurisdiction.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only
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so long as no senior class of stock has voting power by reason of any
contingency) to vote in the election of members of the board of directors or
other governing body of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which 100% of the total
voting power of shares of stock or other equity interest entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Wholly Owned
Subsidiaries of that Person or a combination thereof.
1.2. Accounting Terms
For the purposes of this Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to them in conformity with
GAAP.
1.3. Other Definitional Provisions; Anniversaries
Any of the terms defined in Section 1.1 may, unless the context
otherwise requires, be used in the singular or the plural depending on the
reference.
SECTION 2 AMOUNT AND TERMS OF BRIDGE LOAN COMMITMENT AND BRIDGE LOAN; NOTES
2.1. Bridge Loan and Notes
A. Bridge Loan Commitment; Ranking. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Company herein set forth, the Lenders severally and not jointly hereby agree to
lend to the Company on the Closing Date the aggregate amount of $170 million
(the "Bridge Loan"). Each Lender's commitment to make available its pro rata
share of the Bridge Loan pursuant to this Section 2.1A in the amount set forth
opposite the signature hereto is herein called the "Bridge Loan Commitment."
The Lenders' collective commitments to make available the
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Bridge Loan to the Company pursuant to this Section 2.1A are herein called the
"Total Bridge Loan Commitment." The Bridge Loan will be a senior unsecured
obligation of the Company and will rank (i) pari passu with all other
unsubordinated indebtedness of the Company and (ii) senior to any subordinated
indebtedness of the Company.
B. Notice of Borrowing. When the Company desires to borrow under this Section
2.1, it shall deliver to the Agent a Notice of Borrowing no later than 11:00
A.M. (New York time), at least one Business Day in advance of the Closing Date
or such later date as shall be agreed to by the Agent. The Notice of Borrowing
shall specify the applicable date of borrowing (which shall be a Business Day).
Upon receipt of such Notice of Borrowing, the Agent shall promptly notify the
Lenders of the matters covered by the Notice of Borrowing.
C. Disbursement of Funds. (a) No later than 12:00 Noon (New York time) on the
Closing Date, each Lender will make available its pro rata share (based on each
Lender's Bridge Loan Commitment then in effect) of the Bridge Loan in the
manner provided below. All amounts shall be made available in U.S. Legal
Tender and immediately available funds at the Payment Office.
(b)Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Bridge Loan Commitment hereunder or to prejudice any
rights that the Company may have against any Lender as a result of any default
by such Lender hereunder.
D. Notes. The Company shall execute and deliver to each of the Lenders on the
Closing Date a note (collectively, the "Notes") dated the Closing Date
substantially in the form of Exhibit I annexed hereto to evidence each Lender's
pro rata obligation under the Bridge Loan and with appropriate insertions.
E. Maturity of Bridge Loan. Subject to the provisions of Section 2.4, the
Bridge Loan shall mature and the Company shall pay in full the outstanding
principal amount thereof and accrued interest thereon on the earlier of (i) the
two-year anniversary of the Closing Date (the "Maturity Date") and (ii) the
consummation of the Evergreen Merger.
F. Pro Rata Borrowings. The Bridge Loan made under this Agreement shall be
made by the Lenders pro rata on the basis of their respective Bridge Loan
Commitments. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make its portion of the Bridge
Loan hereunder and that each Lender shall be obligated to make its portion of
the Bridge Loan hereunder, regardless of the failure of any other Lender to
fulfill its commitments hereunder.
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2.2. Interest on the Bridge Loan
A. Rate of Interest. The Bridge Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
prepayment, acceleration or otherwise) at the rate of three-month LIBOR, reset
monthly, plus 3.25% per annum, which spread over applicable LIBOR shall
increase to 6.00% on the six-month anniversary of the Closing Date and
increasing thereafter by .50% per annum for each period of three months (or
portion thereof) that the Bridge Loan remains outstanding; provided, however,
that in no event shall the interest rate exceed the Maximum Cash Interest Rate.
B. Interest Payments. Interest shall be payable at maturity or redemption of
the Bridge Loan; provided that in the case of a redemption of less than all of
the Bridge Loan the outstanding interest shall be payable only as to the
portion of the Bridge Loan so redeemed.
C. Post-Maturity Interest. Any principal payments on the Bridge Loan not paid
when due and, to the extent permitted by applicable law, any overdue interest
on the Bridge Loan, in each case whether at stated maturity, by notice of
prepayment, by acceleration or otherwise, shall thereafter bear interest
payable upon demand at a rate that is 2.00% per annum in excess of the rate of
interest otherwise payable under this Agreement for the Bridge Loan.
2.3. Fees
The Company agrees to pay to the Agent on behalf of the Lenders all
fees and other obligations in accordance with, and at the times specified by,
the Bridge Commitment Letter, including, without limitation, (i) all fees
payable on the Closing Date, (ii) on the six month anniversary of the Closing
Date, 1.5% of the total amount of the Bridge Loan outstanding and (iii) on each
of the one year, eighteen month and two year anniversary of the Closing Date,
an amount of Common Stock of the Company equal to 100,000 shares of Class A
Common Stock multiplied by a fraction, the numerator of which is the principal
amount of the Bridge Loan then outstanding and the denominator of which is
$170,000,000.
2.4. Prepayments and Payments
A. Prepayments
(i) Voluntary Prepayments. The Company may, upon not less than
three Business Days' prior written notice (or telephonic notice confirmed in
writing) to the Agent at any time and from time to time, prepay the Bridge Loan
made to the
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Company in whole or in part at 100% of the principal amount thereof, plus
accrued interest thereon.
Notice of prepayment having been given as aforesaid, the
principal amount of the Bridge Loan to be prepaid shall become due and
payable on the prepayment date. Amounts of the Bridge Loan so prepaid
may not be reborrowed.
(ii) Mandatory Prepayments
(a) Prepayments from Sales of Subordinated Indebtedness
and Equity Securities. Net proceeds of private or public sales of
Subordinated Indebtedness or equity securities by the Company or any
of its Subsidiaries shall be used to prepay the Bridge Loan, plus
accrued interest and any other amount payable thereunder, to the full
extent of the net proceeds so received; provided that no default or
event of default under the Bank Financing Documents then exists or
would result from such prepayment.
(b) Prepayments Upon the Occurrence of Asset Sales. Upon
the closing of any Asset Sale (other than sales of inventory in the
ordinary course of business) of the Company or Chancellor, an amount
in cash equal to the Net Cash Proceeds so received from any such Asset
Sale shall be used to prepay the Bridge Loan, plus accrued interest
thereon and any other amount payable thereunder; provided that no
default or event of default under the Bank Financing Documents then
exists or would result from such prepayment.
(c) Notice. The Company shall notify the Agent of any
prepayment to be made pursuant to this Section 2.4A(ii) at least one
Business Day prior to such prepayment date.
(iii) The Company's Mandatory Prepayment Obligations;
Application of Prepayments. All prepayments shall include payment of accrued
interest on the principal amount so prepaid and shall be applied to payment of
interest before application to principal.
(iv) Mandatory Offer to Purchase the Notes
(a) Upon the occurrence of a Change of Control (the date
of such occurrence, the "Change of Control Date"), the Lenders shall
have the right, subject to the prior payment of the amounts owing
under the Bank Financing or the waiver of the lenders thereunder to
such prior payment and the payment of any fees owing hereunder to the
Lenders, to require the repurchase of the Notes pursuant to an
<PAGE> 36
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offer to purchase (the "Change of Control Offer") at a purchase price
equal to the aggregate principal amount thereof plus accrued interest
to the date of repurchase.
(b) The notice to the Agent shall contain all
instructions and materials necessary to enable the Lenders to tender
the Notes.
(c) Within 10 days following any Change of Control the
Company shall mail a notice to the Agent stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 2.4A(iv) and that all Notes validly tendered will be accepted for
payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days nor later than 40 days from the date such notice is mailed
(the "Offer Payment Date");
(3) that any Notes not tendered will continue to accrue interest;
(4) that any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Offer Payment Date
unless the Company shall default in the payment of the repurchase price of the
Note;
(5) that if any Lender elects to have its Note purchased pursuant
to the Change of Control Offer it will be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Company prior to 5:00 p.m. New York time on the Offer
Payment Date;
(6) that the Lenders will be entitled to withdraw their election
if the Company receives, not later than 5:00 p.m. New York time on the Business
Day preceding the Offer Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the principal amount of the Notes the Lenders delivered
for purchase, and a statement that the Lenders are withdrawing their election
to have the Notes purchased; and
(7) that if the Notes are purchased only in part, a new Note of
the same type will be issued in principal amount equal to the unpurchased
portion of the Notes surrendered.
(d) On or before the Offer Payment Date, the Company
shall (i) accept for payment the Notes or portions thereof that are to
be purchased in accordance with the above, and (ii) deposit at the
Payment Office U.S. Legal Tender sufficient to pay the purchase price
of Notes to be purchased. The Agent shall promptly mail to the
Lenders
<PAGE> 37
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whose Notes are so accepted payment in an amount equal to the purchase
price.
(e) The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable in connection with the purchase of the Notes pursuant to an
offer hereunder. To the extent the provisions of any securities laws
or regulations conflict with the provisions under this Section, the
Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations
under this Section by virtue thereof.
B. Manner and Time of Payment. All payments of principal and interest
hereunder and under the Notes by the Company shall be made without defense,
set-off or counterclaim and in same-day funds and delivered to the Agent,
unless otherwise specified, not later than 12:00 Noon (New York time) on the
date due at the Payment Office for the account of the Lenders; funds received
by the Agent after that time shall be deemed to have been paid by the Company
on the next succeeding Business Day. The Company hereby authorizes the Agent
to charge its account with the Agent in order to cause timely payment to be
made of all principal, interest and fees due hereunder (subject to sufficient
funds being available in its account for that purpose).
C. Payments on Non-Business Days. Whenever any payment to be made hereunder
or under the Notes shall be stated to be due on a day that is not a Business
Day, the payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or under the Notes or of the commitment and other fees
hereunder, as the case may be.
D. Notation of Payment. Each Lender agrees that before disposing of any Note
held by it, or any part thereof (other than by granting participations
therein), the Lender will make a notation thereon of all principal payments
previously made thereon and of the date to which interest thereon has been paid
and will notify the Company of the name and address of the transferee of that
Note; provided that the failure to make (or any error in the making of) such a
notation or to notify the Company of the name and address of such transferee
shall not limit or otherwise affect the obligation of the Company hereunder or
under such Notes with respect to the Bridge Loan and payments of principal or
interest on any such Note.
<PAGE> 38
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2.5. Use of Proceeds
A. Bridge Loan. The proceeds of the Bridge Loan shall be applied by the
Company to finance the Acquisition, to effect the Bank Financing by repaying a
portion of the Existing Credit Agreement indebtedness (as defined in the Bank
Financing Documents) and to pay related fees and expenses (including the
Transaction Costs).
B. Margin Regulations. No portion of the proceeds of the borrowing under this
Agreement shall be used by the Company in any manner that might cause the
borrowing or the application of such proceeds to violate the applicable
requirements of Regulation G, Regulation U, Regulation T or Regulation X of the
Board of Governors of the Federal Reserve System or any other regulation of the
Board of Governors or to violate the Exchange Act, in each case as in effect on
the Closing Date and the date of such use of proceeds.
SECTION 3 CONDITIONS
3.1. Conditions to Loan
The obligation of the Lenders to make the Bridge Loan is subject to
prior or concurrent satisfaction of each of the following conditions:
A. On or before the Closing Date, all corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by the Lenders
shall be reasonably satisfactory in form and substance to the Lenders, and the
Agent shall have received the following items, each of which shall be in form
and substance reasonably satisfactory to the Agent and, unless otherwise noted,
dated the Closing Date:
1. a certificate, dated the Closing date, signed by an
authorized Officer of each of the Company and Chancellor, and attested
to by the Secretary or Assistant Secretary of each of the Company and
Chancellor, in the form of Exhibit VII, together with copies of each
of the Company's and Chancellor's charter and together with a
certificate of status, compliance, good standing or like certificate
with respect to each of the Company and Chancellor issued by the
appropriate government officials of the jurisdiction of its
incorporation and of each jurisdiction in which it owns any material
assets or carries on any material business, each to be dated a recent
date prior to the Closing Date;
2. a copy of the Company's bylaws, certified as of the
Closing Date by one of its Officers;
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3. resolutions of the Company's Board of Directors
approving and authorizing the execution, delivery and performance of
this Agreement, the Notes and any other documents, instruments and
certificates required to be executed by the Company or any Subsidiary
of the Company, where applicable, in connection herewith and therewith
and approving and authorizing the execution, delivery and payment of
the Notes and the consummation of the Transactions, each certified as
of the Closing Date by one of its Officers as being in full force and
effect without modification or amendment;
4. signature and incumbency certificates of the
Company's Officers executing this Agreement and the Notes;
5. executed copies of this Agreement and the Notes
substantially in the form of Exhibit I executed in accordance with
Section 2.1D drawn to the order of the Lenders and with appropriate
insertions;
6. an originally executed Notice of Borrowing
substantially in the form of Exhibit III, signed by an Officer on
behalf of the Company in writing delivered to the Agent;
7. originally executed copies of one or more favorable
written opinions of (I) Weil, Gotshal & Manges LLP, counsel for the
Company, substantially in the form of Exhibit IV and addressed to the
Lenders and (II) Cahill Gordon & Reindel, counsel for the Lenders,
substantially in the form of Exhibit V and addressed to the Lenders;
8. true and correct copies of each of the Acquisition
Agreement and the Merger Agreement, which shall not have been
materially amended without the Agent's consent in any respect adverse
to the interests of the Agent and the Lenders (which consent shall not
be unreasonably withheld or delayed). All conditions to the
Acquisition contained in the Acquisition Agreement shall have been
performed or complied with substantially on the terms set forth
therein and not waived without the Agent's consent, which consent
shall not be unreasonably withheld or delayed. Simultaneously with
the making of the Bridge Loan, the Acquisition shall have been
consummated; and
9. a copy of all closing documents relating to the
Acquisition and all such counterpart originals or certified copies of
such documents, instruments, certificates and opinions as the Agent
may reasonably request.
B. The Lenders shall have received reports and other information in form,
scope and substance reasonably satisfactory to
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the Lenders concerning environmental liabilities of Chancellor and the
Subsidiaries of Chancellor.
C. On or before the Closing Date, all authorizations, consents and approvals
(including, without limitation, under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and preliminary approval from the FCC of
the transfer or assignment of licenses as contemplated by the Acquisition)
necessary in connection with the Transactions shall have been obtained and
remain in full force and effect and all applicable waiting periods under Law
applicable to the Acquisition shall have expired without any action being taken
by any competent authority (including, without limitation, any Tribunal) that
restrains, prevents or imposes materially adverse conditions upon the
completion of the Acquisition or the financing thereof and evidence of the
receipt of such authorizations, consents and approvals satisfactory to the
Lenders shall have been delivered to the Agent. Additionally, there shall not
exist any judgment, order, injunction or other restraint issued or filed or a
hearing seeking injunctive relief or other restraint or objection pending or
notified prohibiting or imposing materially adverse conditions upon the
consummation of the Acquisition or the transactions contemplated by this
Agreement.
D. On or before the Closing Date, the Company shall have paid to the Agent the
fees payable on the Closing Date pursuant to Section 2.3.
E. On or before the Closing Date, the Company shall have performed in all
material respects all agreements that this Agreement provides shall be
performed on or before the Closing Date except as otherwise disclosed to and
agreed to in writing by the Agent.
F. The Company and the Lenders shall have entered into the Loan Documents
relating to the Bridge Loan and the transactions contemplated thereby, on terms
and in form and substance reasonably satisfactory to the Lenders and the
Company.
G. The Bank Financing Documents shall be in full force and effect and the
parties thereto shall be in compliance with all material agreements thereunder.
The Bank Financing Documents shall provide for borrowings thereunder in amounts
and upon terms reasonably satisfactory to the Lenders. The Bank Financing
Documents shall include provisions permitting the repayment of the Bridge Loan
(including accrued interest thereon and any other amount payable thereunder) in
accordance with the terms of the Bank Financing Documents, including the making
of any restricted payment necessary to enable such repayment (the ability to
make any such restricted payment hereinafter referred to as "Restricted Payment
Capacity"). No default or event of default shall have occurred under the Bank
Financing
<PAGE> 41
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Documents and all conditions to borrowings thereunder shall have been
satisfied, in the reasonable judgment of the Lenders, without waiver.
H. The Evergreen-Viacom Acquisition and the related financing shall have been
consummated in accordance with the terms of the agreements evidencing the
Evergreen-Viacom Acquisition in the form delivered to the Lenders prior to the
date hereof or otherwise reasonably satisfactory to the Lenders (the
"Evergreen-Viacom Acquisition Agreements") and all applicable laws relating
thereto. All material conditions in the Evergreen-Viacom Acquisition
Agreements shall have been satisfied and not waived or modified except with the
written consent of the Lenders (which shall not be unreasonably withheld or
delayed), and all material covenants in the Evergreen-Viacom Acquisition
Agreements shall have been satisfied (without waiver or modification) in all
material respects and all representation and warranties contained therein shall
be true and correct in all material respects (without waiver or modifications).
I. Simultaneously with the making of the Bridge Loan by the Lenders, the
Company shall have delivered to the Lenders an Officers' Certificate in form
and substance satisfactory to the Agent to the effect that (i) on or prior to
the Closing Date, the Company has performed and complied with in all material
respects all covenants and conditions to be performed and observed by the
Company on or prior to the Closing Date and (ii) all conditions to the
consummation of the Acquisition in the Acquisition Agreement have been
satisfied substantially on the terms set forth therein and have not been waived
or amended without the Agent's prior written consent.
J. Neither the Company nor Chancellor shall have sustained any loss or
interference with respect to its businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, which loss or
interference, in the reasonable judgment of the Agent, has had or could
reasonably be expected to have a Material Adverse Effect; there shall not have
been, in the reasonable judgment of the Agent, any Material Adverse Change.
K. No event shall have occurred and be continuing or would result from the
consummation of the borrowing contemplated by the Notice of Borrowing that
would constitute an Event of Default or Potential Event of Default.
