SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
February 6, 1997; (January 24, 1997)
AMERICAN RADIO SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-26102 04-3196245
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
116 Huntington Avenue
Boston, Massachusetts 02116
(Address of principal executive offices, including zip code)
(617) 375-7500
(Registrant's telephone number, including area code)
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Item 5. Other Events
1. On January 24, 1997, American Radio Systems Corporation (the "Company")
completed a $750 million revolving credit facility with a consortium of lenders
led by The Bank of New York. The credit facility can be expanded to $900 million
to the extent necessary to repurchase $150 million of 9-3/4% EZ Communications
Notes pursuant to a put option held by the noteholders which will become
operative upon the merger of EZ Communications, Inc. with and into American. The
credit facility consists of two credit agreements (one for $550,000,000 and the
other for $350,000,000), which are attached herewith as Exhibits 99.1 and 99.2,
respectively. Each credit agreement incorporates the Borrower Security Agreement
and Subsidiary Guaranty, which are attached herewith as Exhibits 99.3 and 99.4.
For more information, see the Company's press release, dated January 30, 1997,
which is attached herewith as Exhibit 99.5.
2. On January 30, 1997, the Company completed its private offering of 2,000,000
shares of its 11-3/8% Cumulative Exchangeable Preferred Stock (the "Exchangeable
Preferred Stock") to qualified institutional buyers. The Company used the net
proceeds from the offering, which exceeded $192 million, to repay outstanding
debt. Thereafter, the Company expects to use the proceeds, along with borrowings
under the credit facility, to finance acquisitions of radio stations, including
consummation of the EZ merger.
The Exchangeable Preferred Stock has not been registered under the
Securities Act of 1933 and may not be offered or sold in the United States
absent registration or an applicable exemption from registration requirements.
The Company entered into a Registration Rights Agreement, dated January 30,
1997, with the Initial Purchasers named therein, which is attached herewith as
Exhibit 99.6. Pursuant to such Registration Rights Agreement, the Company has
agreed (i) to file a registration statement with respect to an offer to exchange
the Exchangeable Preferred Stock for another series of exchangeable preferred
stock ("Series B Cumulative Exchangeable Preferred Stock") with substantially
identical terms to the Exchangeable Preferred Stock and (ii) under certain
circumstances, to file a shelf registration with respect to the Exchangeable
Preferred Stock. The Exchangeable Preferred Stock is exchangeable at the
Company's option, in whole but not in part, on any dividend payment date
commencing April 15, 1997 into the Company's 11-3/8% Subordinated Exchange
Debentures due 2009 (the "Exchange Debentures"). The Indenture, dated January
30, 1997, relating to the Exchange Debentures is attached herewith as Exhibit
99.7. Also attached herewith as Exhibits 99.8, 99.9 and 99.10, respectively, are
(i) the Purchase Agreement, dated January 27, 1997, by and among the Company and
the Initial Purchasers named therein, (ii) the Certificate of Designation of
Preferences and Rights of the Exchangeable Preferred Stock, as filed with the
Secretary of State of the State of Delaware on January 29, 1997, and (iii) the
Certificate of Designation of Preferences and Rights of the Series B Cumulative
Exchangeable Preferred Stock, as filed with the Secretary of State of the State
of Delaware on January 29, 1997. For more information, see the Company's press
release, dated January 30, 1997, which is attached herewith as Exhibit 99.5.
3. On February 5, 1997, The Company's Class A Common Stock began trading on the
New York Stock Exchange under the symbol "AFM". For more information, see the
Company's press release, dated February 3, 1997, which is attached herewith as
Exhibit 99.11.
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4. On February 5, 1997, American Tower Systems, Inc., a wholly owned subsidiary
of the Company, announced that it entered into agreements with the Meridian
Communications companies to purchase tower sites and a tower site management
business in southern California for an aggregate purchase price of approximately
$32.1 million. Subject to certain conditions, including the receipt of FCC
approval and the expiration or early termination of the Hart-Scott- Rodino Act
waiting period, the consummation of the Meridian transaction is expected to
occur in the second quarter of 1997. American Tower Systems, Inc. also announced
that it entered into letters of intent with Diablo Communications and Diablo
Communications of Southern California (collectively, the "Sellers") to acquire
tower sites and a tower site management business in northern California and
development sites in southern California for approximately $42.0 million. In
connection therewith, the Company agreed to loan $1.35 million to the Sellers on
an unsecured basis. Subject to certain conditions, including the signing of a
definitive agreements, the receipt of FCC approval and the expiration or early
termination of the Hart- Scott-Rodino Act waiting period, the consummation of
the Diablo transaction is expected to occur in the second quarter of 1997. For
more information, see the Company's press release, dated February 5, 1997, which
is attached herewith as Exhibit 99.12.
Item 7. Financial Statements and Exhibits
(c) Exhibits
1. Exhibit 99.1 - Credit Agreement, dated January 24, 1997, by and
among the Company and the lenders named therein relating to $550,000,000 credit
facility.
2. Exhibit 99.2 - Credit Agreement, dated January 24, 1997, by and
among the Company and the lenders named therein relating to $350,000,000 credit
facility.
3. Exhibit 99.3 - Form of Borrower Security Agreement by and between
the Company and the parties named therein.
4. Exhibit 99.4 - Form of Subsidiary Guaranty by and between certain
subsidiaries of the Company and the parties named therein.
5. Exhibit 99.5 - Press Release, dated January 30, 1997.
6. Exhibit 99.6 - Registration Rights Agreement, dated January 30,
1997, by and between the Company and the parties named therein.
7. Exhibit 99.7 - Indenture, dated January 30, 1997, by and between the
Company and Fleet National Bank, as trustee.
8. Exhibit 99.8 - Purchase Agreement, dated January 27, 1997, by and
among the Company and the Initial Purchasers named therein.
9. Exhibit 99.9 - the Certificate of Designation of Preferences and
Rights of the Exchangeable Preferred Stock, as filed with the Secretary of State
of the State of Delaware on January 29, 1997.
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10. Exhibit 99.10 - the Certificate of Designation of Preferences and
Rights of the Series B Cumulative Exchangeable Preferred Stock, as filed with
the Secretary of State of the State of Delaware on January 29, 1997.
11. Exhibit 99.11 - Press release, dated February 3, 1997.
12. Exhibit 99.12 - Press release, dated February 5, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICAN RADIO SYSTEMS CORPORATION
(Registrant)
By: /s/ Justin D. Benincasa
Justin D. Benincasa
Vice President and Corporate Controller
Date: February 6, 1997
Exhibit 99.1
AMERICAN RADIO SYSTEMS CORPORATION
-------------------------------------
CREDIT AGREEMENT
Dated as of January 24, 1997
$550,000,000
-------------------------------------
by and among
AMERICAN RADIO SYSTEMS CORPORATION,
THE BANK OF NEW YORK,
as COLLATERAL AGENT and ADMINISTRATIVE AGENT,
THE CHASE MANHATTAN BANK and
THE TORONTO-DOMINION BANK,
as CO-SYNDICATION AGENTS,
BANK OF MONTREAL, CREDIT SUISSE FIRST BOSTON,
FLEET NATIONAL BANK and UNION BANK OF CALIFORNIA, N.A.,
as MANAGING AGENTS,
BARCLAYS BANK PLC,
as AGENT,
BANK OF AMERICA ILLINOIS, THE SANWA BANK, LIMITED
and VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME TRUST,
as CO-AGENTS,
and
THE LENDERS PARTY HERETO
WITH
BNY CAPITAL MARKETS, INC.,
CHASE SECURITIES, INC., and
TORONTO DOMINION SECURITIES, INC.,
as ARRANGERS
<PAGE>
CREDIT AGREEMENT, dated as of January 24, 1997, by and among AMERICAN
RADIO SYSTEMS CORPORATION, a Delaware corporation (the "Borrower"), THE BANK OF
NEW YORK, as Collateral Agent and as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent"), THE CHASE MANHATTAN
BANK and THE TORONTO- DOMINION BANK, as co-syndication agents (each in such
capacity, a "Co-Syndication Agent" and, collectively, the "Co-Syndication
Agents"), Bank of Montreal, Credit Suisse First Boston, Fleet National Bank and
Union Bank of California, N.A., as managing agents (each in such capacity, a
"Managing Agent" and, collectively, the "Managing Agents"), Barclays Bank PLC,
as agent (in such capacity, the "Agent"), Bank of America Illinois, The Sanwa
Bank, Limited and Van Kampen American Capital Prime Rate Income Trust, as
co-agents (each in such capacity, a "Co-Agent" and, collectively, the
"Co-Agents") and each Lender party hereto or which becomes a "Lender" pursuant
to the provisions of section 11.7 or 2.4(d) (each a "Lender" and, collectively,
the "Lenders").
1. DEFINITIONS
1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR Loans": the Loans (or any portions thereof) at such time as they
(or such portions) are made or are being maintained at a rate of interest based
upon the Alternate Base Rate.
"Accountants": Deloitte & Touche LLP, or such other firm of certified
public accountants of recognized national standing selected by the Borrower and
reasonably satisfactory to the Administrative Agent.
"Affected Loan": as defined in section 2.15.
"Affected Principal Amount": (i) in the event that the Borrower shall
fail for any reason to borrow or convert a Loan after it shall have notified the
Administrative Agent of its intent to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, as the case may be, an amount
equal to the principal amount of such Loan; (ii) in the event that a Eurodollar
Loan shall terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such Loan; and
(iii) in the event that the Borrower shall prepay or repay all or any part of
the principal amount of a Eurodollar Loan prior to the last day of the Interest
Period applicable thereto, an amount equal to the principal amount of such Loan
so prepaid or repaid.
"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 shall mean the
power, direct or indirect, (i) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct
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or cause direction of the management and policies of such Person whether by
contract or otherwise.
"Aggregate Station Annual Cash Flow": as defined in section 8.7(b).
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum equal
to the higher of (i) the BNY Rate in effect on such date or (ii) 1/2 of 1% plus
the Federal Funds Rate in effect on such date.
