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EXHIBIT 10.44
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$150,000,000
CREDIT AGREEMENT
AMONG
SPANISH BROADCASTING SYSTEM, INC.,
AS BORROWER,
THE LENDERS
FROM TIME TO TIME PARTY HERETO,
AND
LEHMAN COMMERCIAL PAPER INC.,
AS ADMINISTRATIVE AGENT
DATED AS OF JULY 6, 2000
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LEHMAN BROTHERS
SOLE LEAD ARRANGER AND BOOK RUNNING MANAGER
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TABLE OF CONTENTS
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SECTION 1..DEFINITIONS............................................................................................1
1.1. Defined Terms...........................................................................................1
1.2. Other Definitional Provisions..........................................................................30
SECTION 2..AMOUNT AND TERMS OF COMMITMENTS.......................................................................31
2.1. Term Loan Commitments..................................................................................31
2.2. Procedure for Term Loan Borrowing......................................................................31
2.3. Repayment of Term Loans................................................................................31
2.4. Revolving Credit Commitments...........................................................................32
2.5. Procedure for Revolving Credit Borrowing...............................................................33
2.6. Swing Line Commitment..................................................................................33
2.7. Procedure for Swing Line Borrowing; Refunding of Swing Line Loans......................................34
2.8. Repayment of Loans; Evidence of Indebtedness...........................................................35
2.9. Commitment Fees, etc...................................................................................36
2.10. Termination or Reduction of Revolving Credit Commitments..............................................37
2.11. Optional Prepayments..................................................................................37
2.12. Mandatory Prepayments and Commitment Reductions.......................................................37
2.13. Conversion and Continuation Options...................................................................39
2.14. Minimum Amounts and Maximum Number of Eurodollar Tranches.............................................39
2.15. Interest Rates and Payment Dates......................................................................40
2.16. Computation of Interest and Fees......................................................................40
2.17. Inability to Determine Interest Rate..................................................................41
2.18. Pro Rata Treatment and Payments.......................................................................41
2.19. Requirements of Law...................................................................................43
2.20. Taxes.44
2.21. Indemnity.............................................................................................46
2.22. Illegality............................................................................................46
2.23. Change of Lending Office..............................................................................47
2.24. Replacement of Lenders under Certain Circumstances....................................................47
SECTION 3..LETTERS OF CREDIT.....................................................................................48
3.1. L/C Commitment.........................................................................................48
3.2. Procedure for Issuance of Letter of Credit.............................................................48
3.3. Fees and Other Charges.................................................................................48
3.4. L/C Participations.....................................................................................49
3.5. Reimbursement Obligation of the Borrower...............................................................50
3.6. Obligations Absolute...................................................................................50
3.7. Letter of Credit Payments..............................................................................51
3.8. Applications...........................................................................................51
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SECTION 4..REPRESENTATIONS AND WARRANTIES........................................................................51
4.1. Financial Condition....................................................................................51
4.2. No Change..............................................................................................52
4.3. Corporate Existence; Compliance with Law...............................................................52
4.4. Corporate Power; Authorization; Enforceable Obligations................................................52
4.5. No Legal Bar...........................................................................................53
4.6. No Material Litigation.................................................................................53
4.7. No Default.............................................................................................53
4.8. Ownership of Property; Liens...........................................................................53
4.9. Intellectual Property..................................................................................53
4.10.Taxes..................................................................................................53
4.11. Federal Regulations...................................................................................54
4.12. Labor Matters.........................................................................................54
4.13. ERISA.................................................................................................54
4.14. Investment Company Act; Other Regulations.............................................................55
4.15. Subsidiaries..........................................................................................55
4.16. Use of Proceeds.......................................................................................55
4.17. Environmental Matters.................................................................................55
4.18. Accuracy of Information, etc..........................................................................56
4.19. Security Documents....................................................................................57
4.20. Solvency..............................................................................................58
4.21. Senior Indebtedness...................................................................................58
4.22. Insurance.............................................................................................58
4.23. Permits and Licenses..................................................................................58
SECTION 5..CONDITIONS PRECEDENT..................................................................................60
5.1. Conditions to Initial Extension of Credit..............................................................60
5.2. Conditions to Each Extension of Credit.................................................................62
SECTION 6..AFFIRMATIVE COVENANTS.................................................................................63
6.1. Financial Statements...................................................................................63
6.2. Certificates; Other Information........................................................................64
6.3. Payment of Obligations.................................................................................66
6.4. Conduct of Business and Maintenance of Existence, FCC Licenses, etc....................................66
6.5. Maintenance of Property; Insurance.....................................................................67
6.6. Inspection of Property; Books and Records; Discussions.................................................67
6.7. Notices................................................................................................68
6.8. Environmental Laws.....................................................................................68
6.9. Broadcast License Subsidiaries.........................................................................69
6.10. Additional Collateral, etc............................................................................70
6.11. Use of Proceeds.......................................................................................72
6.12. Further Assurances....................................................................................72
6.13. Corporate Structure...................................................................................72
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SECTION 7..NEGATIVE COVENANTS....................................................................................72
7.1. Financial Condition Covenants..........................................................................72
7.2. Limitation on Indebtedness.............................................................................75
7.3. Limitation on Liens....................................................................................76
7.4. Limitation on Fundamental Changes......................................................................78
7.5. Limitation on Disposition of Property..................................................................78
7.6. Limitation on Restricted Payments......................................................................79
7.7. Limitation on Capital Expenditures.....................................................................79
7.8. Limitation on Investments..............................................................................80
7.9. Limitation on Subordinated Indebtedness................................................................81
7.10. Limitation on Transactions with Affiliates............................................................81
7.11. Limitation on Sales and Leasebacks....................................................................82
7.12. Limitation on Changes in Fiscal Periods...............................................................82
7.13. Limitation on Negative Pledge Clauses.................................................................82
7.14. Limitation on Restrictions on Subsidiary Distributions, etc...........................................82
7.15. Limitation on Lines of Business.......................................................................83
7.16. Broadcast License Subsidiaries........................................................................83
7.17. Amendment of Certain Documents........................................................................83
SECTION 8..EVENTS OF DEFAULT.....................................................................................83
SECTION 9..THE AGENTS AND ARRANGER...............................................................................87
9.1. Appointment............................................................................................87
9.2. Delegation of Duties...................................................................................88
9.3. Exculpatory Provisions.................................................................................88
9.4. Reliance by Agents.....................................................................................88
9.5. Notice of Default......................................................................................89
9.6. Non-Reliance on Agents and Other Lenders...............................................................89
9.7. Indemnification........................................................................................90
9.8. Arranger and Agents in Their Individual Capacities.....................................................90
9.9. Successor Administrative Agent.........................................................................90
9.10. Authorization to Release Liens........................................................................91
9.11. The Arranger, Syndication Agent and Documentation Agent...............................................91
SECTION 10..MISCELLANEOUS........................................................................................91
10.1. Amendments and Waivers................................................................................91
10.2. Notices...............................................................................................92
10.3. No Waiver; Cumulative Remedies........................................................................94
10.4. Survival of Representations and Warranties............................................................94
10.5. Payment of Expenses...................................................................................94
10.6. Successors and Assigns; Participations and Assignments................................................95
10.7. Adjustments; Set-off..................................................................................98
10.8. Counterparts..........................................................................................98
10.9. Severability..........................................................................................99
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10.10. Integration..........................................................................................99
10.11. GOVERNING LAW........................................................................................99
10.12. Submission To Jurisdiction; Waivers..................................................................99
10.13. Acknowledgments.....................................................................................100
10.14. Confidentiality.....................................................................................100
10.15. Release of Collateral and Guarantee Obligations.....................................................100
10.16. Accounting Changes..................................................................................101
10.17. Delivery of Lender Addenda..........................................................................101
10.18. Construction........................................................................................101
10.19. WAIVERS OF JURY TRIAL...............................................................................101
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ANNEXES:
A Pricing Grid
SCHEDULES:
4.10 Certain Existing Liens
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions - Collateral
4.19(b) UCC Filing Jurisdictions - Intellectual Property Collateral
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.8(g) Existing Investments
7.10 Existing Affiliate Transactions
7.13 Existing Agreements with Negative Pledge Clauses
8(g)(i) Required Payments to Employee Welfare Benefit Plans
8(g)(ii) Required Payments to Multiemployer Plans
EXHIBITS
A Form of Compliance Certificate
B Form of Guarantee and Collateral Agreement
C Form of Lender Addendum
D Form of Notice of Borrowing
E Form of Solvency Certificate
F-1 Form of Term Note
F-2 Form of Revolving Credit Note
F-3 Form of Swing Line Note
G Form of Exemption Certificate
H Form of Closing Certificate
I Form of Legal Opinion of Kaye, Scholer, Fierman, Hays & Handler LLP
J Form of Assignment and Acceptance
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CREDIT AGREEMENT, dated as of July 6, 2000, among SPANISH
BROADCASTING SYSTEM, INC., a Delaware corporation (the "Borrower"), the several
banks and other financial institutions or entities from time to time party to
this Agreement (the "Lenders") and LEHMAN COMMERCIAL PAPER INC., as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make a term
loan credit facility available to the Borrower in order to finance certain
Permitted Acquisitions and to make a revolving credit facility available to the
Borrower for the working capital needs and general corporate purposes of the
Borrower; and
WHEREAS, the Lenders are willing to make such credit facilities
available upon and subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Acquired Business": as defined in the definition of "Acquisition"
set forth in this Section 1.1.
"Acquisition": any acquisition, consisting of a single transaction
or a series of related transactions, by the Borrower or any one or more
of its Wholly Owned Subsidiaries of any Capital Stock of, or all or a
substantial part of the assets of, or of a business unit or division of,
any Person engaged in a Permitted Business that is organized under the
laws of the United States or any state or territory thereof (such Person,
assets, business unit or division, the "Acquired Business").
"Acquisition Documentation": the agreements governing or relating
to any Permitted Acquisition and all schedules, exhibits, annexes and
amendments thereto and all side letters and agreements affecting the
terms thereof or entered into in connection therewith, in each case, as
amended supplemented, replaced or otherwise modified from time to time.
"Adjusted EBITDA": for any period, the Consolidated EBITDA of the
Borrower and its Subsidiaries for such period adjusted on a pro forma
basis (i) to reflect the Consolidated EBITDA of each Adjustment-Eligible
Business acquired in any Acquisition consummated in such period as though
such Acquisition had been consummated on the first day of such period and
(ii) to reflect the add-back of Cost Savings, to the extent the
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Consolidated EBITDA of such Adjustment-Eligible Business was reduced by
charges reflecting costs to be eliminated in such Cost Savings.
"Adjustment-Eligible Business": in respect of any period, any
Acquired Business (i) that either (A) is engaged in the Spanish-language
broadcast radio business in the United States or Puerto Rico, to the
extent it is engaged in such business, or (B) is the Acquired Business
that is the subject of the Pipeline Acquisition, and (ii) in respect of
which the consolidated balance sheet of such Acquired Business as at the
end of the period preceding the Acquisition of such Acquired Business and
the related consolidated statements of income and stockholders' equity
and of cash flows for the period in respect of which Adjusted EBITDA is
to be calculated (x) have been previously provided to the Administrative
Agent and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or (2)
have been found acceptable by the Administrative Agent.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of
a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election
of directors (or persons performing similar functions) of such Person or
(b) direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"Agents": the collective reference to the Administrative Agent,
the Syndication Agent and the Documentation Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) prior to termination of the Term Loan Commitments,
the aggregate amount of such Lender's Commitments then in effect and the
principal amount of such Lender's Term Loans then outstanding and (b)
thereafter, the sum of (i) the principal amount of such Lender's Term
Loans then outstanding and (ii) the amount of such Lender's Revolving
Credit Commitment then in effect or, if the Revolving Credit Commitments
have terminated, the principal amount of such Lender's Revolving
Extensions of Credit then outstanding.
"Aggregate Exposure Percentage" with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such
time.
"Agreement": this Credit Agreement, as amended, supplemented,
replaced or otherwise modified from time to time.
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"Applicable Margin": for each Type of Loan, the rate per annum set
forth under the relevant column heading below:
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Base Rate Loans Eurodollar Loans
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Term Loans, Revolving Credit 1.75% 2.75%
Loans and Swing Line Loans
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provided, that on and after the Grid Effective Date, the Applicable
Margin with respect to Revolving Credit Loans, Swing Line Loans and Term
Loans will be determined pursuant to the Pricing Grid.
"Application": an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to open a
Letter of Credit.
"Arranger": as defined in Section 9.11.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by
clause (a), (b), (c) or (d) of Section 7.5) which yields gross proceeds
to the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of
notes or other debt securities and valued at fair market value in the
case of other non-cash proceeds) in excess of $250,000.
"Assignee": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of (a)
such Lender's Revolving Credit Commitment then in effect over (b) such
Lender's Revolving Extensions of Credit then outstanding; provided, that
in calculating any Lender's Revolving Extensions of Credit for the
purpose of determining such Lender's Available Revolving Credit
Commitment pursuant to Section 2.9(a), the aggregate principal amount of
Swing Line Loans then outstanding shall be deemed to be zero.
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the
Reference Lender as its prime or base rate in effect at its principal
office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by the Reference Lender in connection
with extensions of credit to debtors); "Base CD Rate" shall mean the sum
of
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(a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is
one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate; and
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New
York City received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Reference Lender from three New York City
negotiable certificate of deposit dealers of recognized standing selected
by it. Any change in the Base Rate due to a change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall
be effective as of the opening of business on the effective day of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of interest
is based upon the Base Rate.
"Benefited Lender": as defined in Section 10.7.
"Board": the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the relevant Lender(s) to make Loans
hereunder.
"Broadcast License Subsidiary": a Wholly Owned Subsidiary of the
Borrower that owns no material assets other than FCC Licenses and related
rights and has no liabilities other than (i) liabilities arising under
the Guarantee and Collateral Agreement and (ii) trade payables incurred
in the ordinary course of business and tax liabilities incidental to
ownership of such rights.
"Business Day": (i) for all purposes other than as covered by
clause (ii) below, a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
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) and which
is also a day for trading by and between banks in Dollar deposits in the
interbank eurodollar market.
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"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures (other than those made in
payment of purchase consideration for Permitted Acquisitions) by such
Person and its Subsidiaries for the acquisition or leasing (pursuant to a
capital lease) of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and improvements during such
period) which should be capitalized in conformity with GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person in
conformity with GAAP, and, for the purposes of this Agreement, the amount
of such obligations at any time shall be the capitalized amount thereof
at such time determined in conformity with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership or profit interests in a Person (other
than a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.
"Cash Equivalents": (a) 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; (b) certificates of deposit, time deposits, eurodollar time
deposits or overnight bank deposits having maturities of six months or
less from the date of acquisition issued by any Lender or by any
commercial bank organized under the laws of the United States of America
or any state thereof having combined capital and surplus of not less than
$500,000,000; (c) commercial paper of an issuer rated at least A-1 by
Standard & Poor's Ratings Services ("S&P") or P-1 by Moody's Investors
Service, Inc. ("Moody's"), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally,
and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not
more than 30 days with respect to securities issued or fully guaranteed
or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be)
are rated at least A by S&P or A by Moody's; (f) securities with
maturities of six months or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; or (g)
shares of money market mutual or
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similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"C/D Assessment Rate": for any day as applied to any Base Rate
Loan, the annual assessment rate in effect on such day that is payable by
a member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. Section 327.4 (or
any successor provision) to the FDIC (or any successor) for the FDIC's
(or such successor's) insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day as applied to any Base Rate
Loan, that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board as in effect from time to time) in respect of new non-personal
time deposits in Dollars having a maturity of 30 days or more.
"Closing Date": July 6, 2000.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document, including the Intellectual Property Collateral.
"Commitment": as to any Lender, the sum of the Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": (i) with respect to any Revolving Credit
Commitment, the rate of 0.5% per annum and (ii) with respect to any Term
Loan Commitment, the rate of (a) 0.75% per annum for each day on which
the aggregate outstanding and unfunded amount of the Term Loan
Commitments is greater than $83,333,333, (b) 0.625% per annum for each
day on which the aggregate outstanding and unfunded amount of the Term
Loan Commitments is $83,333,333 or less but greater than $41,666,667 or
(c) 0.5% per annum for each day on which the aggregate outstanding and
unfunded amount of the Term Loan Commitments is less than $41,666,667.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group that includes the
Borrower and that is treated as a single employer under Section 414 of
the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit A.
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"Confidential Information Memorandum": the information memorandum
furnished to the Persons invited in the syndication of the Facilities to
become Lenders.
"Consolidated Current Assets": at any date, all amounts (other
than cash and Cash Equivalents) which would, in conformity with GAAP, be
set forth opposite the caption "total current assets" (or any like
caption) on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance
sheet of the Borrower and its Subsidiaries at such date, but excluding
(a) the current portion of any Funded Debt of the Borrower and its
Subsidiaries and (b) without duplication of clause (a) above, all
Indebtedness consisting of Revolving Credit Loans or Swing Line Loans to
the extent otherwise included therein.
"Consolidated EBITDA": of any Person for any period, Consolidated
Net Income of such Person and its Subsidiaries for such period plus,
without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) Consolidated Interest Expense of such Person and
its Subsidiaries, amortization or write-off of debt discount and debt
issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including, in the case of the Borrower, the
Loans and Letters of Credit), (c) depreciation and amortization expense,
(d) amortization of intangibles (including goodwill) and organization
costs, (e) any extraordinary, unusual or non-recurring expenses or losses
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on
sales of assets outside of the ordinary course of business) and (f) any
other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
interest income (except to the extent deducted in determining
Consolidated Interest Expense), (b) any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net
Income for such period, gains on the sales of assets outside of the
ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis; provided that for purposes of
calculating Consolidated EBITDA of the Borrower and its Subsidiaries for
any period, the Consolidated EBITDA of any Person Disposed of by the
Borrower or its Subsidiaries during such period shall be excluded for
such period (assuming the consummation of such Disposition and the
repayment of any Indebtedness in connection therewith occurred on the
first day of such period).
"Consolidated Fixed Charge Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA of the Borrower and its Subsidiaries for
such period minus the aggregate amount actually paid by the Borrower and
its Subsidiaries in cash during such period on account of Capital
Expenditures (but not including any Capital Expenditures made with the
proceeds of any Reinvestment Deferred Amount or from 50% of the Net
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Cash Proceeds of an issuance and sale of Capital Stock as set forth in
clause (x) of Section 7.7) to (b) Consolidated Fixed Charges for such
period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense of the Borrower and its
Subsidiaries for such period, (b) provision for cash income taxes made by
the Borrower or any of its Subsidiaries on a consolidated basis in
respect of such period and (c) scheduled payments made during such period
on account of principal of Indebtedness of the Borrower or any of its
Subsidiaries (including scheduled principal payments in respect of the
Term Loans).
"Consolidated Interest Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA of the Borrower and its Subsidiaries for such
period to (b) Consolidated Interest Expense of the Borrower and its
Subsidiaries for such period.
"Consolidated Interest Expense": of any Person for any period,
total cash interest expense (including that attributable to Capital Lease
Obligations) of such Person and its Subsidiaries for such period on a
consolidated basis with respect to all outstanding Indebtedness of such
Person and its Subsidiaries (including all commissions, discounts and
other fees and charges owed by such Person with respect to letters of
credit and bankers' acceptance financing and net costs of such Person
under Hedge Agreements in respect of interest rates to the extent such
net costs are allocable to such period in accordance with GAAP), net of
the interest income of such Person and its Subsidiaries for such period
on a consolidated basis.
"Consolidated Leverage Ratio": as at the last day of any period of
four consecutive fiscal quarters, the ratio of (a) Consolidated Total
Debt on such day to (b) Adjusted EBITDA for such period.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP;
provided, that in calculating Consolidated Net Income of the Borrower and
its consolidated Subsidiaries for any Period, there shall be excluded (a)
the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated
with the Borrower or any of its Subsidiaries, (b) the income (or deficit)
of any Person (other than a Subsidiary of the Borrower) in which the
Borrower or any of its Subsidiaries has an ownership interest, except to
the extent that any such income is actually received by the Borrower or
such Subsidiary in the form of dividends or similar distributions and (c)
the undistributed earnings of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the
terms of any Contractual Obligation (other than under any Loan Document)
or Requirement of Law applicable to such Subsidiary.
"Consolidated Senior Debt": all Consolidated Total Debt other than
Subordinated Debt.
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<PAGE> 15
"Consolidated Senior Debt Ratio": as of the last day of any period
of four consecutive fiscal quarters, the ratio of (a) Consolidated Senior
Debt on such day to (b) Adjusted EBITDA for such period.
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Funded Debt of the Borrower and its Subsidiaries at such
date, required to be reported on a consolidated balance sheet prepared in
accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Continuing Directors": as to any Person, the directors of such
Person on the Closing Date and each other director of such Person whose
nomination for election to the board of directors of such Person is
recommended by at least a majority of the then Continuing Directors or
who received the vote of each of the shareholders of such Person on the
Closing Date in his or her election by the shareholders of such Person.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control Agreement": each Control Agreement to be executed and
delivered by each Loan Party party thereto, substantially in the form of
Exhibit C, Exhibit D or Exhibit E, as the case may be, to the Guarantee
and Collateral Agreement, as the same may be amended, supplemented,
replaced or otherwise modified from time to time in accordance with this
Agreement.