L. No order, judgment or decree of any court, arbitrator or governmental
authority shall purport to enjoin or restrain the Lenders from making the
Bridge Loan.
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M. There shall not be pending or, to the knowledge of the Company, threatened
any action, suit, proceeding, governmental investigation or arbitration against
or affecting the Company or Chancellor or any property or asset of Chancellor
or any of its Subsidiaries that has not been disclosed by the Company in
writing to the Agent (and the Agent shall have received on the Closing Date an
Officer's Certificate dated the Closing Date attesting to the same) and that
could reasonably be expected to have a Material Adverse Effect and there shall
have occurred no development not so disclosed in any such action, suit,
proceeding, governmental investigation or arbitration so disclosed, which, in
each case, singly or in the aggregate, in the opinion of the Agent, could
reasonably be expected to have a Material Adverse Effect or to impair the
ability or obligation of the Company, to perform, or of the Lenders to enforce,
the Transactions or the making of the Bridge Loan. No injunction or other
restraining order shall have been issued and no hearing to cause an injunction
or other restraining order to be issued shall be pending or noticed with
respect to any action, suit or proceeding seeking to restrain, enjoin, delay,
prohibit or otherwise prevent the consummation of, or to recover any damages or
obtain relief as a result of, the Transactions. There shall not be threatened,
instituted or pending any action, proceeding or application before or by any
Tribunal, or any other Person, domestic or foreign (i) challenging the
Transactions or seeking to restrain, delay or prohibit the consummation
thereof; (ii) seeking to prohibit or impose material limitations on the
Company's ownership or operation of all or any portion of the Company's
business or assets (including the business or assets of any Subsidiary thereof)
or to compel the Company to dispose of or hold separate all or any portion of
the Company's business or assets (including the business or assets of any
Subsidiary thereof) as a result of the Acquisition; (iii) that, in any event,
might adversely affect the Bridge Loan; or (iv) seeking to impose any
materially adverse conditions upon the Transactions.
N. The making of the Bridge Loan in the manner contemplated in this Agreement
shall not violate the applicable provisions of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve Board or any other regulation of the
Board.
O. There shall not have occurred (i) any general suspension of, or limitation
on times or prices for, trading in securities on the New York Stock Exchange,
the American Stock Exchange or Nasdaq National Market or minimum or maximum
prices established on any such exchanges or market; (ii) a declaration of a
banking moratorium or any suspension of payments in respect of the banks in the
United States or New York; or (iii) either (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an outbreak
or escalation of any other insurrection or armed conflict involving the United
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States or any other national or international calamity or emergency or (C)
trading in securities generally on the New York or American Stock Exchange or
the Nasdaq National Market shall not have been suspended and minimum or maximum
prices shall not have been established on any such exchange or market.
P. There shall not have been any disclosure of information relating to
conditions or events not previously disclosed to the Lenders, or new
information regarding previously disclosed matters, in the course of the
Lenders' continuing legal, financial, tax, environmental, business and
accounting due diligence review that the Lenders shall reasonably determine is
material and adverse to the Company or Chancellor.
Q. The Agent shall be satisfied, in its reasonable discretion, with its review
of the accounting policies and procedures utilized by the Company and its
Subsidiaries and to be utilized by the Company and its Subsidiaries after the
Acquisition.
R. The Agent shall have received and be satisfied, in its reasonable
discretion, that audited, unaudited and pro forma financial statements
previously delivered to the Agent and the Lenders and prepared in accordance
with GAAP, consistently applied, of the Company and Chancellor and any Company
acquired by either of them whose financial statements would be required to be
filed with the Commission in a public offering are available as of the Closing
Date.
S. The Agent and its counsel shall be reasonably satisfied that the
consummation of the Acquisition and the related financing, including the
funding of the Bridge Loan, shall be in compliance with all applicable Laws.
There shall not have been any statute, rule, regulation, injunction or order
applicable to the Acquisition, or the financing thereof, promulgated, enacted,
entered or enforced by any state or federal government or governmental or
regulatory authority or agency or by any federal or state court, or by any
Tribunal, nor shall there be pending any action or proceeding by or before any
such authority, court or tribunal, involving an order that would materially and
adversely affect the Acquisition or the financing thereof.
T. Neither the Company nor any of its Material Subsidiaries shall be a debtor
subject to a Bankruptcy Order; and a bankruptcy or other insolvency proceeding
or an Event of Default or Potential Event of Default shall not have occurred
under Section 7.6, 7.7 or 7.8.
U. No Event of Default or Potential Event of Default (whether matured or not)
shall have occurred under Section 7.1.
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V. Chancellor must have entered into binding and unconditional asset sale
agreements (other than those conditioned upon the grant of license from the
FCC) in form and substance reasonably satisfactory to the Lenders for aggregate
consideration in cash of at least $37 million, and such asset sale agreements
shall be in full force and effect.
W. Neither the consummation of the Acquisition, the making of the Bridge Loan
or the borrowings under the Bank Financing will cause or result in any breach
or default (including any event that with notice or lapse of time or both would
be a breach or a default) or trigger any repurchase requirements under any of
the terms or provisions of any of the instruments governing the material
existing indebtedness or preferred stock of the Company and its Subsidiaries.
X. The Lenders shall have received an Officers' Certificate with respect to
and be satisfied, in their reasonable judgment, as to the sufficiency of
Restricted Payment Capacity under Chancellor's debt and preferred stock
instruments to permit the Company to satisfy its payment obligations with
respect to the Bridge Loan and the ability of Chancellor to utilize such
Restricted Payment Capacity.
Y. Upon the reasonable request of the Lenders, the Company shall have provided
the Lenders the offering memorandum or similar document prepared in connection
with the Bank Financing containing information typically found in an offering
memorandum relating to the Company (which offering memorandum shall contain
audited, unaudited and pro forma financial statements meeting the requirements
of Regulation S-X under the Securities Act of 1933, as amended, for the periods
required of a registrant on Form S-1) for use by the Agent in syndicating the
Bridge Loan in accordance with the terms of this Agreement.
SECTION 4 REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to
make the Bridge Loan, the Company represents and warrants to the Lenders that,
at the time of execution hereof, the following statements are true, correct and
complete and after consummation of the Transactions, the following statements
are true, correct and complete in all material respects:
4.1. Organization and Good Standing; Capitalization
(a) Each of the Company and Chancellor is a corporation duly
organized and existing and in good standing under the laws of the State of
Delaware. Each of the Company and Chancellor has the corporate power and
authority to own and operate its properties and to carry on its business as now
conducted
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and as proposed to be conducted and is duly qualified as a foreign corporation
and in good standing in all jurisdictions in which it is doing business, except
where failure to be so qualified or in good standing, singly or in the
aggregate, has not had and will not have a Material Adverse Effect or a
material adverse effect on the ability of the Company or Chancellor to
consummate the Transactions and to execute, deliver and perform its respective
obligations under the Loan Documents and each other document or instrument to
be delivered in connection with the Transactions executed or to be executed by
it.
(b) All of the Subsidiaries of the Company as of the Closing Date
are identified in Schedule B. The Capital Stock of each of the Subsidiaries of
the Company identified in Schedule B is duly authorized, validly issued, fully
paid and nonassessable and none of such capital stock constitutes Margin Stock.
(c) On or about June 12, 1997, there were authorized, issued and
outstanding (i) 40,000,000 shares of Class A Common Stock, $.01 par value per
share ("Class A Common Stock"), of which 10,439,628 shares were issued and
outstanding, (ii) 10,000,000 shares of Class B Common Stock ("Class B Common
Stock"), $.01 par value per share, 8,547,910 shares of which were issued and
outstanding, (iii) 10,000,000 shares of Class C Common Stock, $.01 par value
per share ("Class C Common Stock"), none of which were outstanding and (iv)
10,000,000 shares of preferred stock, $.01 par value per share, 2,300,000
shares of which were designated 7% Convertible Preferred Stock, of which
2,000,000 shares were issued and outstanding. All such outstanding shares of
the Company have been duly and validly issued, fully paid and nonassessable.
No stockholder of the Company has any preemptive rights to subscribe for any
additional equity securities of the Company. Any issuance and sale of Common
Stock of the Company, upon such issuance and sale, will either (a) have been
registered or qualified under applicable federal and state securities laws or
(b) be exempt therefrom.
4.2. Authorization and Power
Each of the Company and Chancellor has the corporate power and
requisite authority, and, to the extent a party thereto, has taken all
corporate action necessary, to consummate the Transactions and to execute,
deliver and perform its obligations under the Loan Documents and each other
document and instrument to be delivered in connection with the Transactions
executed or to be executed by it and to issue the Notes.
<PAGE> 46
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4.3. No Conflicts or Consents
(a) The execution and delivery of the Loan Documents, the
Acquisition Agreement, the Bank Financing Documents and each other document to
be executed and delivered in connection with the Transactions, the consummation
of each of the transactions herein or therein contemplated, the compliance with
each of the terms and provisions hereof or thereof, and the issuance, delivery
and performance of the Notes do not and will not (i) except as disclosed to the
Lenders violate any material provision of any law or any governmental rule or
regulation applicable to the Company or Chancellor, the Certificate or Articles
of Incorporation or bylaws of either of them or any order, judgment or decree
of any court or other agency of government binding on any of them, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of the Company or
Chancellor that could reasonably be expected to result in a Material Adverse
Effect or have a material adverse effect on the ability of the Company or
Chancellor to consummate the Transactions and to execute, deliver and perform
their obligations under the Loan Documents and each other document and
instrument to be delivered in connection with the Transactions executed or to
be executed by it, (iii) result in or require the creation or imposition of any
Lien upon any of the material properties or assets of any of the Company or
Chancellor or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of the Company or
Chancellor except for such approvals or consents that will be obtained on or
before the Closing Date or such approvals or consents the failure to obtain
that could not reasonably be expected to singly or in the aggregate result in a
Material Adverse Effect or have a material adverse effect on the ability of the
Company or Chancellor to consummate the Transactions and to execute, deliver
and perform its obligations under the Loan Documents and each other document
and instrument to be delivered in connection with the Transactions executed or
to be executed by it.
(b) No consent, approval, authorization or order of any Tribunal
or other Person is required in connection with the execution and delivery by
the Company or Chancellor of the Loan Documents or any other document or
instrument to be delivered in connection with the Transactions or the
consummation of the transactions contemplated hereby or thereby, other than any
such consent, approval, authorization or order that has been obtained and
remains in full force and effect and other than preliminary FCC approval
regarding any transfer or assignment of licenses contemplated by the
Acquisition Agreement or that has been waived in writing by the Agent on behalf
of Lenders or the failure of which to obtain would not, singly or in the
aggregate, have a Material Adverse Effect or a material adverse
<PAGE> 47
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effect on the ability of the Company or Chancellor to consummate the
Transactions and to execute, deliver and perform its respective obligations
under the Loan Documents and each other document or instrument to be delivered
in connection with the Transactions executed or to be executed by it.
4.4. Enforceable Obligations
Each of the Loan Documents, the Acquisition Agreement, the Bank
Financing Documents, the Evergreen-Viacom Acquisition Agreements and each other
document or instrument to be delivered in connection therewith has been duly
authorized; each of the Loan Documents, the Acquisition Agreement, the Bank
Financing Documents, the Evergreen-Viacom Acquisition Agreements and each other
document or instrument to be delivered in connection therewith to be executed
and delivered on or prior to the Closing Date has been duly executed and
delivered by the Company and Chancellor (to the extent a party thereto); and
each of the Loan Documents, the Acquisition Agreement, the Bank Financing
Documents, the Evergreen-Viacom Acquisition Agreements and each other document
or instrument to be delivered in connection therewith to be executed and
delivered on or prior to the Closing Date is, and each of the Loan Documents to
be executed and delivered after the Closing Date will be, upon such execution
and delivery, the legal, valid and binding obligations of the Company and
Chancellor (to the extent a party thereto), enforceable in accordance with
their respective terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
4.5. Properties; Liens
The Company has, and after consummation of the Acquisition will have,
good, sufficient and legal title to all of its respective properties and
assets, and all properties held under lease by it, are, and immediately after
the consummation of the Acquisition will be, held under valid, subsisting and
enforceable leases, and the Company is not in default under any lease, except
in each case for such defects or defaults that, singly or in the aggregate,
would not have a Material Adverse Effect. Except as permitted by this
Agreement, all such properties and assets owned or leased are so owned or
leased free and clear of Liens.
4.6. Financial Condition
(a) The audited consolidated balance sheets of the Company and the
Subsidiaries of the Company at December 31,
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1996 and 1995 and the related consolidated statements of income, shareholders
equity and cash flows of the Company and the Subsidiaries of the Company for
the three-year period ended December 31, 1996, certified by the independent
certified public accountants of the Company, copies of which have been
delivered to the Agent, were prepared in accordance with GAAP, have been
prepared from, and are consistent with, the books and records of the Company
and fairly present in all material respects the consolidated financial
position, as at the respective dates thereof, and the consolidated results of
operations and cash flows of the Company and the Subsidiaries of the Company
for the periods then ended. The Company did not have at December 31, 1996 any
material contingent liabilities, liabilities for Taxes or long-term leases,
unusual forward or long-term commitments or unrealized or unanticipated losses
from any unfavorable commitments which are not reflected or reserved against in
the foregoing statements or in the notes thereto. No events that have had or
could reasonably be expected to have a Material Adverse Effect have occurred
since December 31, 1996.
(b) To the knowledge of the Company, the unaudited consolidated
balance sheet of the Company and the Subsidiaries of the Company at March 31,
1997 and the related consolidated statements of income, retained earnings
(deficit) and cash flows of the Company and the Subsidiaries of the Company for
the period then ended, a copy of which has been delivered to the Agent, were
prepared in accordance with GAAP consistently applied (except to the extent
noted therein), have been prepared from, and are consistent with, the books and
records of Chancellor and fairly present in all material respects the
consolidated financial position of the Company and the Subsidiaries of the
Company as of such date and the consolidated results of operations and cash
flows of the Company and the Subsidiaries of the Company for the period covered
thereby, in each case subject to normal year-end audit adjustments (including
footnotes), consistent with past practices. The Company did not have at March
31, 1997 any material contingent liabilities, liabilities for Taxes or
long-term leases, unusual forward or long-term commitment or unrealized or
unanticipated losses from any unfavorable commitment that are not reflected or
reserved against in the foregoing statements or in the notes thereto.
(c) The pro forma balance sheet of the Company, a copy of which
has heretofore been furnished to the Agent, fairly presents the estimated
consolidated opening balance sheet of the Company assuming the Transactions had
occurred as of January 1, 1997, and the financial condition of Chancellor on
the Closing Date does not differ in any material respect from the information
therein set forth.
(d) Upon giving effect to the Transactions:
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(i) The fair saleable value of the assets of each of the Company
and Chancellor, on a consolidated basis, exceeds the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of such Person as they mature.
(ii) The assets of each of the Company and Chancellor, on a
consolidated basis, do not constitute unreasonably small capital for any such
Person to carry out its business as now conducted and as proposed to be
conducted including the capital needs of any such Person, taking into account
the particular capital requirements of the business conducted by such Person,
and projected capital requirements and capital availability thereof.
(iii) The Company on a consolidated basis does not intend to, and
will not permit any of its Subsidiaries to, incur debts beyond its ability to
pay such debts as they mature (taking into account the timing and amounts of
cash to be payable on or in respect of debt of each of such Person). The cash
flow of the Company and each of its Subsidiaries on a consolidated basis, after
taking into account all anticipated uses of the cash of each such Person, will
at all times be sufficient to pay all amounts on or in respect of debt of each
such company when such amounts are required to be paid.
(iv) The Company does not intend, and does not believe, that final
judgments against any of the Company or its Subsidiaries in actions for money
damages will be rendered at a time when, or in an amount such that, the Company
and its Subsidiaries on a consolidated basis, will be unable to satisfy any
such judgments promptly in accordance with their terms (taking into account the
maximum reasonable amount of such judgments in any such actions and the
earliest reasonable time at which such judgments might be rendered). The cash
flow of each of the Company and Chancellor, on a consolidated basis, after
taking into account all other anticipated uses of the cash of each such
consolidated group (including the payments on or in respect of debt referred
to in paragraph (iii) of this Section 4.6(d)), will at all times be sufficient
to pay all such judgments promptly in accordance with their terms.
4.7. Full Disclosure
The financial projections (including, without limitation, the pro
forma financial statements included therewith) heretofore furnished to the
Agent by the Company and attached hereto as Exhibit VI are complete, were
prepared by or under the direction of an officer of the Company and were
prepared in good faith on the basis of information and assumptions that the
Company believed to be fair, complete and reasonable as of the date of such
information, and which assumptions are believed to be fair, complete and
reasonable as of the date hereof, but the Agent and the Lenders acknowledge
that actual results may vary from the projections and such variations may be
significant. All other factual information heretofore or contemporaneously
furnished in writing by or on behalf of the Company and Chancellor to the Agent
for purposes of or in connection with this Agreement (including, but not
limited to, the Acquisition Agreement and the Bank Financing Documents and all
<PAGE> 50
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exhibits and appendices thereto) does not contain any untrue statement by such
party or, to its knowledge, any other party of a material fact or omit to state
any material fact necessary to keep the statements made by such party or, to
its knowledge, any other party contained herein or therein from being
misleading. No fact is known, no condition exists nor has any event occurred
that has not been disclosed herein or in any other document, certificate or
statement furnished to the Agent or the Lenders for use in the transactions
contemplated hereby that, singly or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
4.8. No Default
No event has occurred and is continuing that constitutes a Potential
Event of Default or an Event of Default.
4.9. Compliance with Contracts, Etc.
Neither the Company nor Chancellor is in violation of (A) its
certificate of incorporation, by-laws or other organizational documents or (B)
any applicable law, ordinance, administrative or governmental rule or
regulation, except, with respect to this clause (B), for such violations that
would not, singly or in the aggregate, have a Material Adverse Effect, or (C)
any order, decree or judgment of any Tribunal having jurisdiction over any of
them; no event of default or event that but for the giving of notice or the
lapse of time, or both, would constitute an event of default on the part of
either the Company or Chancellor exists under any material Contractual
Obligation.