"Applicable Margin": (a) subject to paragraph (b) of this definition,
at all times during the ap plicable periods set forth below, (i) with respect to
the unpaid principal amount of the ABR Loans, the percentage set forth below
under the heading "Alternate Base Rate Margin" next to the applicable period and
(ii) with respect to the unpaid principal amount of the Eurodollar Loans, the
percentage set forth below under the heading "Eurodollar Rate Margin" next to
the applicable period:
Alternate Base Eurodollar
Period Rate Margin Rate Margin
when the Total
Leverage Ratio
is equal to or
greater than
6.75:1.00 0.750% 2.000%
when the Total
Leverage Ratio
is equal to or greater
than 6.50:1.00 but
less than 6.75:1.00 0.625% 1.875%
when the Total
Leverage Ratio
is equal to or greater
than 6.00:1.00 but
less than 6.50:1.00 0.250% 1.500%
when the Total
Leverage Ratio
is equal to or greater
than 5.50:1.00 but less
than 6.00:1.00 0.000% 1.250%
when the Total
Leverage Ratio
is equal to or greater
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than 5.00:1.00 but
less than 5.50:1.00 0.000% 1.000%
when the Total
Leverage Ratio
is equal to or greater
than 4.50:1.00 but
less than 5.00:1.00 0.000% 0.750%
when the Total
Leverage Ratio
is equal to or greater
than 4.00:1.00 but
less than 4.50:1.00 0.000% 0.625%
when the Total
Leverage Ratio
is less than 4.00:1.00 0.000% 0.500%
(b) Changes in the Applicable Margin resulting from a change
in the Total Leverage Ratio, as evidenced by a Ratio Certificate delivered to
the Administrative Agent pursuant to section 7.1(d) evidencing such a change,
shall become effective upon the first Business Day following the delivery of (i)
the Ratio Certificate and (ii) the applicable financial statements required to
be delivered pursuant to section 7.1(a) or (c), as the case may be. If the
Borrower shall fail to deliver a Ratio Certificate within 45 days after the end
of any of the first three fiscal quarters, or within 90 days after the end of
the last fiscal quarter, of each fiscal year (each a "certificate delivery
date"), for purposes of calculating the Applicable Margin, the Total Leverage
Ratio from and in cluding such certificate delivery date to the date of delivery
by the Borrower to the Administrative Agent of such Ratio Certificate shall be
conclusively presumed to be greater than 6.75:1.00.
"Arrangers": BNY Capital Markets, Inc., Chase Securities, Inc. and
Toronto Dominion Securities, Inc.
"ARS License Subsidiary": American Radio Systems License Corp., a 100%
owned Restricted Subsidiary of the Borrower holding certain of the FCC licenses
of the Borrower and its Restricted Subsidiaries.
"ARS License Subsidiary Management Agreement": the Borrower License
Subsidiary Management Agreement, dated as of the date hereof, between the
Borrower and the ARS License Subsidiary, substantially in the form attached
hereto as Exhibit D, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with section 8.13.
"ARS Subordinated Indenture": the Indenture, dated as of February 1,
1996, between the Borrower and Fleet National Bank, as trustee, as amended by
supplemental indenture dated October 1, 1996, and as the same may be further
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
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"ARS Subordinated Indenture Notes": the 9% Senior Subordinated Notes,
due 2006, in the aggregate principal amount of $175,000,000, issued pursuant to
the ARS Subordinated Indenture, as amended by supplemental indenture dated
October 1, 1996, and as the same may be further amended, supplemented or
otherwise modified from time to time in accordance with section 8.19.
"ARS Subordinated Indenture Subsidiary Guaranty": the subordinated
guaranty or guaranties executed and delivered by one or more of the Restricted
Subsidiaries in connection with the ARS Subordinated Indenture, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with section 8.19.
"Assignment": as defined in section 11.7(b).
"Assignment and Assumption Agreement": an agreement substantially in
the form of Exhibit K.
"Assignment Fee": as defined in section 11.7(b).
"Authorized Signatory": the chief executive officer, the chief
financial officer, the chief operating officer, the president or any other duly
authorized officer (acceptable to the Administrative Agent) of a Loan Party.
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrower Security Agreement": the Borrower Security Agreement, dated
as of the date hereof, between the Borrower and the Collateral Agent,
substantially in the form attached hereto as Exhibit I, as the same may be
amended, supplemented or otherwise modified from time to time.
"Borrowing Date": any Business Day specified in a Borrowing Request as
a date on which the Borrower requests the Lenders to make Loans.
"Borrowing Request": a Borrowing Request substantially in the form of
Exhibit C.
"Broadcasting Station": all related licenses, franchises and permits
issued under federal, state or local laws from time to time which authorize a
Person to receive or distribute, or both, over the airwaves, audio and visual,
radio or microwave signals within a geographic area for the purpose of providing
commercial broadcasting radio programming, together with all Property owned or
used in connection with the programming provided pursuant to, and all interest
of such Person to receive revenues from any other Person which derives revenues
from or pursuant to, said licenses, franchises and permits. The term
"Broadcasting Station" shall also include a corporation incorporated in the
United States which shall own one or more Broadcasting Stations.
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"Business Day": (i) for all purposes other than as set forth in
clause (ii) below, any day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law or other
governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) above
and which is also a day on which dealings in foreign currency and exchange
between banks in the interbank eurodollar market may be carried on as determined
by the Administrative Agent.
"Capital Stock": (i) in the case of a corporation, capital stock,
(ii) in the case of any association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) or
capital stock and (iii) in the case of a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"CERCLA": the Comprehensive Environmental Response, Compensation and
Liability Act, as set forth at 42 U.S.C. ss.9601, et seq. as the same may be
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"Change of Control": any of the following:
(i) the sale, lease, transfer, in one or a series of related
transactions, of all or substantially all of the Borrower's assets to any Person
or group (as such term is used in Section 13(d)(3) of the Exchange Act) (other
than the Principal Shareholders or their Related Parties);
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Borrower;
(iii) the acquisition, directly or indirectly, by any Person
or group (as such term is used in Section 13(d)(3) of the Exchange Act) (other
than the Principal Shareholders and their Related Parties) of 40% or more of the
voting power of the voting stock of the Borrower by way of merger or
consolidation or otherwise, provided that such acquisition will not constitute a
"Change of Control" unless or until such Person or group owns, directly or
indirectly, more of the voting power of the voting stock of the Borrower than
the Principal Shareholders and their Related Parties; or
(iv) the Continuing Directors cease for any reason to
constitute a majority of the directors of the Borrower then in office. For
purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Borrower shall
be deemed to be a transfer of such portion of such voting stock as corresponds
to the portion of the equity of such entity that has been so transferred.
"Code": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
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"Collateral": collectively, the Collateral under and as defined in the
Collateral Documents.
"Collateral Agent": BNY in its capacity as collateral agent under the
Collateral Documents.
"Collateral Documents": collectively, the Borrower Security Agreement
and the Subsidiary Guaranty.
"Combined Credit Exposure": with respect to any Lender hereunder or any
Lender (as defined in the Other Credit Agreement), at any time, the sum of (i)
its Credit Exposure hereunder and (ii) its Credit Exposure (under and as defined
in the Other Credit Agreement), in each case at such time.
"Combined Required Lenders": at any date of determination, Lenders
hereunder and Lenders (as defined in the Other Credit Agreement) having Combined
Credit Exposures, without duplication, equal to or greater than 51% of the Total
Combined Credit Exposure.
"Commitment Fee" and "Commitment Fees": as defined in section 3.1.
"Commitment Reduction Fraction": in respect of any mandatory
reduction of the RC Commitments pursuant to section 2.4(b)(i), a fraction the
numerator of which is the aggregate amount of the RC Commitments and the
denominator of which is the sum of the aggregate amount of the RC Commitments
and the aggregate amount of the RC/TL Commitments (under and as defined in the
Other Credit Agreement), in each case determined immediately prior to such
mandatory reduction.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
414(b) or 414(c) of the Code.
"Communications Act": the Communications Act of 1934, as the same may
be amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"Consolidated": the Borrower and its Restricted Subsidiaries which are
consolidated for financial reporting purposes, excluding any interest of the
Borrower or any of its Restricted Subsidiaries in the Tower Subsidiaries.
"Consolidated Annual Broadcast Cash Flow": Consolidated Annual
Operating Cash Flow plus the sum of corporate office, general and administrative
expenses (exclusive of depreciation and amortization included in such corporate
office, general and administrative expenses) of the Borrower and its Restricted
Subsidiaries.
"Consolidated Annual Operating Cash Flow": at any time, Consolidated
Operating Cash Flow for the immediately preceding four fiscal quarters for which
financial statements have been delivered pursuant to section 7.1, or, in the
event that the date of determination is a fiscal quarter ending date, the fiscal
quarter then ended and the immediately preceding three fiscal quarters.
Notwithstanding anything to the contrary contained in this definition,
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(i) solely for purposes of determining the Total Leverage Ratio under
sections 1.1 (with respect to the definition of Applicable Margin) and 3.1 and
the Total Leverage Ratio and the Senior Leverage Ratio under section 6.1, there
shall be added, without duplication, to Consolidated Annual Operating Cash Flow:
(a) the Operating Cash Flow of PBB (the "PBB Cash
Flow") for the immediately preceding four fiscal quarters for which
financial statements for PBB or its predecessor (prepared in a manner
substantially similar to the financial statements required to be
delivered pursuant to sections 7.1(a) and (c) and otherwise in all
respects reasonably satisfactory to the Administrative Agent) have
been delivered to the Administrative Agent and the Lenders or, in the
event that the date of determination is a fiscal quarter ending date,
the fiscal quarter then ended and the immediately preceding three
fiscal quarters, and
(b) the Operating Cash Flow of any entity with
which the Borrower has entered into a loan/purchase arrangement
permitted hereunder in connection with the acquisition of a
Broadcasting Station similar to the arrangements entered into by the
Borrower with PBB (to the extent allocable to such acquired
Broadcasting Station) (the "Additional Cash Flow") for the
immediately preceding four fiscal quarters for which financial
statements for such entity or its predecessor (prepared in a manner
substantially similar to the financial statements required to be
delivered pursuant to sections 7.1(a) and (c) and otherwise in all
respects reasonably satisfactory to the Administrative Agent) have
been delivered to the Administrative Agent and the Lenders or, in the
event that the date of determination is a fiscal quarter ending date,
the fiscal quarter then ended and the immediately preceding three
fiscal quarters;
provided that (i) the aggregate amount of PBB Cash Flow and
Additional Cash Flow (if any) (collectively, the "Acquired Station
Cash Flow") which is added to Consolidated Annual Operating Cash Flow
pursuant to this sentence shall not exceed an aggregate amount equal
to (A) for the period through June 30, 1997, 100% of the Acquired
Station Cash Flow, and (B) thereafter, 0% of the Acquired Station
Cash Flow, and (ii) each of the PBB Documents, and the documents
evidencing any arrangement contemplated by paragraph (b) above shall
be in full force and effect and no default shall exist thereunder;
(ii) solely for purposes of determining compliance with sections 6.2,
6.3 and 6.4, there shall be added to Consolidated Annual Operating Cash Flow,
without duplication, actual payments of interest on (A) the PBB Notes and any
note payable to the Borrower in connection with an arrangement contemplated by
paragraph (b) above received by the Borrower during the applicable four fiscal
quarter period, and (B) Investments made pursuant to sections 8.5(c) or 8.5(d);
and
(iii) solely for purposes of determining the Total Leverage Ratio under
sections 1.1 (with respect to the definition of Applicable Margin) and 3.1 and
the Total Leverage Ratio and the Senior Leverage Ratio under section 6.1, there
shall be excluded from Consolidated Annual Operating Cash Flow the Operating
Cash Flow attributable to all Non-License Subsidiary Broadcasting Stations to
the extent that the aggregate Operating Cash Flow attributable to all such
Non-License Subsidiary Broadcasting Stations exceeds 10% of Consolidated Annual
Operating Cash Flow (determined without giving effect to this clause (iii)).