"Control Investment Affiliate": as to any Person, any other Person
that (a) directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person and (b) is organized by such
Person primarily for the purpose of making equity or debt investments in
one or more companies. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such Person whether by
contract or otherwise.
"Cost Savings": for any period, cost savings attributable to such
period in conjunction with the Acquisition of an Adjustment-Eligible
Business which result from employee terminations, termination or
renegotiation of contracts, facilities consolidations and closings,
standardization of employee benefits and compensation practices,
consolidation of property, casualty and other insurance coverage and
policies, standardization of sales representation commissions and other
contract rates, reductions in taxes other than income taxes, and other
similar cost savings attributable to such Acquisition, which cost savings
the Borrower reasonably believes in good faith would have been achieved
during such period as a result of such Acquisition (regardless of whether
such cost savings could then be reflected in pro forma financial
statements under GAAP); provided that (a) such cost savings and cost
savings measures were identified
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<PAGE> 16
and such cost savings were quantified in a certificate of a Responsible
Officer of the Borrower delivered to the Administrative Agent at the time
of the consummation of such Acquisition (it being understood that such
certificate may be amended by the Borrower from time to time within 90
days thereafter by furnishing a revised certificate of a Responsible
Officer as to the matters set forth in this clause (a)) and (b) if such
Acquisition was completed more than 90 days before the last day of such
period, actions were commenced or initiated by the Borrower or its
Subsidiaries within 90 days of such Acquisition to effect the cost
savings measures identified in such officer's certificate (whether or not
the corresponding cost savings were ultimately achieved).
"Dallas AM Station": radio station KXEB-AM (Sherman, Texas).
"Dallas FM Station": radio station KTCY-FM (Pilot Point, Texas).
"Default": any of the events specified in Section 8, whether or
not any requirement set forth therein for the giving of notice, the lapse
of time, or both, has been satisfied.
"Derivatives Counterparty": as defined in Section 7.6.
"Disposition": with respect to any Property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition
thereof, but not including the issuance of Capital Stock by the Borrower;
and the terms "Dispose" and "Disposed of" shall have correlative
meanings.
"Disqualified Stock": any Capital Stock of the Borrower or any of
its Subsidiaries that any of them is or, upon the passage of time or the
occurrence of any event, may become obligated to redeem, purchase,
retire, defease or otherwise make any payment in respect of (except
payments consisting of Capital Stock that does not constitute
Disqualified Stock) at any time prior to the first anniversary of the
Scheduled Revolving Credit Termination Date.
"Documentation Agent": as defined in Section 9.11
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized
under the laws of the District of Columbia or any state within the United
States of America.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or other legally
enforceable requirements (including common law) of any international
authority, foreign government, the United States, or any state, local,
municipal or other governmental authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of the
environment or of human health, as has been, is now, or may at any time
hereafter be, in effect.
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<PAGE> 17
"Environmental Permits": any and all permits, licenses, approvals,
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including basic, supplemental, marginal and emergency reserves
under any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System. Eurodollar Loans shall be
deemed to constitute Eurocurrency Liabilities and to be subject to such
reserve requirements without benefit or credit for proration, exceptions
or offsets which may be available from time to time to any Lender under
Regulation D.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate screen as of 11:00
A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750
of the Telerate screen (or otherwise on such screen), the "Eurodollar
Base Rate" for purposes of this definition shall be determined by
reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative
Agent.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
-----------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
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<PAGE> 18
"Event of Default": any of the events specified in Section 8,
provided that any requirement set forth therein for the giving of notice,
the lapse of time, or both, has been satisfied.
"Excluded Assets": collectively, (a) FCC Licenses, but only if and
to the extent that, and only for as long as, the grant of a security
interest therein is prohibited (notwithstanding the intention of the
holder to grant such security interest to the fullest extent lawful)
under the laws of the United States and (b) any Lease, any intellectual
property license agreement under which any Grantor is the licensee, and
any other agreement under which any Grantor is entitled to the
performance of any obligation other than the payment of money, to the
extent that, and so long as, the grant by such Grantor of a security
interest pursuant to the Guarantee and Collateral Agreement in its right,
title and interest therein (i) is prohibited by the terms of such Lease,
license agreement or other agreement without the consent of any other
party thereto (other than the Borrower or any of its Subsidiaries), (ii)
would give any other party (other than the Borrower or any of its
Subsidiaries) to such Lease, license agreement or other agreement the
right to terminate its obligations thereunder, or (iii) is permitted only
upon obtaining consents from the other parties thereto (other than the
Borrower and any of its Subsidiaries) which have not been obtained;
provided, that no Receivable (as defined in the Guarantee and Collateral
Agreement), no money or other amounts due or to become due under any
Lease, license agreement or other agreement described in clause (b) of
this definition, and no Proceeds from any Disposition of any Property
described in this definition, shall be an Excluded Asset.
"Excluded Foreign Subsidiary": any Foreign Subsidiary in respect
of which either (i) the pledge of all of the Capital Stock of such
Subsidiary as Collateral or (ii) the guaranteeing by such Subsidiary of
the Obligations, would, in the good faith judgment of the Borrower,
result in adverse tax consequences to the Loan Parties, taken as a whole;
provided, however, that (a) a Foreign Subsidiary that is treated as a
pass-through entity for United States federal income tax purposes shall
not be an Excluded Foreign Subsidiary while so treated and (b) no Foreign
Subsidiary that has guaranteed any obligation in respect of the Senior
Subordinated Notes shall be an Excluded Foreign Subsidiary.
"Facility": each of (a) the Term Loan Commitments and the Term
Loans made thereunder (the "Term Loan Facility") and (b) the Revolving
Credit Commitments and the extensions of credit made thereunder (the
"Revolving Credit Facility").
"FCC": the Federal Communications Commission (or any successor).
"FCC Licenses": any licenses, permits and authorizations issued by
the FCC for the operation of stations.
"Federal Funds Effective Rate": for any day, the weighted average
of the rates on overnight federal funds transactions with members of the
Federal Reserve System
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<PAGE> 19
arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Reference
Lender from three federal funds brokers of recognized standing selected
by it.
"Fee Letter": the Credit Facilities Fee Letter, dated July 6, 2000
among the Borrower, the Administrative Agent and the Arranger, as the
same may be amended, supplemented, replaced or otherwise modified from
time to time in accordance with this Agreement.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"FQ1", "FQ2", "FQ3", and "FQ4": when used with a numerical year
designation, means the first, second, third or fourth fiscal quarters,
respectively, of such fiscal year of the Borrower (e.g., "FQ1 in 2001"
means the first fiscal quarter, ending on or about December 31, 2000, of
the Borrower's fiscal year 2001, which ends on or about September 30,
2001).
"Funded Debt": as to any Person, all Indebtedness of such Person
required under GAAP to be shown as or reflected in the liabilities on its
balance sheet, to the extent required under GAAP to be shown as or
reflected in such liabilities, that matures more than one year from the
date of its creation or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year from such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year from such date, including all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the
date of its creation and, in the case of the Borrower, Indebtedness in
respect of the Loans.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time, except that for
purposes of Section 7.1, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used in
the preparation of the most recent audited financial statements delivered
pursuant to Section 4.1(b).
"Governing Documents": collectively, as to any Person, the
articles or certificate of incorporation and bylaws, any shareholders
agreement, certificate of formation, limited liability company agreement,
partnership agreement or other formation or constituent documents of such
Person.
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<PAGE> 20
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Grantor": each signatory to the Guarantee and Collateral
Agreement (together with any other entity that may become a party to the
Guarantee and Collateral Agreement as provided therein).
"Grid Effective Date": the date that is the later of (a) the six
month anniversary of the Closing Date and (b) the date of delivery to the
Administrative Agent of the Borrower's financial statements for the first
two fiscal quarters following the Closing Date.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and each
Subsidiary Guarantor, substantially in the form of Exhibit B, as the same
may be amended, supplemented, replaced or otherwise modified from time to
time in accordance with this Agreement.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly,
including any obligation of the guaranteeing 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 (1) for the purchase or payment of any such primary
obligation or (2) 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 owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term "Guarantee Obligation" shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case the
amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined
by the Borrower in good faith.
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<PAGE> 21
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements entered into by the Borrower or any of
its Subsidiaries providing for protection against fluctuations in
interest rates or currency exchange rates or the exchange of nominal
interest obligations, either generally or under specific contingencies,
as each may be amended, supplemented, replaced or otherwise modified from
time to time in accordance with this Agreement.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person, whether or not contingent, for the deferred
purchase price of Property or services (other than trade payables
incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
Property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such Property), (e) all Capital Lease
Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party under acceptance, letter of
credit or similar facilities, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire
for value any Capital Stock of such Person, (h) all Guarantee Obligations
of such Person in respect of obligations of the kind referred to in
clauses (a) through (g) above; (i) all obligations of the kind referred
to in clauses (a) through (h) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on Property (including accounts and contract rights)
owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation, but if any such obligation is
non-recourse to such Person, then the amount of such obligation shall be
deemed to be the lesser of the fair market value of such Property and the
amount of the obligation so secured, (j) for the purposes of Section 8(e)
only, all obligations of such Person in respect of Hedge Agreements and
(k) the liquidation value of any redeemable preferred Capital Stock of
such Person or its Subsidiaries (other than any such preferred Capital
Stock that is not, in any contingency, redeemable until a date that is no
earlier than the first anniversary of the Scheduled Revolving Credit
Termination Date) held by any Person other than such Person and its
Wholly Owned Subsidiaries.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Multiemployer Plan is insolvent within the meaning of
Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Insurance Requirements": all material terms of any insurance
policy required pursuant to this Agreement or any Security Document.
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<PAGE> 22
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, state, multinational or foreign laws or
otherwise, including copyrights, patents, trademarks, service-marks,
technology, know-how and processes, recipes, formulas, trade secrets, or
licenses (under which the applicable Person is licensor or licensee)
relating to any of the foregoing and all rights to sue at law or in
equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Intellectual Property Collateral": all Intellectual Property of
the Loan Parties, now owned or hereafter acquired, upon which a Lien is
purported to be created by the Intellectual Property Security Agreement
or the Guarantee and Collateral Agreement.
"Intellectual Property Security Agreement": the Intellectual
Property Security Agreement to be executed and delivered by each Loan
Party, substantially in the form of Exhibit C to the Guarantee and
Collateral Agreement, as the same may be amended, supplemented, replaced
or otherwise modified from time to time in accordance with this
Agreement.
"Interest Payment Date" (a) as to any Base Rate Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three months,
or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period and (d) as to any Loan (other
than any Revolving Credit Loan that is a Base Rate Loan (unless all
Revolving Credit Loans are being repaid in full in immediately available
funds and the Revolving Credit Commitments terminated) and any Swing Line
Loan), the date of any repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may
be, with respect to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower in its Notice of
Borrowing or notice of conversion, as the case may be, given with respect
thereto; and (b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less than
three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business Day;
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<PAGE> 23
(ii) any Interest Period that would otherwise extend
beyond the Scheduled Revolving Credit Termination Date or beyond the date
final payment is due on the Term Loans shall end on the Revolving Credit
Termination Date or such due date, as applicable;
(iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Investments": as defined in Section 7.8.
"Issuing Lender": any Lender that is appointed by the Borrower,
with the consent of the Administrative Agent, to act as Issuing Lender
under this Agreement, if such Lender is willing to act as such and has
confirmed in writing its acceptance of such appointment.
"LA Stations": collectively, radio stations KFOX-FM (Redondo
Beach, California) and KREA-FM (Ontario, California).
"L/C Commitment": at any time, the lesser of (a) $10,000,000 and
(b) the Total Revolving Credit Commitments at such time.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Credit
Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the Revolving
Credit Lenders other than the Issuing Lender.
"Lease": any lease of real or personal property under which any
Grantor is the lessee.
"Lehman Entity": any of Lehman Commercial Paper Inc. or any of its
affiliates (including Syndicated Loan Funding Trust).
"Lender Addendum": with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit C, to be executed and
delivered by such Lender on the Closing Date as provided in Section
10.17.
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"Lenders": as defined in the preamble hereto and includes the
Issuing Lender.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including
any conditional sale or other title retention agreement and any capital
lease having substantially the same economic effect as any of the
foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the Fee
Letter, the Applications and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the Borrower
which is a party to a Loan Document (including pursuant to Section 6.10).
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of (a) the aggregate unfunded Commitments in
respect of such Facility and (b) the aggregate unpaid principal amount of
the Loans or, in the case of the Revolving Credit Facility, Total
Revolving Extensions of Credit outstanding under such Facility.
"Management Equity": common stock, or options or warrants to
acquire common stock, of the Borrower, granted to any present or former
director, officer or employee of the Borrower pursuant to an employee
stock incentive program approved by the Board of Directors of the
Borrower.
"Material Action": as to any Broadcast License Subsidiary, (i) to
consolidate or merge such Broadcast License Subsidiary with or into any
Person, or sell all or substantially all of the assets of such Broadcast
License Subsidiary, or to institute proceedings to have such Broadcast
License Subsidiary be adjudicated bankrupt or insolvent, or consent to
the institution of bankruptcy or insolvency proceedings against such
Broadcast License Subsidiary or file a petition seeking, or consent to,
reorganization or relief with respect to such Broadcast License
Subsidiary under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such
Broadcast License Subsidiary or a substantial part of its property, or
make any assignment for the benefit of creditors of such Broadcast
License Subsidiary, or admit in writing such Broadcast License
Subsidiary's inability to pay its debts generally as they become due, or,
to the fullest extent permitted by law, take action in furtherance of any
such action, or dissolve or liquidate such Broadcast License Subsidiary,
or (ii) to take any other action that would cause or permit the
dissolution of such Broadcast License Subsidiary whether pursuant to the
Governing Documents of such Broadcast License Subsidiary, judicial
dissolution, applicable law or otherwise.
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"Material Adverse Effect": a material adverse effect on or
affecting (a) the business, assets, property, condition (financial or
otherwise) or prospects of the Loan Parties taken as a whole, (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents, (c) the validity, enforceability or priority of the Liens
purported to be created by the Security Documents or (d) the rights or
remedies of any Secured Party hereunder or under any of the other Loan
Documents.
"Material Environmental Amount": an amount or amounts payable by
the Borrower and/or any of its Subsidiaries, in the aggregate in excess
of $5,000,000, for: costs to comply with any Environmental Law; costs of
any investigation, and any remediation, of any Material of Environmental
Concern; and compensatory damages (including, without limitation damages
to natural resources), punitive damages, fines, and penalties pursuant to
any Environmental Law.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactivity, and any other substances or
forces of any kind, whether or not any such substance or force is defined
as hazardous or toxic under any Environmental Law, that is regulated
pursuant to or could give rise to liability under any Environmental Law.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of reasonable and
customary attorneys' fees, accountants' fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness secured
by a Lien expressly permitted hereunder on any asset which is the subject
of such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other reasonable and customary fees, commissions
and expenses (including severance costs), in each case, to the extent
actually incurred in connection therewith and net of taxes paid or
reasonably estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of equity
securities or debt securities or instruments or the incurrence of loans,
the cash proceeds received from such issuance or incurrence, net of
reasonable and customary attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other
reasonable and customary fees and expenses, in each case, to the extent
actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.20(a).
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"Non-U.S. Lender": as defined in Section 2.20(f).
"Notes": the collective reference to the Revolving Credit Notes,
the Term Notes and the Swing Line Notes, if any, evidencing Loans.
"Notice of Borrowing": a certificate duly executed by a
Responsible Officer of the Borrower substantially in the form of Exhibit
D.
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Loan Party, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
Loans and all other obligations and liabilities of the Loan Parties to
the Arranger, to any Agent, to any Lender (or, in the case of Specified
Hedge Agreements, any affiliate of any Lender) or to any Indemnitee,
whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, out of, or
in connection with, this Agreement, any other Loan Document, the Letters
of Credit, any Specified Hedge Agreement or any other document made,
delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Arranger, to any Agent or to any Lender
that are required to be paid by any Loan Party pursuant hereto or to any
other Loan Document) or otherwise; provided, that (i) Obligations of the
Borrower or any other Loan Party under any Specified Hedge Agreement
shall be secured and guaranteed pursuant to the Security Documents only
to the extent that, and for so long as, the other Obligations are so
secured and guaranteed and (ii) any release of Collateral or Subsidiary
Guarantors effected in the manner permitted by this Agreement shall
require the consent only of the Lenders as set forth in Section 10.1.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Participant": as defined in Section 10.6(b).
"Payment Amount": as defined in Section 3.5.
"Payment Office": the office of the Administrative Agent specified
in Section 10.2 or as otherwise specified from time to time by the
Administrative Agent as its payment office by notice to the Borrower and
the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
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"Permits": the collective reference to (i) Environmental Permits,
and (ii) any and all other franchises, licenses, leases, permits,
approvals, notifications, certifications, registrations, authorizations,
exemptions, qualifications, easements, rights of way, Liens and other
rights, privileges and approvals required under any Requirement of Law.
"Permitted Acquisitions": (i) the Rodriguez Acquisitions, or (ii)
any other Acquisition of a Permitted Business that meets the following
requirements at the time such Acquisition is consummated:
(a) no Default exists or would exist after giving effect
to such Acquisition and each representation and warranty made by
any Loan Party in or pursuant to the Loan Documents shall be true
and correct on and as of such date as if made on and as of such
date and immediately after giving effect to such Acquisition;
(b) the Borrower has delivered to the Administrative
Agent a certificate of a Responsible Officer stating that, on a
pro forma basis, after giving effect to such Acquisition and any
incurrence or assumption of Indebtedness in connection therewith
and the application of the proceeds thereof as if they had
occurred on the first day of the 12-month period ending on the
last day of the fiscal quarter of the Borrower then most recently
ended, the Borrower would have been in compliance, as of the last
day of such fiscal quarter, with each of the financial condition
covenants set forth in Section 7.1, accompanied by (A) historic
financial statements for the Acquired Business in such Acquisition
that either are audited by an accounting firm of recognized
standing or reasonably satisfactory to the Administrative Agent
covering such 12-month period and, if available, the preceding two
years, and (B) an analysis showing the calculations of such pro
forma financial covenant compliance in reasonable detail;
(c) the Borrower delivers to the Administrative Agent,
promptly after consummation of such Acquisition, a signed
counterpart of each legal opinion, if any, delivered in connection
with such Acquisition, accompanied by a reliance letter in favor
of the Administrative Agent and the Lenders;
(d) if such Acquisition is the Pipeline Acquisition or
if the Acquired Business in such Acquisition consists of or
includes any business other than the Spanish language radio
broadcast business in the United States or Puerto Rico, (i) the
Administrative Agent and Lenders have been provided, at least 10
Business Days prior to the consummation of such Acquisition, (A)
written notice of such Acquisition, (B) copies of all Acquisition
Documentation for such Acquisition, and (C) such financial
statements, information, documents and materials as the
Administrative Agent or Required Lenders may request in order to
conduct and complete a business, financial and legal due diligence
review satisfactory to the Administrative Agent and Required
Lenders of such Acquisition, of the Acquired Business in such
Acquisition and of the terms and conditions of the Acquisition
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Documentation for such Acquisition, (ii) the Borrower has not been
notified, within 10 Business Days after all financial statements,
information, documents and materials so requested were provided,
that the Administrative Agent or Required Lenders are not
satisfied with the results of their diligence review, and (iii)
the Pipeline Acquisition is consummated on the terms set forth in
the agreements so provided, upon satisfaction of the conditions
therein set forth and without any waiver thereof or change therein
as to which the conditions in clauses (i) and (ii) of this
paragraph (d) have not been satisfied; and
(e) either:
(i) both (A) the Borrower has delivered to the
Administrative Agent a certificate of a Responsible Officer
stating that, on a pro forma basis, after giving effect to
such Acquisition and any incurrence or assumption of
Indebtedness in connection therewith and the application of
the proceeds thereof as if they had occurred on the first
day of the 12-month period ending on the last day of the
fiscal quarter of the Borrower then most recently ended, as
of the last day of such fiscal quarter the Consolidated
Leverage Ratio was not greater than 6:1 and the
Consolidated Senior Debt Ratio was not greater than 2.25:1,
and (B) after giving effect to all Loans funded or to be
funded to pay purchase consideration for such Acquisition,
the Total Revolving Extensions of Credit shall be at least
$5,000,000 less than the Total Revolving Credit
Commitments; or
(ii) the purchase consideration for such
acquisition consists solely of Capital Stock (other than
Disqualified Stock) of the Borrower issued to the seller;
or
(iii) the Borrower has obtained written consent for
such Acquisition from the Required Lenders.
"Permitted Business": the media business and any business
reasonably similar, complementary, ancillary or related thereto,
including the operation of Latin music websites and internet portals, and
any activity reasonably incidental thereto.
"Permitted Investors": in any combination, Raul Alarcon, Jr. and
his spouse and members of his immediate family and any corporation,
trust, partnership, company or other entity more than 50% of the
beneficial interests in which are owned, in any combination, by Raul
Alarcon, Jr. or his spouse or the members of his immediate family.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
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"Pipeline Acquisition": the Acquisition that, prior to the Closing
Date, was identified by the Borrower to the Administrative Agent as the
"Pipeline Acquisition".