4.10. No Litigation
There is no Litigation pending or, to the best knowledge of the
Company, threatened, by, against or that may relate to or affect (a) the
Transactions or (b) the Company, Chancellor or Subsidiaries of Chancellor that,
singly or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. There are no outstanding injunctions or restraining orders
prohibiting consummation of any of the transactions contemplated by the Loan
Documents. Neither the Company nor Chancellor is in default with respect to
any judgment, order, writ, injunction or decree of any court or governmental
agency, and
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there are no unsatisfied judgments against any such Person or its business or
activities. Neither the Company nor Chancellor has been advised that there is
a reasonable likelihood of an adverse determination of any Litigation which
adverse determination, should it occur, would have a Material Adverse Effect or
a material adverse effect on the ability of the Company or Chancellor to
consummate the Transactions and to execute, deliver and perform its respective
obligations under the Loan Documents and each other document or instrument to
be delivered in connection with the Transactions executed or to be executed by
it.
4.11. Use of Proceeds; Margin Stock, Etc.
The proceeds of the Bridge Loan will be used solely for the purposes
specified herein. None of such proceeds will be used for the purpose of
purchasing or carrying any Margin Stock within the meaning of the applicable
provisions of Regulation G, T, U or X, or for the purpose of reducing or
retiring any Indebtedness that was originally incurred to purchase or carry a
Margin Stock or for any other purpose that might constitute this transaction a
"purpose credit" within the meaning of the applicable provisions of Regulation
G, T, U or X. The Company has not taken or will take any action that might
cause any of the Loan Documents to violate the applicable provisions of
Regulation G, T, U or X, or any other regulation of the Board of Governors of
the Federal Reserve System.
4.12. Taxes
All material tax returns, foreign and domestic, required to be filed
by the Company or Chancellor in any jurisdiction have been filed, and all
material Taxes for which they are directly or indirectly liable or to which any
of their respective properties or assets are subject have been paid prior to
the time that such Taxes could give rise to a Lien thereon, except for
Contested Claims. There is no material proposed tax assessment against the
Company or Chancellor, and, to the best knowledge of the Company, there is no
basis for such assessment, except for Contested Claims.
4.13. ERISA
A. The Company and Chancellor and each of their respective ERISA Affiliates
are in material compliance with all applicable provisions and requirements of
the Internal Revenue Code and ERISA and the regulations thereunder with respect
to each Employee Benefit Plan and have timely performed all their material
obligations under each Employee Benefit Plan, in each case, to the extent
applicable.
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B. No ERISA Event has occurred or is reasonably expected to occur that
individually or in the aggregate resulted in or might reasonably be expected to
result in a Material Adverse Effect.
C. In accordance with the most recent actuarial valuations, the Amount of
Unfunded Benefit Liabilities individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans that have a
negative Amount of Unfunded Benefit Liabilities), could not be reasonably
expected to have a Material Adverse Effect.
D. Neither the Company nor Chancellor is a party to any Foreign Plans.
4.14. Compliance with Law
Each of the Company and Chancellor is in compliance with all Laws,
except where the failure to comply, singly or in the aggregate, would not have
a Material Adverse Effect.
4.15. Government Regulation
Neither the Company nor Chancellor is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940 (as any of the preceding acts have been amended)
or other Law that regulates the Incurrence by the Company or Chancellor of
Indebtedness, including, but not limited to, Laws relating to common contract
carriers or the sale of electricity, gas, steam, water or other public utility
services.
4.16. Capital Structure and Subsidiaries
After giving effect to the Transactions, (i) the Company will have no
interest in any Person other than Chancellor and Chancellor's direct and
indirect subsidiaries and the Company will own, free and clear of all Liens,
claims or restrictions on voting or transfer, all of the shares of outstanding
Capital Stock of Chancellor and each of the entities set forth on such Schedule
B as of the Closing Date owned by it, except as specified on Schedule B and
(ii) the Company will have no interest in any other Person. All of the issued
and outstanding shares of Capital Stock of the Company and each of its
Subsidiaries is, and at and as of the date of consummation of the Transactions
will be, duly authorized, validly issued, fully paid and nonassessable.
4.17. Intellectual Property
A. Schedule C sets forth a complete and correct list, as of the Closing Date,
of: (i) all patented or registered Intellec-
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tual Property and pending patent applications or applications for registration
of Intellectual Property owned or filed by or on behalf of the Company and
Chancellor; (ii) all trade names and unregistered trademarks or service marks
owned by or used by the Company and Chancellor; and (iii) all licenses of
Intellectual Property to which the Company and Chancellor or any of them is a
party, either as licensee or licensor. Except as set forth on Schedule C as of
the Closing Date, each of the Company and Chancellor or any of them own or are
licensed to use all Intellectual Property necessary to permit the operation of
their businesses as currently conducted.
B. Except as disclosed on Schedule C as of the Closing Date, no material claim
has been asserted by any Person with respect to the use of any such
Intellectual Property, or challenging or questioning the validity or
effectiveness of any such Intellectual Property. Except as disclosed on
Schedule C, the use of such Intellectual Property by the Company and Chancellor
does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of the Company or Chancellor that would result in a Material Adverse
Effect. The consummation of the Transactions will not in any material manner
or to any material extent impair the ownership of (or the license to use, as
the case may be) any of such Intellectual Property by the Company or
Chancellor.
4.18. Environmental Matters
Except as set forth on Schedule D:
A. Each of the Company and Chancellor has complied in all material respects
with all applicable Environmental Law and the requirements of any permits
issued under such Environmental Law. There are no pending, past or threatened
Environmental Claims against the Company or Chancellor or any Real Property
currently or formerly owned, leased or operated by the Company or Chancellor.
There are no facts, circumstances, conditions or occurrences concerning the
operations of the Company or Chancellor (including, without limitation,
disposal or transportation of Hazardous Substances) or concerning any Real
Property owned, leased or operated by the Company or Chancellor, or on any
property adjoining or in the vicinity of any such Real Property, that could
reasonably be expected (a) to form the basis of an Environmental Claim against
the Company or Chancellor or any such Real Property, or (b) to cause any such
Real Property to be subject to any restrictions on the ownership, occupancy,
use or transferability of such Real Property by the Company or Chancellor under
any applicable Environmental Law.
B. Hazardous Material has not at any time been generated, used, treated or
stored on, or transported to or from, any Real
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Property owned, leased or operated by the Company or Chancellor where such
generation, use, treatment or storage has violated or could reasonably be
expected to violate any Environmental Law or could reasonably be expected to
result in an Environmental Claim. Hazardous Material has not at any time been
Released on or from any Real Property owned, leased or operated by the Company
or Chancellor or, to the knowledge of the Company, in the vicinity of such Real
Property, where such Release has violated or could reasonably be expected to
violate any applicable Environmental Law or could reasonably be expected to
result in an Environmental Claim against the Company or Chancellor. Except as
disclosed on Schedule D.1., no underground storage tanks or related piping is
located on any Real Property owned, leased or operated by the Company or
Chancellor.
C. Notwithstanding anything to the contrary in this Section 4.18, the
representations and warranties made in this Section 4.18 shall only be untrue
if the aggregate effect of all liabilities, failures, violations and
noncompliances of the types described above could reasonably be expected to
have a material adverse affect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Company or
of the Company and its Subsidiaries taken as a whole.
4.19. Survival of Representations and Warranties
Subject to Section 9.10B, all representations and warranties in the
Loan Documents shall continue until one year after repayment of the Notes and
the Obligations, and any investigation at any time made by or on behalf of the
Lenders shall not diminish the Lenders' right to rely thereon.
4.20. Permits
Except as disclosed on Schedule E as of the Closing Date or otherwise
disclosed to the Lenders, the Company and Chancellor have, and immediately
after the consummation of the Transactions will have such certificates,
permits, licenses, franchises, consents, approvals, authorizations and
clearances that are material to the condition (financial or otherwise),
business or operations of the Company or Chancellor, taken as a whole
("Permits"), and are (and will be immediately after the consummation of the
Transactions) in compliance in all material respects with all applicable Laws
of all Tribunals as are necessary to own, lease or operate their respective
properties and to conduct their businesses in the manner as presently conducted
and to be conducted immediately after the consummation of the Transactions, and
all such Permits are valid and in full force and effect and will be valid and
in full force and effect
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immediately upon consummation of the Transactions. Each of the Company and
Chancellor is, and immediately after the consummation of the Transactions will
be, in compliance in all material respects with its respective obligations
under such Permits and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination of such Permits, except
for any such revocation or termination as would not, singly or in the
aggregate, have a Material Adverse Effect.
4.21. Insurance
Each of the Company and Chancellor carries or is entitled to the
benefits of insurance (including self-insurance) in such amounts and covering
such risks as is generally maintained by companies of established repute
engaged in the same or similar businesses, and all such insurance is (and will
be immediately after the consummation of the Transactions) in full force and
effect.
4.22. Labor Matters
No labor disturbance by the employees of either the Company or
Chancellor exists or, to the best knowledge of the Company, is threatened, and
the Company is not aware of any existing or imminent labor disturbance by the
employees of any of the Company's or Chancellor's principal suppliers,
manufacturers or customers that could, singly or in the aggregate, have a
Material Adverse Effect.
4.23. Broker's or Finder's Fees
Other than those payable as Transaction Costs, no broker's or finder's
fees or commissions will be payable by the Company with respect to any
transaction contemplated hereby and no similar fees or commissions will be
payable by the Company for any other services rendered to the Company in
connection with the transactions contemplated hereby and thereby, other than
those payable to the Lenders and Agent. The Company represents, warrants,
covenants and agrees that it will indemnify the Lenders and the Agent against,
and hold each of them completely harmless from and against, any and all claims,
demands or liabilities for broker's or finder's fees or similar fees or
commissions asserted to have been incurred in connection with any of the
transactions contemplated hereby.
SECTION 5 AFFIRMATIVE COVENANTS
The Company covenants and agrees that, until the Bridge Loan and the
Notes and all other amounts due under this Agreement have been paid in full it
shall perform all covenants in this Section 5 required to be performed by it:
<PAGE> 56
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5.1. Financial Statements and Other Reports
The Company will maintain, and will cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance
with sound business practices to permit preparation of consolidated financial
statements in conformity with GAAP. The Company will deliver to the Lenders
and the Agent:
(i) within 30 days after the end of each fiscal month (other than
the fiscal months ending March, June, September and December) of the Company,
(i) the combined and combining balance sheets of the Company and its
Subsidiaries for each fiscal month, each as of the end of such month and the
related combined and combining statements of income and statements of cash
flows for such month and for the last elapsed portion of the fiscal year ended
with the last day of such month, in each case setting forth in the statements
of income only, the comparative figures for the corresponding month in the
prior fiscal year and the budgeted figures for such month as set forth in the
respective budgets delivered pursuant to Section 5.1(v) and (ii) the balance
sheets of each of the Stations on an individual basis as of the end of such
month and the related statements of income and statements of cash flows for
such month and for the elapsed portion of the fiscal year ended with the last
day of such month, in each case setting forth in the statements of income only,
the comparative figures for the corresponding month in the prior fiscal year
and the budgeted figures for such month as set forth in the respective budgets
delivered pursuant to Section 5.1(v);
(ii) as soon as available and in any event within 45 days after the
close of each of the first three quarterly accounting periods in each fiscal
year of the Company; (i) the combined and combining balance sheets of the
Company and its Subsidiaries for each fiscal quarter, each as of the end of
such quarter and the related combined and combining statements of income and
statements of cash flows for such quarter and for the last elapsed portion of
the fiscal year ended with the last day of such quarter and setting forth in
the statements of income only, the comparative figures for the corresponding
quarter in the prior fiscal year and the budgeted figures for such quarter as
set forth in the respective budgets delivered pursuant to Section 5.1(v), and
(ii) the balance sheets of each of the Stations as of the end of such quarter
and the related statements of income and statements of cash flows for such
quarter and for the elapsed portion of the fiscal year ended with the last day
of such quarter, in each case setting forth in the statements of income only,
the comparative figures for the corresponding quarter in the prior fiscal year
and the budgeted figures for such quarter as set forth in the respective
budgets delivered pursuant to Section 5.1(v);
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(iii) within 95 days after the close of each fiscal year of the
Company, (i) the consolidated and consolidating balance sheets of the Company
and its Subsidiaries for each fiscal year, each as at the end of such fiscal
year and the related statements of income and retained earnings and of cash
flows for such fiscal year and, setting forth comparative figures for the
preceding fiscal year and certified, in the case of such consolidated
statements, by Coopers & Lybrand L.L.P. or such other independent certified
public accountants of recognized national standing reasonably acceptable to the
Agent, (ii) the balance sheets of each of the Stations at the end of such
fiscal year and the related statement of income and retained earnings and
statement of cash flows for such fiscal year, in each case setting forth
comparative figures for the preceding fiscal year for income statements only
and (iii) management's discussions and analysis of the important operational
and financial developments during such fiscal year in respect of the Company
and its Subsidiaries;
(iv) promptly after the receipt thereof by the Company or any of
its Subsidiaries, a copy of any final "management letter" received by the
Company or such Subsidiary from its certified public accountants and a copy of
management's responses thereto;
(v) no later than 30 days following the commencement of the first
day of each fiscal year of the Company, budgeted statements of income in form
satisfactory to the Agent prepared by the Company for (x) each of the twelve
months of such fiscal year prepared in detail, and (y) each of the four years
immediately following such fiscal year prepared in summary form, in each case,
of each of the Company and its Subsidiaries and each of the Stations on an
individual basis accompanied by the statement of the President or Chief
Financial Officer or the Senior Vice President of Finance or any other person
designated in writing by the foregoing of the Borrower to the effect that, to
the best of his knowledge, the budget is a reasonable estimate for the period
covered thereby;
(vi) together with each delivery of financial statements pursuant
to Section 5.1(ii) above, (a) an Officers' Certificate of the Company stating
that the signers have reviewed the terms of this Agreement and the Notes and
have made, or caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of the Company and its Subsidiaries
during the accounting period covered by such financial statements and that such
review has not disclosed the existence during or at the end of such accounting
period, and that the signers do not have knowledge of the existence as of the
date of the Officers' Certificate, of any condition or event that constitutes
an Event of Default or Potential Event of Default, or, if any such condition or
event ex-
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isted or exists, specifying the nature and period of existence thereof and what
action the Company has taken, is taking and proposes to take with respect
thereto; and (b) a Compliance Certificate demonstrating in reasonable detail
compliance (as determined in accordance with GAAP) during and at the end of
such accounting periods with the restrictions contained in Sections 6.1, 6.2,
6.3, 6.4, 6.5, 6.8 and 6.11;
(vii) promptly, and in any event within three Business Days after an
Officer of the Company obtains knowledge thereof, notice of (1) the occurrence
of any event which constitutes a Default or Event of Default and (ii) any
litigation or governmental investigation or proceeding pending (x) against the
Company or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, (y) with respect to any material Indebtedness of the
Company and its Subsidiaries taken as a whole or (z) with respect to any other
document which could reasonably be expected to have a Material Adverse Effect;
(viii) promptly, copies of all (x) financial information, proxy
materials and other information and reports, if any, which the Company or any
of its Subsidiaries shall file with the Commission or any successor thereto, or
deliver to holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or other
representative therefor) and (y) material filings or communications with the
FCC or under, or as required by, the Communications Act;
(ix) from time to time, such other information or documents
(financial or otherwise) with respect to the Company or its Subsidiaries as any
Lender may reasonably request in writing;
(x) promptly upon any executive officer of the Company obtaining
knowledge (a) of any condition or event that constitutes an Event of Default or
Potential Event of Default, or becoming aware that the Lenders or Agent has
given any notice or taken any other action with respect to a claimed Event of
Default or Potential Event of Default under this Agreement, (b) that any Person
has given any notice to the Company or any Subsidiary of the Company or taken
any other action with respect to a claimed default or event or condition that
might result in an Event of Default referred to in Section 7.2, (c) of any
condition or event that would be required to be disclosed in a current report
filed with the Commission on Form 8-K whether or not the Company is required to
file such reports under the Exchange Act or (d) of the occurrence of any event
or change that has caused or evidences, either in any case or in the aggregate,
a Material Adverse Effect, an Officers' Certificate specifying the nature and
period of existence of any such
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condition or event, or specifying the notice given or action taken by such
holder or Person and the nature of such claimed default, Event of Default,
Potential Event of Default, event or condition, and what action the Company has
taken, is taking and proposes to take with respect thereto;
(xi) promptly upon any executive officer of the Company obtaining
knowledge of (X) the institution of, or non-frivolous threat of, any action,
suit, proceeding (whether administrative, judicial or otherwise), governmental
investigation or arbitration against or affecting the Company or any of its
Subsidiaries or any property of the Company or any of its Subsidiaries
(collectively, "Proceedings") not previously disclosed in writing by the
Company to the Lenders or (Y) any material development in any Proceeding that,
in any case:
(1) if adversely determined, has a reasonable possibility of giving rise
to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the Transactions;
written notice thereof together with such other information as may be
reasonably available to the Company or any of its Subsidiaries to enable
the Lenders and its counsel to evaluate such matters;
(xii) not later than the last day of each fiscal year of the
Company, a report in form and substance satisfactory to the Agent outlining all
material insurance coverage maintained as of the date of such report by the
Company and its Subsidiaries and all material insurance coverage planned to be
maintained by such Persons in the subsequent fiscal year;
(xiii) in writing, promptly upon an executive officer of the Company
obtaining knowledge that the Company or any of its Subsidiaries has received
notice or otherwise learned of any claim, demand, action, event, condition,
report or investigation indicating any potential or actual liability arising in
connection with (x) the noncompliance with or violation of the requirements of
any Environmental Law that could reasonably be expected to have, in dividually
or in the aggregate, a Material Adverse Effect, (y) the Release or threatened
Release of any Hazardous Material, substance or constituent into the
environment that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or that Release the Company or any of its
Subsidiaries would have a duty to report to a Tribunal under an Environmental
Law, or (z) the existence of any Environmental Lien on any properties or assets
of the Company or any of its Subsidiaries;
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(xiv) promptly after the availability thereof, copies of all
material amendments to the certificate of incorporation or by-laws of the
Company or Chancellor;
(xv) promptly upon any Person becoming a Subsidiary of the Company,
a written notice setting forth with respect to such Person (a) the date on
which such Person became a Subsidiary of the Company and (b) all of the data
required to be set forth in Schedule B with respect to all Subsidiaries of the
Company; and
(xvi) with reasonable promptness, such other information and data
with respect to the Company or any of its Subsidiaries or any of their
respective property, business or assets as from time to time may be reasonably
requested by any Lender; provided that no information or data shall be required
to be delivered hereunder or under any other provision of this Agreement if it
would violate any applicable attorney-client or accountant-client privilege.