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"Consolidated Operating Cash Flow": Operating Cash Flow of the
Borrower and its Restricted Subsidiaries on a Consolidated basis.
Notwithstanding the foregoing, for purposes of determining Excess Cash Flow,
there shall be added to Consolidated Operating Cash Flow for the applicable
period, without duplication, actual payments of interest on the PBB Notes and
any note payable to the Borrower in connection with an arrangement contemplated
by paragraph (b) of the definition of Consolidated Annual Operating Cash Flow
received by the Borrower during such applicable period.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any Property constituting direct
or indirect security therefor, (ii) to advance or supply funds (a) for the
purchase or payment of any such primary obligation or (b) 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 beneficiary 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 beneficiary of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include the
indorsement of instruments for deposit or collection in the ordinary course of
business. The term Contingent Obligation shall also include the liability of a
general partner in respect of the Indebtedness of a partnership in which it is a
general partner, excluding Indebtedness which is non-recourse to such general
partner. The amount of any Contingent Obligation of a Person shall be deemed to
be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
"Continuing Director": any member of the Board of Directors of the
Borrower who (i) is a member of that Board of Directors on the Effective Date or
(ii) was nominated for election by either (a) one or more of the Principal
Shareholders (or a Related Party thereof) or (b) the Board of Directors a
majority of whom were directors at the Effective Date or whose election or
nomination for election was previously approved by one or more of the Principal
Shareholders or such directors.
"Control Person": as defined in section 2.14.
"Copyright Act": Title 17 of the United States Code, as amended, and
the rules and regulations issued thereunder, as from time to time in effect.
"Credit Exposure" with respect to any Lender at any time, its RC
Commitment or, if no RC Commitment is in effect, its outstanding RC Loans, at
such time.
"Debt Service": the sum of Interest Expense and scheduled principal
amortization (including scheduled mandatory reductions of revolving credit and
similar commitments) of Total
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Debt, whether or not actually paid, for, as applicable, the immediately
preceding four fiscal quarters for which financial statements have been
delivered pursuant to section 7.1, or, in the event that the date of
determination is a fiscal quarter ending date, the fiscal quarter then ended and
the immediately preceding three fiscal quarters.
"Default": any of the events specified in section 9, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Disqualified Stock": any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than upon a Change of Control of the
Borrower in circumstances where the holders of the Notes would have similar
rights), in whole or in part on or prior to one year after the Maturity Date.
The amount of Disqualified Stock shall be the greater of the liquidation
preference or mandatory or optional redemption price thereof.
"Dollars" and "$": lawful currency of the United States of America.
"Effective Date": January 24, 1997.
"Environmental Laws": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recy cling of hazardous substances, materials
or pollutants or industrial hygiene and including, without limitation, (i)
CERCLA; (ii) the Resource Conservation and Recovery Act of 1976, as amended, 42
USCA ss.6901 et seq.; (iii) the Toxic Substance Control Act, as amended, 15 USCA
ss.2601 et. seq.; (iv) the Water Pollution Control Act, as amended, 33 USCA
ss.1251 et. seq.; (v) the Clean Air Act, as amended, 42 USCA ss.7401 et seq.;
(vi) the Hazardous Material Transportation Authorization Act of 1994, as
amended, 49 USCA ss.5101 et seq. and (viii) all rules, regulations judgments,
decrees, injunctions and restrictions thereunder and any analogous state law, in
each case as from time to time in effect.
"Equity Interests": Capital Stock and all warrants, options or other
rights to acquire Capital Stock (including any Indebtedness or Disqualified
Stock that is convertible into, or exchangeable for, Capital Stock).
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"Eurodollar Loan": a portion of the Loans selected by the Borrower to
bear interest during an Interest Period selected by the Borrower at a rate per
annum based upon a Eurodollar Rate determined with reference to such Interest
Period, all pursuant to and in accordance with sections 2.3 and 2.8.
"Eurodollar Rate": with respect to any Interest Period, the rate per
annum, as determined by the Administrative Agent, obtained by dividing (and then
rounding to the nearest 1/16 of 1%, or, if there is no nearest 1/16 of 1%, the
next higher 1/16 of 1%):
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(a) the rate quoted by the Administrative Agent to major
banks in the interbank eurodollar market as the rate at which the Administrative
Agent is offering Dollar deposits in an amount approximately equal to BNY's pro
rata share of the given portion of the Loans selected by the Borrower to bear
interest during such Interest Period based upon a rate of interest determined
under this definition, and having a term to maturity corresponding to such
Interest Period, as quoted at approximately 10:00 A.M. two Business Days prior
to the date upon which such Interest Period is to commence, by
(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of the
Federal Reserve System and any other banking authority to which BNY and other
major United States banks or money center banks are subject, in respect of
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System). Such
reserve requirements shall include, without limitation, those imposed under such
Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed to be subject to such reserve
requirements without benefit of credits for proration, exceptions or offsets
which may be available from time to time to any Lender under such Regulation D.
The Eurodollar Rate shall be adjusted automatically on and as of the effective
date of any change in any such reserve requirement.
"Event of Default": any of the events specified in section 9, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Excess Cash Flow": at any time, in respect of any period,
Consolidated Operating Cash Flow for such period (before any adjustments to
reflect acquisitions, sales and exchanges of Property during such period) less
the sum of, without duplication, (i) Debt Service (excluding, to the extent
included therein, principal payments made pursuant to sections 2.5(b), (d), (e)
and (f) hereof, and principal payments made pursuant to sections 2.5(d), (f),
(g) and (h) of the Other Credit Agreement), (ii) voluntary principal prepayments
made pursuant to section 2.5(a) hereof and voluntary principal payments made
pursuant to section 2.5(a) of the Other Credit Agreement (excluding, to the
extent not otherwise excluded from this definition of "Excess Cash Flow",
principal payments made with cash the source of which is not included in the
Borrower's Operating Cash Flow), provided that the RC Commitments are
permanently reduced in an aggregate amount equal to such prepayments made under
section 2.5(a) hereof, (iii) capital expenditures made (excluding capital
expenditures made with insurance proceeds), (iv) cash taxes paid, (excluding
cash taxes attributable to the Tower Subsidiaries) (v) non-recurring cash
expense items included in Consolidated Operating Cash Flow pursuant to clause
(iii) of the definition of Operating Cash Flow, (vi) Finance Costs and (vii) any
cash dividends paid with respect to Non Redeemable Preferred Stock (including,
without limitation, the preferred Stock issued pursuant to the 1996 Convertible
Exchangeable Preferred Stock Issuance and the preferred Stock issued pursuant to
the 1997 Preferred Stock Issuance).
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement": the Credit Agreement, dated as of December
19, 1995, by
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and among the Borrower, the lenders party thereto, Bank of Montreal, Banque
Paribas, Chemical Bank, CIBC Inc., Fleet National Bank and Toronto Dominion
(Texas), Inc., as co-agents, and The Bank of New York, as agent, as amended.
"Existing EZ Indebtedness": all of the obligations of EZ and its
subsidiaries under the Credit Agreement, dated as of November 20, 1995, among
EZ, the lenders party thereto, and Chase Manhattan Bank (National Association),
as agent, as amended, and all other Basic Documents (as defined in such Credit
Agreement) executed and delivered in connection therewith, in each case as
amended.
"EZ": EZ Communications, Inc., a Commonwealth of Virginia corporation.
"EZ Acquisition": the acquisition of EZ by the Borrower by way of a
merger of EZ into and with the Borrower with the Borrower as the survivor, all
pursuant to and in accordance with the EZ Transaction Documents.
"EZ Consent Solicitation": the Consent Solicitation Statement, dated
December 4, 1996, by the Borrower to the holders of the EZ Indenture Notes to
amend the covenants under the EZ Indenture to conform them in all material
respects or to make them compatible with the ARS Subordinated Indenture.
"EZ Indenture": the Indenture, dated as of November 21, 1995, among
EZ, the subsidiary guarantors party thereto and State Street Bank and Trust
Company, as trustee, pursuant to which EZ issued the EZ Indenture Notes, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with section 8.19.
"EZ Indenture Notes": the 9.75% senior subordinated notes due 2005 in
the aggregate principal amount of $150 million issued by EZ pursuant to the EZ
Indenture, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with section 8.19.
"EZ Indenture Subsidiary Guaranty": the guaranty or guaranties
executed and delivered by one or more of EZ's (and after the EZ Acquisition, the
Borrower's) subsidiaries in connection with the EZ Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
"EZ License Subsidiaries": EZ Charlotte, Inc., EZ Kansas City, Inc., EZ
Philadelphia, Inc., EZ Pittsburgh, Inc., EZ Sacramento, Inc. and EZ St. Louis,
Inc., each of which is wholly- owned by PBI and is incorporated in the
Commonwealth of Virginia.
"EZ License Subsidiary Management Agreements": as defined in section
8.21(m).
"EZ Transaction Documents": the Agreement and Plan of Merger, dated
as of August 5, 1996, between the Borrower and EZ, as amended and restated as of
September 27, 1996 among the Borrower, American Merger Corporation and EZ (as
amended and restated, the "American/EZ Merger Agreement"), together with the
American Registration Rights Agreement, the Stockholder
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Agreement, the American Voting Agreement and the EZ Voting Agreement, in each
case as referred to in the American/EZ Merger Agreement.