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and which the Borrower or any Commonly Controlled Entity
maintains, administers, contributes to or is required to contribute to or
under which the Borrower or any Commonly Controlled Entity could incur
any liability.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof and, in any event, shall include all dividends or
other income from the Pledged Securities (as defined in the Guarantee and
Collateral Agreement), collections thereon or distributions or payments
with respect thereto.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including Capital Stock.
"Puerto Rico Intercompany Debt": Indebtedness that (a) was
incurred or assumed by Spanish Broadcasting System of Puerto Rico, Inc.,
a Delaware corporation, or any of its Subsidiaries and (b) is outstanding
to the Borrower or a Wholly Owned Subsidiary Guarantor.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any of its Subsidiaries.
"Reference Lender": Deutsche Bank, New York Office.
"Refunded Swing Line Loans": as defined in Section 2.7(b).
"Refunding Date": as defined in Section 2.7(c).
"Register": as defined in Section 10.6(d).
"Regulation D": Regulation D of the Board as in effect from time
to time (and any successor to all or a portion thereof).
"Regulation H": Regulation H of the Board as in effect from time
to time (and any successor to all or a portion thereof).
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"Regulation T": Regulation T of the Board as in effect from time
to time (and any successor to all or a portion thereof).
"Regulation U": Regulation U of the Board as in effect from time
to time (and any successor to all or a portion thereof).
"Regulation X": Regulation X of the Board as in effect from time
to time (and any successor to all or a portion thereof).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower or any of
its Subsidiaries in connection therewith that are not applied to prepay
the Term Loans or reduce the Revolving Credit Commitments pursuant to
Section 2.12(b) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect
of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Default has occurred and is continuing and that
the Borrower (directly or indirectly through a Wholly Owned Subsidiary)
intends and expects to use all or a specified portion of the Net Cash
Proceeds of an Asset Sale or Recovery Event to acquire assets (including
the acquisition of Capital Stock or assets pursuant to a Permitted
Acquisition) useful in its business or, in the case of a Recovery Event,
repair assets to which such Recovery Event relates.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire
assets (including the acquisition of Capital Stock or assets pursuant to
a Permitted Acquisition) useful in the Borrower's business or, in the
case of a Recovery Event, repair assets to which such Recovery Event
relates.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring twelve months after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, acquire assets
(including the acquisition of Capital Stock or assets pursuant to a
Permitted Acquisition) useful in the Borrower's business or, in the case
of a Recovery Event, repair assets to which such Recovery Event relates,
in any such case with all or any portion of the relevant Reinvestment
Deferred Amount.
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"Related Person": as to each of the Arranger, the Agents and the
Lenders, each of its officers, directors, stockholders, members,
partners, employees, agents, attorneys and other advisors, controlling
persons and Affiliates.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or
.35 of PBGC Reg. Section 4043.
"Required Lenders": at any time, the holders of more than 50% of
(a) until the Closing Date, the Commitments and (b) thereafter, the sum
of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and (ii) the Total Revolving Credit Commitments then in
effect or, if the Revolving Credit Commitments have terminated, the Total
Revolving Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
respect of each Facility.
"Requirement of Law": as to any Person, the Governing Documents of
such Person, and any law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Responsible Officer": as to any Person, the chief executive
officer, president, chief financial officer or treasurer of such Person,
but in any event, with respect to financial matters, the chief financial
officer or treasurer of such Person. Unless otherwise qualified, all
references to a "Responsible Officer" shall refer to a Responsible
Officer of the Borrower.
"Restricted Payments": as defined in Section 7.6.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and/or participate in
Swing Line Loans and Letters of Credit, in an aggregate principal and/or
face amount not to exceed the amount set forth under the heading
"Revolving Credit Commitment" opposite such Lender's name on Schedule 1
to the Lender Addendum delivered by such Lender, or, as the case may be,
in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to
the terms hereof. The original aggregate principal amount of the
Revolving Credit Commitments is $25,000,000.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
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"Revolving Credit Lender": each Lender that has a Revolving Credit
Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4(a).
"Revolving Credit Notes": as defined in Section 2.8(e).
"Revolving Credit Percentage": as to any Revolving Credit Lender
at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments
(or, at any time after the Revolving Credit Commitments have terminated,
the percentage which the aggregate principal amount of such Lender's
Revolving Credit Extensions of Credit then outstanding constitutes of the
aggregate principal amount of the Total Revolving Extensions of Credit
then outstanding).
"Revolving Credit Termination Date": the earlier of (a) the
Scheduled Revolving Credit Termination Date and (b) the date on which the
Term Loans shall be paid in full.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans then outstanding to such
Lender, (b) such Lender's Revolving Credit Percentage of the L/C
Obligations then outstanding and (c) such Lender's Revolving Credit
Percentage of the aggregate principal amount of Swing Line Loans then
outstanding.
"Rodriguez Acquisition": the acquisition of any of the Rodriquez
Stations on the terms and subject to the conditions set forth in the
Rodriguez Purchase Agreements.
"Rodriguez Bridge Loans": the loans made or required to be made by
the Borrower under the Rodriguez Bridge Loan Agreement.
"Rodriguez Bridge Loan Agreement": the Credit Agreement dated as
of May 8, 2000 among New World Broadcasters Corp., Rodriguez
Communications, Inc., RCI (Alameda) Acquisition, Inc., the Guarantors
named therein and the Borrower, and each of the other "Loan Documents,"
as defined in such Credit Agreement, in each case as modified by the
waiver letter dated July 5, 2000 and as set forth in an e-mail
confirmation dated July 6, 2000 and as further amended, replaced,
supplemented or otherwise modified from time to time in accordance with
this Agreement.
"Rodriguez Purchase Agreements": (a) the Stock Purchase Agreement
dated as of May 8, 2000 by and among Rodriguez Communications, Inc, each
of its stockholders and the Borrower, (b) the Stock Purchase Agreement
dated as of May 8, 2000 by and between New World Broadcasters Corp. and
the Borrower, (c) the Asset Purchase Agreement dated as of May 8, 2000 by
and between New World Broadcasters Corp. and the Borrower and (d) any
stock purchase agreement entered into by and among RC (Alameda)
Acquisition, Inc. and/or its stockholders and the Borrower in connection
with the Borrower's acquisition of the SF Station, as contemplated in the
Stock Purchase
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Agreement referred to in clause (a) above, in each case as modified by
the waiver letter dated July 5, 2000 and as set forth in an e-mail
confirmation dated July 6, 2000 and as further amended, supplemented,
replaced or otherwise modified from time to time in accordance with this
Agreement.
"Rodriguez Stations": collectively, the LA Stations, the SA
Station, the SF Stations and the Dallas Stations.
"SA Station": radio station KSAH-AM (Universal City, Texas).
"Scheduled Revolving Credit Termination Date": June 30, 2006.
"SEC": the Securities and Exchange Commission (or successors
thereto or an analogous Governmental Authority).
"Secured Parties": collectively, the Arranger, the Agents, the
Lenders and, with respect to any Specified Hedge Agreement, any affiliate
of any Lender party thereto that has agreed to be bound by the provisions
of Section 7.2 of the Guarantee and Collateral Agreement as if it were a
party thereto and by the provisions of Section 9 hereof as if it were a
Lender party hereto and each Indemnitee.
"Security Documents": the collective reference to the Guarantee
and Collateral Agreement, the Intellectual Property Security Agreement,
the Control Agreements and all other pledge and security documents
hereafter delivered to the Administrative Agent granting a Lien on any
Property of any Person to secure the obligations and liabilities of any
Loan Party under any Loan Document.
"Seller Indebtedness": (a) Indebtedness incurred by the Borrower
issued as purchase consideration to the seller in a Permitted
Acquisition, provided that such Indebtedness shall (i) be in an aggregate
principal amount which, when taken together with the aggregate principal
amount of all other outstanding Seller Indebtedness, does not exceed
$15,000,000 at any one time outstanding, (ii) be issued and payable and
subordinated to the Obligations on terms acceptable to the Administrative
Agent, (iii) in respect of which no payments of principal are due
(including sinking fund payments, redemption or defeasance deposits or
any required purchase) earlier than the first anniversary of the
Scheduled Revolving Credit Termination Date and (iv) not bear interest
payable in cash during the continuance of an Event of Default, and (b)
any other Indebtedness incurred by the Borrower or any Subsidiary in
connection with a Permitted Acquisition, if the amount and terms of such
Indebtedness have been approved in writing by the Required Lenders.
"Senior Subordinated Notes": the unsecured Senior Subordinated
Notes due 2009 issued and outstanding under the Senior Subordinated Note
Indenture.
"Senior Subordinated Note Indenture": the Indenture dated as of
November 2, 1999 between the Borrower and The Bank of New York, as
Trustee, in connection with
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the Senior Subordinated Notes, as the same may be amended, supplemented,
replaced or otherwise modified from time to time in accordance with this
Agreement.
"SF Station": radio station KXJO-FM (Alameda, California).
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvency Certificate": the Solvency Certificate to be executed
and delivered by the chief financial officer of the Borrower,
substantially in the form of Exhibit E.
"Solvent": when used with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date,
as such quoted terms are determined in accordance with applicable federal
and state laws governing determinations of the insolvency of debtors, (b)
the present fair saleable value of the assets of such Person will, as of
such date, be greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably
small amount of capital with which to conduct its business and (d) such
Person will be able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim", and (ii) "claim"
means any (x) 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 (y) right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
"Specified Change of Control": a "change of control" or similar
event (howsoever defined) as defined in the Senior Subordinated Note
Indenture.
"Specified Hedge Agreement": any Hedge Agreement (a) entered into
by (i) the Borrower or any of its Subsidiaries for the purpose of hedging
the interest rate exposure in connection with indebtedness permitted
under this Agreement and (ii) any Lender or any affiliate thereof, as
counterparty and (b) which has been designated by such Lender and the
Borrower, by notice to the Administrative Agent not later than 90 days
after the execution and delivery thereof by the Borrower or such
Subsidiary, as a Specified Hedge Agreement; provided that the designation
of any Hedge Agreement as a Specified Hedge Agreement shall not create in
favor of any Lender or affiliate thereof that is a party thereto any
rights in connection with the management or release of any Collateral or
of the obligations of any Guarantor under the Guarantee and Collateral
Agreement.
"Subordinated Debt": any Indebtedness of the Borrower (i) that is
not guaranteed by any Subsidiary of the Borrower and not secured by any
Lien upon any Property of the Borrower or any of its Subsidiaries, (ii)
that is issued and payable and subordinated to the
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Obligations on terms acceptable to the Administrative Agent and (iii) in
respect of which no payments of principal are due (including sinking fund
payments, redemption or defeasance deposits or any required purchase)
prior to the first anniversary of the Scheduled Revolving Credit
Termination Date.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than stock
or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors
or other managers of such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a "Subsidiary"
or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than
(i) any Excluded Foreign Subsidiary and (ii) JuJu Media, Inc.
"Swing Line Commitment": at any time, the lesser of (a) $3,000,000
and (b) the aggregate amount of the Revolving Credit Commitments at such
time.
"Swing Line Lender": Lehman Commercial Paper Inc., in its capacity
as the lender of Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6(a).
"Swing Line Notes": as defined in Section 2.8(e).
"Swing Line Participation Amount": as defined in Section 2.7(c).
"Syndication Agent": as defined in Section 9.11.
"Term Loan": as defined in Section 2.1(a).
"Term Loan Commitment": as to any Term Loan Lender, the obligation
of such Lender, if any, to make a Term Loan to the Borrower hereunder in
a principal amount not to exceed the amount set forth under the heading
"Term Loan Commitment" opposite such Lender's name on Schedule 1 to the
Lender Addendum delivered by such Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the
terms hereof. The original aggregate amount of the Term Loan Commitments
is $125,000,000.
"Term Loan Commitment Period": the period that begins on the
Closing Date and ends on December 29, 2000.
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"Term Loan Funding Date": any date during the Term Loan Commitment
Period upon which Term Loans are funded or upon which funding of Term
Loans is requested by the Borrower in a notice given as set forth in
Section 2.2.
"Term Loan Lender": each Lender that has a Term Loan Commitment or
is the holder a Term Loan.
"Term Loan Percentage": as to any Term Loan Lender at any time,
the percentage which such Lender's Term Loan Commitment bears to the
aggregate Term Loan Commitments at such time.
"Term Notes": as defined in Section 2.8(e).
"Total Revolving Credit Commitments": at any time, the aggregate
amount of the Revolving Credit Commitments then in effect; provided that
the amount of the Total Revolving Credit Commitments on the Closing Date
shall be $25,000,000.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time.
"Transferee": as defined in Section 10.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"Wholly Owned Subsidiary": as to any Person, any other Person all
of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that
is a Wholly Owned Subsidiary of the Borrower.
1.2. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered pursuant hereto
or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular
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<PAGE> 37
provision of this Agreement, and Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) The expressions "payment in full," "paid in full" and any
other similar terms or phrases when used herein with respect to the Obligations
shall mean the payment in full, in immediately available funds, of all of the
Obligations.
(f) The term "including" is not limiting and means "including
without limitation."
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. Term Loan Commitments.
(a) Subject to the terms and conditions hereof, each Term Loan
Lender severally agrees to make term loans (each a "Term Loan") to the Borrower
in one or more fundings during the Term Loan Commitment Period in an aggregate
amount not to exceed the amount of the Term Loan Commitment of such Lender.
(b) The Term Loan Commitments shall terminate on the last day
of the Term Loan Commitment Period. Term Loans that are repaid may not be
reborrowed.
2.2. Procedure for Term Loan Borrowing. The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, one Business
Day prior to the anticipated Term Loan Funding Date if the Term Loans are funded
as Base Rate Loans or three Business Days prior to the anticipated Term Loan
Funding Date if the Term Loans are funded as Eurodollar Loans) requesting that
the Term Loan Lenders make the Term Loans on such anticipated Term Loan Funding
Date and specifying the amount to be borrowed. Each borrowing under the Term
Loan Commitments shall be in an amount equal to (x) in the case of Base Rate
Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Term
Loan Commitments are less than $1,000,000, such lesser amount) and (y) in the
case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of such notice the Administrative Agent shall promptly
notify each Term Loan Lender thereof. Not later than 12:00 Noon, New York City
time, on such anticipated Closing Date each Term Loan Lender shall make
available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Term Loan or Term Loans to be made by
such Lender.
2.3. Repayment of Term Loans. The Borrower shall pay the principal
amount of the Term Loans in sixteen (16) consecutive quarterly installments
commencing on September 30, 2001 and continuing on the last day of each
December, March, June and September of each year thereafter through June 30,
2006, and the amount of the quarterly installment due on each such
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<PAGE> 38
payment date shall be determined by applying the payment percentage set forth
next to such payment date below to the amount of the Term Loans funded on the
Closing Date:
<TABLE>
<CAPTION>
Payment Date Payment Percentage
------------ ------------------
<S> <C>
September 30, 2001 1.25%
December 31, 2001 1.25%
March 31, 2002 1.25%
June 30, 2002 1.25%
September 30, 2002 3.75%
December 31, 2002 3.75%
March 31, 2003 3.75%
June 30, 2003 3.75%
September 30, 2003 5.00%
December 31, 2003 5.00%
March 31, 2004 5.00%
June 30, 2004 5.00%
September 30, 2004 6.25%
December 31, 2004 6.25%
March 31, 2005 6.25%
June 30, 2005 6.25%
September 30, 2005 8.75%
December 31, 2005 8.75%
March 31, 2006 8.75%
June 30, 2006 8.75%
</TABLE>
Notwithstanding the foregoing, the aggregate outstanding principal balance of
the Term Loans shall be due and payable in full in immediately available funds
on June 30, 2006, if not sooner paid in full.
2.4. Revolving Credit Commitments.
(a) Subject to the terms and conditions hereof, each Revolving
Credit Lender severally agrees to make revolving credit loans (each a "Revolving
Credit Loan") to the Borrower in one or more fundings during the Revolving
Credit Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Lender's Revolving Credit Percentage of
the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate
principal amount of the Swing Line Loans then outstanding, does not exceed the
amount of such Lender's Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Commitments shall terminate on the Revolving Credit Termination
Date. The Revolving Credit Loans may from time to time be Eurodollar Loans or
Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.5 and 2.13, provided that no
Revolving
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<PAGE> 39
Credit Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
2.5. Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice in a Notice of Borrowing (which Notice
of Borrowing must be received by the Administrative Agent prior to 12:00 Noon,
New York City time, (a) three Business Days prior to the requested Borrowing
Date, in the case of Eurodollar Loans, or (b) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans), specifying (i) the
amount and Type of Revolving Credit Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the length of the
initial Interest Period therefor. Any Revolving Credit Loans made on the Closing
Date shall initially be Base Rate Loans, and no Revolving Credit Loan may be
made as, converted into or continued as a Eurodollar Loan having an Interest
Period in excess of one month prior to the date which is 60 days after the
Closing Date. Each borrowing under the Revolving Credit Commitments shall be in
an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole
multiple thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; provided, that the Swing Line Lender may request, on behalf of the
Borrower, borrowings under the Revolving Credit Commitments which are Base Rate
Loans in other amounts pursuant to Section 2.7. Upon receipt of any such Notice
of Borrowing from the Borrower, the Administrative Agent shall promptly notify
each Revolving Credit Lender thereof. Each Revolving Credit Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the Funding Office prior to 12:00 Noon,
New York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent in like funds as
received by the Administrative Agent.
2.6. Swing Line Commitment.
(a) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make a portion of the credit otherwise available to the
Borrower under the Revolving Credit Commitments from time to time during the
Revolving Credit Commitment Period by making swing line loans ("Swing Line
Loans") to the Borrower; provided that (i) the aggregate principal amount of
Swing Line Loans outstanding at any time shall not exceed the Swing Line
Commitment then in effect (notwithstanding that the Swing Line Loans outstanding
at any time, when aggregated with the Swing Line Lender's other outstanding
Revolving Credit Loans hereunder, may exceed the Swing Line Commitment then in
effect) and (ii) the Borrower shall not request, and the Swing Line Lender shall
not make, any Swing Line Loan if, after giving effect to the making of such
Swing Line Loan, the aggregate amount of the Available Revolving
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<PAGE> 40
Credit Commitments would be less than zero. During the Revolving Credit
Commitment Period, the Borrower may use the Swing Line Commitment by borrowing,
repaying and reborrowing, all in accordance with the terms and conditions
hereof. Swing Line Loans shall be Base Rate Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans
on the Revolving Credit Termination Date.
2.7. Procedure for Swing Line Borrowing; Refunding of Swing Line
Loans.
(a) Whenever the Borrower desires that the Swing Line Lender
make Swing Line Loans it shall give the Swing Line Lender irrevocable telephonic
notice confirmed promptly in writing (which telephonic notice must be received
by the Swing Line Lender not later than 1:00 P.M., New York City time, on the
proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date (which shall be a Business Day during the Revolving
Credit Commitment Period). Each borrowing under the Swing Line Commitment shall
be in an amount equal to $500,000 or a whole multiple of $100,000 in excess
thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date
specified in a notice in respect of Swing Line Loans, the Swing Line Lender
shall make available to the Administrative Agent at the Funding Office an amount
in immediately available funds equal to the amount of the Swing Line Loan to be
made by the Swing Line Lender. The Administrative Agent shall make the proceeds
of such Swing Line Loan available to the Borrower on such Borrowing Date in
immediately available funds.
(b) The Swing Line Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one Business
Day's notice given by the Swing Line Lender no later than 12:00 Noon, New York
City time, request each Revolving Credit Lender to make, and each Revolving
Credit Lender hereby agrees to make, a Revolving Credit Loan, in an amount equal
to such Revolving Credit Lender's Revolving Credit Percentage of the aggregate
amount of the Swing Line Loans (the "Refunded Swing Line Loans") outstanding on
the date of such notice, to repay the Swing Line Lender. Each Revolving Credit
Lender shall make the amount of such Revolving Credit Loan available to the
Administrative Agent at the Funding Office in immediately available funds, not
later than 12:00 Noon, New York City time, one Business Day after the date of
such notice. The proceeds of such Revolving Credit Loans shall be immediately
made available by the Administrative Agent to the Swing Line Lender for
application by the Swing Line Lender to the repayment of the Refunded Swing Line
Loans. The Borrower irrevocably authorizes the Swing Line Lender to charge the
Borrower's accounts with the Administrative Agent (up to the amount available in
each such account) in order to immediately pay the amount of such Refunded Swing
Line Loans to the extent amounts received from the Revolving Credit Lenders are
not sufficient to repay in full such Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 8(f) shall have occurred and be continuing with respect to the Borrower
or if for any other reason, as determined by the
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<PAGE> 41
Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made
as contemplated by Section 2.7(b), each Revolving Credit Lender shall, on the
first Business Day following demand by the Swing Line Lender therefor (the
"Refunding Date"), purchase for cash an undivided participating interest in the
then outstanding Swing Line Loans by paying to the Swing Line Lender an amount
(the "Swing Line Participation Amount") equal to (i) such Revolving Credit
Lender's Revolving Credit Percentage times (ii) the sum of the aggregate
principal amount of Swing Line Loans then outstanding.