5.2. Corporate Existence, Etc.
The Company will at all times preserve and keep in full force and
effect its corporate existence and rights and franchises to its business and
those of each of its Subsidiaries, except as permitted by Section 6.6 or where
the failure to so preserve or keep will not, singly or in the aggregate, have a
Material Adverse Effect.
5.3. Payment of Taxes and Claims
The Company will, and will cause each of its Subsidiaries to, pay all
material Taxes, assessments and other governmental charges imposed upon it or
any of its material properties or assets or in respect of any of its
franchises, business, income or property before any material penalty accrues
thereon, and all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums that have become due and payable and
that have or may become a Lien upon any of its properties or assets prior to
the time when any material penalty or fine shall be incurred with respect
thereto, other than Contested Claims.
5.4. Maintenance of Properties; Insurance
The Company will maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of the Company and its Subsidiaries
and from time to time promptly will make or cause to be made all necessary
repairs, renewals and replacements thereof; provided that nothing in this
Section 5.4 shall prevent the Company or any of its
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Subsidiaries from discontinuing the use, operation or maintenance of any such
properties, or disposing of any of them, if such action is in the ordinary
course of business or, in the reasonable good faith judgment of the Company or
such subsidiaries, necessary or desirable in the conduct of its business or
otherwise permitted by this Agreement. The Company will maintain or cause to
be maintained, with financially sound and reputable insurers or with self
insurance programs, in each case to the extent consistent with prudent business
practices and customary in its industry, insurance with respect to its
properties and business and the properties and businesses of its Subsidiaries
against loss or damage of the kinds (including, in any event, business
interruption insurance) and in the amounts customarily carried or maintained
under similar circumstances by corporations of established reputation engaged
in similar businesses and owning similar properties in the same general
respective areas in which the Company and its Subsidiaries operate.
5.5. Inspection
The Company shall permit any authorized representatives designated by
any Lender to visit and inspect any of the properties of the Company or its
Subsidiaries, including, without limitation, its and their financial and
accounting records, and to receive copies and extracts therefrom, and to
discuss its and their affairs, finances and accounts with its and their
officers and independent public accountants (provided that representatives of
the Company or any of its Subsidiaries may, if it so chooses, be present at or
participate in any such discussion), all upon reasonable notice and at such
reasonable times during normal business hours and as often as may be reasonably
requested.
5.6. Equal Security for Loan and Notes
If the Company or any of its Subsidiaries shall create, assume or
suffer to exist any Lien upon any of their respective property or assets,
whether now owned or hereafter acquired, other than Liens permitted by the
provisions of Section 6.2, the Company shall, unless waived by the Required
Lenders, make or cause to be made effective provision whereby the Obligations
under this Agreement will be secured by such Lien equally and ratably with any
and all other Indebtedness thereby secured as long as any such Indebtedness
shall be secured; provided that this covenant shall not be construed as or
deemed to be a consent by the Lenders to any violation of the provisions of
Section 6.2; and provided, further, that the Company shall under no
circumstances be required to make or cause to be made effective provision
whereby the Obligations under this Agreement will be secured, directly or
indirectly, by Margin Stock.
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5.7. Compliance with Laws, Etc.
The Company shall, and shall cause each of its Subsidiaries to, comply
with the requirements of all applicable Laws of any Tribunal, to the extent
noncompliance, singly or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
5.8. Maintenance of Accurate Records, Etc.
The Company shall keep, and will cause each of its Subsidiaries to
keep, true books and records and accounts in which full and correct entries
will be made of all its respective business transactions, and will reflect, and
cause each of its Subsidiaries to reflect, in its respective financial
statements adequate accruals and appropriations to reserves all in accordance
with GAAP and consistent with prior business practices.
5.9. ERISA Compliance
Each of the Company and its Subsidiaries will (i) make prompt payment
of all contributions that it is obligated to make under (x) all Pension Plans
and that are required to meet the minimum funding standard set forth in ERISA
with respect to each of the Pension Plans that is not a Multiemployer Plan, and
(y) all Multiemployer Plans, (ii) within 30 days after the filing thereof,
furnish to the Lenders each Schedule B to the annual return/report (Form 5500
Series), required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA, with respect to each of the Pension Plans
that is not a Multiemployer Plan for each Plan year, and (iii) notify the
Lenders promptly upon becoming aware of any fact, including but not limited to,
any Reportable Event arising in connection with any of the Pension Plans that
is not a Multiemployer Plan, which could be reasonably expected to constitute
grounds for termination thereof by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer such
Pension Plan, together with a statement as to the action, if any, proposed to
be taken with respect thereto.
5.10. Register
The Company hereby designates the Agent to serve as the Company's
agent, solely for purposes of this Section 5.10, to maintain a register (the
"Register") on which it will record the Bridge Loan made by the Lenders and the
repayment in respect of the principal amount of the Bridge Loan of the Lenders.
Failure to make any such recordation, or any error in such recordation, shall
not affect the Company's obligations in respect of the Bridge Loan. The
transfer of the Bridge Loan
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Commitment of the Lenders and the rights to the principal of, and interest on,
the Bridge Loan made pursuant to the Bridge Loan Commitment shall not be
effective until such transfer is recorded on the Register maintained by the
Agent with respect to ownership of the Bridge Loan Commitment and the Bridge
Loan and prior to such recordation all amounts owing to the transferor with
respect to such Bridge Loan Commitment and Bridge Loan shall remain owing to
the transferor. The registration of assignment or transfer of all or part of
the Bridge Loan Commitment and the Bridge Loan shall be recorded by the Agent
on the Register only upon the receipt by the Agent of a properly executed and
delivered assignment and assumption agreement pursuant to Section 9.2A.
Coincident with the delivery of such an assignment and assumption agreement to
the Agent for acceptance and registration of assignment or transfer of all or
part of the Bridge Loan, or as soon thereafter as practicable, the Lenders
shall surrender the Notes evidencing the Bridge Loan, and thereupon a new Notes
of the same type and in the same aggregate principal amount shall be issued to
the assigning or transferor Lenders and/or the new Lenders.
5.11 Environmental Covenants.
A. Promptly upon, and in any event within ten (10) Business Days after, an
officer of the Company or Chancellor obtains knowledge thereof, it will furnish
to Agent notice of the following environmental matters, unless such
environmental matters could not, individually or when aggregated with all other
such environmental matters, be reasonably expected to materially and adversely
affect the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole:
(1) any pending or threatened Environmental Claim against the Company or
Chancellor or any Real Property owned, leased or operated by the Company or
Chancellor;
(2) any condition or occurrence on or arising from any Real Property
owned, leased or operated by the Company or Chancellor that (a) results in
noncompliance by the Company or Chancellor with any applicable Environmental
Law or (b) could reasonably be expected to form the basis of an Environmental
Claim against the Company or Chancellor or any such Real Property;
(3) any condition or occurrence on any Real Property owned, leased or
operated by the Company or Chancellor that could reasonably be expected to
cause such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability by the Company or Chancellor of such Real
Property under any Environmental Law; and
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(4) the taking of any removal or remedial action in response to the actual
or alleged presence of any Hazardous Material on any Real Property owned,
leased or operated by the Company or Chancellor as required by any
Environmental Law or any governmental or other administrative agency; provided
that in any event the Company shall deliver to Agent all notices received by it
or Chancellor from any government or governmental agency or other Person under,
or pursuant to, CERCLA or similar state law.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Company's or Chancellor's response thereto. In addition, the Company will
provide Agent with copies of all material communications with any government or
governmental agency relating to Environmental Law, all communications with any
Person (other than its attorneys) relating to Environmental Claims, and such
detailed reports of any Environmental Claim as may reasonably be requested by
the Agent.
B. The Company will comply, and will cause each Subsidiary to comply, in all
material respects with any Environmental Law applicable to the ownership or use
of any or all of the Real Property now or hereafter owned, leased or operated
by the Company or Chancellor, will promptly pay or cause to be paid all costs
and expenses incurred in connection with such compliance, and will keep or
cause to be kept all such Real Property free and clear of any Liens imposed
pursuant to such Environmental Law. None of the Company or Chancellor will
generate, use, treat, store, release or dispose of, or permit the generation,
use, treatment, storage, release or disposal of Hazardous Material on any Real
Property now or hereafter owned, leased or operated by the Company or
Chancellor, or transport or permit the transportation of Hazardous Material to
or from any such Real Property except for Hazardous Material used or stored at
any such Real Properties in material compliance with all applicable
Environmental Law and reasonably required in connection with the operation, use
and maintenance of any such Real Property, and so as not to give rise to a
material Environmental Claim.
C. At the written request of Agent or the Lenders, at any time and from time
to time, the Company will provide, at the Company's sole cost and expense, an
environmental site assessment report concerning any Real Property now or
hereafter owned, leased or operated by the Company or Chancellor, prepared by
an environmental consulting firm chosen by the Company and approved by Agent;
provided that such approval may not be unreasonably withheld, indicating the
presence or absence of Hazardous Material and the potential cost of any
required removal or remedial action in connection with any Hazardous Material
on such Real Property; and further provided that such request may be made only
if (1) there has occurred and is continuing an
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Event of Default, (2) the Agent reasonably believes that the Company or
Chancellor or any such Real Property is not in material compliance with an
applicable Environmental Law, or (3) circumstances exist that reasonably could
be expected to form the basis of an Environmental Claim against the Company or
Chancellor. If the Company fails to provide the same within 90 days after such
request was made, Agent may order the same, and the Company shall grant and
hereby grants to Agent and the Lenders and their agents access to such Real
Property and specifically grants Agent and the Lenders an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment, all at the Company's expense.
SECTION 6 NEGATIVE COVENANTS
The Company covenants and agrees that until the satisfaction in full
of the Bridge Loan and the Notes and all other Obligations due under this
Agreement it will fully and timely perform all covenants in this Section 6.
6.1. Indebtedness
The Company shall not, and shall not cause or permit any of its
Subsidiaries, directly or indirectly, to Incur, or remain or become directly or
indirectly liable with respect to, any Indebtedness, except for the following
("Permitted Indebtedness"):
(i) the Company may Incur and remain liable with respect to the
Obligations and the Notes;
(ii) The Company and its Subsidiaries may Incur and remain liable
with respect to Indebtedness under the Bank Financing Documents as such Bank
Financing Documents are in effect on the Closing Date.
(iii) the Subsidiaries of the Company may become and remain liable
with respect to Contingent Obligations permitted by Section 6.5 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iv) the Company and its Subsidiaries may Incur and remain liable
with respect to Intercompany Indebtedness;
(v) the Company and its Subsidiaries may remain liable with
respect to the Indebtedness that is existing on the Closing Date and is
described on Schedule F;
(vi) the Company and its Subsidiaries may Incur and remain liable
with respect to Permitted Refinancing Indebtedness;
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(vii) (A) unsecured Indebtedness of the Subsidiaries owing to the
seller in any acquisition permitted pursuant to Section 6.4(xi) and Section
6.12(iv) or (B) Indebtedness of the Subsidiaries of the Company assumed in
connection with any such acquisition of an asset securing such Indebtedness in
an aggregate principal amount not to exceed $3,750,000 at any time outstanding,
for both clause (A) and clause (B) provided that such Indebtedness was not
incurred in connection with, or in anticipation or contemplation of, such
acquisition;
(viii) the Company and its Subsidiaries may Incur and remain liable
with respect to Indebtedness evidenced by Capitalized Lease Obligations in an
amount not to exceed $3,000,000 in any fiscal year;
(ix) the Company and its Subsidiaries may Incur and remain liable
with respect to Indebtedness subject to Liens permitted under Section 6.2; and
(x) the Company and its Subsidiaries may become and remain liable
with respect to other Indebtedness in an aggregate principal amount not to
exceed at any time outstanding $10,000,000.
6.2. Liens
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset (including any
document or instrument in respect of goods or accounts receivable) of the
Company or of any of its Subsidiaries, whether now owned or hereafter acquired,
or assign or otherwise convey any right to receive any income or profits
therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any
such property, asset, income or profits under the UCC of any State or under any
similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens on (a) Real Property Assets or (b) equipment, fixtures
and other similar property of the Company and any of its Subsidiaries, in each
case securing Indebtedness described in Section 6.1; provided that such Liens
shall extend only to the equipment, fixtures, and other similar property so
financed (and improvements or attachments thereto) and the proceeds thereof;
(iii) the replacement, extension or renewal of any Lien permitted by
this Section 6.2 upon or in the same property subject to such Lien and as
security for the same obligations
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or any refinancings thereof to the extent such refinancings are permitted under
Section 6.1; provided that such Lien does not extend to or cover any property
other than the property covered by such Lien immediately prior to such
replacement, extension or renewal of such Lien (and improvements or attachments
thereto) and the principal of the obligations secured thereby is not increased;
(iv) Liens upon assets subject to Capitalized Lease Obligations to
the extent permitted by Section 6.1(viii), provided that (x) such Liens only
serve to secure the payment of Indebtedness arising under such Capitalized
Lease Obligation and (y) the Lien encumbering the asset giving rise to the
Capitalized Lease Obligation does not encumber any other asset of the Company
or any Subsidiary of the Company;
(v) deposits made in the ordinary course of business to secure
liabilities for premiums to insurance carriers, provided that such deposits do
not exceed in the aggregate an amount equal to $2,500,000 at any time;
(vi) Liens to secure obligations permitted by Section 6.12(v);
(vii) Liens on property or assets in existence at the time such
property or assets are acquired pursuant to Section 6.4(xi) and Section
6.12(iv), provided that (x) any Indebtedness that is secured by such Liens is
permitted to exist under Section 6.1(vii), and (y) such Liens are not incurred
in connection with, or in contemplation or anticipation of, such acquisition
and do not attach to any other asset of the Company or any of its Subsidiaries;
(viii) cash earnest money deposits in connection with acquisitions
otherwise permitted under this Agreement in an amount not to exceed $10,000,000
in the aggregate; and
(ix) additional Liens securing Indebtedness of the Company and its
Subsidiaries not otherwise permitted under this Section 6.2 to the extent
attaching to properties and assets with an aggregate fair market value not in
excess of and securing liabilities not in excess of $2,500,000.
6.3. Restricted Payments
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend, or
make any distribution, on any Capital Stock of the Company (other than (i)
dividends or distributions payable solely in Qualified Capital Stock of the
Company and (ii) dividends on the Company's 7% Convertible Preferred Stock),
(b) purchase, redeem or otherwise acquire or retire for
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value any of the Company's Capital Stock, or any warrants, rights or options
to acquire shares of any class of such Capital Stock or (c) make any principal
payment on, purchase, defease, redeem, prepay, or otherwise acquire or retire
for value, other than any scheduled final maturity, scheduled repayment or
scheduled sinking fund payment, any Subordinated Indebtedness or Pari Passu
Indebtedness of the Company (any such dividend, distribution, purchase,
redemption, acquisition, retirement, defeasance or prepayment set forth in
clauses (a), (b) and (c) above a "Restricted Payment").
Notwithstanding the foregoing,
(i) any Subsidiary of the Company may pay dividends to the Company
or any Subsidiary of the Company;
(ii) the Company may pay cash dividends, and Chancellor may pay
cash dividends to the Company to enable the Company, to make payments (A) to
pay management fees or executive compensation to the extent such management
fees or executive compensation are permitted by the Bank Financing Documents
and pursuant to the Monitoring and Oversight Agreements (as defined in the Bank
Financing Documents and to the extent permitted therein), (B) to repurchase the
Company's Common Stock and/or options to purchase Company Common Stock held by
(x) Dinetz pursuant to the Dinetz Employment Contract (as defined in the Bank
Financing Documents) or (y) directors, executives, officers, members of
management, or employees of the Company or any of its Subsidiaries upon the
exercise of options in accordance with the Employee Stock Option Plan (as
defined in the Bank Financing Documents), or (z) other stockholders of the
Company so long as the purpose of such purchase is to acquire Company Common
Stock for reissuance to new employees of the Company and its Subsidiaries to
the extent so reissued within 12 months of any such purchase so long as the
aggregate amount of cash expended by the Company pursuant to subclause (B) of
this clause (iii) shall not exceed $2,500,000 in any fiscal year or $5,000,000
in the aggregate (plus the amount of cash proceeds paid by any new employee in
consideration for reissuance of Company Common Stock repurchased by the Company
to the extent received by the Company within 12 months following any such
repurchase, minus the amount of cash paid in respect of the Company's
Subordinated Notes permitted under Section 9.11(ii) of the Bank Financing
Documents), and (C) on the Company's Subordinated Notes, to the extent
permitted under Section 9.11(ii) of the Bank Financing Documents, so long as in
the case of subclauses (B) and (C) of this clause (iii), no Potential Event of
Default or Event of Default exists or would result therefrom;
(iii) Chancellor may pay cash dividends to the Company for the
purpose of paying, so long as all proceeds thereof are promptly used by the
Company to pay franchise taxes and fed-
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eral, state and local income taxes and interest, and penalties with respect
thereto, if any, payable by the Company;
(iv) Chancellor may pay cash dividends to the Company to enable the
Company to pay cash dividends to redeem fractional shares of its common stock
so long as the aggregate amount thereof does not exceed $5,000;
(v) Chancellor may pay regularly scheduled dividends on its
Exchangeable Preferred Stock pursuant to the terms thereof solely through the
issuance of additional shares of Exchangeable Preferred Stock;
(vi) Chancellor may pay cash dividends to the Company for the
purpose of making, so long as all proceeds thereof are promptly used by the
Company to make, cash payments in lieu of issuing fractional shares of Company
Common Stock upon the conversion of the Convertible Preferred Stock in an
aggregate amount not to exceed $150,000;
(vii) Chancellor may pay cash dividends on its Exchangeable
Preferred Stock in lieu of issuing fractional shares of Exchangeable Preferred
Stock; and
(viii) Chancellor may pay cash dividends to the Company for the
purpose of making, so long as all proceeds thereof are promptly used by the
Company to make, payments (including voluntary prepayments) in respect of
principal under this Agreement.