"FCC": the Federal Communications Commission, or any Governmental
Authority succeeding to the functions thereof.
"Federal Funds Rate": for any day, the rate per annum (rounded to the
nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next
higher 1/16 of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day, provided that (i) if
the day for which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds Rate
for such day shall be the average rate charged to the Administrative Agent on
such day on such transactions as determined by the Administrative Agent.
"Finance Costs": non-capitalized costs incurred by the Borrower in
connection with the issuance of equity or the incurrence of Indebtedness.
"Fixed Charges": the sum, without duplication, of (a) Debt Service,
(b) cash taxes paid (excluding (i) capital gains taxes paid in connection with
permitted dispositions of Property pursuant to section 8.7 and (ii) cash taxes
paid by the Borrower attributable to the Tower Subsidiaries to the extent
reimbursed in cash by the Tower Subsidiaries (but including cash paid to the
Tower Subsidiaries in lieu of taxes pursuant to the Tax Sharing Agreement)), (c)
capital expenditures (excluding permitted capital expenditures made with
insurance proceeds), and (d) Restricted Payments made in cash pursuant to and in
accordance with sections 8.4(b) and (e) (excluding Restricted Payments made with
funds received from the Tower Subsidiaries), in each case of the Borrower and
its Restricted Subsidiaries on a Consolidated basis, determined in accordance
with GAAP, for, as applicable, the immediately preceding four fiscal quarters
for which financial statements have been delivered pursuant to section 7.1, or,
in the event that the date of determination is a fiscal quarter ending date, the
fiscal quarter then ended and the immediately preceding three fiscal quarters.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statement by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination, consistently applied. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in this
Agreement, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent, and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
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"Governmental Authority": any nation or government, any state or other
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any court or arbitrator.
"Hazardous Discharge": as defined in section 11.11(b).
"Highest Lawful Rate": as to any Lender, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender on the Notes held thereby, or which
may be owing to such Lender pursuant to this Agreement and the other Loan
Documents under the laws applicable to such Lender and this transaction.
"Immediate Family Member": with respect to any individual, such
individual's spouse (past or current), descendants (natural or adoptive, of the
whole or half blood) of the parents of such individual, such individual's
grandparents and parents (natural or adoptive), and the grandparents, parents
and descendants of parents (natural or adoptive, of the whole or half blood) of
such individual's spouse (past or current).
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money or
the deferred purchase price of Property (other than trade payables incurred in
the ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale agreement or title retention agreement, (iv) indebtedness
arising under acceptance facilities and the amount available to be drawn under
all letters of credit issued for the account of such Person (except for letters
of credit issued in connection with the Red Sox Network Contract) and, without
du plication, all drafts drawn thereunder (including drafts drawn under the
letters of credit issued in connection with the Red Sox Network Contract) to the
extent such Person shall not have reimbursed the issuer in respect of the
issuer's payment of such drafts, (v) all liabilities secured by any Lien on any
Property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof (other than Liens permitted
under sections 8.2(i) through (iv) and carriers', warehousemen's, mechanics',
repairmen's or other like non-consensual Liens arising in the ordinary course of
business), (vi) obligations for principal payments under leases which have been,
or under GAAP are required to be, capitalized and (vii) all Contingent
Obligations.
"Indemnified Party": shall have the meaning set forth in section
11.11(a).
"Interest Expense": the sum of all (i) interest (adjusted to give
effect to all Interest Rate Protection Arrangements and fees and expenses paid
in connection with same, all as determined in accordance with GAAP) on Total
Debt and (ii) commitment and similar fees, in each case of the Borrower and its
Restricted Subsidiaries on a Consolidated basis, determined in accordance with
GAAP, for, as applicable, the immediately preceding four fiscal quarters for
which financial statements have been delivered pursuant to section 7.1, or, in
the event that the date of determination is a fiscal quarter ending date, the
fiscal quarter then ended and the immediately preceding three fiscal quarters.
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"Interest Payment Date": (i) as to any ABR Loan, the last day of each
March, June, September and December commencing on the first of such days to
occur after such ABR Loan is made, (ii) as to any Eurodollar Loan in respect of
which the Borrower has selected an Interest Period of one, two or three months,
the last day of such Interest Period and (iii) as to any Eurodollar Loan in
respect of which the Borrower has selected an Interest Period of six months, the
last day of such Interest Period and the corresponding day of the month which is
three months after the date of the commencement of such Interest Period, or, if
such day is not a Business Day or does not exist, on the immediately preceding
Business Day.
"Interest Period": the period commencing on any Business Day selected
by the Borrower in accordance with section 2.3 or 2.8 and ending one, two, three
or six months thereafter, as selected by the Borrower in accordance with such
section, subject to the following:
(a) if any Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall be extended to the
immediately succeeding Business Day unless the result of such extension would be
to carry the end of such Interest Period into another calendar month, in which
event such Interest Period shall end on the Business Day immediately preceding
such day; and
(b) if any Interest Period shall begin 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),
such Interest Period shall end on the last Business Day of a calendar month.
"Interest Rate Protection Arrangement": any interest rate swap, cap or
collar arrangement or any other derivative product customarily offered by banks
to their customers in order to manage the exposure of such customers to interest
rate fluctuations.
"Investments": as defined in section 8.5.
"Lending Office": in respect of any Lender, initially, the office or
offices of such Lender designated as such on Schedule 1.1(L) hereto; thereafter,
such other office or offices of such Lender, if any, which shall be making or
maintaining Loans.
"License Subsidiaries": collectively, (i) the ARS License Subsidiary,
(ii) the EZ License Subsidiaries and (iii) each other License Subsidiary which
the Borrower or any Restricted Subsidiary may acquire in accordance with section
8.3, each of which shall be a wholly-owned Restricted Subsidiary of the
Borrower.
"License Subsidiary Management Agreements": collectively, (i) the ARS
License Subsidiary Management Agreement, (ii) upon the consummation of the EZ
Acquisition, the EZ License Subsidiary Management Agreements and (iii) each
other management agreement entered into pursuant to section 8.3.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or other security agreement
or security interest of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention
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agreement and any financing lease having substantially the same economic effect
as any of the foregoing.
"Loans": the RC Loans.
"Loan Documents": collectively, this Agreement, the Notes, the
Collateral Documents and the License Subsidiary Management Agreements.
"Loan Party": the Borrower, each Subsidiary Guarantor and each other
party (other than the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders) that is a signatory to a Loan Document.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
operations, business, prospects, Property or condition (financial or otherwise),
except for the status of the matters as described under "Risk Factors-Factors
Relating to American and its Business--Antitrust Matters" in the 1997 Preferred
Stock Offering Circular (provided no material adverse change in such status
shall occur), of (a) the Borrower (excluding any interest of the Borrower in the
Tower Subsidiaries) or (b) the Borrower and its Restricted Subsidiaries on a
Consolidated basis, (ii) the ability of the Borrower or any other Loan Party to
perform its obligations under the Loan Documents to which it is a party or (iii)
the ability of the Administrative Agent, the Collateral Agent or any of the
Lenders to enforce any of the Loan Documents (other than as a result of facts or
circumstances pertaining to the Administrative Agent, the Collateral Agent or
such Lender which are not related to the Borrower or its Restricted
Subsidiaries).
"Material Adverse Effect": a material adverse effect on (i) the
operations, business, prospects, Property or conditions (financial or
otherwise), except for the status of the matters as described under "Risk
Factors-Factors Relating to American and its Business--Antitrust Matters" in the
1997 Preferred Stock Offering Circular (provided no material adverse change in
such status shall occur), of (a) the Borrower (excluding any interest of the
Borrower in the Tower Subsidiaries) or (b) the Borrower and its Restricted
Subsidiaries on a Consolidated basis, (ii) the ability of the Borrower or any
other Loan Party to perform its obligations under the Loan Documents to which it
is a party or (iii) the ability of the Administrative Agent, the Collateral
Agent or any of the Lenders to enforce any of the Loan Documents (other than as
a result of facts or circumstances pertaining to the Administrative Agent, the
Collateral Agent or such Lender which are not related to the Borrower or its
Restricted Subsidiaries).
"Maturity Date": December 31, 2004.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
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"Net Equity Proceeds": as defined in section 2.5(f).
"1996 Convertible Exchangeable Preferred Stock Issuance": the
issuance of convertible exchangeable preferred Stock of the Borrower having a
total liquidation value (including any such Stock sold pursuant to the
over-allotment option of the initial purchasers) equal to $137,500,000, as
described in the Confidential Offering Circular, dated June 19, 1996.
"1996 Exchange Subordinated Indenture": in the event that the
Borrower elects to exchange shares of the preferred Stock issued in connection
with the 1996 Preferred Stock Issuance for 1996 Exchange Subordinated Indenture
Notes, the indenture between the Borrower and the applicable trustee relating
thereto, such indenture to contain subordination terms with respect to the Loan
Documents at least as favorable to the Administrative Agent, the Collateral
Agent and the Lenders as those contained in the ARS Subordinated Indenture and
to be in form and substance reasonably satisfactory to the Administrative Agent,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with section 8.19.
"1996 Exchange Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the 1996 Exchange Subordinated Indenture, such subordinated
notes to be subordinated to the Loan Documents at least to the same extent as
the ARS Subordinated Indenture Notes and to be in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.19.
"1997 Exchange Subordinated Indenture": in the event that the
Borrower elects to exchange shares of the preferred Stock issued in connection
with the 1997 Preferred Stock Issuance for 1997 Exchange Subordinated Indenture
Notes, the indenture between the Borrower and the applicable trustee relating
thereto, such indenture to contain subordination terms with respect to the Loan
Documents at least as favorable to the Administrative Agent, the Collateral
Agent and the Lenders as those contained in the ARS Subordinated Indenture and
to be in form and substance reasonably satisfactory to the Administrative Agent,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with section 8.19.
"1997 Exchange Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the 1997 Exchange Subordinated Indenture, such subordinated
notes to be subordinated to the Loan Documents at least to the same extent as
the ARS Subordinated Indenture Notes and to be in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.19.
"1997 Preferred Stock Issuance": the issuance of exchangeable
preferred Stock (including any exchangeable preferred Stock issued in exchange
therefor) of the Borrower having a total liquidation value not to exceed
$200,000,000 (excluding any increase in total liquidation value resulting from
the Borrower's election to pay dividends in the form of additional shares of
such exchangeable preferred Stock), all as described in the 1997 Preferred Stock
Offering Circular.