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line Participation
Amount, the Swing Line Lender receives any payment on account of the Swing Line
Loans, the Swing Line Lender will distribute to such Revolving Credit Lender its
Swing Line Participation Amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit
Lender's participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Revolving Credit Lender's pro
rata portion of such payment if such payment is not sufficient to pay the
principal of and interest on all Swing Line Loans then due); provided, however,
that in the event that such payment received by the Swing Line Lender is
required to be returned, such Revolving Credit Lender will return to the Swing
Line Lender any portion thereof previously distributed to it by the Swing Line
Lender.
(e) Each Revolving Credit Lender's obligation to make the Loans
referred to in Section 2.7(b) and to purchase participating interests pursuant
to Section 2.7(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including (i) any setoff, counterclaim, recoupment, defense
or other right which such Revolving Credit Lender or the Borrower may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuation of any Default or the failure to
satisfy any of the other conditions precedent specified in Section 5; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement or any other Loan Document by the Borrower, any
other Loan Party or any other Revolving Credit Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
2.8. Repayment of Loans; Evidence of Indebtedness.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Lender (i) the then
unpaid principal amount of each Revolving Credit Loan on the Revolving Credit
Termination Date (or such earlier date on which the Loans become due and payable
pursuant to Section 8), (ii) the then unpaid principal amount of each Swing Line
Loan on the Revolving Credit Termination Date (or such earlier date on which the
Loans become due and payable pursuant to Section 8) and (iii) the principal
amount of each Term Loan in installments according to the amortization schedule
set forth in Section 2.3 (or on such earlier date on which the Loans become due
and payable pursuant to Section 8). The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 2.15.
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<PAGE> 42
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 10.6(e), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans,
Revolving Credit Loans or Swing Line Loans, as the case may be, of such Lender,
substantially in the forms of Exhibits F-1, F-2 or F-3, respectively, with
appropriate insertions as to date and principal amount (such notes,
respectively, "Term Notes", "Revolving Credit Notes" and "Swing Line Notes").
2.9. Commitment Fees, etc.
(a) The Borrower agrees to pay to the Administrative Agent (i)
for the account of each Revolving Credit Lender, a commitment fee for the period
from and including the Closing Date to the last day of the Revolving Credit
Commitment Period, computed at the Commitment Fee Rate determined from day to
day on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof and (ii) for the account of each Term Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Term Loan Commitment Period, computed at the Commitment Fee Rate
determined from day to day on the average daily amount of the Term Loan
Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December
and on the last day of the Term Loan Commitment Period, commencing on the first
of such dates to occur after the date hereof.
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<PAGE> 43
(b) The Borrower agrees to pay to the Arranger and the
Administrative Agent the fees in the amounts and on the dates from time to time
agreed to in writing by the Borrower including pursuant to the Fee Letter.
2.10. Termination or Reduction of Revolving Credit Commitments.
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Credit Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Credit Commitments then in effect.
2.11. Optional Prepayments. The Borrower may at any time and from
time to time prepay the Loans, in whole or in part, without premium or penalty,
upon irrevocable notice delivered to the Administrative Agent at least three
Business Days prior thereto in the case of Eurodollar Loans and at least one
Business Day prior thereto in the case of Base Rate Loans, which notice shall
(i) designate whether the Borrower is prepaying Revolving Credit Loans, Term
Loans or both and (ii) specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or Base Rate Loans; provided, that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.21. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Credit Loans
(unless all Revolving Credit Loans are being repaid and the Revolving Credit
Commitments terminated) that are Base Rate Loans and Swing Line Loans) accrued
interest to such date on the amount prepaid. Partial prepayments of Term Loans
and Revolving Credit Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof. Partial prepayments of Swing Line Loans
shall be in an aggregate principal amount of $100,000 or a whole multiple
thereof.
2.12. Mandatory Prepayments and Commitment Reductions.
(a) Unless the Required Prepayment Lenders shall otherwise
agree:
(i) if the Borrower or any of its Subsidiaries incurs
any Indebtedness (except any incurrence of Indebtedness permitted under
Section 7.2 as in effect on the date of this Agreement) or if any
Subsidiary issues any Capital Stock (except any issuance of Capital Stock
by JuJu Media, Inc., any issuance of Management Equity and any issuance
of Capital Stock to the Borrower or a Wholly Owned Subsidiary of the
Borrower) an amount equal to 100% of all Net Cash Proceeds of such
incurrence or issuance shall be applied within one Business Day of such
issuance or incurrence toward the prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments as set forth in Section
2.12(c); and
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<PAGE> 44
(ii) if the Borrower issues any Capital Stock not
constituting Indebtedness and if on the date of such issuance the
Consolidated Senior Debt Ratio (computed on a pro forma basis as if
Revolving Extensions of Credit were then outstanding in an amount equal
to the then Total Revolving Credit Commitments) is greater than 2.5:1, an
amount equal to 50% of the Net Cash Proceeds of such issuance shall be
applied within one Business Day of such issuance toward the prepayment of
the Term Loans and the reduction of the Revolving Credit Commitments as
set forth in Section 2.12(c).
(b) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date the Borrower or any of its Subsidiaries shall receive Net
Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment
Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be
applied on such date toward the prepayment of the Term Loans and the reduction
of the Revolving Credit Commitments as set forth in Section 2.12(c); provided,
that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of
Asset Sales that may be excluded from the foregoing requirement pursuant to a
Reinvestment Notice shall not, when added to all amounts previously excluded
pursuant to a Reinvestment Notice and not yet reinvested in assets useful in the
Borrower's business, exceed $5,000,000 and (ii) on each Reinvestment Prepayment
Date, an amount equal to the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event shall be applied toward the prepayment of the Term
Loans and the reduction of the Revolving Credit Commitments as set forth in
Section 2.12(c).
(c) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to this Section 2.12 shall be applied,
first, to the prepayment of the Term Loans, second, to reduce permanently any
portion of the Term Loan Commitments that then remain unfunded, third, to reduce
permanently the Revolving Credit Commitments and, fourth, to the Borrower or
such other Person as shall be lawfully entitled thereto. Any such reduction of
the Revolving Credit Commitments shall be accompanied by prepayment of the
Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the
Total Revolving Extensions of Credit exceed the amount of the Total Revolving
Credit Commitments as so reduced, provided that if the aggregate principal
amount of Revolving Credit Loans and Swing Line Loans then outstanding is less
than the amount of the Total Revolving Credit Commitments as so reduced (because
L/C Obligations constitute a portion thereof), the Borrower shall, to the extent
of the balance of such excess, replace outstanding Letters of Credit and/or
deposit an amount in immediately available funds in a cash collateral account
established with the Administrative Agent for the benefit of the Secured Parties
on terms and conditions satisfactory to the Administrative Agent (and the
Borrower hereby grants to the Administrative Agent, for the ratable benefit of
the Secured Parties, a continuing security interest in all amounts at any time
on deposit in such cash collateral account to secure all L/C Obligations from
time to time outstanding and all other Obligations). If at any time the
Administrative Agent determines that any funds held in such cash collateral
account are subject to any right or claim of any Person other than the
Administrative Agent and the Secured Parties or that the total amount of such
funds is less than the amount of such excess, the Borrower shall, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in such cash collateral account, an
amount equal to the excess of (a) the amount of such
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<PAGE> 45
excess over (b) the total amount of funds, if any, then held in such cash
collateral account that the Administrative Agent determines to be free and clear
of any such right and claim. The application of any prepayment pursuant to
Section 2.11 and this Section 2.12 shall be made, first, to Base Rate Loans and,
second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.11 and
this Section 2.12 (except in the case of Revolving Credit Loans (unless the
Revolving Credit Loans are being repaid in full and the Revolving Credit
Commitments terminated) that are Base Rate Loans and Swing Line Loans) shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
2.13. Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to Base Rate Loans by giving the Administrative Agent at least
two Business Days' prior irrevocable notice of such election, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time
to convert Base Rate Loans to Eurodollar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election
(which notice shall specify the length of the initial Interest Period therefor),
provided that no Base Rate Loan under a particular Facility may be converted
into a Eurodollar Loan (i) when any Event of Default has occurred and is
continuing if the Administrative Agent or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such conversions or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing
if the Administrative Agent or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided, further,
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to Base Rate Loans
on the last day of such then expiring Interest Period. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.14. Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, (a) after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
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<PAGE> 46
$1,000,000 in excess thereof and (b) no more than six Eurodollar Tranches shall
be outstanding at any one time.
2.15. Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan
or Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
that is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section plus
2.0% per annum or (y) in the case of Reimbursement Obligations, the rate
applicable to Base Rate Loans under the Revolving Credit Facility plus 2.0% per
annum, and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any commitment fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate then applicable to Base Rate Loans under the relevant Facility plus
2.0% per annum (or, in the case of any such other amounts that do not relate to
a particular Facility, the rate then applicable to Base Rate Loans under the
Revolving Credit Facility plus 2.0% per annum), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.16. Computation of Interest and Fees.
(a) Interest, fees and commissions payable pursuant hereto
shall be calculated on the basis of a 360-day year for the actual days elapsed,
except that, with respect to Base Rate Loans the rate of interest on which is
calculated on the basis of the Prime Rate, the interest thereon shall be
calculated on the basis of a 365-day (or 366-day, as the case may be) year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
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(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower
or a Lender, deliver to the Borrower or such Lender a statement showing the
quotations used by the Administrative Agent in determining any interest rate
pursuant to Section 2.15(a).
2.17. Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans. If adequate and
reasonable means do exist for ascertaining the Eurodollar Rate for a future
Interest Period and the Eurodollar Rate determined or to be determined for such
Interest Period will adequately and fairly reflect the cost to such Lenders (as
conclusively determined by such Lenders) then such Lenders shall promptly direct
the Administrative Agent to withdraw such notice. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans under the
relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.18. Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder,
each payment by the Borrower on account of any commitment fee and any reduction
of the Commitments of the Lenders shall be made pro rata according to the
respective Term Loan Percentages or Revolving Credit Percentages, as the case
may be, of the relevant Lenders. Subject to Section 2.18(c), each payment (other
than prepayments) in respect of principal or interest in respect of the Loans,
and each payment in respect of fees or expenses payable hereunder shall be
applied to the amounts of such obligations owing to the Lenders pro rata
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according to the respective amounts then due and owing to the Lenders. The
application of any prepayment pursuant to this Section 2.18 shall be made,
first, to Base Rate Loans and, second, to Eurodollar Loans.
(b) Each prepayment to be applied to Term Loans shall be
allocated among the Term Loan Lenders holding such Term Loans pro rata based on
the principal amount of the Term Loans held by each Term Loan Lender and shall
be applied to the scheduled quarterly installments due on the Term Loans
pursuant to Section 2.3 pro rata based on the remaining outstanding principal
amount of such installments.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders.
(d) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Payment Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(e) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the
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rate per annum applicable to Base Rate Loans under the relevant Facility, on
demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.19. Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.20 and changes in the rate of tax
on, or the imposition of a tax on, the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not otherwise
included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender on
an after-tax basis for such increased cost or reduced amount receivable. If any
Lender becomes entitled to claim any additional amounts pursuant to this
Section, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
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(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender on an after-tax
basis for such reduction.
(c) A certificate as to any additional amounts payable pursuant
to this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20. Taxes.
(a) All payments made by the Borrower under this Agreement or
any other Loan Document shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes, branch profits taxes and franchise taxes (imposed in
lieu of net income taxes) imposed on the Arranger, any Agent or any Lender as a
result of a present or former connection between the Arranger, such Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Arranger's, such Agent's or such
Lender's having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document). Subject
to the provisions of Section 2.20(f), if any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the Arranger,
any Agent or any Lender hereunder, the amounts so payable to the Arranger, such
Agent or such Lender shall be increased to the extent necessary to yield to the
Arranger, such Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts that would have been received hereunder had
such withholding not been required. The Borrower or the applicable Subsidiary
Guarantor shall make any required withholding and pay the full amount withheld
to the relevant tax authority or other Governmental Authority in accordance with
applicable Requirements of Law.
(b) The Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Requirements of Law.
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(c) Subject to Section 2.20(f), the Borrower shall indemnify
the Arranger, each Agent and each Lender for the full amount of Non-Excluded
Taxes or Other Taxes arising in connection with payments made under this
Agreement (including any Non-Excluded Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.20) paid by the Arranger,
such Agent or Lender or any of their respective Affiliates and any liability
(including penalties, additions to tax interest and expenses) arising therefrom
or with respect thereto. Payment under this indemnification shall be made within
ten days from the date the Arranger, any Agent or any Lender or any of their
respective Affiliates makes written demand therefor.
(d) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for the account of the Arranger or the relevant Agent
or Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof.
(e) The agreements in this Section 2.20 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(f) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, or a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof) (a "Non-U.S. Lender") shall deliver to the
Borrower and the Administrative Agent (and, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) (i) two
copies of either U.S. Internal Revenue Service Form 1001 or Form 4224 (or any
successor forms), or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest," a statement substantially in the
form of Exhibit G to the effect that such Lender is eligible for a complete
exemption from withholding of U.S. taxes under Section 871(h) or 881(c) of the
Code and a Form W-8, or any subsequent versions thereof or successors thereto,
and (ii) any other form or certificate required by a taxing authority (including
a certificate required under the Code) that is requested by the Borrower or the
Administrative Agent in writing, properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver. For any period with respect to which a Lender (or
Transferee) has failed to provide the Borrower with the appropriate forms
described in this Section 2.20(f) (other than if such failure is due to a change
in law occurring subsequent to the date on which a form originally was required
to be provided), such
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Lender (or Transferee) shall not be entitled to indemnification under Section
2.20 with respect to Non-Excluded Taxes that would have been avoided but for
such failure.
(g) If and to the extent that any Lender is able, in its sole
opinion, to obtain a tax refund or to apply or otherwise take advantage of any
offsetting tax credit or other similar tax benefit arising out of or in
conjunction with any deduction or withholding which gives rise to an obligation
on the Borrower to pay any Non-Excluded Taxes or Other Taxes pursuant to Section
2.20 then such Lender shall, to the extent that in its sole opinion it can do so
without prejudice to the retention of such tax refund or the amount of such
credit or benefit and without any other adverse tax consequences for such
Lender, reimburse to the Borrower at such time as such tax refund or such tax
credit or benefit shall have actually been received by such Lender such amount
as such Lender shall, in its sole opinion, have determined to be attributable to
such tax refund or the relevant deduction or withholding and as will leave such
Lender in no better or worse position than it would have been in if the payment
of such Non-Excluded Taxes or Other Taxes had not been required. Nothing in this
Section 2.20(g) shall oblige any Lender to disclose to the Borrower or any other
person any information regarding its tax affairs or tax computations or
interfere with the right of any Lender to arrange its tax affairs in whatever
manner it thinks fit and, in particular, no Lender shall be under any obligation
to claim relief from its corporate profits or similar tax liability in credits
or deductions available to it and, if it does claim, the extent, order and
manner in which it does so shall be at its absolute discretion.
2.21. Indemnity. The Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment or conversion of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and Letters of Credit and all other
amounts payable hereunder.
2.22. Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make
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it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated
by this Agreement, (a) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate Loans
to Eurodollar Loans shall forthwith be canceled and (b) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Base Rate Loans on the respective last days of the then current Interest Periods
with respect to such Loans or within such earlier period as required by law. If
any such conversion of a Eurodollar Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the Borrower shall
pay to such Lender such amounts, if any, as may be required pursuant to Section
2.21.
2.23. Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.19, 2.20(a) or
2.22 with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.19, 2.20(a) or 2.22.
2.24. Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.19 or 2.20(a) or (b)
defaults in its obligation to make Loans hereunder, with a replacement financial
institution; provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken no action under Section 2.23 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.19 or 2.20(a),
(iv) the replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.21 (as though Section 2.21 were applicable) if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.19 or 2.20(a), as the case may be, and (ix) any such replacement shall
not be deemed to be a waiver of any rights that the Borrower, the Administrative
Agent or any other Lender shall have against the replaced Lender.
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SECTION 3. LETTERS OF CREDIT
3.1. L/C Commitment.
(a) Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the other Revolving Credit Lenders set
forth in Section 3.4(a), agrees to issue standby letters of credit ("Letters of
Credit") for the account of the Borrower on any Business Day during the
Revolving Credit Commitment Period in such form as may be approved from time to
time by the Issuing Lender; provided that the Issuing Lender shall not issue any
Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the Scheduled Revolving Credit Termination
Date, provided that any Letter of Credit with a one-year term may provide for
the renewal thereof for additional one-year periods (which shall in no event
extend beyond the date referred to in clause (y) above).
(b) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
3.2. Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
3.3. Fees and Other Charges.
(a) The Borrower will pay a fee on the aggregate drawable
amount of each outstanding Letter of Credit at a per annum rate equal to the
Applicable Margin then in effect with respect to Eurodollar Loans under the
Revolving Credit Facility, shared ratably among the Revolving Credit Lenders and
payable quarterly in arrears on each L/C Fee Payment Date after
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the issuance date of such Letter of Credit. In addition, the Borrower shall pay
to the Issuing Lender for its own account a fronting fee as agreed between the
Issuing Lender and the Borrower.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4. L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Revolving Credit
Percentage in the Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to the Issuing Lender,
regardless of the occurrence or continuance of a Default or the failure to
satisfy any of the other conditions specified in Section 5, on the first
Business Day after demand, at the Issuing Lender's address for notices specified
herein an amount equal to such L/C Participant's Revolving Credit Percentage of
the amount of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans under the Revolving Credit
Facility. A certificate of the Issuing Lender submitted to any L/C Participant
with respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment
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in accordance with Section 3.4(a), the Issuing Lender receives any payment
related to such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of collateral applied thereto by the Issuing
Lender), or any payment of interest on account thereof, the Issuing Lender will
distribute to such L/C Participant its pro rata share thereof; provided,
however, that in the event that any such payment received by the Issuing Lender
shall be required to be returned by the Issuing Lender, such L/C Participant
shall return to the Issuing Lender the portion thereof previously distributed by
the Issuing Lender to it.
3.5. Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment (the amounts described in the
foregoing clauses (a) and (b) in respect of any drawing, collectively, the
"Payment Amount"). Each such payment shall be made to the Issuing Lender at its
address for notices specified herein in lawful money of the United States of
America and in immediately available funds. Interest shall be payable on each
Payment Amount from the date of the applicable drawing until payment in full at
the rate set forth in (i) until the second Business Day following the date of
the applicable drawing, Section 2.15(b) and (ii) thereafter, Section 2.15(c).
Each drawing under any Letter of Credit shall (unless an event of the type
described in clause (i) or (ii) of Section 8(f) shall have occurred and be
continuing with respect to the Borrower, in which case the procedures specified
in Section 3.4 for funding by L/C Participants shall apply) constitute a request
by the Borrower to the Administrative Agent for a borrowing pursuant to Section
2.5 of Base Rate Loans (or, at the option of the Administrative Agent and the
Swing Line Lender in their sole discretion, a borrowing pursuant to Section 2.7
of Swing Line Loans) in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the first date on which a borrowing of
Revolving Credit Loans (or, if applicable, Swing Line Loans) could be made,
pursuant to Section 2.5 (or, if applicable, Section 2.7), if the Administrative
Agent had received a notice of such borrowing at the time of such drawing under
such Letter of Credit.
3.6. Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Borrower agrees that
any action taken or omitted by the Issuing Lender under or in connection with
any Letter of Credit or the related drafts or documents, if done in accordance
with the standards or care
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specified in the Uniform Commercial Code of the State of New York, shall be
binding on the Borrower and shall not result in any liability of the Issuing
Lender to the Borrower.
3.7. Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8. Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to induce the Lenders to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Agents and Lenders that:
4.1. Financial Condition.
(a) The unaudited pro forma consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at March 26, 2000 (including the
notes thereto) (the "Pro Forma Balance Sheet"), copies of which have heretofore
been furnished to each Lender, has been prepared giving effect (as if such
events had occurred on such date) to (i) the consummation of the Rodriguez
Acquisitions and (ii) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the best
information available to the Borrower as of the date of delivery thereof, and
presents fairly on a pro forma basis the estimated financial position of
Borrower and its consolidated Subsidiaries as at March 26, 2000, assuming that
the events specified in the preceding sentence had actually occurred at such
date.
(b) The audited consolidated balance sheets of the Borrower and
its Subsidiaries as at September 26, 1999, September 27, 1998 and September 28,
1997, and the related consolidated statements of income and of cash flows for
the fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from KPMG LLP, present fairly the consolidated financial
condition of the Borrower and its Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of
the Borrower and its Subsidiaries as at March 26, 2000, and the related
unaudited consolidated statements of income and cash flows for the three-month
period ended on such date, present fairly the consolidated financial condition
of the Borrower and its Subsidiaries as at such date, and the consolidated
results of its operations and its consolidated cash flows for the three-month
period then ended (subject to normal year-end audit adjustments). All such
financial statements, including the related
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schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). Other than the
Rodriquez Bridge Loan Agreement and Rodriguez Purchase Agreement, the Borrower
and its Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from September 26, 1999 to and
including the Closing Date there has been no Disposition by any of the Borrower
or its Subsidiaries of any material part of its business or Property.