6.4. Investments
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment (other than
Permitted Investments) in any Person, except:
(i) the Company and its Subsidiaries may continue to own the
Investments owned by them as of the Closing Date described on Schedule B;
(ii) the Company and its Subsidiaries may make and own Investments
received in connection with the bankruptcy of suppliers and customers or
received pursuant to a plan of reorganization of any supplier or customer, in
each case in settlement of delinquent obligations or disputes with such
suppliers or customers;
(iii) the Company and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with customary terms;
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(iv) the Company and its Subsidiaries may make loans and advances
in the ordinary course of business to their respective officers, directors and
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs of such
loans and advances) shall not exceed $1,000,000;
(v) the Company may enter into Interest Protection Agreements to
the extent entered into pursuant to the Bank Financing Documents;
(vi) the Company may repurchase Company Common Stock to the extent
permitted by Section 6.3;
(vii) promissory notes and other similar non-cash consideration
received by the Company and its Subsidiaries in connection with dispositions
permitted by Section 6.6 and Section 6.12, so long as the aggregate principal
amount thereof does not exceed $1,000,000 at any one time outstanding;
(viii) investments by the Company in any Subsidiary;
(ix) investments by the Company or any of its Subsidiaries to the
extent permitted by Section 9.07 of the Bank Financing Documents;
(x) guarantees of Indebtedness made by the Company or any of its
Subsidiaries to the extent otherwise permitted by Section 6.1;
(xi) so long as no Potential Event of Default or Event of Default
then exists or would arise therefrom, the Company may permit its Subsidiaries
to, acquire the capital stock or assets of any Person so long as (x) any such
acquisition is for all the capital stock or all or substantially all of the
business of, or an operating division or a business unit of, such Person, (y)
the aggregate consideration paid (including Indebtedness assumed in connection
therewith) pursuant to this clause (xiii) does not exceed $50,000,000 and (z)
the Company shall be in compliance with the financial covenants contained in
Sections 9.08 through 9.10, inclusive, of the Bank Financing Documents, with
such financial covenants to be calculated on pro forma basis as if such
acquisition had been consummated on the first day of the then most recently
ended Test Period (as defined in the Bank Financing Documents) (and any
Indebtedness incurred, issued or assumed in connection therewith had been
incurred on the first day of, and remained outstanding throughout, such Test
Period); and
(xii) in addition to investments permitted by clause (i) through
(xi) of this Section 6.4, the Company and its Subsidiaries may make additional
loans, advances and investments
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in an aggregate principal amount not to exceed $2,500,000 at any time
outstanding.
6.5. Contingent Obligations
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation, except:
(i) the Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations outstanding on the Closing Date
described in Schedule F, which Contingent Obligations may be refinanced,
extended, renewed, refunded or defeased in whole or in part;
(ii) the Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of customary indemnification
and purchase price adjustment obligations incurred in connection with the
Acquisition, Asset Sales or other sales of assets; provided that the maximum
assumable liability in respect of all such obligations shall at no time exceed
the gross proceeds actually received by the Company and its Subsidiaries in
connection with such Asset Sales and other sales;
(iii) the Company and its Subsidiaries may become and remain liable
with respect to guarantees of Indebtedness or Contingent Obligations of a
Wholly Owned Subsidiary of the Company and a Subsidiary of the Company may
become and remain liable with respect to guarantees of Indebtedness or
Contingent Obligations of the Company or a Wholly Owned Subsidiary of the
Company;
(iv) the Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations that (A) exist at the time a Person
becomes a Subsidiary of the Company or (b) are assumed in connection with the
acquisition of assets from a Person, but not incurred in contemplation of such
Person becoming a Subsidiary of the Company;
(v) the Company and its Subsidiaries may Incur and remain liable
with respect to guarantees (other than guarantees of Indebtedness which is not
a Capitalized Lease Obligation) made in the ordinary course of business,
provided that such guarantees could not, individually or in the aggregate, have
a Material Adverse Effect;
(vi) the Company and its Subsidiaries may Incur and remain liable
with respect to Contingent Obligations under Interest Rate Protection
Agreements (as defined in the Bank Fi-
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nancing Documents) to the extent entered into pursuant to the Bank Financing
Documents.
6.6. Restriction on Fundamental Changes, Asset Purchases or Sales
Subject to Section 5.2 and other than the sale of 100% of a Subsidiary
of the Company in accordance with Section 2.4A(ii)(b) and Section 6.12, the
Company shall not, and shall not cause or permit any of its Subsidiaries to,
directly or indirectly, enter into any transaction, or series of related
transactions, or merger, amalgamation, consolidation or combination, or
consolidate, or liquidate, windup or dissolve itself (or suffer any liquidation
or dissolution), or convey, sell, lease, sublease, transfer or otherwise
dispose of, in one transaction or in a series of transactions, all or
substantially all of its business, property or assets, whether now owned or
hereafter acquired, except:
(i) in connection with the Acquisition or the Evergreen Merger;
(ii) Capital Expenditures (as defined in the Bank Financing
Documents) made by Chancellor and its Subsidiaries in the ordinary course of
business;
(iii) investments may be made to the extent permitted by Section 6.4
and Section 6.12;
(iv) to the extent otherwise permitted pursuant to the Bank
Financing Documents, the sale or other disposition of Stations of Chancellor or
its Subsidiaries shall be permitted for cash at fair market value (as
determined in good faith by the Company) so long as the proceeds thereof are
applied in accordance with the requirements of this Agreement and Section
4.02(e) of the Bank Financing Documents;
(v) the WDRQ Detroit Disposition (as defined in the Bank Financing
Documents) shall be permitted; and
(vi) any Subsidiary of the Company may be merged, amalgamated,
consolidated or combined with or into the Company or any Wholly Owned
Subsidiary of the Company or be liquidated, wound up or dissolved, or all or
substantially all of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or in a series
of transactions, to the Company or to any Wholly Owned Subsidiary of the
Company; provided that (A) no Potential Event of Default or Event of Default
shall have occurred and be continuing or would result therefrom, (B) in the
case of such a merger, amalgamation, consolidation or combination of the
Company and a Subsidiary of the Company, the Company shall be the
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continuing or surviving corporation, and (C) the surviving entity (I) continues
to be bound as such under this Agreement and (II) executes and delivers to the
Agent immediately upon consummation of such transaction a written confirmation
or acknowledgment to such effect, in form and substance satisfactory to the
Agent, together with evidence of appropriate corporate power, authority and
action and a written legal opinion in form and substance satisfactory to the
Agent to the effect that this Agreement continues to be a legal, valid and
binding obligation of such entity, enforceable against such entity in
accordance with its terms (subject to customary exceptions in respect of
bankruptcy, insolvency and other equitable remedies) and with respect to such
other matters as the Agent may reasonably request.
6.7. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or permit or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary of the Company to (a) pay dividends or make any other
distributions on its Capital Stock or any other interest or participation in,
or measured by, such Subsidiary's profits; (b) make loans or advances or pay
any Indebtedness or other obligation owed to the Company or to any Subsidiary
of the Company; or (c) transfer any of its property or assets to the Company or
to any Subsidiary of the Company (any such restriction or encumbrance a
"Payment Restriction"), and except as permitted under any certificate of
designation governing the terms of any issue of Preferred Stock of Chancellor
and except for such encumbrances or restrictions existing under or by reason
of: (1) any restrictions contained in (i) the Bank Financing Documents, the
Loan Documents or the Chancellor Indentures or (ii) secured Indebtedness
otherwise permitted to be incurred pursuant to Sections 6.1 and 6.2 that limits
the right of the debtor to dispose of the assets securing such Indebtedness;
(2) any restrictions contained in the Acquisition Agreement; (3) customary
nonassignment provisions of any lease or sublease governing a leasehold
interest of any Subsidiary of the Company; (4) customary net worth provisions
contained in leases and other agreements entered into by a Subsidiary in the
ordinary course of business; (5) customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary; (6) applicable law; (7) any instrument that Refinances any
Indebtedness effecting any such encumbrance or restriction pursuant to clause
(1) above; provided that the provisions relating to any such encumbrance or
restriction in any such instrument are not materially less favorable to the
Company or its Sub-
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sidiaries or the Lenders than those contained in the agreements referred to in
clause (1); and (8) customary provisions restricting assignment of any
licensing agreement entered into by a Subsidiary in the ordinary course of
business.
6.8. Restrictions on Additional Acquisitions
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, enter into any agreements to purchase
or acquire all or a substantial portion of the business, property or assets of,
or stock or other evidence of beneficial ownership of, any Person or any
direction or line of business of any Person, other than the Acquisition or as
permitted pursuant to Section 6.6.
6.9. Transactions with Affiliates
The Company will not, and will not permit any of its Subsidiaries to
enter into any transaction or series of related transactions, whether or not in
the ordinary course of business, with any Affiliate of the Company or any of
its Subsidiaries, other than in the ordinary course of business and on terms
and conditions substantially as favorable to the Company or such Subsidiary as
would reasonably be obtained by the Company or such Subsidiary at that time in
a comparable arm's-length transaction with a Person other than an Affiliate,
except that:
(i) Dividends may be paid to the extent provided in Section 6.3;
(ii) loans may be made and other transactions may be entered into
by the Borrower and its Subsidiaries to the extent permitted by Sections 6.1,
6.4, 6.5 and 6.6;
(iii) customary fees and reimbursement of expenses may be paid to
directors of the Company;
(iv) the Company, or to the extent not paid by the Company,
Chancellor, may pay to Hicks, Muse & Co. Partners, L.P., its Affiliates or any
successor thereto controlled by Jack D. Furst, Charles W. Tate, Thomas O. Hicks
and/or John R. Muse, the amounts set forth in the Amended and Restated
Financial Monitoring and Oversight Agreement dated as of January 1, 1996, among
the Company, Chancellor and Hicks, Muse & Co. Partners, L.P. and the Financial
Advisory Agreement dated as of January 1, 1996 among HM2/Management Partners
L.P., the Company and Chancellor in the form delivered to the Agent on or prior
to the Closing Date, as it may be modified thereafter but without giving effect
to any modifications thereto that in any way adversely affects the interests of
the Lenders (including, without limitation, by increasing in any respect the
costs or
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liabilities of the Company or any of its Subsidiaries) without the consent of
the Required Lenders other than increases in base fees as previously disclosed
to the Agent (collectively, "the Monitoring and Oversight Agreements");
(v) the Company and its Subsidiaries may enter into and make
payments pursuant to employment arrangements with executive officers and senior
management employees in the ordinary course of business;
(vi) the Company and its Subsidiaries may make payments pursuant to
employment agreements existing on the Closing Date;
(vii) the Company and its Subsidiaries may make payments pursuant to
the Tax Sharing Agreements;
(viii) the Company and its Subsidiaries may maintain their present
Operating Agreements (as defined in the Bank Financing Documents); and
(ix) the Company may make capital contributions to Chancellor.
6.10. Subsidiary Stock
Except for any sale of 100% of the Capital Stock or other equity
securities of any of the Company's Subsidiaries in compliance with the
provisions of Section 6.6, the Company will not, and will not permit any of its
Subsidiaries to directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of Capital Stock or other equity securities
of any of its Subsidiaries, except (i) to the Company or to a Wholly Owned
Subsidiary of the Company, (ii) Asset Sales made in compliance with this
Agreement or (iii) as security under the Bank Financing Documents.
6.11. Business Activities
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, materially alter the nature of the
consolidated business of the Company and its Subsidiaries from that in
existence immediately after giving effect to the Transactions or similar or
related businesses. The Company shall not engage in any business or other
activity other than the ownership of the Capital Stock of the Subsidiaries of
the Company.
6.12. Asset Sales
(a) The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, con-
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summate any Asset Sale unless (1) the Company or such Subsidiary, as the case
may be, receives consideration therefor at the time thereof at least equal to
the fair market value at the time of such Asset Sale of the property, assets or
stock that is the subject of such Asset Sale, (2) at least 75% of the
consideration received therefor by the Company or such Subsidiary is in the
form of cash or Cash Equivalents and (3) all of the Net Cash Proceeds in
respect thereof are applied by the Company or a Subsidiary of the Company in
accordance with Section 2.4A(ii)(b).
(b) Notwithstanding the foregoing, none of the following shall be an
Asset Sale for the purposes of Section 2.4(A)(ii)(b):
(i) each of the Company and its Subsidiaries may make sales or
other transfers of airtime in the ordinary course of business and consistent
with past practices;
(ii) licenses or sublicenses by the Company and its Subsidiaries of
software, trademarks and other intellectual property and general intangibles
and licenses, leases or subleases of other property in the ordinary course of
business and which do not materially interfere with the business of the Company
or any Subsidiary;
(iii) the Company or any Subsidiary of the Company may transfer
assets to or lease assets to or acquire or lease assets from the Company or any
Subsidiary to the extent permitted under the Bank Financing Documents or any
Subsidiary of Chancellor may be merged or consolidated with or into, or be
liquidated or dissolved into, Chancellor or any other Subsidiary of the Company
(so long as Chancellor or such Subsidiary is the surviving corporation);
(iv) to the extent otherwise permitted pursuant to the Bank
Financing Documents, Chancellor may, and may permit its Subsidiaries to,
simultaneously enter into a Station Swap or a Stock Swap (each as defined in
the Bank Financing Documents), so long as any cash proceeds received by
Chancellor or any of its Subsidiaries in connection with any such Stock Swap or
Station Swap shall be applied in accordance with Section 2.4A(ii)(b) of this
Agreement and Section 4.02(e) of the Bank Financing Documents;
(v) the Company and its Subsidiaries may sell or discount,
accounts receivable arising in the ordinary course of business (x) which are
overdue or (y) which the Company or its Subsidiaries may reasonably determine
are difficult to collect, but only in connection with the compromise or
collection thereof consistent with customary industry practice (and not as part
of any bulk sale or financing of receivables);
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(vi) transfers of condemned property to the respective governmental
authority or agency that have condemned same (whether by deed in lieu of
condemnation or otherwise), and transfers of properties that have been subject
to a casualty to the respective insurer of such property or its designee as
part of any insurance settlement, so long as the proceeds thereof are applied
as required by Section 4.02(g) of the Bank Financing Documents;
(vii) the SFX Exchange (as defined in the Bank Financing Documents)
shall be permitted; and
(viii) each of the Company and its Subsidiaries may sell or otherwise
dispose of equipment in the ordinary course of business which, in the
reasonable judgment of such Person, is obsolete, worn out or otherwise no
longer useful, in the conduct of such Person's business.
Nothing in this covenant shall be deemed to prevent the exercise of
remedies by secured creditors of the Company or any Subsidiary of the Company.
SECTION 7 EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default")
shall occur and be continuing:
7.1. Failure To Make Payments When Due
Failure to pay any installment of principal of or interest on the
Bridge Loan when due, whether at stated maturity, by acceleration, by notice of
prepayment or otherwise; or
7.2. Default in Other Agreements
(A) Failure of the Company or any of its Subsidiaries to pay principal
or interest on one or more issues of Indebtedness or Contingent Obligations of
the Company or of any of its Subsidiaries when due (including, in the
determination of such due date, any period of grace) (other than Indebtedness
referred to in Section 7.1) or (B) breach or default by the Company or any of
its Subsidiaries with respect to any other term of any one or more issues of
Indebtedness or Contingent Obligations of the Company or of any of its
Subsidiaries or any agreement or instrument evidencing or securing such
Indebtedness or Contingent Obligations and, in any case, such failure, breach
or default results in the acceleration of that Indebtedness or Contingent
Obligation prior to its stated maturity and, in any case, the principal amount
of such Indebtedness or Contingent Obligation and all other such Indebtedness
or Contingent Obligations of the Company and its Subsidiaries in respect
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of which there is such a failure to pay principal or interest or which has been
so accelerated equals $10,000,000 or more; or
7.3. Breach of Certain Covenants
Failure of the Company to perform or comply with any covenant, term or
condition contained in Sections 2.4A(ii), 2.4A(iv) or 5.2; or
7.4. Breach of Warranty
Any representation, warranty or certification made by the Company in
any Loan Document or in any statement or certificate at any time given by the
Company in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false or incorrect in any material respect on the date as of
which made or deemed made; or
7.5. Other Defaults Under This Agreement or the Notes
The Company shall default in the performance of or compliance with any
covenant, term or condition contained in this Agreement or the Notes (other
than those covered by Section 7.1, 7.3 or 7.4) and such default shall not have
been remedied or waived in accordance with this Agreement within 30 days after
the date of written notice from the holder or holders of not less than 25% in
aggregate principal amount of the Bridge Loan then outstanding of such default;
or
7.6. FCC Denial
The FCC shall have determined finally not to have granted approval of
the transfer or other assignment of licenses contemplated by the Acquisition
and the Acquisition Agreement.
7.7. Involuntary Bankruptcy; Appointment of Custodian, Etc.
A court of competent jurisdiction enters a Bankruptcy Order under any
Bankruptcy Law that:
(A) is for relief against the Company or any Material Subsidiary
in an involuntary case or proceeding, or
(B) appoints a Custodian of the Company or any Material Subsidiary
for all or substantially all of its properties, or
(C) orders the liquidation of the Company or any Material
Subsidiary,
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and in each case the order or decree remains unstayed and in effect for 60
days.