"1997 Preferred Stock Offering Circular": the Confidential Preliminary
Offering Circular, dated January 2, 1997.
"Non-License Subsidiary Broadcasting Stations": all Broadcasting
Stations the FCC
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licenses for which are not held by a License Subsidiary, provided, however, that
the term "Non- License Subsidiary Broadcasting Stations" shall not include any
Broadcasting Station held for disposition by the Borrower or any Restricted
Subsidiary for which the Borrower has notified the Administrative Agent in
writing thereof, provided that such decision to hold for disposition is
reasonably satisfactory to the Administrative Agent.
"Non Redeemable Preferred Stock": preferred Stock issued by the
Borrower which is not, under any contingency, at any time prior to three years
after the Maturity Date (except upon the occurrence of a Change of Control),
subject to any mandatory dividend, redemption or similar requirement (except to
the extent permitted by the provisions of section 8.4) and which is not
convertible or exchangeable into any Indebtedness or Stock (other than common
Stock or other Non Redeemable Preferred Stock or, solely at the option of the
Borrower, exchangeable into Permitted Subordinated Debt).
"Notes": the RC Notes.
"Other Credit Agreement": the $350,000,000 Credit Agreement, dated as
of the date hereof, by and among the Borrower, The Bank of New York, as
collateral agent and administrative agent, The Chase Manhattan Bank and The
Toronto-Dominion Bank, as co-syndication agents, Bank of Montreal, Credit Suisse
First Boston, Fleet National Bank and Union Bank of California, N.A., as
managing agents, Barclays Bank PLC, as agent, Bank of America Illinois, The
Sanwa Bank, Limited and Van Kampen American Capital Prime Rate Income Trust, as
co-agents, and the lenders party thereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Other Credit Agreement Loans": the Loans under and as defined in the
Other Credit Agreement.
"Operating Cash Flow": at any time, with respect to any Person, for
any period: (i) broadcasting revenues (exclusive of reciprocal and barter
revenues) of such Person, determined in accordance with GAAP, for such period,
less (ii) the sum of, without duplication: (a) station operating expenses
(exclusive of depreciation, amortization and reciprocal and barter expenses
included therein), (b) the amount of any cash payments related to non-cash
expense items added pursuant to clause (iii) below and (c) corporate office,
general and administrative expenses (exclusive of Finance Costs, depreciation
and amortization included therein), plus (iii) non-cash or non-recurring expense
items of such Person for such period, in each case mutually agreed upon between
the Borrower and the Administrative Agent, to the extent deducted in accordance
with clause (ii) above. Operating Cash Flow shall be adjusted on a consistent
basis to reflect the acquisition, sale, exchange and disposition of Property
during such period. Operating Cash Flow will exclude all extraordinary gains and
losses and all gains and losses from acquisitions, sales, exchanges and dis
positions of assets.
"PBB": Palm Beach Radio Broadcasting, Inc., a Delaware corporation.
"PBB Appreciation Rights": the rights granted by PBB to the Borrower
pursuant to the PBB Note Purchase Agreements to share in all or part of the
increase in the value of PBB.
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"PBB Collateral Documents": the security agreements, by and between
PBB and the Borrower granting in favor of the Borrower a security interest in
substantially all assets of PBB and the pledge agreements, by and among each
shareholder of PBB and the Borrower pledging to the Borrower all issued and
outstanding Stock of PBB.
"PBB Documents": collectively, the PBB Stockholder Agreements, the PBB
Notes, the PBB Note Purchase Agreements and the PBB Collateral Documents.
"PBB Notes": the promissory notes issued by PBB to the Borrower,
including any accrued and unpaid interest which may have been paid in the form
of additional PBB Notes.
"PBB Note Purchase Agreements": the note purchase agreements between
PBB and the Borrower with respect to the PBB Appreciation Rights and the PBB
Notes.
"PBB Station Acquisitions": the acquisitions by PBB of the assets of
certain Broadcasting Stations pursuant to and in accordance with the PBB Note
Purchase Agreements.
"PBB Stockholder Agreements": the stockholder agreements, among PBB,
the Borrower and each of the shareholders of PBB.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"PBI": Professional Broadcasting Inc., a wholly-owned, direct
subsidiary of EZ and a Commonwealth of Virginia corporation.
"Permitted Liens": Liens permitted to exist pursuant to section 8.2.
"Permitted Subordinated Debt": unsecured subordinated Indebtedness of
the Borrower (which Indebtedness may be guaranteed on an unsecured subordinated
basis by one or more of the Restricted Subsidiaries), provided that such
Indebtedness (a) is issued on substantially the terms and conditions (or terms
more favorable to the Borrower, the Administrative Agent, the Collateral Agent
and the Lenders than those) set forth in the ARS Subordinated Indenture and is
in form and substance reasonably satisfactory to the Administrative Agent and
the Co-Syndication Agents, and (b) immediately before and after giving effect to
the incurrence of such subordinated Indebtedness, all representations and
warranties contained in the Loan Documents shall be true and correct and no
Default or Event of Default shall exist.
"Permitted Subordinated Indenture": in connection with any Permitted
Subordinated Debt, the indenture between the Borrower and the applicable trustee
relating thereto, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with section 8.19.
"Permitted Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the Permitted Subordinated Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
"Permitted Subordinated Indenture Subsidiary Guaranty": the
subordinated guaranty or
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guaranties, if any, executed and delivered by one or more of the Restricted
Subsidiaries in connection with the Permitted Subordinated Indenture, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with section 8.19.
"Permitted Transferee": with respect to any natural Person, the spouse,
parents, brothers, sisters and children (natural or adopted) of such Person and
the trustees of an inter vivos or testamentary trust for the benefit of such
Person or any member of the immediate family of such Person.
"Person": an individual, a partnership, a corporation, a business
trust, a joint stock company, a trust, an unincorporated association, a joint
venture, a limited liability company, a Governmental Authority or any other
entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of ERISA and
which is maintained by or to which contributions are made by the Borrower or a
Commonly Controlled Entity or in respect of which the Borrower or a Commonly
Controlled Entity has or may have any liability.
"Preliminary Order": with respect to the acquisition or merger of any
Broadcasting Station, the FCC order consenting to such acquisition or merger
which has not been reversed, stayed, enjoined, set aside, annulled or suspended
and with respect to which no request for administrative or judicial review,
reconsideration, appeal or stay has been filed.
"Prepayment Fraction": in respect of any mandatory prepayment of the
Loans pursuant to section 2.5(b), (d), (e), (f) or (g), a fraction the numerator
of which is the aggregate outstanding principal amount of the Loans and the
denominator of which is the sum of the aggregate outstanding principal amount of
the Loans and the aggregate outstanding principal amount of the Other Credit
Agreement Loans, in each case determined immediately prior to such mandatory
prepayment.
"Principal Shareholders": Steven B. Dodge and Thomas H. Stoner.
"Pro-Forma Debt Service": the sum of Pro-Forma Interest Expense and
the scheduled payments of principal (including scheduled mandatory reductions of
revolving credit and similar commitments) in respect of Total Debt required to
be made during the four fiscal quarters of the Borrower immediately succeeding
any determination thereof. For purposes of calculating Pro-Forma Debt Service,
the principal amount outstanding under any revolving or line of credit facility
on the date of any calculation of Pro-Forma Debt Service shall be assumed to be
outstanding during the entire applicable four fiscal quarter period, subject to
any mandatory scheduled payments of principal required to be made during such
period.
"Pro-Forma Interest Expense": the sum of all interest (adjusted to
give effect to all Interest Rate Protection Arrangements and fees and expenses
paid in connection with the same, all as determined in accordance with GAAP) in
respect of Total Debt for the four fiscal quarters of the Borrower immediately
succeeding any determination thereof. Where any item of interest varies or
depends upon a variable rate of interest (or other rate of interest which is not
fixed for such entire four fiscal quarters), such rate, for purposes of
calculating Pro-Forma Interest Expense, shall be as sumed to equal the Alternate
Base Rate plus the Applicable Margin in effect on the date of such calculation,
or, if such rate is a Eurodollar Rate, the applicable Eurodollar Rate plus the
Applicable Margin until the end of the applicable Interest Period and, for the
period after the end of such ap plicable Interest Period, the applicable
Eurodollar Rate plus the Applicable Margin in effect on the date of such
calculation (such applicable Eurodollar Rate being calculated with respect to a
Loan for a principal amount and for an Interest Period equal to the principal
amount and Interest Period of the Eurodollar Loan the Interest Period for which
has just ended). Also, for purposes of calculating Pro-Forma Interest Expense,
the principal amount outstanding under any revolving or line of credit facility
on the date of any calculation of Pro-Forma Debt Service shall be assumed to be
outstanding during the entire applicable four fiscal quarter period, subject to
any mandatory scheduled payments of principal required to be made during such
period.
"Property": all types of real, personal, tangible, intangible or mixed
property.
"Proposed Lender": as defined in Section 2.4(d).
"Ratio Certificate": a certificate substantially in the form of Exhibit
H.
"RC Commitment": as to any Lender, the amount set forth next to the
name of such Lender on Exhibit A under the heading "RC Commitment", as such RC
Commitment may be reduced from time to time pursuant to section 2.4.
"RC Commitments": the RC Commitments of all Lenders.
"RC Commitment Percentage": as to any Lender, the percentage set forth
opposite the name of such Lender on Exhibit A under the heading "RC Commitment
Percentage".
"RC Commitment Period": the period from the Effective Date until the RC
Commitment Termination Date.
"RC Commitment Termination Date": the earlier of the Business Day
immediately preceding the Maturity Date or such other date upon which the RC
Commitments shall have been terminated in accordance with section 2.4 or 9.1.
"RC Increase Supplement": as defined in Section 2.4(d).
"RC Loan" and "RC Loans": as defined in section 2.1(a).
"RC Note" and "RC Notes": as defined in section 2.2(a).
"Red Sox Network Contract": the agreement, dated as of July 29, 1993,
between the Borrower and Boston Red Sox Baseball Club, L.P. with respect to a
continuation of the rights of the Borrower to broadcast the Boston Red Sox
baseball games, as amended by Amendment No. 1, dated as of February 25, 1994,
and Amendment No. 2, dated as of May 18, 1995, and as the same may be further
amended, supplemented or otherwise modified from time to time.