4.2. No Change. Since September 26, 1999, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.3. Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4. Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents and Acquisition Documentation to
which it is a party and, in the case of the Borrower, to borrow hereunder. Each
Loan Party has taken all necessary corporate action to authorize the execution,
delivery and performance of the Loan Documents and Acquisition Documentation to
which it is a party and, in the case of the Borrower, to authorize the
borrowings on the terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with any
Permitted Acquisition and the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement, any of the
Loan Documents or any Acquisition Documentation, except (i) consents,
authorizations, filings and notices that have been obtained or made (or, in the
case of any Permitted Acquisition, will be obtained or made prior to
consummation of such Permitted Acquisition) and are in full force and effect and
(ii) the filings referred to in Section 4.19. The Loan Documents, the Senior
Subordinated Note Indenture and all Acquisition Documentation has been duly
executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document, the Senior Subordinated
Note Indenture and all Acquisition Documentation upon execution will constitute,
a legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium
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or similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
4.5. No Legal Bar. The execution, delivery and performance of
this Agreement, the other Loan Documents and the Acquisition Documentation, the
issuance of Letters of Credit, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of the Borrower or any of its Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents).
No Requirement of Law or Contractual Obligation applicable to the Borrower or
any of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
4.6. No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or the Acquisition Documentation
or any of the transactions contemplated hereby or thereby, or (b) that could
reasonably be expected to have a Material Adverse Effect.
4.7. No Default. Neither the Borrower nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No
Default has occurred and is continuing.
4.8. Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has good, marketable and insurable title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in or adequate rights to use, all its other
material Property, and none of such material Property is subject to any Lien
except as permitted by Section 7.3.
4.9. Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted or is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does the Borrower know of any valid basis for any such claim. To
the best knowledge of the Borrower, the use of Intellectual Property by the
Borrower and its Subsidiaries does not infringe on the rights of any Person in
any material respect.
4.10. Taxes. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all material Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its Property and
all other material taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its
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Subsidiaries, as the case may be). The contents of all such material tax returns
are correct and complete in all material respects. Except as set forth in
Schedule 4.10, no tax Lien has been filed, and, to the knowledge of the
Borrower, no claim is being asserted, with respect to any such tax, fee or other
charge.
4.11. Federal Regulations. No part of the proceeds of the Loans or
Letters of Credit will be used for purchasing or carrying any "margin stock"
(within the meaning of Regulation U) or for the purpose of purchasing, carrying
or trading in any securities under such circumstances as to involve the Borrower
in a violation of Regulation X or to involve any broker or dealer in a violation
of Regulation T. No indebtedness being reduced or retired out of the proceeds of
the Loans or Letters of Credit was or will be incurred for the purpose of
purchasing or carrying any "margin stock" (within the meaning of Regulation U).
Following application of the proceeds of the Loans and Letters of Credit,
"margin stock" (within the meaning of Regulation U) does not constitute more
than 25% of the value of the assets of the Borrower and its Subsidiaries. None
of the transactions contemplated by this Agreement (including the direct and
indirect use of proceeds of the Loans and Letters of Credit) will violate or
result in a violation of Regulation T, Regulation U or Regulation X. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
Regulation U.
4.12. Labor Matters. There are no strikes, stoppages, slowdowns or
other labor disputes against the Borrower or any of its Subsidiaries pending or,
to the knowledge the Borrower, threatened that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect. Hours
worked by and payment made to employees of the Borrower and its Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters that (individually or in
the aggregate) could reasonably be expected to have a Material Adverse Effect.
All payments due from the Borrower or any of its Subsidiaries on account of
employee health and welfare insurance that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect if not paid have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
4.13. ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with all applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by a material amount. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under
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ERISA, and neither the Borrower nor any Commonly Controlled Entity would become
subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. To the best knowledge of the Borrower, no
such Multiemployer Plan is in Reorganization or Insolvent.
4.14. Investment Company Act; Other Regulations. No Loan Party is
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X) which limits or conditions its ability to incur Indebtedness.
4.15. Subsidiaries.
(a) The Subsidiaries listed on Schedule 4.15 constitute all the
Subsidiaries of the Borrower as of the Closing Date. Schedule 4.15 sets forth as
of the Closing Date the name and jurisdiction of incorporation of each
Subsidiary and, as to each such Subsidiary, the percentage and number of each
class of Capital Stock owned by the Borrower and its Subsidiaries.
(b) As of the Closing Date, there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Capital Stock of the
Borrower or any of its Subsidiaries, except as disclosed on Schedule 4.15. None
of the Borrower or any of its Subsidiaries has issued, or authorized the
issuance of, any Disqualified Stock.
4.16. Use of Proceeds.
(a) The proceeds of Term Loans funded on any Term Loan Funding
Date shall be used solely (i) to fund Rodriquez Bridge Loans that are required
to be made by the Company on such Term Loan Funding Date pursuant to the terms
of the Rodriguez Bridge Loan Agreement, upon satisfaction of the conditions
therein set forth, or (ii) to pay when due in accordance with the terms of the
Acquisition Documentation for any Permitted Acquisition, upon satisfaction of
the conditions set forth in such Acquisition Documentation, a portion of the
purchase price for such Permitted Acquisition in an amount that, when added to
any amount concurrently funded by the Borrower or a Subsidiary, is sufficient to
pay such purchase price in full.
(b) The proceeds of the Revolving Credit Loans, the Swing Line
Loans and the Letters of Credit, shall be used for lawful and permitted
corporate purposes.
4.17. Environmental Matters. Other than exceptions to any of the
following that could not, individually or in the aggregate, reasonably be
expected to result in the payment of a Material Environmental Amount:
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(a) The Borrower and its Subsidiaries (i) are, and within the
period of all applicable statutes of limitation have been, in compliance
with all applicable Environmental Laws; and (ii) reasonably believe that
compliance with any Environmental Law that is or is expected to become
applicable to any of them will be timely attained and maintained, without
material expense.
(b) Materials of Environmental Concern are not present at, on,
under, in, or about any real property now or formerly owned, leased or
operated by the Borrower or any of its Subsidiaries, or at any other
location (including any location to which Materials of Environmental
Concern have been sent for re-use or recycling or for treatment, storage,
or disposal) which could reasonably be expected to (i) give rise to
liability of the Borrower or any of its Subsidiaries under any applicable
Environmental Law, or (ii) interfere with the Borrower's or any of its
Subsidiaries' continued operations, or (iii) impair the fair saleable
value of any real property owned or leased by the Borrower or any of its
Subsidiaries.
(c) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation) under
or relating to any Environmental Law to which the Borrower or any of its
Subsidiaries is, or to the knowledge of the Borrower will be, named as a
party that is pending or, to the knowledge of the Borrower, threatened.
(d) Neither the Borrower nor any of its Subsidiaries has
received any written request for information, or been notified that it is
a potentially responsible party under or relating to the federal
Comprehensive Environmental Response, Compensation, and Liability Act or
any similar Environmental Law, or with respect to any Materials of
Environmental Concern.
(e) Neither the Borrower nor any of its Subsidiaries has
entered into or agreed to any consent decree, order, or settlement or
other agreement, or is subject to any judgment, decree, or order or other
agreement, in any judicial, administrative, arbitral, or other forum for
dispute resolution, relating to compliance with or liability under any
Environmental Law.
(f) Neither the Borrower nor any of its Subsidiaries has
assumed or retained, by contract or operation of law, any liabilities of
any kind, fixed or contingent, known or unknown, under any Environmental
Law or with respect to any Material of Environmental Concern.
4.18. Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Arranger, any Agent or any Lender by or on behalf of the Borrower or any
of its Subsidiaries for use in connection with the transactions contemplated by
this Agreement or the other Loan Documents, contained as of the date such
statement, information, document or certificate was so furnished (or, in the
case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement
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of a material fact or omitted to state a material fact necessary in order to
make the statements contained herein or therein not misleading. The projections
and pro forma financial information contained in the materials referenced above
are based upon good faith estimates and assumptions believed by management of
the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not to
be viewed as fact and that actual results during the period or periods covered
by such financial information may differ from the projected results set forth
therein by a material amount. There is no fact known to the Borrower or any of
its Subsidiaries that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and written statements furnished to the Arranger, the Agents and
the Lenders for use in connection with the transactions contemplated hereby and
by the other Loan Documents.
4.19. Security Documents.
(a) The Guarantee and Collateral Agreement is effective to
create in favor of the Administrative Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Stock
described, and as defined, in the Guarantee and Collateral Agreement, when any
stock certificates representing such Pledged Stock are delivered to the
Administrative Agent, and in the case of the other Collateral described in the
Guarantee and Collateral Agreement, when financing statements in appropriate
form are filed in the offices specified on Schedule 4.19(a) (which financing
statements have been duly completed and executed and delivered to the
Administrative Agent) and such other filings as are specified on Schedule 3 to
the Guarantee and Collateral Agreement are made (all of which filings have been
duly completed and executed and delivered to the Administrative Agent), the
Guarantee and Collateral Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof as security for the Obligations, in
each case prior and superior in right to any other Person (except, in the case
of Collateral other than Pledged Stock, non-consensual Liens permitted by
Section 7.3 to the extent arising by operation of law).
(b) The Intellectual Property Security Agreement is effective
to create in favor of the Administrative Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Intellectual
Property Collateral described therein and proceeds thereof. Upon the filing of
(i) the Intellectual Property Security Agreement in the appropriate indexes of
the United States Patent and Trademark Office relative to patents and trademarks
(within three (3) months after the Closing Date), and the United States
Copyright Office relative to copyrights (within thirty (30) days after the
Closing Date), together with provision for payment of all requisite fees, and
(ii) financing statements in appropriate form for filing in the offices
specified on Schedule 4.19(b) (which financing statements have been duly
completed and executed and delivered to the Administrative Agent) the
Intellectual Property Security Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in the Intellectual Property Collateral and the proceeds and products thereof,
as security for the Obligations (as defined in the Guarantee and Collateral
Agreement), in each case prior
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and superior in right to any other Person (except non-consensual Liens permitted
by Section 7.3 to the extent arising by operation of law).
4.20. Solvency. Each Loan Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection with
the Loan Documents and all Acquisition Documentation will be and will continue
to be, Solvent.
4.21. Senior Indebtedness. The Obligations (including the
guarantee obligations of each Subsidiary Guarantor under the Guarantee and
Collateral Agreement) constitute "Senior Debt" and "Designated Senior Debt"
under and as defined in the Senior Subordinated Note Indenture and are
Indebtedness permitted to exist under the Senior Subordinated Note Indenture.
The provisions of Article Ten of the Senior Subordinated Note Indenture are
enforceable by each Lender and each other holder of Obligations in accordance
with their terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
4.22. Insurance. Each of the Borrower and its Subsidiaries is
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in
which it is engaged; and none of the Borrower or any of its Subsidiaries (a) has
received notice from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to be made in
order to continue such insurance or (b) has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers at a cost that could
not reasonably be expected to have a Material Adverse Effect. The Administrative
Agent has been named as Loss Payee on all property casualty insurance policies
for the benefit of any Loan Party.
4.23. Permits and Licenses.
(a) The FCC Licenses held by the Borrower and its Subsidiaries
constitute all of the licenses, permits, and other authorizations issued by the
FCC that are necessary for the Borrower and its Subsidiaries to conduct the
business in the manner in which it is currently being conducted.
(b) All FCC Licenses relating to the business of the Borrower
and its Subsidiaries are in full force and effect, valid for the balance of the
license terms normally applicable to radio stations licensed to the states in
which the stations are licensed, and not subject to any conditions outside the
ordinary course. The stations subject to such FCC Licenses are operating, and
have been operated since their construction or acquisition by the Borrower or
any of its Subsidiaries in material compliance with the Communications Act and
the FCC's rules, regulations, and written policies promulgated thereunder and
with the terms of the FCC Licenses. As of the Closing Date, (i) the Borrower and
its Subsidiaries have not received any notice of apparent liability, notice of
violation, order to show cause or other writing from the FCC that may lead to
any liability or sanction by the FCC and (ii) there is no proceeding pending by
or
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before the FCC relating to the Borrower or its Subsidiaries or any station, nor,
to the best knowledge of the Borrower or any Subsidiary of the Borrower, is any
such proceeding threatened and no complaint or investigation is pending or
threatened by or before the FCC (other than rulemaking proceedings of general
applicability to which the Borrower and its Subsidiaries and the stations are
not parties). The Borrower and its Subsidiaries have timely filed all required
reports and notices with the FCC and have paid all amounts due in timely fashion
on account of fees and charges to the FCC.
(c) All FCC Licenses relating to the business of the Borrower
and its Subsidiaries (except, to the extent elected by the Borrower, FCC
Licenses that are owned solely by one or more of the Excluded Foreign
Subsidiaries and relate solely to the business conducted by any of the Excluded
Foreign Subsidiaries) are held by one or more Broadcast License Subsidiaries.
(d) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect (or, in the case of Environmental Permits, result in the payment
of a Material Environmental Amount), both before and after consummation of each
Permitted Acquisition for which Acquisition Documentation has been executed and
delivered, (i) each of the Borrower and its Subsidiaries has obtained and holds
all Permits required for any property owned, leased or otherwise operated by or
on behalf of, or for the benefit of, such Person and for the operation of each
of its businesses as presently conducted and as proposed to be conducted, (ii)
all such Permits are in full force and effect, and each of the Borrower and its
Subsidiaries has performed and observed all requirements of such Permits, (iii)
no event has occurred which allows or results in, or after notice or lapse of
time would allow or result in, revocation or termination by the issuer thereof
or in any other impairment of the rights of the holder of any such Permit, (iv)
no such Permits contain any restrictions, either individually or in the
aggregate, that are materially burdensome to the Borrower or any of its
Subsidiaries, or to the operation of any of its businesses or any property
owned, leased or otherwise operated by such Person, (v) each of the Borrower and
its Subsidiaries reasonably believes that each of its Permits will be timely
renewed and complied with, without material expense, and that any additional
Permits that may be required of such Person will be timely obtained and complied
with, without material expense, and (vi) the Borrower has no knowledge or reason
to believe that any Governmental Authority is considering limiting, suspending,
revoking or renewing on materially burdensome terms any such Permit.
(e) No consent or authorization of, filing with, Permit from,
or other act by or in respect of, any Governmental Authority is required in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement and the other Loan Documents other than FCC approval of the
transfer of FCC Licenses to Broadcast License Subsidiaries, which (except in the
case of FCC Licenses owned solely by one or more of the Excluded Foreign
Subsidiaries and relating solely to the business conducted by any of the
Excluded Foreign Subsidiaries that the Borrower has not transferred to a
Broadcast License Subsidiary) has been obtained.
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SECTION 5. CONDITIONS PRECEDENT
5.1. Conditions to Initial Extension of Credit. The agreement of
each Lender to make the initial extension of credit requested to be made by it
is subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower, (ii) the Guarantee and Collateral Agreement,
executed and delivered by a duly authorized officer of the Borrower and
each Subsidiary Guarantor, (iii) the Intellectual Property Security
Agreement, executed and delivered by a duly authorized officer of the
Borrower and each Subsidiary Guarantor, and (iv) if requested by any
Lender, for the account of such Lender, Notes conforming to the
requirements hereof and executed and delivered by a duly authorized
officer of the Borrower.
(b) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheet, (ii) audited
consolidated financial statements of the Borrower and its Subsidiaries
for the 1999, 1998 and 1997 fiscal years and (iii) unaudited interim
consolidated financial statements of the Borrower and its Subsidiaries
for each fiscal month and quarterly period ended subsequent to the date
of the latest applicable financial statements delivered pursuant to
clause (ii) of this paragraph as to which such financial statements are
available, and such financial statements shall not, in the reasonable
judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of the Borrower and its Subsidiaries, as
reflected in the financial statements or projections contained in the
Confidential Information Memorandum.
(c) Approvals. All governmental and third party approvals
(including landlords' and other consents) necessary or reasonably
appropriate in connection with the continuing operations of the Borrower
and its Subsidiaries and the transactions contemplated hereby shall have
been obtained and be in full force and effect, and all applicable waiting
periods shall have expired without any action being taken or threatened
by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on the financing contemplated hereby.
(d) Related Agreements. The Administrative Agent shall have
received (in a form and substance reasonably satisfactory to the
Administrative Agent), with a copy for each Lender, true and correct
copies, certified as to authenticity by the Borrower, of the Senior
Subordinated Note Indenture, the Rodriguez Bridge Loan Agreement and the
Rodriguez Acquisition Agreement and all agreements in any respect related
thereto.
(e) Fees. The Arranger and the Administrative Agent shall have
received all amounts payable under the Fee Letter on or before the
Closing Date.
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(f) Business Plan. The Lenders shall have received the
Borrower's business plan for fiscal years 2000-2006.
(g) Solvency. The Lenders shall have received a Solvency
Certificate executed by the chief financial officer of the Borrower.
(h) Lien Searches. The Administrative Agent shall have received
the results of a recent lien, tax lien, judgment and litigation search in
each of the jurisdictions or offices (including in the United States
Patent and Trademark Office and the United States Copyright Office) in
which Uniform Commercial Code financing statements or other filings or
recordations should be made to evidence or perfect security interests in
the Collateral.
(i) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party, dated as of the Closing Date,
substantially in the form of Exhibit H, with appropriate insertions and
attachments.
(j) Other Certifications. The Administrative Agent shall have
received the following:
(i) a copy of the Governing Documents of each Loan
Party, certified (as of a date reasonably near the date of the initial
extension of credit) as being a true and correct copy thereof by the
Secretary of State or other applicable Governmental Authority of the
jurisdiction in which such Loan Party is organized;
(ii) a copy of a good standing certificate of the
Secretary of State or other applicable Governmental Authority of the
jurisdiction in which each Loan Party is organized, dated reasonably near
the date of the initial extension of credit, and
(iii) as requested by the Administrative Agent, a copy of
a good standing certificate of the Secretary of State or other applicable
Governmental Authority of any jurisdiction in which the Borrower or any
of its Subsidiaries is qualified as a foreign corporation or entity,
dated reasonably near the date of the initial extension of credit.
(k) Legal Opinions. The Lenders shall have received the legal
opinion of Kaye, Scholer, Fierman, Hays & Handler LLP, counsel to the
Borrower and its Subsidiaries, substantially in the form of Exhibit I and
covering such other matters incident to the transactions contemplated by
this Agreement as the Administrative Agent may reasonably require.
(l) Pledged Collateral. The Administrative Agent shall have
received (i) the certificates representing the shares of Capital Stock
pledged pursuant to the Guarantee and Collateral Agreement, together with
an undated stock power for each such certificate executed in blank by a
duly authorized officer of the pledgor thereof and (ii) each promissory
note representing Rodriguez Bridge Loans outstanding on the Closing Date
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and all other promissory notes pledged to the Administrative Agent
pursuant to the Guarantee and Collateral Agreement, all endorsed in blank
(or accompanied by an executed transfer form in blank satisfactory to the
Administrative Agent) by the pledgor thereof.
(m) Filings, Registrations and Recordings. The Administrative
Agent shall have received, in proper form for filing, registration or
recordation, each document (including Uniform Commercial Code financing
statements) required by the Security Documents or under law or reasonably
requested by the Administrative Agent to be filed, registered or recorded
in order to evidence or perfect the Liens granted to the Administrative
Agent in the Security Documents.
(n) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.3 of the
Guarantee and Collateral Agreement.
(o) Leverage Ratios. The Administrative Agent shall have
received a certificate of a Responsible Officer of the Borrower stating
that, based on Adjusted EBITDA determined for the 12-month period ended
on the last day of the most recent fiscal month of the Borrower for which
financial statements are available, and after giving effect to all
transactions that have been or are to be consummated on or before the
Closing Date, including the funding of Loans and application of the
proceeds thereof, the Consolidated Leverage Ratio does not exceed 6.75:1
and the Consolidated Senior Debt Ratio does not exceed 3.00:1 and
demonstrating, in reasonable detail, the basis for such statement.
(p) Rodriguez Agreements. The Rodriguez Bridge Loan Agreement
and the Rodriguez Purchase Agreements shall remain in full force and
effect. No "Event of Default," as defined in the Rodriguez Bridge Loan
Agreement, shall have occurred at any time after the execution and
delivery of the Rodriguez Bridge Loan Agreement. The sellers under the
Rodriguez Purchase Agreements shall have duly performed and observed all
material obligations required to be performed by them thereunder and
shall not have repudiated any of their obligations thereunder.
(q) Miscellaneous. The Administrative Agent shall have received
such other documents, agreements, certificates and information as it may
reasonably request.
5.2. Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including its initial extension of credit) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct on and as of such date as if made on
and as of such date.
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(b) No Default. No Default shall have occurred and be
continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) Pro Forma Financial Covenant Compliance. After giving
effect to such extension of credit and the application of the proceeds
thereof as if they had occurred on the last day of the fiscal quarter of
the Borrower then most recently ended, Consolidated Total Debt and
Consolidated Senior Debt shall not exceed the maximum amounts that would
have been permitted under Sections 7.1(c) and (d), respectively, as of
such day.