7.8. Voluntary Bankruptcy; Appointment of Custodian, Etc.
The Company or any Material Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding, or
(B) consents to the entry of a Bankruptcy Order for
relief against it in an involuntary case or proceeding, or
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors or files a proposal or scheme of arrangement involving the
rescheduling or composition of its indebtedness, or
(E) consents to the filing of a petition in bankruptcy
against it, or
(F) shall generally not pay its debts when such debts
become due or shall admit in writing its inability to pay its debts
generally.
7.9. Judgments and Attachments
Any money judgment, writ or warrant of attachment, or similar process
involving in any individual case or in the aggregate at any time an amount in
excess of $1,000,000 (to the extent not covered by third-party insurance as to
which the insurance company has not denied coverage) shall be entered or filed
against the Company or any of its Subsidiaries or any of their respective
properties or assets and shall remain undischarged, unvacated, unbonded or
unstayed for a period of 60 days or in any event later than five days prior to
the date of any proposed sale thereunder; or
7.10. Dissolution
Any order, judgment or decree shall be entered against the Company or
any Material Subsidiary decreeing the dissolution or split-up of the Company or
that Material Subsidiary and such order shall remain undischarged or unstayed
for a period in excess of 30 days.
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SECTION 8 THE AGENT
8.1. Appointment
The Lenders hereby irrevocably designate and appoint Bankers Trust as
Agent of the Lenders to act as specified herein and in the other Loan
Documents, and the Lenders hereby irrevocably authorize Bankers Trust as the
Agent to take such action on their behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. The Agent agrees to act as such upon the
express conditions contained in this Section 8. Notwithstanding any provision
to the contrary elsewhere in this Agreement or in any other Loan Document, the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein or in the other Loan Documents, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Agent. The provisions of this Section 8 are solely for the benefit
of the Agent and the Lenders, and, other than in connection with Section 8.9,
the Company shall not have any rights as a third party beneficiary of any of
the provisions hereof. In performing its functions and duties under this
Agreement, the Agent shall act solely as agent of the Lenders and the Lenders
do not assume and shall not be deemed to have assumed any obligation or
relationship of agent or trust with or for the Company.
8.2. Delegation of Duties
The Agent may execute any of its duties under this Agreement or any
other Loan Document by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care except to the
extent otherwise required by Section 8.3.
8.3. Exculpatory Provisions
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or the other Loan Documents (except for its or
such Person's own gross negligence or willful misconduct) or (ii) responsible
in any manner to the Lenders for any recitals, statements, representations or
warranties made by the Company or any of their respective officers contained in
this Agreement, any other Loan
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Documents or in any certificate, report, statement or other document referred
to or provided for in, or received by the Agent under or in connection with,
this Agreement or any other Loan Document or for any failure of the Company or
any of its officers to perform their obligations hereunder or thereunder. The
Agent shall not be under any obligation to the Lenders to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or the other Loan Documents, or to inspect
the properties, books or records of the Company or Chancellor. The Agent shall
not be responsible to the Lenders for the effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Agreement or
any other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statement or
in any financial or other statements, instruments, reports, certificates or any
other documents in connection herewith or therewith furnished or made by the
Agent to the Lenders or by or on behalf of the Company to the Agent or the
Lenders or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Bridge Loan
or of the existence or possible existence of any Potential Event of Default or
Event of Default.
8.4. Reliance by Agent
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, facsimile, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including, without
limitation, counsel to the Company or any of its Subsidiaries), independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders or such lesser amount as may be designated herein as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. As between the Agent
and the Lenders, the Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders or such lesser amount as may
be designated herein, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders.
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8.5. Notice of Default
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Potential Event of Default or Event of Default hereunder
unless the Agent has actually received notice from the Lenders, the Company or
Chancellor referring to this Agreement, describing such Potential Event of
Default or Event of Default and stating that such notice is a "notice of
default." In the event that the Agent receives such a notice, the Agent shall
give prompt notice thereof to the Lenders. The Agent shall take such action
with respect to such Potential Event of Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that, as between the
Agent and the Lenders unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Potential Event of
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.
8.6. Nonreliance on Agent and Other Lenders
The Lenders expressly acknowledges that neither the Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
the Agent hereinafter taken, including any review of the affairs of the Company
and its Subsidiaries, shall be deemed to constitute any representation or
warranty by the Agent to the Lenders. Each Lender represents to the Agent that
it has, independently and without reliance upon the Agent, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, assets, operations, property, financial
and other condition, prospects and creditworthiness of the Company and
Chancellor and made its own decision to make the Bridge Loan and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Agent, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
condition, prospects and creditworthiness of the Company and Chancellor. The
Agent shall not have any duty or responsibility to provide the Lenders with any
credit or other information concerning the business, operations, assets,
property, financial and other condition, prospects or creditworthiness of the
Company or Chancellor that may come into the possession of the Lenders or any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
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8.7. Indemnification
The Lenders agree to indemnify the Agent in its capacity as such
ratably according to their respective "percentages" as used in determining the
Required Lenders at such time, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
reasonable expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment in full
of the Obligations) be imposed on, incurred by or asserted against the Agent in
its capacity as such in any way relating to or arising out of this Agreement or
any other Loan Document, or any documents contemplated by or referred to herein
or the transactions contemplated hereby of any action taken or omitted to be
taken by the Agent under or in connection with any of the foregoing, but only
to the extent that any of the foregoing is not paid by the Company; provided
that the Lenders shall not be liable to the Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
gross negligence or willful misconduct of the Agent. If any indemnity
furnished to the Agent for any purpose shall, in the opinion of the Agent be
insufficient or become impaired, the Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished. The agreements in this Section 8.7 shall
survive the payment in full of all Obligations.
8.8. Agent in Its Individual Capacity
The Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Company as though the
Agent were not the Agent hereunder. With respect to the Bridge Loan made by it
as a Lender and all Obligations owing to it as a Lender, the Agent shall have
the same rights and powers under this Agreement as the other Lenders and may
exercise the same as though it were not the Agent and the terms "Lender" and
"Lenders" shall include the Agent in its individual capacity.
8.9. Resignation of the Agent; Successor Agent
The Agent may resign as the Agent upon 20 days' notice to the Lenders
and the Company. Upon the resignation of the Agent, the Required Lenders shall
appoint a successor Agent that is a bank or a trust company for the Lenders
subject to prior approval by the Company (such approval not to be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "Agent" shall include such
successor agent effective upon its appointment, and the resigning Agent's
rights,
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powers and duties as the Agent shall be terminated, without any other or
further act or deed on the part of such former Agent or any of the parties to
this Agreement. If no successor Agent has been appointed as provided above by
the 20th day after the date such notice of resignation was given by the Agent,
the Agent's resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of the Agent hereunder and/or any other Loan
Documents until such time, if any, as the Lenders appoint a successor Agent as
provided above (and subject to the Company's approval as provided above).
After the resignation of the Agent hereunder, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
SECTION 9 MISCELLANEOUS
9.1. Representation of the Lenders
Each Lender hereby represents that it is a commercial lender that
makes loans in the ordinary course of its business and that it will make the
Bridge Loan hereunder for its own account or the account of its affiliates in
the ordinary course of such business.
9.2. Participations in and Assignments or Syndication of the Bridge Loan and
Notes
A. The Lenders shall have the right at any time to participate out, sell,
assign or syndicate all or any portion of the Notes or the Bridge Loan
Commitment in an aggregate amount of not less than $1,000,000 upon the earlier
to occur of December 31, 1997 and the date on which the Evergreen Merger is
terminated, among any Eligible Assignee. In the case of any sale, transfer or
negotiation of all or part of the Notes or the Bridge Loan Commitment
authorized under this Section 9.2A, the assignee, transferee or recipient shall
become a party to this Agreement as a Lender by execution of an assignment and
assumption agreement; provided that (i) at such time Section 2.1A shall be
deemed modified to reflect the Bridge Loan Commitment of such new Lenders and
of any existing Lenders, (ii) upon surrender of the Notes, new Notes will be
issued, at the Company's expense, to such new Lenders and to the assigning
Lenders, such new Notes to be in conformity with the requirements of Section
2.1D (with appropriate modifications) to the extent needed to reflect the
revised Bridge Loan Commitment, and (iii) the Agent shall receive at the time
of each such assignment, from the assigning or assignee Lenders, the payment of
a non-refundable assignment fee of $3,000.00; and provided, further, that such
transfer or assignment will not be effective until recorded by the Agent on the
Register pursuant to Section 5.10. To the extent of any assignment pursuant to
this Section 9.2A, each as-
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signing Lender shall be relieved of its obligations hereunder with respect to
its assigned Bridge Loan Commitment, and the assignee, transferee or recipient
shall have, to the extent of such sale, assignment, transfer or negotiation,
the same rights, benefits and obligations as it would if it were a Lender with
respect to such Notes or Bridge Loan Commitment, including, without limitation,
the right to approve or disapprove actions that, in accordance with the terms
hereof, require the approval of the Lenders. At the time of each assignment
pursuant to this Section 9.2A to an Eligible Assignee that is not already a
Lender hereunder and that is not a United States Person (as such term is
defined in Section 7701(a)(30) of the Internal Revenue Code) for federal income
tax purposes, the respective Eligible Assignee shall provide to the Company and
the Agent the appropriate Internal Revenue Service Forms (and, if applicable, a
Tax Certificate) described in Section 9.19F. Notwithstanding the foregoing, no
Eligible Assignee, which as of the date of any assignment to it pursuant to
Section 9.2A would be entitled to receive any greater payment under Section
9.19 than the assigning Lenders would have been entitled to receive as of such
day under such Section with respect to the rights assigned, shall be entitled
to receive such payments unless the Company has expressly consented in writing
to waive the benefit of this provision at the time of the assignment.
B. The Lenders may grant participations in all or any part of the Notes or the
Bridge Loan Commitment in an aggregate amount of not less than $1,000,000 to a
member of the Syndicate Group or to any Eligible Assignee, as the case may be,
other than to an Eligible Assignee that has, or has an Affiliate that has, a
principal line of business similar to any principal line of business of the
Company. In the event of any such sale by the Lenders of a participating
interest to a participant, each Lender's obligations under this Agreement shall
remain unchanged, such Lenders shall remain solely responsible for the
performance thereof, such Lenders shall remain the holder of the Notes for all
purposes under this Agreement and the other Loan Documents and the Company and
the agent shall continue to deal solely and directly with the Lenders in
connection with each Lender's rights and obligations under this Agreement and
the other Loan Documents. Any agreement pursuant to which any Lender shall
sell any such participating interest shall provide that such Lender shall
retain the sole right and responsibility to exercise such Lender's rights and
enforce the Company's obligations hereunder, including the right to consent to
any amendment, supplement, modification or waiver of any provision of this
Agreement or any of the other Loan Documents, provided that such participation
agreement may provide that such Lender will not agree to any amendment,
supplement, modification or waiver described in clauses (i), (ii) or (iii) of
the first sentence of Section 9.6 without the consent of the participant.
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C. The Company shall, at its own cost and expense, provide such certificates,
acknowledgments and further assurances in respect of this Agreement and the
Bridge Loan as any Lender may reasonably require in connection with any
participation, transfer or assignment pursuant to this Section 9.2.
D. Nothing in this Agreement shall prevent or prohibit the Lenders from
pledging the Bridge Loan and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by the Lenders from such Federal Reserve Bank.
9.3. Expenses
Whether or not the transactions contemplated hereby shall be
consummated, the Company agrees to promptly pay (i) all the actual and
reasonable costs and expenses of preparation of the Loan Documents and all the
costs of furnishing all opinions by counsel for the Company (including without
limitation any opinions requested by the Lenders as to any legal matters
arising hereunder), and of the Company's performance of and compliance with all
agreements and conditions contained herein on its part to be performed or
complied with; (ii) the reasonable fees, expenses and disbursements of counsel
to the Agent in connection with the negotiation, preparation, execution and
administration of the Loan Documents and the Bridge Loan hereunder, and any
amendments, modifications and waivers hereto or thereto and consents to
departures from the terms hereof and thereof; and (iii) after the occurrence of
an Event of Default, all out-of-pocket costs and expenses (including reasonable
attorneys fees and costs of settlement, provided that, unless an impermissible
conflict of interest exists as to the joint representation of the Lenders and
the Agent, the Company shall pay the reasonable fees of only one law firm to
represent both the Lenders and the Agent) incurred by the Lenders or the Agent
in enforcing any Obligations of or in collecting any payments due from the
Company or under the Notes by reason of such Event of Default or in connection
with any refinancing or restructuring of the credit arrangements provided under
this Agreement in the nature of a "work-out" or of any insolvency or bankruptcy
proceedings.
9.4. Indemnity
In addition to the payment of expenses pursuant to Section 9.3,
whether or not the transactions contemplated hereby shall be consummated, the
Company agrees to indemnify, pay and hold each of the Agent, the Lenders and
any holder of any of the Notes, and each of their respective officers,
directors, partners, employees, agents, representatives and control persons
(collectively called the "Indemnitees"), harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs,
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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 commenced or threatened, whether or not such Indemnitee shall be
designated as a party thereto, provided that, unless an impermissible conflict
of interest exists as to the joint representation of the Indemnitees, the
Company shall pay the reasonable fees of only one law firm to represent all of
the Indemnitees), that may be suffered by, imposed on, incurred by, or asserted
against that Indemnitee, in any manner resulting from, connected with, in
respect of, relating to or arising out of this Agreement, the other Loan
Documents, the Bridge Commitment Letter, the Lenders' agreements to make the
Bridge Loan or the use or intended use of any of the proceeds of the Bridge
Loan hereunder or the Acquisition (the "Indemnified Liabilities"); provided
that the Company shall have no obligation to an Indemnitee hereunder with
respect to Indemnified Liabilities (i) to the extent such liabilities are
finally judicially determined to have resulted from (A) the gross negligence or
willful misconduct of that Indemnitee or (B) the failure of such Indemnitee to
perform its obligations under any Loan Document or (C) such Indemnitee's
violation of law or (ii) in connection with the obligations of any Indemnitee
under any Loan Document or for any transfer fees. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Company shall contribute the maximum portion that it is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by the Indemnitees or any of them.
9.5. Setoff
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 and
during the continuance of any Event of Default, the Lenders, the Agent and any
subsequent holder of the Notes is hereby authorized by the Company at any time
or from time to time, without notice to the Company, or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate
and to apply any and all deposits (general or special, including, but not
limited to, Indebtedness evidenced by certificates of deposit, whether matured
or unmatured but not including trust accounts, escrow accounts or any other
accounts held for the benefit of another Person) and any other Indebtedness at
any time held or owing by such Person or any such subsequent holder to or for
the credit or the account of the Company against and on account of the
obligations and liabilities of the Company to such Person or such subsequent
holder under this Agreement and the Notes, including, but not limited to, all
claims of any nature or de-
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scription arising out of or connected with this Agreement or the Notes,
irrespective of whether or not (a) such Person or such subsequent holder shall
have made any demand hereunder or (b) such Person or such subsequent holder
shall have declared the principal of or the interest on its portion of the
Bridge Loan and its Notes and other amounts due hereunder to be due and payable
as permitted by Section 7 and although said obligations and liabilities, or any
of them, may be contingent or unmatured.
9.6. Amendments and Waivers
No amendment, modification, termination or waiver of any term or
provision of this Agreement or the Notes shall in any event be effective
without the prior written concurrence of the Company and the Required Lenders;
provided that, notwithstanding the third sentence of Section 9.15, without the
prior written consent of each Lenders affected, an amendment, modification,
termination or waiver of this Agreement, any Notes, or consent to departure
from a term or provision hereof or thereof may not: (i) reduce the principal
amount of Notes whose holders must consent to any such amendment, modification,
termination, waiver or consent; (ii) reduce the rate of or extend the time for
payment of principal or interest on any Notes; (iii) reduce the principal
amount of any Notes; (iv) make any Notes payable in money other than that
stated in the Notes; (v) make any change in Section 2.4A(iv) or in the
definition of Change of Control or in Section 9.6; (vi) make any change in
Section 2.4(A)(ii); (vii) reduce the rate or extend the time of payment of fees
or other compensation payable to the Lenders hereunder; or (viii) waive
performance by the Company of its obligations under, or consent to any
departure from any of the terms and provisions of, Section 2.4A(iv); and
provided, further, that without the consent of the Agent, no such amendment,
modification, termination or waiver may amend, modify, terminate or waive any
provision of Section 8 as the same applies to the Agent or any other provision
of this Agreement as it relates to the rights or obligations of the Agent. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on the Company
in any case shall entitle the Company to any further notice or demand in
similar or other circumstances. Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 9.6 shall be binding
upon each holder of the Notes at the time outstanding, each further holder of
the Notes and, if signed by the Company, on the Company.
9.7. Independence of Covenants
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not per-
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mitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant shall
not avoid the occurrence of an Event of Default or Potential Event of Default
if such action is taken or condition exists.
9.8. Entirety
The Loan Documents and the Bridge Commitment Letter together embody
the entire agreement of the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof and thereof.
9.9. Notices
Unless otherwise provided herein, any notice or other communications
herein required or permitted to be given shall be in writing and may be
personally served, telecopied, telexed or sent by mail and shall be deemed to
have been given when delivered in person, upon receipt of telecopy or telex
against receipt of answer back or four Business Days after depositing it in the
mail, registered or certified, with postage prepaid and properly addressed;
provided that notices shall not be effective until received. For the purposes
hereof, the addresses of the parties hereto (until notice of a change thereof
is delivered as provided in the manner provided above in this Section 9.9)
shall be set forth under each party's name on the signature pages hereto.
9.10. Survival of Warranties and Certain Agreements
A. All agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement and the Bridge Commitment Letter,
the making of the Bridge Loan hereunder and the execution and delivery of the
Notes and, notwithstanding the making of the Bridge Loan, the execution and
delivery of the Notes or any investigation made by or on behalf of any party,
shall continue in full force and effect. The closing of the transactions
herein contemplated shall not prejudice any right of one party against any
other party in respect of anything done or omitted hereunder or in respect of
any right to damages or other remedies.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of the Company set forth in Sections 9.3, 9.4, 9.14,
9.15, 9.17, 9.19 and 9.21 shall survive the payment of the Bridge Loan and the
Notes or Notes, as the case may be, and the termination of this Agreement.