"Reinvested Proceeds": net cash proceeds from the sale, exchange or
other disposition of
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all or substantially all of a Broadcasting Station, after giving effect to the
payment of cash taxes payable in connection with the same, which cash proceeds
are used to acquire one or more additional Broadcasting Stations through a
merger or acquisition in accordance with section 8.3 during the Reinvestment
Period.
"Reinvestment Period": the period which is nine months from the date
that proceeds from the sale, exchange or other disposition of all or
substantially all of a Broadcasting Station, permitted pursuant to section 8.7,
are received by the Borrower.
"Related Party": with respect to any Principal Shareholder means (i)
any 80% (or more) owned Subsidiary or Immediate Family Member (in the case of an
individual) of such Principal Shareholder or (ii) any Person, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal Shareholder or an
Immediate Family Member, or (iii) any Person employed by the Borrower in a
management capacity as of the Effective Date.
"Remaining Interest Period": (i) in the event that the Borrower shall
fail for any reason to borrow or convert Loans after it shall have notified the
Administrative Agent of its intent to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, a period equal to the Interest
Period that the Borrower elected in respect of such Eurodollar Loan; (ii) in the
event that a Eurodollar Loan shall terminate for any reason prior to the last
day of the Interest Period ap plicable thereto, a period equal to the period
from and including the date of such termination to but excluding the last day of
such Interest Period; and (iii) in the event that the Borrower shall prepay or
repay all or any part of the principal amount of a Eurodollar Loan prior to the
last day of the Interest Period applicable thereto, a period equal to the period
from and including the date of such prepayment or repayment to but excluding the
last day of such Interest Period.
"Reportable Event": any event described in Section 4043(b) of ERISA,
other than an event (excluding an event described in Section 4043(b)(1) relating
to tax disqualification) with respect to which the 30-day notice requirement has
been waived.
"Required Lenders": at any date of determination, Lenders having Credit
Exposure equal to or greater than 51% of the Total Credit Exposure.
"Restricted Payment": as defined in section 8.4.
"Restricted Subsidiaries": all Subsidiaries of the Borrower, other than
(i) the Tower Subsidiaries, (ii) American Merger Corporation (a shell
corporation with no assets) and (iii), following the EZ Acquisition, Radio Data,
Inc.
"Senior Debt": the aggregate Indebtedness of the Borrower and its
Restricted Subsidiaries (other than the Indebtedness evidenced by the ARS
Subordinated Indenture Notes, the ARS Subordinated Indenture Subsidiary
Guaranty, the 1996 Exchange Subordinated Indenture Notes, the 1997 Exchange
Subordinated Indenture Notes, the Permitted Subordinated Indenture Notes and the
Permitted Subordinated Indenture Subsidiary Guaranty) on a Consolidated basis,
determined in accordance with GAAP.
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"Senior Leverage Ratio": the ratio of Senior Debt to Consolidated
Annual Operating Cash Flow.
"Signatory Corporation": any corporation (other than the Administrative
Agent, the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the
Agent, the Co-Agents or the Lenders) which is a party to, or an Authorized
Signatory of, any Loan Document.
"Single Employer Plan": any Plan which is not a Multiemployer Plan.
"Solvent": with respect to any Person as of any date of
determination, on such date (i) the fair value of the assets of such Person
(both at fair valuation and at present fair saleable value) is, as of such date
of determination, greater than the total amount of liabilities, including,
without limi tation, contingent and unliquidated liabilities, of such Person,
(ii) such Person is able to pay all of its liabilities as they mature, and (iii)
such Person does not have unreasonably small capital with which to carry on its
business. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel to the
Administrative Agent and the Collateral Agent.
"Station Annual Cash Flow": at any time with respect to any
Broadcasting Station, Station Cash Flow of such Broadcasting Station for the
immediately preceding four fiscal quarters for which financial statements have
been delivered pursuant to section 7.1, or in the event that the date of
determination is a fiscal quarter ending date, the fiscal quarter then ended and
the immediately preceding three fiscal quarters.
"Station Cash Flow": at any time, with respect to any Broadcasting
Station, for any period: (i) broadcasting revenues (exclusive of reciprocal and
barter revenues) of such Broadcasting Station, determined in accordance with
GAAP, for such period, less (ii) station operating expenses (exclusive of
depreciation, amortization and reciprocal and barter expenses included therein)
of such Broadcasting Station for such period.
"Station Sale Measuring Period": for any date of determination, the
period commencing on the first day of the immediately preceding four fiscal
quarter period for which financial statements have been delivered pursuant to
section 7.1 (or, in the event that such date of determination is a fiscal
quarter ending date, the first day of the four fiscal quarter period ending on
such date of determination) through and including such date of determination.
"Stock": any and all shares, interests, participations, options,
warrants or other equivalents (however designated) of corporate stock,
including, without limitation, so called phantom stock.
"Stock Option Plan": the Amended and Restated 1993 Stock Option Plan of
Borrower, as the same may be amended, supplemented or otherwise modified from
time to time.
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"Subsidiary": any corporation, association, partnership, joint
venture or other business entity of which the Borrower and/or any Subsidiary of
the Borrower, directly or indirectly, either (i) in respect of a corporation,
owns or controls more than 50% of the outstanding Stock having ordinary voting
power to elect a majority of the board of directors or similar managing body,
irrespective of whether or not a class or classes shall or might have voting
power by reason of the happening of any contingency, or (ii) in respect of an
association, partnership, joint venture or other business entity, is entitled to
share in more than 50% of the profits and losses, however determined.
"Subsidiary Guaranty": the Subsidiary Guaranty and Security Agreement,
dated as of the date hereof, made by the Restricted Subsidiaries to the
Collateral Agent, substantially in the form attached hereto as Exhibit J, as the
same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary Guarantor": each Restricted Subsidiary.
"Taxes": any present or future income, stamp or other taxes, levies,
imposts, duties, fees, assessments, deductions, withholding, or other charges of
whatever nature, now or hereafter imposed, levied, collected, withheld, or
assessed by any jurisdiction, or by any department, agency, state or other
political subdivision thereof or therein.
"Tax Sharing Agreement": the Tax Sharing Agreement, dated as of October
15, 1996, among the Borrower and its Subsidiaries, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.13.
"Top 75 Markets": domestic markets ranked 1-75 by a nationally
recognized independent source as measured in terms of radio advertising revenue.
"Total Combined Credit Exposure": at any time, the sum, without
duplication, of the Combined Credit Exposures of all Lenders hereunder and all
Lenders (as defined in the Other Credit Agreement) at such time.
"Total Credit Exposure": at any time, the sum of the Credit Exposures
of all Lenders at such time.
"Total Debt": the aggregate Indebtedness of the Borrower and its
Restricted Subsidiaries on a Consolidated basis, determined in accordance with
GAAP.
"Total Leverage Ratio": the ratio of Total Debt to Consolidated Annual
Operating Cash Flow.
"Tower Subsidiaries": collectively, American Tower Systems Holding
Corporation, a Delaware corporation, and its subsidiaries.
1.2 Principles of Construction.
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(a) All terms defined in this Agreement shall have the
meanings given such terms herein when used in the Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto,
unless otherwise defined therein.
(b) Unless otherwise specified herein, as used in the Loan
Documents and in any certificate, opinion or other document made or delivered
pursuant hereto or thereto, all accounting terms used herein shall be
interpreted, and all accounting determinations hereunder shall be made, in
accordance with GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder"
and similar words when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
paragraph, schedule and exhibit references contained herein shall refer to
sections or paragraphs hereof or schedules or exhibits hereto unless otherwise
expressly provided herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive; and the singular includes the plural.
(e) Unless otherwise specifically set forth herein, all
references to time shall refer to New York City time.
2. AMOUNT AND TERMS OF LOANS.
2.1 Loans.
(a) RC Loans. Subject to the terms and conditions hereof,
each Lender having an RC Commitment agrees to make loans (each an "RC Loan" and,
collectively with the other RC Loans of such Lender and/or with the RC Loans of
each other Lender, the "RC Loans") to the Borrower from time to time during the
RC Commitment Period. At all times during the RC Commitment Period, the Borrower
may borrow, prepay and reborrow RC Loans in accordance with the provisions
hereof, provided that the aggregate unpaid principal amount of all RC Loans at
any one time outstanding during the RC Commitment Period shall not exceed the RC
Commitments then in effect of all the Lenders, and provided further that the
aggregate unpaid principal amount of each Lender's RC Loans at any one time
outstanding during the RC Commitment Period shall not exceed such Lender's RC
Commitment. The principal amount of each Lender's RC Loan made on a Borrowing
Date shall be an amount equal to its RC Commitment Percentage of all RC Loans
made on such date. Subject to the provisions of sections 2.3, 2.8 and 2.15, RC
Loans may be (i) ABR Loans, (ii) Eurodollar Loans or (iii) any combination
thereof.
2.2 Notes.
(a) RC Notes. The RC Loans of each Lender shall be evidenced
by a promissory note in the form of Exhibit B (each as indorsed or modified from
time to time, including all replacements thereof and substitutions therefor, an
"RC Note" and, collectively with the RC Note of each other Lender, the "RC
Notes"), dated the Effective Date, payable to the order of such
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Lender, in the maximum stated principal amount equal to such Lender's RC
Commitment. Each RC Note shall (i) be dated the Effective Date, (ii) be stated
to mature on the Maturity Date and (iii) bear interest on the unpaid principal
amount thereof at the applicable interest rate or rates per annum determined as
provided in section 2.6, payable as specified in section 2.6. Each Lender is
hereby irrevocably authorized by the Borrower to enter on the schedule attached
to its RC Note and/or in its internal books and records the amount of each RC
Loan made by it thereunder, each payment thereon, and the other information
provided for on such schedule, and such schedule and books and records shall be
presumptively correct absent manifest error as to the amount of such Lender's RC
Loans and as to the amount of principal and interest paid by the Borrower in
respect of such RC Loans and as to the other information set forth on such
schedule or books and records relating to the RC Loans, provided, however, that
the failure to make any such entry (or any error therein) with respect to any RC
Loan shall not limit or otherwise affect the obligations of the Borrower
hereunder or under such RC Note. Each Lender may attach one or more
continuations to such schedule as and when required. In all events, the
principal amount owing by the Borrower to each Lender in respect of such
Lender's RC Note shall be the aggregate amount of all RC Loans made by such
Lender thereunder less all payments of principal thereon made by the Borrower.