(d) Term Loan Fundings. In the case of each funding of Term
Loans, either:
(i) Rodriquez Bridge Loans are to be made by the Company
on the Term Loan Funding Date for such Term Loans, and (x) all conditions
required to be satisfied under the Rodriquez Bridge Loan Agreement in
order for the Company to be obligated to make such Rodriquez Bridge Loans
on such Term Loan Funding Date shall then be satisfied, (y) such Term
Loans do not exceed the Rodriguez Bridge Loans to be made by the Company
on such Term Loan Funding Date, and (z) the Company shall have delivered
to the Administrative Agent, in pledge, all promissory notes representing
such Rodriquez Bridge Loans, duly endorsed in blank; or
(ii) Any Permitted Acquisition is to be consummated on
the Term Loan Funding Date for such Term Loans, and (x) such Permitted
Acquisition is concurrently consummated on such Term Loan Funding Date in
conformity with the applicable provisions of the Acquisition
Documentation for such Permitted Acquisition, upon satisfaction of the
conditions set forth in such Acquisition Documentation, (y) such Term
Loans, when added to all other cash and other forms of consideration made
available by the Company on such Term Loan Funding Date for such
purposes, are in an amount sufficient to pay in full the entire purchase
consideration for such Permitted Acquisition, and (z) the Company shall
have complied with its obligations under Section 6.10 in respect of all
assets and Persons acquired in such Permitted Acquisition.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the Commitments
remain in effect, any Letter of Credit remains outstanding or any of the
principal of or interest on any Loan or Reimbursement Obligation is outstanding,
the Borrower shall and shall cause each of its Subsidiaries to:
6.1. Financial Statements. Furnish to the Administrative Agent
and each Lender:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the
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Borrower and its consolidated Subsidiaries as at the end of such year and
the related audited consolidated statements of income and of cash flows
for such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of
the audit, by KPMG LLP or other independent certified public accountants
of nationally recognized standing;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
of cash flows for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
audit adjustments and the absence of footnotes); and
(c) as soon as available, but in any event not later than 45
days after the end of each month occurring during each fiscal year of the
Borrower (other than the third, sixth, ninth and twelfth such month), the
unaudited consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and of cash flows for such month and
the portion of the fiscal year through the end of such month, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments and the absence of
footnotes).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in conformity with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2. Certificates; Other Information. Furnish to the
Administrative Agent and each Lender, or, in the case of Section 6.2(i), to the
relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of
any Default arising under Section 7.1 or Section 7.7, except as specified
in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge, each
Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained
in this Agreement and the other Loan Documents to which it is a party to
be
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observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default except as specified in such
certificate, (ii) in the case of quarterly or annual financial
statements, a Compliance Certificate containing all information and
calculations necessary for determining compliance by the Borrower and its
Subsidiaries with the provisions of this Agreement referred to therein as
of the last day of the fiscal quarter or fiscal year of the Borrower, as
the case may be, and (iii) in the case of annual financial statements, to
the extent not previously disclosed to the Administrative Agent in
writing, a listing of any county, state, territory, province, region or
any other jurisdiction, or any political subdivision thereof, whether of
the United States or otherwise, where any Loan Party keeps inventory or
equipment (other than mobile goods) and of any Intellectual Property
acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (iii) (or, in the case of the first
such list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than 45
days after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the following fiscal year (including a projected
consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of the following fiscal year, and the related consolidated statements
of projected cash flow, projected changes in financial position and
projected income), and, as soon as available, significant revisions, if
any, of such budget and projections with respect to such fiscal year
(collectively, the "Projections"), which Projections shall in each case
be accompanied by a certificate of a Responsible Officer stating that
such Projections are based on reasonable estimates, information and
assumptions at such time in light of the circumstances in which made and
that such Responsible Officer has no reason to believe that such
Projections are incorrect or misleading in any material respect, it being
recognized that such Projections are not to be viewed as fact and that
actual results during the subject fiscal year may differ from the
projected results set forth therein by a material amount;
(d) within 45 days after the end of each fiscal quarter of the
Borrower, the information required to be set forth in a quarterly report
on Form 10-Q filed pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended;
(e) within five Business Days after the same are sent, copies
of all financial statements and reports that the Borrower or any of its
Subsidiaries sends to the holders of any class of its debt securities or
public equity securities and, within five days after the same are filed,
copies of all financial statements and reports that the Borrower or any
of its Subsidiaries may make to, or file with, the SEC;
(f) as soon as possible and in any event within five Business
Days of obtaining knowledge thereof, (i) notice of any development,
event, or condition that, individually or in the aggregate with other
developments, events or conditions, could reasonably be expected to
result in the payment by the Borrower or any of its Subsidiaries, in the
aggregate, of a Material Environmental Amount; and (ii) any notice that
any Governmental Authority may deny any application for an Environmental
Permit
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or any other material Permit held by the Borrower or any of its
Subsidiaries on terms and conditions that are materially burdensome to
the Borrower or any of its Subsidiaries, or to the operation of any of
its businesses or any property owned, leased or otherwise operated by
such Person;
(g) on the date of the occurrence thereof, notice that (i) any
or all of the obligations under the Senior Subordinated Note Indenture
have been accelerated, or (ii) the trustee or the required holders of
Senior Subordinated Notes has given notice that any or all such
obligations are to be accelerated;
(h) to the extent not included in clauses (a) through (h)
above, no later than the date the same are delivered thereunder, copies
of all agreements, documents or other instruments (including (i) audited
and unaudited, pro forma and other financial statements, reports,
forecasts, and projections, together with any required certifications
thereon by independent public auditors or officers of the Borrower or any
of its Subsidiaries or otherwise, (ii) press releases, (iii) statements
or reports furnished to any other holder of the securities of the
Borrower or any of its Subsidiaries, and (iv) regular, periodic and
special securities reports) that the Borrower or any of its Subsidiaries
is required to provide pursuant to the terms of the Senior Subordinated
Note Indenture; and
(i) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3. Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, if the failure to do so could
reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business and Maintenance of Existence, FCC
Licenses, etc.
(a) Preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except as otherwise permitted by Section 7.4 and except to the extent
that failure to take any such action could not reasonably be expected to have a
Material Adverse Effect;
(b) Duly perform and observe its obligations under the
Rodriquez Bridge Loan Agreement, the Rodriquez Purchase Agreements and the
Acquisition Documentation for any Permitted Acquisition; and comply with all
other Contractual Obligations and all Requirements of Law except to the extent
that failure to comply with such other Contractual Obligations and Requirements
of Law could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect; and
(c) Operate all of the Stations in material compliance with the
Communications Act and the FCC's rules, regulations, and written policies
promulgated thereunder and with the terms of the FCC Licenses, timely file all
required reports and notices
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with the FCC and pay all amounts due in timely fashion on account of fees and
charges to the FCC, timely file and prosecute all applications for renewal or
for extension of time with respect to all of the FCC Licenses, and advise the
Administrative Agent of any deviation from the foregoing and of any written
communication from the FCC outside the ordinary course.
6.5. Maintenance of Property; Insurance.
(a) Keep all material Property and systems useful and necessary
in its business in good working order and condition, ordinary wear and tear and
damage by casualty excepted.
(b) Maintain with financially sound and reputable insurance
companies insurance on all its Property (including all inventory, equipment and
vehicles) in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to the Administrative Agent with copies
for each Lender, upon written request, full information as to the insurance
carried. All insurance shall provide that no cancellation, material reduction in
amount or material change in coverage thereof shall be effective until at least
30 days (10 days in the case of non-payment) after receipt by the Administrative
Agent of written notice thereof. The Administrative Agent for its own benefit
and for the benefit of the Lenders shall be named as additional insured on all
such liability insurance policies, and the Administrative Agent shall be named
as loss payee on all property and casualty insurance policies.
(c) Deliver to the Administrative Agent (i) on the Closing
Date, a certificate dated such date showing the amount and types of insurance
coverage as of such date, (ii) upon request of the Administrative Agent from
time to time, full information as to the insurance carried, (iii) forthwith,
notice of any cancellation or nonrenewal of coverage, (iv) promptly after such
information is available to any of the Borrower or any of its Subsidiaries, full
information as to any claim for an amount in excess of $5,000,000 with respect
to any property and casualty insurance policy maintained by any of the Borrower
or its Subsidiaries, and (v) concurrently with the delivery of its audited
financial statements for each fiscal year, a report of a reputable insurance
broker with respect to such insurance and such supplemental reports with respect
thereto as the Administrative Agent may from time to time reasonably request.
6.6. Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records 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 and (b) permit representatives of the Administrative Agent or any
Lender (with respect to visits by any Lender more frequent than once in any
calendar year, if no Default is continuing, at such Lender's expense) to visit
and inspect any of its properties and examine and, at the Borrower's expense,
make abstracts from any of its books and records at any reasonable time, upon
reasonable notice and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with their respective independent certified public
accountants.
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6.7. Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) the occurrence of any "Event of Default," as defined in the
Rodriquez Bridge Loan Agreement;
(c) any termination, amendment or modification of, or other
change in, the Rodriquez Bridge Loan Agreement, any of the Rodriquez
Purchase Agreements or any of Acquisition Documentation for the Pipeline
Acquisition, or any material default thereunder by any party thereto;
(d) any (i) default or event of default under any other
Contractual Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, that in either case, if not cured or if adversely determined,
as the case may be, could reasonably be expected to have a Material
Adverse Effect;
(e) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which injunctive or similar relief is
sought;
(f) the following events, as soon as possible and in any event
within 30 days after the Borrower or any of its Subsidiaries knows or has
reason to know thereof: (i) the occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan, in each case in connection with or involving an
amount that could reasonably be expected to have a Material Adverse
Effect, or (ii) the institution of proceedings or the taking of any other
action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(g) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or the relevant Subsidiary proposes to take
with respect thereto.
6.8. Environmental Laws. In each of the following cases, except
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect:
(a) Comply in all material respects with, and ensure compliance
in all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws
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and Environmental Permits, and obtain, maintain and comply in all
material respects with and maintain, and ensure that all tenants and
subtenants obtain, maintain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
6.9. Broadcast License Subsidiaries.
(a) Cause all FCC Licenses (except, at the option of the
Borrower, FCC Licenses that are owned solely by one or more of the Excluded
Foreign Subsidiaries and relate solely to the business conducted by any of the
Excluded Foreign Subsidiaries) to be owned and held at all times by one or more
Broadcast License Subsidiaries.
(b) Ensure that each Broadcast License Subsidiary engages only
in the business of holding FCC Licenses and rights related thereto and that such
restriction is set forth in the Governing Documents of such Broadcast License
Subsidiary.
(c) Cause its financial statements, through appropriate
footnote disclosure, to indicate that the FCC Licenses (except, if applicable,
any FCC Licenses that are owned solely by one or more of the Excluded Foreign
Subsidiaries and relate solely to the business conducted by any of the Excluded
Foreign Subsidiaries) are held by one or more Broadcast License Subsidiaries.
(d) Conduct its affairs strictly in accordance with its
Governing Documents and observe all necessary, appropriate, and customary
corporate, limited liability company and other organizational formalities,
including keeping separate and accurate minutes of meetings of its board of
directors, shareholders, managers, members or partners, as the case may be,
passing all resolutions or consents necessary to authorize actions to be taken,
and maintaining accurate and separate books, records and accounts and in a
manner permitting the assets and liabilities of the Borrower and each of its
Subsidiaries (including the Broadcast License Subsidiaries) to be easily
separated and readily ascertained.
(e) Ensure that the Property of the Borrower or any of its
Subsidiaries (including each Broadcast License Subsidiary) is not commingled
with the Property of any of the others of them or any other Person and otherwise
remains clearly identifiable.
(f) Conduct the business of the Borrower or any of its
Subsidiaries (including each Broadcast License Subsidiary) solely in its own
name and through its respective duly authorized managers, members, officers or
agents so as not to mislead others as to the identity of the Person with which
those others are concerned.
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(g) Ensure that no Broadcast License Subsidiary has any
Indebtedness or other liabilities except under the Guarantee and Collateral
Agreement and liabilities permitted to be incurred under Section 7.16.
(h) Not hold itself out to the public or to any of its
individual creditors as being a unified Person with common assets and
liabilities with the Borrower or any of its Subsidiaries or act in a manner that
would otherwise cause its creditors to believe that the Borrower or any of its
Subsidiaries (including each Broadcast License Subsidiary) is not a separate
entity distinct from each of the others of them and all other Persons.
(i) Not take any action, or conduct its affairs in any manner,
that could reasonably be expected to result in the separate existence of any
Broadcast License Subsidiary being ignored or the assets and liabilities of any
Broadcast License Subsidiary being substantively consolidated with those of the
Borrower or any of its other Subsidiaries (including any other Broadcast License
Subsidiary) in a bankruptcy, reorganization or other insolvency proceeding.
6.10. Additional Collateral, etc.
(a) With respect to any Property acquired after the Closing
Date by the Borrower or any of its Subsidiaries (other than (x) any Property
described in paragraphs (b), (c) or (d) of this Section, (y) any Excluded Assets
and (z) Property acquired by a Subsidiary that is not a Subsidiary Guarantor) as
to which the Administrative Agent, for the benefit of the Secured Parties, does
not have a perfected Lien, promptly (and, in any event, within 90 days following
the date of such acquisition) (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems reasonably necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
security interest in such Property and (ii) take all actions reasonably
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Secured Parties, a perfected first priority security interest in such
Property (subject only to Liens permitted by Section 7.3 that are not
consensually granted, including without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent.
(b) If at any time so requested by the Administrative Agent or
by the Required Lenders with respect to any fee interest in any real property
having a value (net of Liens thereon permitted under Section 7.3) of at least
$1,000,000 now owned or hereafter acquired by the Borrower or any Subsidiary
Guarantor, promptly (and, in any event, within 90 days following the date of
such request) (i) execute, deliver (in recordable form) and record a mortgage in
favor of the Administrative Agent, for the benefit of the Secured Parties,
covering such real property, (ii) if requested by the Administrative Agent,
provide the Secured Parties with (x) title and extended coverage insurance
covering such real property in an amount at least equal to the value of such
real property (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey thereof, together with a
surveyor's certificate and (y) any
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consents or estoppels reasonably deemed necessary or advisable by the
Administrative Agent in connection with such mortgage, each of the foregoing in
form and substance reasonably satisfactory to the Administrative Agent and (iii)
if reasonably requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(c) With respect to each Person that now is or hereafter
becomes a Subsidiary of the Borrower (except JuJu Media, Inc. and any Subsidiary
which is and remains an Excluded Foreign Subsidiary), promptly (and, in any
event, within 90 days following such creation or the date of such acquisition)
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement as the Administrative Agent deems reasonably
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Secured Parties, a perfected first priority security interest in the Capital
Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and the Intellectual Property
Security Agreement and (B) to take such actions reasonably necessary or
advisable to grant to the Administrative Agent for the benefit of the Secured
Parties a perfected first priority security interest (subject only to Liens
permitted by Section 7.3 that are not consensually granted) in the Collateral
described in the Guarantee and Collateral Agreement and the Intellectual
Property Security Agreement with respect to such new Subsidiary, including the
recording of instruments in the United States Patent and Trademark Office and
the United States Copyright Office, the execution and delivery by all necessary
Persons of Control Agreements and the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement, the Intellectual Property Security Agreement or by law
or as may be requested by the Administrative Agent, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(d) With respect to any new Excluded Foreign Subsidiary created
or acquired after the Closing Date by the Borrower or any of its Subsidiaries,
promptly (and, in any event, within 90 days following such creation or the date
of such acquisition) (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative Agent
deems reasonably necessary or advisable in order to grant to the Administrative
Agent, for the benefit of the Secured Parties, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned by
the Borrower or any of its Subsidiaries (provided that in no event shall more
than 65% of the total outstanding Capital Stock of any such new Subsidiary be
required to be so pledged), (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Subsidiary, as the case may be, and take such other action as
may be necessary or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the Lien of the Administrative Agent thereon, and
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(iii) if requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(e) Notwithstanding anything to the contrary in this Section
6.10, paragraphs (a), (b), (c) and (d) of this Section 6.10 shall not apply to
any Property, new Subsidiary or new Excluded Foreign Subsidiary created or
acquired after the Closing Date, as applicable, as to which the Administrative
Agent has determined in its sole discretion that the collateral value thereof is
insufficient to justify the difficulty, time and/or expense of obtaining a
perfected Lien thereon.
6.11. Use of Proceeds. Use the proceeds of the Loans only for the
purposes specified in Section 4.16.
6.12. Further Assurances. From time to time execute and deliver,
or cause to be executed and delivered, such additional instruments, certificates
or documents, and take all such actions, as the Administrative Agent may
reasonably request, for the purposes of implementing or effectuating the
provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Secured
Parties with respect to the Collateral in accordance with the Guarantee and
Collateral Agreement (or with respect to any additions thereto or replacements
or proceeds or products thereof or with respect to any other property or assets
hereafter acquired which may be deemed to be part of the Collateral) pursuant
hereto or thereto. Upon the exercise by the Administrative Agent or any Lender
of any power, right, privilege or remedy pursuant to this Agreement or the other
Loan Documents which requires any consent, approval, recording, qualification or
authorization of any Governmental Authority, the Borrower will execute and
deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that the
Administrative Agent or such Lender may be required to obtain from the Borrower
or any of its Subsidiaries for such governmental consent, approval, recording,
qualification or authorization.
6.13. Corporate Structure. Except for JuJu Media, Inc. and except
as otherwise permitted under Section 7.8(h), the Borrower will cause each of its
Subsidiaries at all times to be and remain a Wholly Owned Subsidiary of the
Borrower.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the Commitments
remain in effect, any Letter of Credit remains outstanding or any of the
principal of or interest on any Loan or Reimbursement Obligation is outstanding,
the Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly:
7.1. Financial Condition Covenants.
(a) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower (or, if less, the number of full fiscal quarters
subsequent to the Closing Date) ending on the last
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<PAGE> 79
day of any fiscal quarter set forth below to be less than the ratio set forth
below opposite such fiscal quarter:
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<TABLE>
<CAPTION>
Consolidated
Fixed Charge
Fiscal Quarter Coverage
-------------- Ratio (x:1)
-----------
<S> <C>
FQ3 and FQ4 in 2000 1.00
FQ1, FQ2, FQ3 and FQ4 in 2001 1.10
FQ1 in 2002 and thereafter 1.20
</TABLE>
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower (or, if less, the number of full fiscal quarters
subsequent to the Closing Date) ending on the last day of any fiscal quarter set
forth below to be less than the ratio set forth below opposite such fiscal
quarter:
<TABLE>
<CAPTION>
Consolidated
Interest
Fiscal Quarter Coverage
-------------- Ratio (x:1)
-----------
<S> <C>
FQ3 and FQ4 in 2000 1.40
FQ1 and FQ2 in 2001 1.50
FQ3 and FQ4 in 2001 1.60
FQ1, FQ2 and FQ3 in 2002 1.75
FQ4 in 2002 and
FQ1, FQ2, FQ3 and FQ4 in 2003 2.00
FQ1 in 2004 and thereafter 2.25
</TABLE>
(c) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio determined as of the last day of any fiscal quarter set forth
below to exceed the ratio set forth below opposite such fiscal quarter:
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<PAGE> 81
<TABLE>
<CAPTION>
Consolidated
Fiscal Quarter Leverage Ratio
-------------- (x:1)
-----
<S> <C>
FQ3 and FQ4 in 2000 and
FQ1 in 2001 6.75
FQ2 and FQ3 in 2001 6.50
FQ4 in 2001 6.25
FQ1 in 2002 6.00
FQ2 in 2002 5.75
FQ3 in 2002 5.50
FQ4 in 2002 and thereafter 5.00
</TABLE>
(d) Consolidated Senior Debt Ratio. Permit the Consolidated
Senior Debt Ratio determined as of the last day of any fiscal quarter set forth
below to exceed the ratio set forth below opposite such fiscal quarter:
<TABLE>
<CAPTION>
Consolidated
Fiscal Quarter Senior Debt
-------------- Ratio (x:1)
-----------
<S> <C>
FQ3 and FQ4 in 2000 and
FQ1, FQ2 and FQ3 in 2001 3.00
FQ4 in 2001 and FQ1 in 2002 2.75
FQ2 and FQ3 in 2002 2.50
FQ4 in 2002 and thereafter 2.25
</TABLE>
7.2. Limitation on Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Unsecured Indebtedness (i) constituting Puerto Rico
Intercompany Debt, (ii) of the Borrower outstanding to any Solvent
Subsidiary, (iii) of any Subsidiary Guarantor outstanding to the Borrower
or any other Subsidiary Guarantor or (iv) of any Subsidiary of the
Borrower that is not a Subsidiary Guarantor outstanding to the
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<PAGE> 82
Borrower or any Subsidiary Guarantor, so long as the aggregate
Investments of the Borrower and the Subsidiary Guarantors (whether in the
form of debt or equity and counted at cost (or if made in assets at the
fair market value thereof when made, as determined in good faith by the
Borrower's board of directors), net of returns of the principal thereof
received in cash thereon) made at any time after the Closing Date in any
and all Subsidiaries of the Borrower that are not Subsidiary Guarantors
and in any and all Persons that are not Subsidiaries of the Borrower does
not at any time exceed $35,000,000; provided, that all such Indebtedness
outstanding to the Borrower or any Subsidiary Guarantor shall be
evidenced by a promissory note duly endorsed and delivered to the
Administrative Agent in pledge as security for the Obligations and, if
the Borrower is the obligor thereon, subordinated in right of payment to
the Obligations on terms and conditions satisfactory to the
Administrative Agent;
(c) Indebtedness of the Borrower or any of its Subsidiaries
(including Capital Lease Obligations) secured by Liens permitted by
Section 7.3(g) in an aggregate principal amount, for the Borrower and all
of its Subsidiaries, not exceeding $8,500,000 at any one time
outstanding;
(d) Indebtedness (other than the Indebtedness referred to in
Section 7.2(f)) outstanding on the date hereof and listed on Schedule
7.2(d) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof or any shortening
of the maturity of any principal amount thereof);
(e) Unsecured Guarantee Obligations made in the ordinary course
of business by the Borrower or any of its Subsidiaries of obligations of
the Borrower or any Subsidiary Guarantor;
(f) Unsecured Indebtedness of the Borrower in respect of Senior
Subordinated Notes outstanding under the Senior Subordinated Note
Indenture in an aggregate principal amount not exceeding $235,000,000 and
the guaranty of such Indebtedness, on the terms set forth in the Senior
Subordinated Note Indenture, by any Subsidiary Guarantor that is not a
Broadcast License Subsidiary;
(g) Seller Indebtedness constituting purchase consideration for
Permitted Acquisitions; and
(h) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $5,000,000 at any one time outstanding.