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9.11. Failure or Indulgence Not Waiver; Remedies Cumulative
To the fullest extent permitted under applicable law, no failure or
delay on the part of the Agent or any holder of any Notes in the exercise of
any power, right or privilege hereunder or under the Notes shall impair such
power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other right, power or privilege. To the fullest extent permitted under
applicable law, all rights and remedies existing under this Agreement or the
Notes are cumulative to and not exclusive of any rights or remedies otherwise
available.
9.12. Severability
To the fullest extent permitted under applicable law, in case any
provision in or obligation under this Agreement or the Notes shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
9.13. Headings
Section and Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
9.14. Applicable Law
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
9.15. Successors and Assigns; Subsequent Holders of Notes
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of the Lenders. The terms and provisions
of this Agreement shall inure to the benefit of any assignee or transferee of
the Notes pursuant to Section 9.2A, and in the event of such transfer or
assignment, the rights and privileges herein conferred upon the Lenders shall
automatically extend to and be vested in such transferee or assignee, all
subject to
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the terms and conditions hereof. Except as provided in Section 9.6, in
determining whether the holders of a sufficient aggregate principal amount of
the Bridge Loan shall have consented to any action under this Agreement, any
amount of the Bridge Loan owned or held by the Company or any of its respective
Affiliates shall be disregarded. The Company's rights or any interest therein
hereunder may not be assigned without the prior express written consent of the
Lenders.
9.16. Counterparts; Effectiveness
This Agreement and any amendments, waivers, consents or supplements
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto, and delivery
thereof to the Agent or, in the case of the Lenders, written telex or facsimile
notice or telephonic notification (confirmed in writing) of such execution and
delivery. The Agent will give the Company and the Lenders prompt notice of the
effectiveness of this Agreement.
9.17. Consent to Jurisdiction; Venue; Waiver of Jury Trial
A. Any legal action or proceeding with respect to this Agreement or the Notes
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, each of the parties to this Agreement hereby irrevocably accepts for
itself and in respect of its respective property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each of the parties
to this Agreement hereby further irrevocably waives any claim that any such
courts lack jurisdiction over such party, and agrees not to plead or claim, in
any legal action or proceeding with respect to this Agreement or the Notes
brought in any of the aforesaid courts, that any such court lacks jurisdiction
over such party. Each of the parties to this Agreement irrevocably consents to
the service of process in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such party,
at its respective address for notices pursuant to Section 9.9, such service to
become effective 30 days after such mailing. To the extent permitted by law,
each of the parties to this Agreement hereby irrevocably waives any objection
to such service of process and further irrevocably waives and agrees not to
plead or claim in any action or proceeding commenced hereunder or under the
Notes that service of process was in any way invalid or ineffective. Nothing
herein shall affect the right of any party to this Agreement to serve
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process in any other manner permitted by law or to commence legal proceedings
or otherwise proceed against any party in any other jurisdiction.
B. Each of the parties to this Agreement hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Agreement or the Notes brought in the courts referred to in clause A above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
C. Each of the parties to this Agreement hereby irrevocably waives all right
to a trial by jury in any action, proceeding or counterclaim arising out of or
relating to this Agreement or the Notes or the transactions contemplated
hereby or thereby.
9.18. Payments Pro Rata
A. The Agent agrees that promptly after its receipt of each payment of any
interest or premium on or principal of the Notes from or on behalf of the
Company, it shall, except as otherwise provided in this Agreement, distribute
such payment, where applicable, to the Lenders (other than any Lenders that has
consented in writing to waive its pro rata share of such payment) pro rata
based upon their respective pro rata shares, if any, of such payment.
B. Each Lender agrees that, if it should receive any amount hereunder (whether
by voluntary payment, by realization upon security, by the exercise of the
right of setoff or banker's lien, by counterclaim or cross action, by the
enforcement of any right under the Loan Documents, or otherwise) that is
applicable to the payment of the principal of, or interest on, the Bridge Loan
of a sum that with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and due
to such Lender bears to the total of such Obligation then owed and due to all
of the Lenders immediately prior to such receipt, then such Lenders receiving
such excess payment shall purchase for cash without recourse or warranty from
the other Lenders an interest in the Obligations of the Company to such Lenders
in such amount as shall result in a proportional participation by all of the
Lenders in such amount; provided that, if all or any portion of such excess
amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
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9.19. Taxes
A. Any and all payments by the Company hereunder or under any of the other
Loan Documents shall be made free and clear of and without deduction or
withholding for any and all present or future Taxes, unless such Taxes are
required by law or the administration thereof to be deducted or withheld and
excluding (i) in the case of each of the Lenders and the Agent, Taxes imposed
on its income, and franchise or similar taxes imposed on it, by (a) any
jurisdiction (or political subdivision thereof) of which the Agent or the
Lenders, as the case may be, is a citizen or resident or in which the Lenders
has a permanent establishment (or is otherwise engaged in the active conduct of
its banking businesses through an office or branch) serving as the Lenders'
applicable lending office, or (b) the jurisdiction (or any subdivision thereof)
in which the Agent or Lenders is organized or (c) any jurisdiction (or
political subdivision thereof) in which the Agent or Lenders is doing business,
which Taxes are imposed solely as a result of doing business in such
jurisdiction, other than a jurisdiction in which a Lender or the Agent is doing
business, as a result of a result of a connection arising solely from the
activities of the Lender or Agent relating to this Agreement, (ii) in the case
of the Lenders and the Agent, any Taxes that are in effect and that would apply
to a payment to such Person, as applicable, as of the Closing Date, and (iii)
if any Person acquires any interest in this Agreement (a "Transferee"), any
Taxes to the extent that they are in effect and would apply to a payment to
such Transferee as of the date of the acquisition of such interest, as the case
may be (all such nonexcluded Taxes being hereinafter referred to as "Covered
Taxes"). If the Company shall be required by Law or the administration thereof
to deduct or withhold any Covered Taxes from or in respect of any sum payable
hereunder or under any other Loan Document, (a) unless such requirement results
from the failure of the payee to perform its obligations under Section 9.19F,
the sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deductions or withholdings
applicable to additional amounts paid under this paragraph), the Lenders
receives an amount equal to the sum it would have received if no such deduction
or withholding had been made; (b) the Company shall make such deductions or
withholdings; and (c) the Company forthwith shall pay the full amount deducted
or withheld to the relevant taxation or other authority in accordance with
applicable Law.
B. The Company agrees to pay forthwith any present or future stamp documentary
taxes or any other excise or property taxes, charges or similar levies (all
such taxes, charges and levies being herein referred to as "Other Taxes")
imposed by any jurisdiction (or any political subdivision or taxing authority
thereof or therein) that arise from any payment made by the
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Company hereunder or under any of the other Loan Documents or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the other Loan Documents.
C. The Company agrees to indemnify the Agent and the Lenders for the full
amount of Covered Taxes or Other Taxes not deducted or withheld and paid by the
Company in accordance with Sections 9.19A and 9.19B to the relevant taxation
or other authority and any Taxes other than Covered Taxes or Other Taxes
imposed by any jurisdiction on amounts payable by the Company under this
Section 9.19 paid by the Lenders or the Agent and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not any such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days from
the date the Agent or the Lenders makes written demand therefor. A certificate
as to the amount of such Taxes or Other Taxes and evidence of payment thereof
submitted to the Company shall be prima facie evidence, absent manifest error,
of the amount due from the Company to the Lenders or such Lenders.
D. The Company shall furnish to the Agent and the Lenders the original or a
certified copy of a receipt evidencing any payment of Taxes or Other Taxes made
by the Company as soon as such receipt becomes available.
E. Any Lender claiming any additional amounts payable pursuant to this Section
9.19 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or
the Agent, to change the jurisdiction of its applicable lending office or to
contest any tax imposed if the making of such a filing or change or contesting
such tax would avoid the need for or reduce the amount of any additional
amounts that may thereafter accrue and would not, in the sole determination of
such Lenders, be otherwise disadvantageous to such Lenders.
F. Each Lender that is not a United States Person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code) agrees to deliver to the
Company and the Agent, on the date of this Agreement or, with respect to any
Lender that becomes an assignee or transferee of an interest under this
Agreement pursuant to Section 9.2A, on the date of such assignment or transfer
to such Lender, (i) two accurate and complete original signed copies of
Internal Revenue Service Form 4224 or Form 1001 (or successor forms) certifying
to such Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Notes, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code and cannot deliver either
Internal Revenue Serv-
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ice Form 1001 or Form 4224 pursuant to clause (i) above, two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Lender's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Notes and a certificate (the "Tax
Certificate") to the effect that (i) such Lender is not a "bank" for purposes
of Section 881(c)(3)(A) of the Code, (ii) such Lender is not a "10-percent
shareholder" with respect to the Company for purposes of Section 881(c)(3)(B)
of the Code, and (iii) such Lender is not a "controlled foreign corporation"
with respect to which the Company is a "related person" for purposes of Section
881(c)(3)(C) of the Code. In addition, the Lenders agree that, when a lapse in
time or change in circumstances renders the previous certification obsolete or
inaccurate in any material respect (or in the case of a change in law resulting
in such obsolesce or inaccuracy, upon the request of the Company), it will
deliver to the Company and the Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or Form 1001, or Form W-8
or Tax Certificate, as the case may be, and such other or successor forms or
certifications as may be required in order to confirm or establish the
entitlement of the Lenders to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Notes, or it shall immediately notify the Company and the Agent of its
inability to deliver any such Form or Certificate. Subject to Section 9.2A and
the immediately succeeding sentence, the Company shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder or made on any other Loan Document for the account of any Lenders
that is not a United States Person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for U.S. Federal income tax purposes
to the extent that the Lenders has not provided to the Company U.S. Internal
Revenue Service Forms that establish a complete exemption from such deduction
or withholding. Notwithstanding anything to the contrary contained in the
preceding sentence or elsewhere in this Section 9.19F and except as set forth
in Section 9.2A, the Company agrees to pay additional amounts and to indemnify
and hold harmless the Lenders (without regard to the identity of the
jurisdiction requiring the deduction or withholding), and reimburse the Lenders
upon its written request, in respect of any amounts deducted or withheld by it
as described in the immediately preceding sentence as a result of any changes
after the date of this Agreement or any assignment or transfer in any
applicable law, treaty, governmental rule, regulation, guideline or order, or
in the interpretation thereof, relating to the deducting or withholding of
income or similar Taxes.
<PAGE> 96
-91-
G. The provisions of this Section 9.19 shall survive for twelve (12) months
after the termination of the Agreement and repayment of all Obligations.
9.20. Waiver of Stay, Extension or Usury Laws
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law that would prohibit or forgive it from paying all or any portion
of the principal of or interest on the Bridge Loan as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Agreement; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Agent, but will suffer and permit
the execution of every such power as though no such law had been enacted.
9.21. Confidentiality
The Lenders shall hold all nonpublic information obtained pursuant to
the requirements of or in connection with this Agreement that has been
identified as confidential by the Company or Chancellor in accordance with the
Lenders' customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices, it being
understood and agreed by Chancellor and the Company that (i) in any event the
Lenders may make disclosures reasonably required by any bona fide assignee,
transferee or participant in connection with the contemplated assignment or
transfer by the Lenders of the Bridge Loan or any participation therein
(provided that such bona fide assignee, transferee or participant agrees in
writing to be bound by the terms of a confidentiality agreement substantially
similar to the provisions of this Section 9.21) or as required or requested by
any governmental agency or representative thereof or pursuant to legal process;
provided that unless specifically prohibited by applicable law or court order,
the Lenders shall notify the Company of any request by any governmental agency
or representative thereof (other than any such request in connection with any
examination of the financial condition of the Lenders by such governmental
agency) for disclosure of any such nonpublic information prior to disclosure of
such information and (ii) the Lenders may share with any of their Affiliates,
and such affiliates may share with the Lenders, any information related to the
Company, Chancellor or the Company's or Chancellor's respective Affiliates
(including information relating to creditworthiness), the Acquisition or the
financing therefor; and provided, further, that in no event shall the Lenders
be obli-
<PAGE> 97
-92-
gated or required to return any materials furnished by the Company or
Chancellor. In connection with any sales, assignments or transfers referred to
in Section 9.2A, the Lenders shall obtain agreements from the purchasers,
assignees or transferees, as the case may be, reasonably satisfactory to the
Company, that such parties will comply with this Section 9.21.
9.22. Judgment Currency
The Company agrees to indemnify the Agent and the Lenders against any
loss incurred by any of them as a result of any judgment or order being given
or made for any amount due under this Agreement or any other Loan Document and
such judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order
and (ii) the spot rate of exchange in the City of New York at which any such
person on the date of payment of such judgment or order is able to purchase
United States dollars with the amount of the Judgment Currency actually
received by such person. The foregoing indemnity shall continue in full force
and effect notwithstanding any such judgment or order as aforesaid. The term
"spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States
dollars.
9.23. Replacement of Lenders Under Certain Circumstances.
If at time (a) the Borrower becomes obligated to pay additional
amounts described in Section 9.19 as a result of any condition described in
such section, (b) any Lender becomes insolvent and its assets become subject to
a receiver, liquidator, trustee, custodian or other Person having similar
powers or (c) any Lender becomes a Defaulting Lender, then the Borrower may, on
ten (10) Business Days' prior notice to the Agent and such Lender, replace such
Lender by causing such Lender to (and such Lender shall) assign pursuant to
Section 9.2 all of its rights and obligations under this Agreement to a Lender
or other entity selected by the Borrower and acceptable to the Agent for a
purchase price equal to the outstanding principal amount of such Lender's
Bridge Loans and all accrued interest and fees and other amounts payable
hereunder (including amounts payable under Section 9.4 as though such Bridge
Loans were being paid instead of purchased); provided that (i) the Borrower
shall have no right to replace the Agent, (ii) neither the Agent nor any Lender
shall have any obligation to the Borrower to find a replacement Lender or other
such entity, (iii) in the event of a replacement of a Lender to which the
Borrower becomes obligated to pay additional amounts pursuant to clause (a) of
this Section 9.23, in order for the Borrower to be enti-
<PAGE> 98
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tled to replace such a Lender, such replacement must take place no later than
one-hundred eighty (180) days after the Lender shall have demanded payment of
additional amounts under one of the sections described in clause (a) of this
Section 9.23, as the case may be, and (iv) in no event shall the Lender hereby
replaced be required to pay or surrender to such replacement Lender or other
entity any of the fees received by such Lender hereby replaced pursuant to this
Agreement. In the case of a replacement of a Lender to which the Borrower
becomes obligated to pay additional amounts pursuant to clause (a) of this
Section 9.23, the Borrower shall pay such additional amounts to such Lender
prior to such Lender being replaced and the payment of such additional amounts
shall be a condition to the replacement of such Lender. The Borrower's right
to replace a Defaulting Lender pursuant to this Section 9.23 is, and shall be,
in addition to, and not in lieu of, all other rights and remedies available to
the Borrower against such Defaulting Lender under this Agreement, at law, in
equity or by statute.
<PAGE> 99
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
BORROWER:
CHANCELLOR BROADCASTING COMPANY
By: /s/ J. D. KERREST
----------------------------------------------
Name: J. D. Kerrest
Title:
Notice Address:
12655 North Central Expressway
Suite 405
Dallas, Texas 75243
Attention: CEO
Telephone: (972) 239-6220
Telecopy: (972) 239-0220
with a copy (which shall not
constitute notice) to:
Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Telephone: (214) 740-7300
Telecopy: (214) 740-7313
<PAGE> 100
AGENT:
BANKERS TRUST NEW YORK CORPORATION,
as agent
By: /s/ BRUCE D. CLASSON
----------------------------------------------
Name: BRUCE D. CLASSON
Title: Senior Vice President
Notice Address:
One Bankers Trust Plaza
130 Liberty Plaza
New York, New York 10006
Attention:
Telephone: (212)
Telecopy: (212)
<PAGE> 101
<TABLE>
<S> <C> <C>
LENDERS:
Commitment: $70,000,000 BANKERS TRUST NEW YORK CORPORATION
By: /s/ BRUCE D. CLASSON
-------------------------------------------------------
Name: Bruce D. Classon
Title: Senior Vice President
Commitment: $25,000,000 BANQUE PARIBAS
By: /s/ THOMAS G. BRANDT
-------------------------------------------------------
Name: Thomas G. Brandt
Title: Vice President
By: /s/ JOHN G. ACKER
-------------------------------------------------------
Name: John G. Acker
Title: Group Vice President
Commitment: $25,000,000 NATIONSBANK OF TEXAS, N.A.
By: /s/ JENNIFER ZYDNEY
-------------------------------------------------------
Name: Jennifer Zydney
Title: Vice President
Commitment: $25,000,000 TORONTO DOMINION (TEXAS), INC.
By: /s/ DARLENE RIEDEL
-------------------------------------------------------
Name: Darlene Riedel
Title: Vice President
Commitment: $25,000,000 GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ EDWARD C. FORST
-------------------------------------------------------
Name: Edward C. Forst
Title: Authorized Signatory
</TABLE>
<PAGE> 102
CHANCELLOR BROADCASTING COMPANY
SCHEDULES AND EXHIBITS
TO
SENIOR CREDIT AGREEMENT
<PAGE> 103
SCHEDULE A
EXISTING LIENS
<PAGE> 104
SCHEDULE B
INVESTMENTS
<PAGE> 105
SCHEDULE C
INTELLECTUAL PROPERTY
<PAGE> 106
SCHEDULE D
ENVIRONMENTAL MATTERS
<PAGE> 107
SCHEDULE E
PERMITS
<PAGE> 108
SCHEDULE F
EXISTING INDEBTEDNESS
<PAGE> 109
EXHIBIT I
[FORM OF BRIDGE NOTE]
CHANCELLOR BROADCASTING COMPANY
SENIOR PROMISSORY NOTE
New York, New York
[Date]
$___________
FOR VALUE RECEIVED, Chancellor Broadcasting Company, a corporation for
med under the laws of the State of Delaware (the "Borrower"), promises to pay to
the order of ("Payee"), on the earlier of (i) the consummation of
the Evergreen Merger and (ii) July 2, 1999, Dollars ($ ).