2.3 Procedure for Borrowing Loans.
(a) The Borrower may borrow RC Loans on any Business Day
occurring during the RC Commitment Period, provided that, with respect to any
requested borrowing, the Borrower shall notify the Administrative Agent (by
telephone or telecopy) no later than 11:00 A.M., three Business Days prior to
the requested Borrowing Date, in the case of Eurodollar Loans, and no later than
11:00 A.M., one Business Day prior to the requested Borrowing Date, in the case
of ABR Loans (the same Business Day in the case of ABR Loans on the first
Borrowing Date), specifying (i) the aggregate amounts to be borrowed under the
RC Commitments, (ii) the requested Borrowing Date, (iii) whether the borrowing
is to be a Eurodollar Loan, an ABR Loan, or a combination thereof, and (iv) if
the borrowing is to be a Eurodollar Loan, the length of the initial Interest
Period for such Eurodollar Loan. Each such notice shall be irrevocable and
confirmed immediately by delivery to the Administrative Agent of a Borrowing
Request. Each borrowing of RC Loans, con sisting of ABR Loans shall be in an
aggregate principal amount equal to $1,000,000 or such amount plus an integral
multiple of $500,000 in excess thereof or, if less, the unused amount of the RC
Commitments. Each borrowing of RC Loans, as the case may be, consisting of
Eurodollar Loans shall be in a minimum aggregate principal amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof. Upon receipt
of each notice of borrowing from the Borrower, the Administrative Agent shall
promptly notify each Lender (by telephone or otherwise, such notice to be
confirmed by telecopy or other writing) of the requested borrowing. Subject to
its receipt of the notice referred to in the preceding sentence and to the other
terms and conditions of this Agreement, each Lender will make the amount of its
applicable RC Commitment Percentage, of each borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent set forth in section 11.2 not later than 12:00 Noon, on the
Borrowing Date requested by the Borrower, in funds immediately available to the
Administrative Agent at such of fice. The amounts so made available to the
Administrative Agent on a Borrowing Date will then, subject to the satisfaction
of the terms and conditions of this Agreement as determined by the
Administrative Agent, be made available on such date to the Borrower by the
Administrative Agent,
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in immediately available funds, at the office of the Administrative Agent
specified in section 11.2 by crediting the account of the Borrower on the books
of such office with the aggregate of said amounts received by the Administrative
Agent.
(b) Unless the Administrative Agent shall have received
prior notice from a Lender (by telephone or otherwise, such notice to be
confirmed by telecopy or other writing) that such Lender will not make available
to the Administrative Agent such Lender's pro rata share of the Loans requested
by the Borrower, the Administrative Agent may assume that such Lender has made
such share available to the Administrative Agent on such Borrowing Date in
accordance with this section 2.3 provided that such Lender received notice of
the proposed borrowing from the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such Borrowing Date a corresponding amount. If and to the extent such Lender
shall not have so made such pro rata share available to the Administrative
Agent, such Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount (to the extent not
previously paid by the other), together with interest thereon for each day from
the date such amount is made available to the Borrower until the date such
amount is paid to the Administrative Agent, at a rate per annum equal to, in the
case of the Bor rower, the applicable interest rate set forth in section 2.6,
and, in the case of such Lender, the Federal Funds Rate in effect on such date
(as determined by the Administrative Agent). Such pay ment by the Borrower,
however, shall be without prejudice to its rights against such Lender. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Loan as part of such Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by such
Lender on the Borrowing Date applicable to such Loans.
2.4 Termination or Reduction of RC Commitments; Increases of RC
Commitments.
(a) Voluntary Reductions. The Borrower shall have the right,
upon at least three Business Days' prior irrevocable written notice to the
Administrative Agent, to reduce permanently the RC Commitments in whole at any
time, or in part from time to time, without premium or pen alty, to an amount
not less than the sum of the aggregate outstanding principal balance of the RC
Loans, after giving effect to any contemporaneous prepayment thereof, provided
that each partial reduction of such RC Commitments shall be in a minimum amount
of $5,000,000 or such amount plus a whole multiple thereof or, if less, the
aggregate amount of the RC Commitments then in effect.
(b) Mandatory Reductions of Commitments.
(i) On each date that a prepayment is made pursuant to
section 2.5(b), (d), (e), (f) or (g), the RC Commitments shall be automatically
and permanently reduced in an amount equal to the amount of the required
prepayment.
(ii) The RC Commitments shall be reduced to the amounts set
forth next to each date set forth below:
Dates RC Commitments
June 30, 1999 $534,750,000
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December 31, 1999 519,500,000
June 30, 2000 489,000,000
December 31, 2000 458,500,000
June 30, 2001 412,750,000
December 31, 2001 367,000,000
June 30, 2002 314,000,000
December 31, 2002 261,000,000
June 30, 2003 199,750,000
December 31, 2003 138,500,000
June 30, 2004 69,250,000
December 31, 2004 0
(c) Application of Reductions.
(i) Each reduction of the RC Commitments made pursuant to
this section 2.4 shall effect a corresponding reduction of each Lender's
applicable RC Commitment by an amount equal to such Lender's applicable RC
Commitment Percentage of such
reduction.
(ii) Reductions of the RC Commitments made pursuant to
section 2.4(a) or 2.4(b)(i) shall be applied on a pro rata basis among the
remaining RC Commitment reductions set forth in section 2.4(b)(ii).
(iii) Simultaneously with each reduction of the RC
Commitments under this sec tion 2.4, the Borrower shall pay the applicable
Commitment Fee accrued on the amount by which such RC Commitments have been
reduced.
(d) Increases of RC Commitments. The Borrower may at any time
or from time to time prior to June 30, 1999, at its sole cost and expense,
request (i) any Lender to increase (such decision to increase to be within the
sole and absolute discretion of such Lender) its RC Commitment, or (ii) any
other bank, insurance company, pension fund, mutual fund or other financial
institution (each a "Proposed Lender"; each such Proposed Lender to be
reasonably satisfactory to the Administrative Agent) to provide a new RC
Commitment, by submitting a supplement to this Agreement in the form of Exhibit
L (each an "RC Increase Supplement"), duly executed by the Borrower and each
such Lender or Proposed Lender, as the case may be. If such RC Increase
Supplement is in all respects reasonably satisfactory to the Administrative
Agent, the Administrative Agent shall execute such RC Increase Supplement and
deliver a copy thereof to the Borrower and each such Lender or Proposed Lender,
as the case may be. Upon execution and delivery of such RC Increase Supplement,
(i) in the case of each such Lender, the amount of such Lender's RC Commitment
shall be increased to the amount set forth in such RC Increase Supplement, (ii)
in the case of each such Proposed Lender, such Proposed Lender shall become a
party hereto and shall for all purposes of this Agreement and the other Loan
Documents be deemed a "Lender" with an RC Commitment in the amount set forth in
such RC Increase Supplement, (iii) in each case, the RC Commitments and the RC
Commitment Percentages set forth in Exhibit A shall be adjusted accordingly by
the Administrative Agent and a new Exhibit A shall be distributed by the
Administrative Agent to the Borrower and each Lender and (iv) the Borrower shall
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have executed and delivered to the Administrative Agent a new RC Note for each
such Lender increasing its RC Commitment (against receipt of such Lender's
existing RC Note) and for each Proposed Lender providing a new RC Commitment;
provided, however, that:
(A) immediately after giving effect thereto, the aggregate
RC Commitments shall not exceed $750,000,000;
(B) immediately before and after giving effect thereto no
Default or Event of Default shall exist;
(C) each increase shall be in an amount not less than
$25,000,000 or such amount plus an integral multiple of $5,000,000;
(D) if RC Loans shall be outstanding immediately after
giving effect to such increase, such Lender or such Proposed Lender, as the case
may be, shall enter into a master assignment and acceptance agreement with the
other Lenders having RC Loans in all respects reasonably satisfactory to such
other Lenders, pursuant to which each such other Lender shall assign to it a
portion of its RC Loans necessary to reflect the RC Commitments as adjusted in
accordance with clause (iii) of this subsection (d), and in connection with such
master assignment each such other Lender may treat the assignment of Eurodollar
Loans as a prepayment of such Eurodollar Loans for purposes of section 2.9 and
the Administrative Agent waives the Assignment Fee payable pursuant to section
11.7(b);
(E) each Proposed Lender shall have delivered to the
Administrative Agent and the Borrower all forms, if any, that are required to be
delivered by such Proposed Lender pursuant to section 2.13(b); and
(F) the Administrative Agent shall have received such
certificates, legal opinions and other documents as it shall reasonably request
in connection with such increase.
2.5 Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the RC Loans, in whole or in part, without premium or penalty, at any
time and from time to time, by notifying the Administrative Agent at least three
Business Days' prior to the proposed prepayment date with respect to Eurodollar
Loans, and at least two Business Days prior to the proposed prepayment date with
respect to ABR Loans. Each such notice shall be in writing and shall specify the
Loans to be prepaid (whether Eurodollar Loans or ABR Loans), the amount to be
prepaid, and the date of prepayment. Upon receipt by the Administrative Agent of
any such notice, the Administrative Agent shall promptly notify each Lender
thereof. If any such notice of the Borrower is given pursuant to this section
2.5, such notice shall be irrevocable and the payment amount specified in such
notice shall be due and payable on the date specified, together with accrued
interest to the date of such payment on the amount prepaid. Partial prepayments
of ABR Loans shall be in an aggregate principal amount of $500,000 or an
integral multiple thereof and partial prepayments of Eurodollar Loans shall be
in an aggregate principal amount of $1,000,000 or an integral multiple thereof,
or, if less, the outstanding principal balance of the RC Loans.
(b) Mandatory Prepayments Relating to Excess Cash Flow. On
the earlier of (i) the
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date the annual financial statements in respect of each fiscal year (commencing
with the fiscal year ending December 31, 1998), are delivered to the
Administrative Agent pursuant to section 7.1(a) or (ii) the 90th day following
the end of each such fiscal year (commencing with the fiscal year ending
December 31, 1998), the Borrower shall make a prepayment of the Loans in an
aggregate amount equal to the Prepayment Fraction multiplied by 50% of Excess
Cash Flow with respect to such fiscal year, provided that no such prepayment in
respect of such fiscal year shall be required if (x) the Total Leverage Ratio as
at the end of such fiscal year is less than 5.00:1.00 and (y) no Default or
Event of Default shall exist.