7.3. Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes, assessments or governmental charges or
levies not yet due and payable or being contested in good faith by
appropriate proceedings, provided that
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adequate reserves with respect thereto are maintained on its books in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
landlords', repairmen's or other like Liens arising in the ordinary
course of business that are not overdue for a period of more than 60 days
or are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) pledges or deposits by or on behalf of the Borrower or any
of its Subsidiaries to secure the performance of tenders, bids, trade
contracts (other than for borrowed money), leases, utilities, statutory
obligations, surety and appeal bonds, performance and return of money
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions and other similar
charges or encumbrances incurred in the ordinary course of business that,
in the aggregate, are not substantial in amount and do not in any case
materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by Section 7.2(d) and
refinancings, renewals and extensions thereof, provided that no such Lien
is spread to cover any additional Property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased; and
Liens in existence on the date hereof listed on Schedule 4.10;
(g) Liens securing Indebtedness of the Borrower or any of its
Subsidiaries incurred pursuant to Section 7.2(c) to finance the
acquisition of fixed or capital assets, provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time encumber
any Property other than the Property financed by such Indebtedness and
(iii) the amount of Indebtedness secured thereby is not increased;
(h) Liens created pursuant to any of the Loan Documents;
(i) any interest or title of a lessor under any lease entered
into by the Borrower or any of its Subsidiaries in the ordinary course of
its business and covering only the assets so leased;
(j) Liens in favor of the Borrower or any of its Subsidiaries,
if and to the extent that the liability secured by such Liens is pledged
to the Administrative Agent for the benefit of the Secured Parties;
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<PAGE> 84
(k) the Lien in favor of the trustee under the Senior
Subordinated Note Indenture, attaching to money and property held or
collected by such trustee and securing amounts due to it in its
individual capacity, set forth in Section 7.07 of the Senior Subordinated
Note Indenture;
(l) Liens securing judgments that individually and in the
aggregate do not exceed $5,000,000 and that do not constitute a Default;
and
(m) Liens not otherwise permitted by this Section 7.3 so long
as neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined, in the case of each such Lien, as of the date such Lien is
incurred) of the assets subject thereto exceeds (as to the Borrower and
all Subsidiaries) $1,000,000 at any one time.
7.4. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Solvent Subsidiary of the Borrower or, in connection
with a Permitted Acquisition, any Acquired Business, may be merged or
consolidated with or into the Borrower (provided that the Borrower shall
be the continuing or surviving corporation) or with or into any
Subsidiary Guarantor (provided that the Subsidiary Guarantor shall be the
continuing or surviving corporation);
(b) any Subsidiary of the Borrower that is not a Subsidiary
Guarantor may Dispose of any or all of its assets (upon voluntary
liquidation, dissolution or otherwise) to its shareholders in accordance
with their respective pro rata interests;
(c) any Subsidiary Guarantor may Dispose of any or all of its
assets (upon voluntary liquidation, dissolution or otherwise) to the
Borrower or any Subsidiary Guarantor; and
(d) any Wholly Owned Subsidiary of the Borrower that is not a
Subsidiary Guarantor may be merged with or into any other Wholly Owned
Subsidiary of the Borrower that is not a Subsidiary Guarantor.
7.5. Limitation on Disposition of Property. Dispose of any of its
Property (including receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
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<PAGE> 85
(c) Dispositions of Cash Equivalents and Dispositions permitted
by Section 7.4;
(d) the sale or issuance of any Subsidiary's Capital Stock
(other than Disqualified Stock) to the Borrower or any Subsidiary
Guarantor;
(e) the Disposition by the Borrower or any of its Subsidiaries
of other assets (except Rodriguez Bridge Loans) having a fair market
value not to exceed $20,000,000 in the aggregate for any fiscal year of
the Borrower; and
(f) any Recovery Event, if the requirements of Section 2.12(b)
are complied with in connection therewith.
7.6. Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in common stock (excluding
Disqualified Stock) of the Person making such dividend) on, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of the Borrower or any of its Subsidiaries, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower or any of its Subsidiaries, or enter into any derivatives or other
transaction with any financial institution, commodities or stock exchange or
clearinghouse (a "Derivatives Counterparty") obligating the Borrower or any of
its Subsidiaries to make payments to such Derivatives Counterparty as a result
of any change in market value of any such Capital Stock (collectively,
"Restricted Payments"), except that:
(a) any Subsidiary of the Borrower may make Restricted Payments
to its shareholders in accordance with their respective pro rata
interests;
(b) the Borrower may pay dividends solely in kind, by
distributing additional shares of the same Capital Stock; and
(c) so long as no Default shall have occurred and be
continuing, the Borrower may purchase Capital Stock of the Borrower from
present or former officers or employees of the Borrower or any of its
Subsidiaries upon the death, disability or termination of employment of
such officer or employee, provided, that the aggregate consideration paid
for all such purchases in any fiscal year of the Borrower (net of amounts
repaid in respect of loans contemplated in Section 7.8(d)(i) and any cash
proceeds received subsequent to the date hereof from the issuance and
sale of Management Equity in connection with the exercise of common stock
options for Management Equity) shall not exceed $3,000,000.
7.7. Limitation on Capital Expenditures. Make or commit to make
any Capital Expenditure, except Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not exceeding $10,000,000 per
fiscal year; provided, that (i) up to 50% of any such amount referred to above,
if not so expended in the fiscal year for which it is permitted, may be carried
over for expenditure in the next succeeding fiscal year; (ii) Capital
Expenditures made during any fiscal year shall be deemed made, first, in respect
of amounts permitted for such fiscal
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<PAGE> 86
year as provided above and second, in respect of amounts carried over from the
prior fiscal year pursuant to clause (i) above; (iii) in addition, the Borrower
and its Subsidiaries shall be permitted to expend up to $5,400,000 for the
acquisition of facilities in Puerto Rico; and (iv) in addition, the Borrower and
its Subsidiaries shall be permitted to make Capital Expenditures during the term
of this Agreement in an amount not exceeding (x) 50% of the Net Cash Proceeds of
any issuance and sale of Capital Stock (not constituting Disqualified Stock) by
the Borrower after the Closing Date, if such Net Cash Proceeds are used within
180 days from receipt thereof to pay for such Capital Expenditures, and (y) the
proceeds of any Reinvestment Deferred Amount.
7.8. Limitation on Investments. Make any advance, loan, extension
of credit (by way of guaranty or otherwise) or capital contribution to, or
purchase any Capital Stock, bonds, notes, debentures or other debt securities
of, or any assets constituting an ongoing business from, or make any other
investment in, any other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business and any conversion to equity upon default or in a bankruptcy of
an obligor in respect thereof;
(b) Investments in cash and Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Section 7.2(b) and (e);
(d) (i) loans made by the Borrower to officers and employees of
the Borrower or any Subsidiary of the Borrower the proceeds of which are
utilized contemporaneously to purchase Management Equity from the
Borrower and (ii) other loans and advances to employees of the Borrower
or any Subsidiaries of the Borrower in the ordinary course of business
(including for travel, entertainment and relocation expenses) in an
aggregate amount for the Borrower and Subsidiaries of the Borrower not to
exceed $250,000 at any one time outstanding;
(e) any Permitted Acquisition made through Wholly Owned
Subsidiaries, including the acquisition, formation and capitalization of
any new Wholly Owned Subsidiary of the Borrower to consummate a Permitted
Acquisition, so long as the Borrower complies with Section 6.10(c) in
respect thereof;
(f) Investments in Capital Stock of a Subsidiary Guarantor, so
long as the Borrower complies with Section 6.10(c) in respect thereof;
(g) Investments existing on the Closing Date and listed on Schedule
7.8(g);
(h) any Investments in Capital Stock of any Subsidiary of the
Borrower that is not a Subsidiary Guarantor or of any Person that is not
a Subsidiary of the Borrower, so long as the aggregate Investments of the
Borrower and the Subsidiary Guarantors (whether in the form of debt or
equity and counted at cost (or if made in assets at the fair market value
thereof when made, as determined in good faith by the Borrower's board of
directors), net of returns of the principal thereof received in cash
thereon) made at any
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time after the Closing Date in any and all Subsidiaries of the Borrower
that are not Subsidiary Guarantors and in any and all Persons that are
not Subsidiaries of the Borrower does not at any time exceed $35,000,000;
(i) Rodriguez Bridge Loans; and
(j) in addition to Investments otherwise expressly permitted by
this Section, Investments by the Borrower or any of its Subsidiaries in
an aggregate amount (valued at cost, net of returns of the principal
thereof received in cash thereon) not exceeding $1,000,000.
7.9. Limitation on Subordinated Indebtedness.
(a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Indebtedness that is subordinated in right of payment to the
Obligations, or segregate funds for any such payment, prepayment, repurchase,
redemption or defeasance, or enter into any derivative or other transaction with
any Derivatives Counterparty obligating the Borrower or any of its Subsidiaries
to make payments to such Derivatives Counterparty as a result of any change in
market value of any such Indebtedness;
(b) Make any payment or distribution in respect of any
Indebtedness that is subordinated in right of payment to the Obligations at any
time when such payment or distribution, or the acceptance thereof, is prohibited
or restricted under the subordination provisions governing such Subordinated
Indebtedness;
(c) Amend, modify or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms
(including the subordination terms) of any of the Senior Subordinated Note
Indenture or any other agreement governing or relating to any Indebtedness that
is subordinated in right of payment to the Obligations, except any such
amendment, modification, waiver or other change which (i) would extend the
maturity or reduce the amount of any payment of principal thereof, reduce the
rate or extend the date for payment of interest thereon or relax any covenant or
other restriction applicable to the Borrower or any of its Subsidiaries and (ii)
does not involve the payment of a consent fee); or
(d) Designate any Indebtedness (other than the Obligations) as
"Designated Senior Debt" for the purposes of the Senior Subordinated Note
Indenture.
7.10. Limitation on Transactions with Affiliates. Enter into any
transaction, including any purchase, sale, lease or exchange of Property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the Borrower, any Wholly Owned Subsidiary
of the Borrower, or any other Subsidiary of the Borrower so long as no Capital
Stock of such other Subsidiary is owned by any Person that controls the
Borrower) unless such transaction is (a) otherwise permitted under this
Agreement, (b) in the ordinary course of business of the Borrower or such
Subsidiary, as the case may be, and
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(c) upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than it could reasonably be expected to obtain
in a comparable arm's length transaction with a Person that is not an Affiliate.
Notwithstanding the foregoing, the following transactions shall not be
prohibited: (i) fees and compensation paid to, and indemnity provided on behalf
of, officers, directors or employees of the Borrower or any of its Subsidiaries,
to the extent the same are reasonable and customary; and (ii) transactions
pursuant to agreements or arrangements in effect on the Closing Date and listed
on Schedule 7.10.
7.11. Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any of
its Subsidiaries of Property which has been or is to be sold or transferred by
the Borrower or such Subsidiary to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of such
Property or rental obligations of the Borrower or such Subsidiary.
7.12. Limitation on Changes in Fiscal Periods. Permit the fiscal
year of the Borrower or any of its Subsidiaries to end on a day other than the
last Sunday in September or change the Borrower's or any of its Subsidiaries'
method of determining fiscal quarters.
7.13. Limitation on Negative Pledge Clauses. Enter into or suffer
to exist or become effective any agreement that prohibits or limits the ability
of the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents, (b) agreements in effect on the
date hereof and listed on Schedule 7.13, (c) any Lease, any intellectual
property license agreement under which the Borrower or a Subsidiary of the
Borrower is the licensee, and any other agreement under which the Borrower or a
Subsidiary of the Borrower is entitled to the performance of any obligation
other than the payment of money, if any such prohibition or limitation is
limited to the interest of the Borrower or such Subsidiary thereunder and in the
reasonable judgment of the Borrower, the acceptance of such prohibition or
limitation was necessary to achieve a business purpose of the Borrower or such
Subsidiary, and (d) any restriction under any agreement governing Indebtedness
permitted under Section 7.2(c), if such restriction is enforceable only by the
holder of such Indebtedness and applies only to the assets securing such
Indebtedness.
7.14. Limitation on Restrictions on Subsidiary Distributions, etc.
Enter into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of the Borrower or any of its Subsidiaries (or, in
the case of clause (a) only, any Subsidiary of the Borrower) to (a) make
Restricted Payments in respect of any Capital Stock of such Subsidiary held by,
or pay or subordinate any Indebtedness owed to, the Borrower or any other
Subsidiary, (b) make Investments in the Borrower or any other Subsidiary or (c)
transfer any of its assets to the Borrower or any other Subsidiary, except for
such encumbrances or restrictions existing under or by reason of (i) any
restrictions existing under the Loan Documents, (ii) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement that has been entered
into in connection with the Disposition of all or substantially all of the
Capital Stock or assets of such Subsidiary, (iii) customary provisions
restricting subletting or assignment of any lease, license or
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other contract entered into in the ordinary course of business, (iv)
restrictions on the transfer or disposition of any asset subject to a Lien
otherwise permitted under this Agreement, if such restriction is enforceable
only by the holder of such Lien and only against such assets and (v)
restrictions imposed by any joint venture or similar agreement entered into with
respect to Investments otherwise permitted under this Agreement.
7.15. Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for Permitted Businesses.
7.16. Broadcast License Subsidiaries. In the case of each
Broadcast License Subsidiary, (a) engage in any business or activity other than
holding FCC Licenses and rights related thereto, (b) incur, assume or otherwise
become or remain obligated in respect of any liability except trade payables
incurred in the ordinary course of business and tax liabilities incidental to
ownership of such rights, (c) grant or become subject to any Lien except Liens
securing Obligations or (d) take any Material Action.
7.17. Amendment of Certain Documents.
(a) Amend or permit the amendment of its Governing Documents in
any manner materially adverse to the Lenders.
(b) Terminate, cancel, amend, modify, supplement or otherwise
change the Rodriguez Bridge Loan Agreement or grant any moratorium, indulgence,
suspension or waiver in respect of any "Default" or "Event of Default," as
defined therein, or in respect of the availability, exercise or enforcement of
any right or remedy thereunder.
(c) Amend, modify, supplement or otherwise change the Rodriguez
Purchase Agreements or (after they have been provided to the Administrative
Agent and Lenders pursuant to clause (d)(i) in the definition of "Permitted
Acquisition" and the 10 Business Day period described in clause (d)(ii) of such
definition has expired) the Acquisition Documentation for the Pipeline
Acquisition, except upon written notice to and the consent of the Administrative
Agent (which consent shall not unreasonably be withheld).
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in
any certificate, document or
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financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall
prove to have been inaccurate in any material respect on or as of the
date made or deemed made; or
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in (i) Section 7, (ii) clause (i)
or (ii) of Section 6.4(a) (with respect to the Borrower only), or (iii)
Section 5 of the Guarantee and Collateral Agreement; or
(d) Any Loan Party shall default in the observance or
performance of any other covenant or agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in making any payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding the Loans) on the due date with
respect thereto; or (ii) default in making any payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness 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
beneficiary of such Indebtedness (or a trustee or agent on behalf of such
holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or (in the
case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided, that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i), (ii)
and (iii) of this paragraph (e) shall have occurred and be continuing
with respect to Indebtedness the outstanding principal amount of which
exceeds in the aggregate $5,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of
an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be
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commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets that results in the entry of an order for any such
relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the
Borrower or any of its Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined
in Section 302 of ERISA), whether or not waived, shall exist with respect
to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the
assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan, (vi) the Borrower, any of its
Subsidiaries or any Commonly Controlled Entity shall be required to make
during any fiscal year of the Borrower payments pursuant to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) that provides
benefits to retired employees (or their dependents) that, in the
aggregate, exceed $1,000,000, (vii) the Borrower, any of its Subsidiaries
or any Commonly Controlled Entity shall be required to make during any
fiscal year of the Borrower contributions to any defined benefit pension
plan subject to Title IV of ERISA (including any Multiemployer Plan)
that, in the aggregate, exceed $1,600,000 or (viii) any other similar
event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (viii) above, such event or condition,
together with all other such events or conditions, if any, could, in the
sole judgment of the Required Lenders, reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving for the Borrower and
its Subsidiaries taken as a whole a liability (not paid or covered by
insurance in the reasonable opinion of the Borrower if the Borrower
provides evidence of such coverage to the Administrative Agent) of
$5,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from
the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason
(other than pursuant to the terms thereof), to be in full force and
effect, or any Loan Party or any
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Affiliate of any Loan Party shall so assert, or any Lien created by any
of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than pursuant to
the terms thereof), to be in full force and effect or any Loan Party or
any Affiliate of any Loan Party shall so assert; or
(k) Any Loan Party or any Affiliate of any Loan Party shall
assert in writing that any provision of any Loan Document is not
enforceable; or
(l) (i) The Permitted Investors shall cease to have the power
to vote or direct the voting of securities having a majority of the
ordinary voting power for the election of directors of the Borrower
(determined on a fully diluted basis); (ii) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), excluding the
Permitted Investors, shall become, or obtain rights (whether by means or
warrants, options or otherwise) to become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of more than 35% of the outstanding common stock of the
Borrower; (iii) the board of directors of the Borrower shall cease to
consist of a majority of Continuing Directors; or (iv) a Specified Change
of Control shall occur; or
(m) Any FCC License necessary for the conduct of any business
or activity at any time conducted by the Borrower or any of its
Subsidiaries shall be revoked, annulled, cancelled or the FCC takes any
action with respect to any FCC License, the effect of which would
reasonably be expected to result in, individually or in the aggregate, a
Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to any Loan Party,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
Upon
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the occurrence and during the continuation of an Event of Default, the
Administrative Agent and the Lenders shall be entitled to exercise any and all
remedies available under the Security Documents, including the Guarantee and
Collateral Agreement, or otherwise available under applicable law or otherwise.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount in immediately available funds
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit (and the Borrower hereby grants to the Administrative Agent, for the
ratable benefit of the Secured Parties, a continuing security interest in all
amounts at any time on deposit in such cash collateral account to secure the
undrawn and unexpired amount of such Letters of Credit and all other
Obligations). If at any time the Administrative Agent determines that any funds
held in such cash collateral account are subject to any right or claim of any
Person other than the Administrative Agent and the Secured Parties or that the
total amount of such funds is less than the aggregate undrawn and unexpired
amount of outstanding Letters of Credit, the Borrower shall, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in such cash collateral account, an
amount equal to the excess of (a) such aggregate undrawn and unexpired amount
over (b) the total amount of funds, if any, then held in such cash collateral
account that the Administrative Agent determines to be free and clear of any
such right and claim. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Loan Parties hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Loan Parties hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Loan Parties (or such other Person
as may be lawfully entitled thereto).
SECTION 9. THE AGENTS and ARRANGER
9.1. Appointment. Each Lender hereby irrevocably designates and
appoints Lehman Commercial Paper Inc. as the Administrative Agent under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its 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
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, no
Agent shall have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against any Agent.
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9.2. Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3. Exculpatory Provisions. Neither the Arranger, nor any Agent
nor any of their respective Related Persons 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 any other Loan Document (except for any
liability imposed by law, but then only if and to the extent found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
solely from its or any of its Related Persons' personal gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Arranger or the Agents under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party party thereto to
perform its obligations hereunder or thereunder or for the creation, validity,
legality, enforceability, perfection, priority, maintenance or enforcement of
any guaranty or Lien required or purporting to be created under any of the Loan
Documents or any other collateral security for the Obligations. As against any
Secured Party, any matter required herein to be satisfactory to, found
acceptable by or otherwise approved by the Administrative Agent may be approved
or disapproved by it in its sole discretion, acting as it may see fit given any
interest that it or its Affiliates may have and without any duty whatsoever to
any other Lender. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4. Reliance by Agents. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, 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
counsel the Loan Parties), independent accountants and other experts selected by
such Agent. The Agents may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. Each 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 the requisite Lenders required under
Section 10.1 to authorize or require such action (or, if so specified by this
Agreement, all Lenders) 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. Each Agent shall in all cases be fully protected in acting, or in
refraining from acting,
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under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders or the requisite Lenders under Section 10.1 to authorize
or require such action (or, if so specified by this Agreement, all Lenders), and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Obligations.