The Borrower also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid in full at the rates and at the
times that shall be determined in accordance with the provisions of the Senior
Credit Agreement dated as of June 26, 1997, as the same may at any time be
amended, modified or supplemented and in effect (the "Credit Agreement") among
the Borrower, the Lenders named therein and Bankers Trust New York Corporation,
as Agent.
This Note is issued pursuant to and entitled to the benefits of the
Credit Agreement to which reference is hereby made for a more complete statement
of the terms and conditions under which the Bridge Loan evidenced hereby was
made and is to be repaid. Capitalized terms used herein without definition
shall have the meanings set forth in the Credit Agreement.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds to
Payee at the office of Bankers Trust New York Corporation located at 130 Liberty
Street, New York, New York 10006, or at such other place as shall be designated
in writing for such purposes in accordance with the terms of the Credit
Agreement. Each of Payee and any subsequent holder of this Note agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it will
make a notation hereon of all principal payments previously made here-
<PAGE> 110
-2-
under and of the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligation of the Borrower hereunder
with respect to payments of principal or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
that is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Notes.
This Note is subject to mandatory prepayment as provided in
subsection 2.4A(ii) of the Credit Agreement and prepayment at the option of the
Borrower as provided in subsection 2.4A(i) of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided for in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided for in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligation of the
Borrower, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times and in the currency
herein prescribed.
The Borrower promises to pay all out-of-pocket costs and expenses,
including reasonable attorneys' fees, all as provided in Section 9.3(iii) of the
Credit Agreement, incurred in the collection and enforcement of this Note. The
Borrower and endorsers of this Notes hereby waive diligence, presentment,
protest, demand and notice of every kind and, to the full extent permitted by
law, the right to plead any statute of limitations as a defense to any demand
hereunder.
<PAGE> 111
-3-
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
and delivered by its duly authorized officer, as of the day and year and at
the place first above written.
CHANCELLOR BROADCASTING COMPANY
By:
-------------------------------------
Name:
Title:
<PAGE> 112
TRANSACTIONS ON NOTE
<TABLE>
<CAPTION>
Amount of Outstanding
Principal Principal
Paid Balance Notation
Date This Date This Date Made By
- ---- --------- ----------- -------
<S> <C> <C> <C>
</TABLE>
<PAGE> 113
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have this Bridge Note purchased by the
Borrower pursuant to Section 2.4A(iv) of the Credit Agreement (which relates to
a Change of Control), check the box: [ ]
If you wish to elect to have only part of this Bridge Note purchased
by the Borrower pursuant to Section 2.4A(iv) of the Credit Agreement, state the
amount: $[ ]
Date: Your Signature:
-------- -----------------------------------------------
(Sign exactly as your name appears on the
other side of this Notes)
Signature Guarantee:
-----------------------------------------------------------
<PAGE> 114
EXHIBIT II
FORM OF COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY ON BEHALF OF CHANCELLOR BROADCASTING COMPANY
(AND NOT INDIVIDUALLY) THAT:
(i) We are the duly elected [Title] and [Title] of Chancellor
Broadcasting Company, a corporation formed under the laws of the State of
Delaware (the "Borrower");
(ii) We have reviewed the terms of the Senior Credit Agreement
dated as of , 1997, by and among the Borrower, the Lenders named
therein and Bankers Trust New York Corporation, as Agent (the "Credit
Agreement"), and the terms of the Notes, and we have made, or have caused to be
made, under our supervision, a review in reasonable detail of the transactions
and condition of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements; and
(iii) We have no knowledge of the existence of any condition or
event that would suggest the failure of the Borrower's full and timely
performance of all covenants contained in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8
and 6.11 of the Credit Agreement during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Compliance Certificate, except as set forth below.
Described in a separate attachment to this Compliance Certificate are
the exceptions, if any, to paragraph (iii), listing, in detail, the nature of
the condition or event, the period during which it has existed and the action
that the Borrower has taken, is taking, or proposes to take with respect to
each such condition or event.
The foregoing certifications together with the attached [TO BE
PREPARED BY THE BORROWER] financial statements delivered with this Compliance
Certificate in support hereof, are made and delivered this [ ] day of
[ ], [ ], pursuant to Section 5.1(iii) of the Credit Agreement.
Capitalized terms used
<PAGE> 115
-2-
herein shall have the meanings set forth in the Credit Agreement.
CHANCELLOR BROADCASTING COMPANY
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
<PAGE> 116
EXHIBIT III
FORM OF NOTICE OF BORROWING
Bankers Trust New York Corporation
as Agent
130 Liberty Street
New York, New York 10006
Attention:
Ladies and Gentlemen:
The undersigned, Chancellor Broadcasting Company (the "Borrower"),
refers to the Senior Credit Agreement dated as of June 26, 1997, as amended,
supplemented or restated from time to time (the "Credit Agreement," the terms
defined therein being used herein as therein defined) by and among the Borrower,
the Lenders named therein and Bankers Trust New York Corporation, as Agent, and
hereby gives you notice pursuant to Section 2.1B of the Credit Agreement that
the Borrower wishes to borrow under Section 2.1 of the Credit Agreement and, in
that connection, sets forth below the information relating to such borrowing
(the "Proposed Borrowing") as required by Section 2.1B of the Credit Agreement:
(i) The date of the Proposed Borrowing, being a Business Day, is
, 1997.
(ii) The aggregate amount of the Proposed Borrowing is
$170,000,000.
Yours truly,
CHANCELLOR BROADCASTING COMPANY
By:
-------------------------------------------
Name:
Title:
<PAGE> 117
EXHIBIT IV
FORM OF OPINION OF
WEIL, GOTSHAL & MANGES LLP
<PAGE> 118
[Form of Opinion of Weil, Gotshal & Manges LLP]
, 1997
Bankers Trust New York Corporation, Agent
One Bankers Trust Plaza, 14th Floor
New York, New York 10006
And the Lenders under the
Credit Agreement referred to below
Re: Senior Credit Agreement
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.1(A)(7) of the
Credit Agreement (as hereinafter defined). We have acted as counsel to
Chancellor Broadcasting Company, a corporation formed under the laws of the
State of Delaware (the "Borrower"), in connection with the Senior Credit
Agreement, dated as of , 1997 (the "Credit Agreement"), by and
among the Borrower, the Lenders signatory thereto and Bankers Trust New York
Corporation, as Agent for the Lenders (in such capacity, the "Agent"). Unless
otherwise indicated, capitalized terms used and not otherwise defined herein
have the meanings set forth in the Credit Agreement.
We have reviewed the following documents (with such documents herein
collectively referred to as the "Loan Documents"): (a) an executed copy of the
Credit Agreement and the exhibits and schedules thereto and (b) the executed
Notes. In rendering the opinion set forth herein, we have assumed, with your
permission and without verification, (i) the due authorization, execution and
delivery of the Loan Documents by all parties to such Loan Documents other than
the Borrower and that each such Document is valid, binding and enforceable
against the parties thereto other than the Borrower, (ii) the legal capacity of
natural persons, (iii) the genuineness of all signatures, (iv) the authenticity
of all documents submitted to us as originals and (v) the conformity to original
documents of all documents submitted to us as copies. As to various questions
of fact material to our opinion, we have relied upon the representations made in
the Loan Documents and upon certificates of officers of the Borrower.
<PAGE> 119
-2-
In addition, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such corporate records, agreements,
documents or other instruments, as applicable, and of certificates or comparable
documents or instruments of public officials and other instruments and documents
and such examination of federal law, the law of the State of New York and the
Delaware General Corporation Law as we have deemed relevant and necessary to
form the basis for the opinions hereinafter set forth.
We express no opinion on any matters under the law of any jurisdiction
other than the federal law of the United States of America, the law of the State
of New York and the Delaware General Corporation Law.
Based upon the foregoing, and subject to the further qualifications,
limitations, exceptions and assumptions herein set forth, we are of the opinion
that:
1. The Borrower (i) is a duly incorporated and validly existing
corporation formed under the laws of the State of Delaware, and (ii) has the
corporate power to conduct its business as now conducted and to own, or hold
under lease, its assets and to enter into each of the Loan Documents and to
perform its obligations thereunder.
2. The execution, delivery and performance (in accordance with the
terms thereof) by the Borrower of each of the Loan Documents to which it is a
party has been duly authorized by all necessary corporate action of the
Borrower.
3. Each of the Loan Documents to which the Borrower is a party has
been duly executed and delivered by the Borrower and constitutes the legally
valid and binding obligation of the Borrower, and each of the Loan Documents is
enforceable against the Borrower in accordance with its terms.
4. The execution and delivery of the Loan Documents to which the
Borrower is a party by the Borrower, the making of the Bridge Loan evidenced by
the Notes and the application of the proceeds therefrom as provided in the
Credit Agreement, and the performance by the Borrower of its obligations under
the Loan Documents to which it is a party, do not: (a) violate any statute,
rule or regulation applicable to the Borrower under the laws of the State of New
York or the federal laws of the United States (including, without limitation,
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System); (b) contravene or violate the charter or articles and
<PAGE> 120
-3-
memorandum of association of the Borrower; (c) conflict with or result in the
breach of or a default under any of the Borrower's material contracts or court
orders to which the Borrower is subject or by which it or any of its properties
are bound; or (d) to our knowledge, result in or require the creation or
imposition of a Lien upon or with respect to any of the properties of the
Borrower, except, in the case of (a), (b), (c) or (d) above, where such
violation, conflict, default or creation or imposition of any Lien would not
have, individually or in the aggregate, a Material Adverse Effect.
5. The Borrower is not an "investment company" or a company
"controlled by" an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
6. To our knowledge, no consent, authorization, order, registration
approval, action by, or filing with, any governmental or public body pursuant
to the laws of the State of New York, the Delaware General Corporation Law, or
the federal laws of the United States is required to be obtained or made by the
Borrower in connection with the making of the Bridge Loan except for (i) such
consents, authorizations, approvals, orders, registrations or filings as have
been made or obtained on or prior to the date hereof, or as permitted to be
made or obtained after the date hereof pursuant to the Credit Agreement and
(ii) such consents, authorizations, approvals, orders, registrations or filings
as could not reasonably be expected, either individually or in the aggregate,
to have a Material Adverse Effect.
7. It is not necessary in connection with the execution and delivery
of the Notes to register the Notes under the Securities Act of 1933, as amended
(the "Act"), or to qualify an indenture with respect thereto under the Trust
Indenture Act of 1939, as amended.
8. To our knowledge, there is no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its Subsidiaries or
any of their respective properties or assets pending or threatened before any
court, governmental agency or arbitrator not disclosed in such officer's
certificate (a) that can reasonably be expected to have a Material Adverse
Effect, or (b) that seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the Acquisition, any of the Loan Documents or the other
transactions contemplated thereby.
<PAGE> 121
-4-
Our opinions set forth above are subject in all respects to the
following qualifications, limitations, exceptions and assumptions.
(a) The opinions set forth above are subject, as to enforceability,
to the effect of (i) any applicable bankruptcy (including, without limitation,
preference and fraudulent conveyance), insolvency, reorganization, moratorium
or similar laws affecting creditor's right generally, and (ii) general
principles of equity (regardless of whether considered in proceedings in equity
or at law), including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, and the possible unavailability of
specific performance or injunctive relief.
(b) We express no opinion with respect to the following provisions to
the extent that the same are contained in the Loan Documents: (i) provisions
purporting to waive rights to notices, objections, demands, legal defenses,
statutes of limitations, rights to trial by jury, or other benefits or rights
that cannot be waived under applicable law; (ii) provisions purporting to
affect the jurisdiction or venue of courts; (iii) provisions releasing,
exculpating or exempting a party from, or requiring indemnification of a party
for, liability for its own action or inaction, to the extent that the same are
inconsistent with public policy; and (iv) provisions that decisions by a party
are conclusive.
(c) As to matters with respect to which our opinions are stated to be
"to our knowledge" or words of similar effect, we have not undertaken any
independent examination of facts, but have based our opinion in reliance upon
certificates provided to us by officers of the Borrower and upon matters of
which the attorneys in our Firm who have devoted time to this matter have
actual current knowledge.
(d) We have not been called upon to, and accordingly do not, express
any opinion as to the various state and federal laws regulating banks or the
conduct of their business that may relate to the Loan Documents or the
transaction contemplated thereby. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Lenders may be
located or where an enforcement of the Loan Documents may be sought that limits
the rates of interest legally chargeable or collectible.
<PAGE> 122
-5-
(e) The opinions expressed herein are as of the date hereof only, and
we assume no obligation to update or supplement such opinions to reflect any
fact or circumstance that may hereafter come to our attention or any change in
law that hereafter occur or become effective.
This opinion is being delivered upon the express instructions of the
Borrower to the Agent and the Lenders, and is solely for their benefit in
connection with the above transactions. This opinion may not be relied upon
for any other purpose, or relied upon by any other person, firm or corporation
for any purpose, without our prior written consent. Notwithstanding the
immediately preceding sentence, this opinion may be relied upon by any assignee
of all or a portion of the Bridge Loan as if it were addressed and had been
delivered to them on the date hereof. The Agent and the Lenders may provide a
copy of this opinion, for informational purposes only, to bank examiners and
other regulatory authorities should they so request, or to their respective
independent auditors and attorneys, or pursuant to order or legal process of
any court or governmental agency.
Very truly yours,
<PAGE> 123
EXHIBIT V
FORM OF OPINION OF CAHILL GORDON & REINDEL
<PAGE> 124
EXHIBIT VI
CHANCELLOR BROADCASTING COMPANY
OFFICERS' CERTIFICATE
, 1997
BANKERS TRUST NEW YORK CORPORATION
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Ladies and Gentlemen:
Referring to Sections 3.1(H) and 3.1(L) of the Senior Credit Agreement
dated as of , 1997 (the "Credit Agreement"), by and among Chancellor
Broadcasting Company (the "Borrower"), the Lenders named therein and Bankers
Trust New York Corporation, as Agent, the undersigned duly elected, qualified
and acting officers of the Borrower certify on behalf of the Borrower (and not
individually) that:
(i) the representations and warranties in Section 4 of the Credit
Agreement are true, correct and complete in all material respects on and as of
the date hereof to the same extent as though made on and as of this date except
for those representations and warranties which relate to a specific date, which
shall be true, correct and complete as of such date;
(ii) the Borrower and its Subsidiaries have performed and complied
in all material respects with all covenants and conditions contained in the
Credit Agreement to be performed and observed by the Borrower or its
Subsidiaries on or prior to the date hereof;
(iii) all conditions to the consummation of the Acquisition and the
Bank Financing set forth in the Acquisition Agreement and the Bank Financing
Documents, as the case may be, have been satisfied substantially on the terms
set forth therein and have not been waived or amended without the Agent's prior
written consent; and
<PAGE> 125
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(iv) there is not pending or, to my knowledge and the knowledge
of the Borrower, threatened any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or its
Subsidiaries or any property or asset of the Borrower or its Subsidiaries that
is likely to result in a Material Adverse Effect, that has not been disclosed
by the Borrower in writing to the Agent.
All capitalized terms not so defined herein have the meanings ascribed
to them in the Credit Agreement.
<PAGE> 126
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The undersigned have read all conditions, and all definitions and
provisions relating to such conditions, contained in the Credit Agreement, and
have made or have caused to be made such examinations or investigations
necessary to enable the undersigned to express the foregoing opinions.
Very truly yours,
CHANCELLOR BROADCASTING COMPANY
By: ------------------------------------------
Name:
Title:
By: ------------------------------------------
Name:
Title:
<PAGE> 127
EXHIBIT VII
CERTIFICATE OF SECRETARY
OF
CHANCELLOR BROADCASTING COMPANY
I, , Secretary of Chancellor
Broadcasting Company, a corporation formed under the laws of the State of
Delaware (the "Company"), do hereby certify, on behalf of the Company and on
behalf of Chancellor Radio Broadcasting, Inc. ("Chancellor"), (and not
individually) that:
1. Attached hereto as Annex A is a true, complete and correct
copy of the Company's Certificate of Incorporation, and all amendments thereto,
which is in full force and effect as of the date hereof, and no proceedings
have been taken to amend, supplement, surrender or cancel the same as of the
date hereof.
2. Attached hereto as Annex B is a true, complete and correct
copy of Chancellor's Certificate of Incorporation, and all amendments thereto,
which is in full force and effect as of the date hereof, and no proceedings
have been taken to amend, supplement, surrender or cancel the same as of the
date hereof.
3. Attached hereto as Annex C is a true, complete and correct
copy of the Company's Bylaws as in effect on the date hereof.
4. Attached hereto as Annex D is a true, complete and correct
copy of Chancellor's Bylaws as in effect on the date hereof.
5. Attached hereto as Annex E are full, true and correct copies
of resolutions duly adopted by the Board of Directors of the Company on
[ ], 1997. Such resolutions are all of the resolutions adopted by the
Company that relate to the Transactions (as defined in the Senior Credit
Agreement (the "Credit Agreement"), dated as of , 1997, by and among the
Borrower, the Lenders named therein and Bankers Trust New York Corporation, as
Agent), and such resolutions have not been modified or rescinded since their
adoption and are in full force and effect as of the date hereof.
6. There are no proceedings pending, or, to the best of the
knowledge of the undersigned, threatened or contem-
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plated, for the merger, liquidation, dissolution or sale of all or
substantially all of the assets of the Company or any Subsidiary, or that would
otherwise threaten the Company's corporate existence other than as described in
the Credit Agreement.
7. Each person who, as a director or officer of the Company or
any Subsidiary, executed and delivered the Credit Agreement, the Notes and each
other document or instrument executed in connection therewith, was duly elected
or appointed, qualified and acting as such director or officer at the
respective times of such signing and delivery and the signatures of such
persons appearing on such documents are their genuine signatures.
Dated: , 1997 By:
------------------------------------------
Name:
Title: Secretary
I, , Vice President of the Company, do
hereby certify on behalf of the Company (and not individually) that
is the duly elected, qualified and acting Secretary of the Company and that the
signature of set forth above is his genuine signature.
Dated: , 1997 By:
------------------------------------------
Name:
Title: Vice President