9.5. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default hereunder
unless it has received written notice from a Lender or the Borrower referring to
this Agreement, describing such Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default as
shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders), except that (a) the Administrative Agent shall not
be required to take any such action that it in good faith determines may be
unlawful or that it in good faith believes may be imprudent or may expose it to
liability, (b) the Administrative Agent shall not be required to take any such
action unless it receives indemnity satisfactory to it from the Persons
directing such action, and (c) unless and until the Administrative Agent shall
have received such direction, the Administrative Agent may decline to act or may
(but shall not be obligated to) take any action that it deems advisable.
9.6. Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Arranger nor any of the Agents nor any
of their respective officers, directors, employees, agents, attorneys and other
advisors, partners, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by the Arranger or any Agent
hereinafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by the Arranger or any Agent to any Lender. Each Lender represents to
the Arranger and the Agents that it has, independently and without reliance upon
the Arranger or any Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition, prospects and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans (and in the case of the
Issuing Lender, its Letters of Credit) hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance
upon the Arranger or any Agent or any other Lender, 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 the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition, prospects and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, neither the Arranger nor any Agent shall
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of the Arranger or such Agent
or any of its officers, directors, employees, agents, attorneys and other
advisors, partners, attorneys-in-fact or affiliates.
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9.7. Indemnification. The Lenders agree to indemnify the Arranger
and each Agent in its capacity as such (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), ratably
according to their respective Aggregate Exposure Percentages in effect on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (including at any time following the payment of
the Loans) be imposed on, incurred by or asserted against the Arranger or such
Agent in any way relating to or arising out of, the Commitments, this Agreement,
any of the other Loan Documents, any Acquisition Documentation or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Arranger or
such Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted solely from the Arranger's
or such Agent's gross negligence or willful misconduct. The agreements in this
Section 9.7 shall survive the payment of the Loans and Letters of Credit and all
other amounts payable hereunder.
9.8. Arranger and Agents in Their Individual Capacities. The
Arranger and each Agent and their respective affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any Loan
Party as though the Arranger was not the Arranger and such Agent was not an
Agent. With respect to its Loans made or renewed by it and with respect to any
Letter of Credit issued or participated in by it, the Arranger and each Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Arranger or an Agent, as the case may be, and the terms "Lender" and "Lenders"
shall include the Arranger and each Agent in their respective individual
capacities.
9.9. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans or Letters of Credit.
If no successor agent has accepted appointment as Administrative Agent by the
date that is 10 days following a retiring Administrative Agent's
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notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above.
After any retiring Administrative Agent's resignation as such, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
9.10. Authorization to Release Liens. The Administrative Agent is
hereby irrevocably authorized by each of the Lenders to release any Lien
covering any Property of the Borrower or any of its Subsidiaries that is the
subject of a Disposition which the Administrative Agent in good faith believes
to be permitted by this Agreement or to have been consented to in accordance
with Section 10.1 or to be owned by any Subsidiary of the Borrower the Capital
Stock of which was transferred, in any such Disposition, to a Person who is not
an Affiliate of the Borrower.
9.11. The Arranger, Syndication Agent and Documentation Agent. The
parties acknowledge and agree that Lehman Brothers Inc. (in such capacity, the
"Arranger") shall be credited as and may publicize that it is the sole lead
arranger and book-running manager of the financing contemplated hereby, any
Lender or Affiliate of a Lender that is appointed Syndication Agent (in such
capacity, the "Syndication Agent") by the Arranger shall be credited as and may
publicize that it is the syndication agent of such financing, and any Lender or
Affiliate of a Lender that is appointed Documentation Agent (in such capacity,
the "Documentation Agent") by the Arranger shall be credited as and may
publicize that it is the documentation agent of such financing. The Arranger,
Syndication Agent and Documentation Agent (a) shall not, by reason of their
designation as such or the provisions of this Section 9 or any action taken or
omitted in such capacity, have any power, duty, responsibility or liability
whatsoever under this Agreement or any other Loan Document or in respect of the
financing contemplated hereby and (b) shall nevertheless be entitled to all of
the rights, immunities, indemnities and benefits granted to them herein.
SECTION 10. MISCELLANEOUS
10.1. Amendments and Waivers. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Administrative Agent and
each Loan Party party to the relevant Loan Document may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents (including amendments and restatements hereof or thereof)
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
may be specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
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modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan or Reimbursement Obligation, extend the
scheduled date of any amortization payment in respect of any Term Loan, reduce
the stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof, or increase the amount or extend the expiration
date of any Commitment of any Lender, in each case without the consent of each
Lender directly affected thereby; (ii) amend, modify or waive any provision of
this Section or reduce any percentage specified in the definition of "Required
Lenders", consent to the assignment or transfer by any Loan Party of any of its
rights and obligations under this Agreement and the other Loan Documents,
release all or substantially all of the Collateral or release all or
substantially all of the Subsidiary Guarantors from their guarantee obligations
under the Guarantee and Collateral Agreement, in each case without the consent
of all Lenders; (iii) reduce the percentage specified in the definition of
"Majority Facility Lenders" with respect to any Facility without the written
consent of all Lenders under such Facility; (iv) amend, modify or waive any
provision of Section 9 without the consent of the Arranger or any Agent directly
affected thereby; (v) amend, modify or waive any provision of Section 2.6 or 2.7
without the written consent of the Swing Line Lender; (vi) amend, modify or
waive any provision of Section 2.18 without the consent of each Lender directly
affected thereby; or (vii) amend, modify or waive any provision of Section 3
without the consent of the Issuing Lender. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Loan Parties, the Lenders, the Agents, the
Arranger and all existing and future holders of the Obligations. In the case of
any waiver, the Loan Parties, the Lenders, the Arranger and the Agents shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default,
or impair any right consequent thereon. Any such waiver, amendment, supplement
or modification shall be effected by a written instrument signed by the parties
required to sign pursuant to the foregoing provisions of this Section; provided,
that delivery of an executed signature page of any such instrument by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof. For the avoidance of doubt, this Agreement may be amended (or amended
and restated) with the written consent of the Required Lenders, the Arranger,
the Agents and the Borrower (x) to add one or more additional credit facilities
to this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the "Additional Extensions of Credit") to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
Revolving Extensions of Credit and the accrued interest and fees in respect
thereof and (y) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders, Required Prepayment
Lenders and Majority Revolving Facility Lenders; provided, however, that no such
amendment shall permit the Additional Extensions of Credit to share ratably with
or with preference to the Term Loans in the application of mandatory prepayments
without the consent of the Required Prepayment Lenders or otherwise to share
ratably with or with preference to the Revolving Extensions of Credit without
the consent of the Majority Revolving Facility Lenders.
10.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise
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expressly provided herein, shall be deemed to have been duly given or made when
delivered, or three Business Days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed (a) in the
case of the Borrower, the Arranger and the Agents, as follows and (b) in the
case of the Lenders, as set forth on Schedule 1 to the Lender Addendum to which
such Lender is a party or, in the case of a Lender which becomes a party to this
Agreement pursuant to an Assignment and Acceptance, in such Assignment and
Acceptance or (c) in the case of any party, to such other address as such party
may hereafter notify to the other parties hereto:
The Borrower: Spanish Broadcasting System, Inc.
3191 Coral Way
Miami, Florida 33145
Attention: Joseph A. Garcia
Telecopy: 305-447-0891
Telephone: 305-476-2900
with a copy to: Kaye, Scholer, Fierman, Hays &
Handler LLP
The McPherson Building
901 15th Street NW, Ste. 1100
Washington, DC 20005
Attention: Jason L. Shrinsky
Telecopy: 202-682-3580
Telephone: 202-682-3506
Lehman Commercial Paper Inc.: Lehman Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
Attention: Andrew Keith
Telecopy: (212) 526-7691
Telephone: (212) 526-4059
with a copy to: Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10386
Attention: Christopher R. Plaut
Telecopy: (212) 751-4864
Telephone: (212) 906-1200
The Arranger: Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Attention: Andrew Keith
Telecopy: (212) 526-7691
Telephone: (212) 526-4059
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with a copy to: Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10386
Attention: Christopher R. Plaut
Telecopy: (212) 751-4864
Telephone: (212) 906-1200
Issuing Lender: As notified by the Issuing Lender
to the Administrative Agent and
the Borrower
provided that any notice, request or demand to or upon any Agent or any Lender
shall not be effective until received.
10.3. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Arranger, any Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4. Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5. Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Arranger and the Agents on demand for all out-of-pocket expenses,
including the reasonable fees, disbursements and other charges of counsel,
incurred in connection with the Facilities and the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, subject to the limitation set
forth in the proviso in paragraph 1(f) of the Fee Letter, (b) to pay or
reimburse each Lender, the Arranger and each Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including the fees and disbursements of counsel (including the
allocated fees and disbursements and other charges of in-house counsel) to each
Lender and of counsel to the Arranger and each Agent, (c) to pay, indemnify, and
hold each Lender, the Arranger and the Agents harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
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Documents and any such other documents, and (d) to pay, indemnify, and hold each
Lender, the Arranger and each Agent, and each of their respective Related
Persons (each of the Lenders, Arranger and Agents and their Related Persons, an
"Indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or Letters of
Credit or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of any Loan Party or any of the
Properties and the fees and disbursements and other charges of legal counsel in
connection with claims, actions or proceedings by any Indemnitee against the
Borrower hereunder (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted solely from the
gross negligence or willful misconduct of such Indemnitee. Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries so to waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them might have by
statute or otherwise against any Indemnitee. All amounts due under this Section
shall be payable not later than five days after written demand therefor.
Statements payable by the Borrower pursuant to this Section shall be submitted
to the Borrower in accordance with Section 10.2, or to such other Person or
address as may be hereafter designated by the Borrower in a written notice to
the Administrative Agent. The agreements in this Section shall survive repayment
of the Loans and Letters of Credit and all other amounts payable hereunder.
10.6. Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Arranger, the Agents, all other
holders of the Obligations and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Arranger, the
Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower or any
other Person, in accordance with applicable law, at any time sell to one or more
banks, financial institutions or other entities (each, a "Participant")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent
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<PAGE> 102
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. In no event shall any Participant under any such participation have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Loans or any fees payable hereunder, or postpone the date of
the final maturity of the Loans, in each case to the extent subject to such
participation. The Borrower agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 2.19, 2.20 and 2.21 with respect to its participation
in the Commitments and the Loans outstanding from time to time as if it was a
Lender; provided that, in the case of Section 2.20, such Participant shall have
complied with the requirements of said Section and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law, upon written notice to the Administrative Agent, at any time and
from time to time assign to any Lender or any affiliate or Control Investment
Affiliate thereof or, with the consent of the Borrower and the Administrative
Agent and, in the case of any assignment of Revolving Credit Commitments, the
written consent of the Issuing Lender and the Swing Line Lender (which, in each
case, shall not be unreasonably withheld or delayed) (provided (x) that no such
consent need be obtained by a Lehman Entity for a period of 60 days following
the Closing Date, (y) the consent of the Borrower need not be obtained with
respect to any assignment of Term Loans to any Person other than a Person that
is, or is an Affiliate of a Person that is, engaged in a Permitted Business, and
(z) in any event the consent of the Borrower need not be obtained with respect
to any assignment at any time when a Default is continuing), to an additional
bank, financial institution or other entity (an "Assignee") all or any part of
its rights and obligations under this Agreement pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit J, executed by such Assignee
and such Assignor (and, where the consent of the Borrower, the Administrative
Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the
foregoing provisions, by the Borrower and such other Persons) and delivered to
the Administrative Agent for its acceptance and recording in the Register;
provided that no such assignment to an Assignee (other than any Lender or any
affiliate thereof) shall be in an aggregate principal amount of less than
$5,000,000 (other than in the case of an assignment of all of a Lender's
interests under this Agreement), unless otherwise agreed by the Borrower and the
Administrative Agent. Any such assignment need not be ratable as among the
Facilities. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined
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pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment and/or
Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such Assignor
shall cease to be party hereto as a Lender).
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of the Loans and any
Notes evidencing such Loans recorded therein for all purposes of this Agreement.
Any assignment of any Loan, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made in the
Register (and each Note shall expressly so provide). Any assignment or transfer
of all or part of a Loan evidenced by a Note shall be registered on the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Loan, accompanied by a duly executed Assignment and Acceptance;
thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the designated Assignee, and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "canceled". The Register shall be
available for inspection by the Borrower or any Lender (with respect to any
entry relating to such Lender's Loans) at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor and an Assignee (and, in any case where the consent of any other
Person is required by Section 10.6(c), by each such other Person) together with
payment to the Administrative Agent of a registration and processing fee of
$3,500 (except that no such registration and processing fee shall be payable (y)
in connection with an assignment by or to a Lehman Entity or (z) in the case of
an Assignee which is already a Lender or is an affiliate of a Lender or a Person
under common management with a Lender), the Administrative Agent shall promptly
accept such Assignment and Acceptance and record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Borrower. On or prior to such effective date, the Borrower, at its own
expense, upon request, shall execute and deliver to the Administrative Agent (in
exchange for the Revolving Credit Note and/or applicable Term Notes, as the case
may be, of the assigning Lender) a new Revolving Credit Note and/or applicable
Term Notes, as the case may be, to such Assignee or its registered assigns in an
amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as
the case may be, assumed or acquired by it pursuant to such Assignment and
Acceptance and, if the Assignor has retained a Revolving Credit Commitment
and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note
and/or Term Notes, as the case may be, to the Assignor or its registered assigns
in an amount equal to the Revolving Credit Commitment and/or applicable Term
Loans, as the case
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may be, retained by it hereunder. Such new Note or Notes shall be dated the
Closing Date and shall otherwise be in the form of the Note or Notes replaced
thereby.
(f) For the avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
10.7. Adjustments; Set-off.
(a) Except to the extent that this Agreement provides for
payments to be allocated to a particular Lender or to the Lenders under a
particular Facility, if any Lender (a "Benefited Lender") shall at any time
receive any payment of all or part of the Obligations owing to it, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
8(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Obligations, such Benefited Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Obligations, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefited Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
to notify promptly the Borrower and the Administrative Agent after any such
setoff and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and application.
10.8. Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
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10.9. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10. Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents, the Arranger and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Arranger, any Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12. Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York situate in the County of New York, the
courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 10.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
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10.13. Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, nor any Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and
the relationship between the Arranger, the Agents and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of participants in a debtor and creditor
transaction; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Arranger, the Agents and the Lenders or between the
Borrower and any of them.
10.14. Confidentiality. Each of the Arranger, the Agents and the
Lenders agrees to keep confidential all non-public information provided to it by
any Loan Party pursuant to this Agreement that is designated by such Loan Party
as confidential; provided that nothing herein shall prevent the Arranger, any
Agent or any Lender from disclosing any such information (a) to the Arranger,
any Agent, any other Lender or any affiliate of any thereof (b) to any
Participant or Assignee (each, a "Transferee") or prospective Transferee that
agrees to comply with the provisions of this Section, (c) to any of its
employees, directors, agents, attorneys, accountants and other professional
advisors, (d) upon the request or demand of any Governmental Authority having
jurisdiction over it, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if required to do so in connection with any litigation
or similar proceeding, (g) that has been publicly disclosed other than in breach
of this Section, (h) to the National Association of Insurance Commissioners or
any similar organization or any nationally recognized rating agency that
requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender or (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document.
10.15. Release of Collateral and Guarantee Obligations.
(a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, upon request of the Borrower in connection with
any Disposition of Property permitted by the Loan Documents, the Administrative
Agent shall (without notice to or vote or consent of any Lender, or any
affiliate of any Lender that is a party to any Specified Hedge Agreement) take
such actions as shall be required to release its security interest in any
Collateral being Disposed of in such Disposition, and to release any guarantee
obligations of any Person being Disposed of in such Disposition, to the extent
necessary to permit consummation of such Disposition in accordance with the Loan
Documents provided that the Borrower shall have delivered to the Administrative
Agent, at least five Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Collateral being Disposed
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of in such Disposition and the terms of such Disposition in reasonable detail,
including the date thereof, the price thereof and any estimated expenses in
connection therewith, together with a certification by the Borrower stating that
such transaction is in compliance with this Agreement and the other Loan
Documents and that the proceeds of such Disposition will be applied in
accordance with this Agreement and the other Loan Documents.
(b) The Administrative Agent shall be, and hereby is,
irrevocably authorized and empowered to release any and all of the Collateral
and take any and all actions necessary therefor or reasonably incidental
thereto, upon request of the Borrower and without notice to or consent of any
Lender or any other holder of Obligations, when all Commitments have terminated,
all Letters of Credit have been discharged, the principal of and interest on all
Loans and Reimbursement Obligations have been paid in full, and the
Administrative Agent has received payment in full, or payment security
satisfactory to it, as to all other Obligations that are claimed by the
Administrative Agent or in respect of which the Administrative Agent has
received, reasonably in advance of such release, written notice that any payment
is due or any claim is pending.
10.16. Accounting Changes. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Changes had not occurred. "Accounting
Changes" refers to changes in accounting principles required or permitted by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC.
10.17. Delivery of Lender Addenda. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative Agent a
Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent.
10.18. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
10.19. WAIVERS OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
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ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Joseph A. Garcia
----------------------------------
Name: Joseph A. Garcia
Title: Executive Vice-President,
Chief Financial Officer and
Secretary
LEHMAN COMMERCIAL PAPER INC., as
Administrative Agent
By: /s/ Jeffrey Goodwin
----------------------------------
Name: Jeffrey Goodwin
Title: Authorized Signatory
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Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS,
SWING LINE LOANS AND TERM LOANS
<TABLE>
<CAPTION>
-------------------------------------------------------------------
Consolidated Leverage Applicable Margin Applicable Margin
Ratio for Eurodollar Loans for Base Rate
Loans
-------------------------------------------------------------------
<S> <C> <C>
>=6.5:1 2.75% 1.75%
-------------------------------------------------------------------
>=5:1 and <6.5:1 2.50% 1.50%
-------------------------------------------------------------------
>=4:1 and <5:1 2.25% 1.25%
-------------------------------------------------------------------
<4:1 2.00% 1.00%
-------------------------------------------------------------------
</TABLE>
The Applicable Margin shall be determined on a quarterly basis based on the
Consolidated Leverage Ratio as of the last day of the most recent fiscal quarter
and for the period of four consecutive fiscal quarters then ended, except that
the Applicable Margin will be the highest rate set forth above (2.75% for
Eurodollar Rate Loans and 1.75% for Base Rate Loans) (i) for the period from the
Closing Date until the Grid Effective Date and (ii) whenever any Event of
Default is continuing. Changes in the Applicable Margin resulting from changes
in the Consolidated Leverage Ratio shall become effective on the date (the
"Adjustment Date") on which financial statements are delivered to the Lenders
pursuant to Section 6.1 (but in any event not later than the 45th day after the
end of each of the first three quarterly periods of each fiscal year or the 90th
day after the end of each fiscal year, as the case may be) and shall remain in
effect until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified above, then, until such financial statements are delivered, the
Consolidated Leverage Ratio as at the end of the fiscal period that would have
been covered thereby shall for the purposes of this definition be deemed to be
greater than 6.5:1.
S-8(g)(ii)
<PAGE> 111
EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered to you pursuant to
Section 6.2 of the Credit Agreement, dated as of July 6, 2000, as amended,
supplemented or modified from time to time (the "Credit Agreement"), among
SPANISH BROADCASTING SYSTEM, INC., a Delaware corporation (the "Borrower"), the
several lenders from time to time party to the Credit Agreement (the "Lenders"),
and LEHMAN COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
"Administrative Agent"). Terms defined in the Credit Agreement and not otherwise
defined herein are used herein with the meanings so defined.
1. I am the duly elected, qualified and acting Chief Financial
Officer of the Borrower.
2. I have reviewed and am familiar with the contents of this
Certificate.
3. I have reviewed the terms of the Credit Agreement and the
Loan Documents and have made or caused to be made under my supervision, a review
in reasonable detail of the transactions and condition of the Borrower during
the accounting period covered by the financial statements attached hereto as
Attachment 1 (the "Financial Statements"). Such review did not disclose the
existence during or at the end of the accounting period covered by the Financial
Statements, and I have no knowledge of the existence, as of the date of this
Certificate, of any condition or event which constitutes a Default or an Event
of Default [, except as set forth below].
4. Attached hereto as Attachment 2 are the computations
showing compliance with the covenants set forth in Sections 5.1(o) and 7.1 of
the Credit Agreement.
IN WITNESS WHEREOF, I execute this Certificate this _____ day of
__________, ____.
SPANISH BROADCASTING SYSTEM, INC.
By:
---------------------------------
Name:
Title:
<PAGE> 112
Attachment 2 to
Exhibit A
The information described herein is as of _________, ____, and
pertains to the period from _________ __, ____ to ______________,____.
[Set forth Covenant Calculations]