(c) Mandatory Prepayments of Loans. The Borrower shall
immediately prepay the RC Loans at any time at which the aggregate outstanding
principal amount of the outstanding RC Loans exceeds the aggregate RC
Commitments of all Lenders in an amount equal to the amount of such excess.
(d) Mandatory Prepayments Relating to Proceeds of Insurance.
The Borrower shall prepay the Loans in the aggregate amounts and at the times
and to the extent required by section 7.5.
(e) Mandatory Prepayments Relating to Proceeds of Broadcasting
Station Sales and Sales and Leasebacks of Property. The Borrower shall prepay
the Loans in an aggregate amount equal to the Prepayment Fraction multiplied by
the difference between (i) 100% of the proceeds of the sale, exchange or other
disposition of (A) all or substantially all of any Broadcasting Station of the
Borrower or any of its Restricted Subsidiaries (other than any Broadcasting
Station listed on Schedule 8.7), or (B) any Property pursuant to section 8.7(c),
(net of (1) sales and other commissions and legal and other ex penses incurred,
(2) cash taxes payable (or which would have been payable but for the existence
of the Tax Sharing Agreement with respect solely to the Tower Subsidiaries), and
(3) Indebtedness permitted under sections 8.1(ii) and (iv) which is required to
be repaid and is repaid) in excess of $25,000,000 (measured with respect to each
transaction involving one or more such sales, exchanges or other disposi tions),
and (ii) the amount of Reinvested Proceeds in connection with such sale,
exchange or other disposition which have been used prior to the date prepayment
is required to be made to acquire one or more additional Broadcasting Stations
through a merger or acquisition in accordance with section 8.3. Such prepayment
shall be made on the earlier of (x) the last day of the Reinvestment Period with
re spect to such sale, exchange or other disposition, or (y) the occurrence of a
Default or Event of Default.
(f) Mandatory Prepayments Relating to Issuances of Equity. The
Borrower shall prepay the Loans immediately upon receipt by the Borrower of the
aggregate proceeds of any issuance by the Borrower of equity (net of sales and
other commissions and legal and other related expenses incurred in connection
with such issuance) (the "Net Equity Proceeds") to the extent such Net Equity
Proceeds exceed $100,000,000 on a cumulative basis measured from the Effective
Date (excluding the issuance of equity under and in accordance with the Stock
Option Plan and the 1997 Preferred Stock Issuance and the issuance of equity to
the extent the proceeds are used as provided in the last paragraph of this
section 2.5(f)), in an amount equal to:
(i) if the Total Leverage Ratio is greater than 6.50:1.00,
the lesser of (x) the Prepayment Fraction multiplied by 100% of the Net Equity
Proceeds and (y) if no Default or Event
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of Default shall then exist, the amount of the Net Equity Proceeds which when
applied to the prepayment of Senior Debt will result in the Total Leverage Ratio
being equal to 6.50:1.00;
(ii) if the Total Leverage Ratio is greater than 5.00:1.00
but less than or equal to 6.50:1.00 (whether before or after giving effect to
clause (i) above), the lesser of (x) the Prepayment Fraction multiplied by 50%
of the Net Equity Proceeds (excluding the amount of Net Equity Proceeds prepaid
pursuant to clause (i) above) if no Default or Event of Default shall then exist
and (y) if no Default or Event of Default shall then exist, the amount of the
Net Equity Proceeds which when applied to the prepayment of Senior Debt will
result in the Total Leverage Ratio not exceeding 5.00:1.00; and
(iii) if a Default or Event of Default shall then exist, the
Prepayment Fraction multiplied by 100% of the Net Equity Proceeds.
Notwithstanding the foregoing, provided that no Default or Event of Default
shall exist immediately before or after giving effect thereto, if such equity
issuance is, among other things, for the express purpose of financing the
acquisition of the stock or assets of a specified Broadcasting Station pursuant
to section 8.3, Net Equity Proceeds shall not be required to be applied to
prepay the Loans to the extent the proceeds from such equity issuance are used
for such purchase.
(g) Mandatory Prepayments Relating to Dividends. The Borrower
shall prepay the Loans in the amounts and at the times and to the extent
required by section 8.4(b).
(h) In General. If any prepayment is made under this section
2.5 with respect to any Eurodollar Loans, in whole or in part, prior to the last
day of the applicable Interest Period, the Borrower agrees to indemnify the
Lenders in accordance with section 2.9. After giving effect to any partial
prepayment with respect to Eurodollar Loans which were made (whether as the
result of a borrowing or a conversion) on the same date and which had the same
Interest Period, the outstanding principal amount of such Eurodollar Loans shall
not be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. The Borrower may designate which Loans (ABR Loans or Eurodollar Loans)
are to be prepaid in connection with any prepayment made under this section 2.5.
2.6 Interest Rate and Payment Dates; Highest Lawful Rate.
(a) Prior to Maturity. Prior to maturity, the outstanding
principal amount of the Loans shall bear interest on the unpaid principal amount
thereof at the Alternate Base Rate or the Eurodollar Rate, as applicable, plus
the Applicable Margin.
(b) Default Rate. During the continuance of any Event of
Default, the outstanding principal amount of all Loans hereunder shall bear
interest, notwithstanding the rate which would otherwise be applicable pursuant
to section 2.6(a) above, at a rate of interest per annum equal to 2% above such
otherwise applicable rate.
(c) Late Payment Rate. Any payment of interest on any Note or
any payment of any Commitment Fee or other fee or payment payable by the
Borrower under any Loan Document and not paid on the date when due and payable
shall bear interest, to the extent permitted by law, at the Alternate Base Rate
plus the Applicable Margin for ABR Loans plus 2% per annum from the due date
thereof until the date such payment is made.
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(d) General. Interest on ABR Loans, to the extent based on the
BNY Rate, shall be calculated on the basis of a 365 or 366 day year (as the case
may be), and interest on all Eurodollar Loans and ABR Loans, to the extent based
on the Federal Funds Rate, shall be calculated on the basis of a 360 day year,
in each case for the actual number of days elapsed. Interest shall be payable in
arrears on each Interest Payment Date and upon payment (including prepayment) of
the Loans, except that interest payable pursuant to sections 2.6(b) and 2.6(c)
shall be payable on demand. Any change in the interest rate on a Loan resulting
from a change in the Alternate Base Rate shall become effective as of the
opening of business on the day on which such change in the Alternate Base Rate
shall become effective. The Administrative Agent shall, as soon as practicable,
notify the Borrower and the Lenders of the effective date and the amount of each
such change in the Alternate Base Rate, but failure to so notify shall not in
any manner affect the obligation of the Borrower to pay interest on the Loans in
the amounts and on the dates required. Each determination of the Alternate Base
Rate or Eurodollar Rate by the Administrative Agent pursuant to this Agreement
shall be conclusive and binding on the Bor rower and the Lenders absent manifest
error.
(e) Highest Lawful Rate. At no time shall the interest rate
payable on the Loans of any Lender, together with the Commitment Fees and all
other fees and other amounts payable hereunder, to the extent the same are
construed to constitute interest, exceed the Highest Lawful Rate applicable to
such Lender. If interest payable to a Lender on any date would exceed the
maximum amount permit ted by the Highest Lawful Rate, such interest payment
shall automatically be reduced to such maximum permitted amount, and interest
for any subsequent period, to the extent less than the maximum amount permitted
for such period by the Highest Lawful Rate, shall be increased by the unpaid
amount of such reduction. Any interest actually received for any period in
excess of such maximum allowable amount for such period shall be deemed to have
been applied as a prepayment of such Lender's Loans. The Borrower acknowledges
that to the extent interest payable on ABR Loans is based on the BNY Rate, such
BNY Rate is only one of the bases for computing interest on loans made by the
Lenders, and by basing interest payable on ABR Loans on the BNY Rate, the
Lenders have not committed to charge, and the Borrower has not in any way
bargained for, interest based on a lower or the lowest rate at which the Lenders
may now or in the future make loans to other borrowers.
2.7 Use of Proceeds.
(a) The proceeds of the Loans made hereunder (together with
the proceeds of the RC/TL Loans (as defined in the Other Credit Agreement) shall
be used first to repay in full all obligations under the Existing Credit
Agreement and, thereafter, (i) to repay in full the Existing EZ Indebtedness,
(ii) to finance the EZ Acquisition, (iii) to finance acquisitions of
Broadcasting Stations permitted hereunder, including transaction expenses in
connection therewith, (iv) to make capital expenditures permitted hereunder, (v)
to make investments in the Tower Subsidiaries permitted hereunder, (vi) for
working capital purposes and (vii) for general corporate purposes.
(b) Notwithstanding anything to the contrary contained in any
Loan Document, the Borrower agrees that no part of the proceeds of any Loan have
been or will be used, directly or indi rectly, for a purpose which violates any
law, rule or regulation of any Governmental Authority,
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including without limitation the provisions of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System, as amended.
2.8 Conversions; Other Matters.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to ABR Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election, specifying the amount
to be so converted, provided, that any such conversion shall only be made on the
last day of the Interest Period applicable thereto. In addition, the Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans or to
convert Eurodollar Loans to new Eurodol lar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election,
specifying the amount to be so converted and the initial Interest Period
relating thereto, provided that any such conversion of ABR Loans to Eurodollar
Loans shall only be made on a Business Day and any such conversion of Eurodollar
Loans to new Eurodollar Loans shall only be made on the last day of the Interest
Period applicable to the Eurodollar Loans which are to be converted to such new
Eurodollar Loans. The Administrative Agent shall promptly provide the Lenders
with notice of any such election. Loans may be converted pursuant to this
section 2.8(a) in whole or in part, provided that conversions of ABR Loans to
Eurodollar Loans, or Eurodollar Loans to new Eurodollar Loans having the same
Interest Period, shall be in an aggregate principal amount of $5,000,000 or such
amount plus a whole multiple of $1,000,000.
(b) Notwithstanding anything in this Agreement to the
contrary, upon the occurrence and during the continuance of a Default or Event
of Default, the Borrower shall have no right to elect to convert any ABR Loan to
a Eurodollar Loan or to convert any Eurodollar Loan to a new Eurodollar Loan. In
such event, such ABR Loan shall be automatically continued as an ABR Loan or
such Eurodollar Loan shall be automatically converted to an ABR Loan on the last
day of the Interest Period applicable to such Eurodollar Loan. If a Default or
an Event of Default shall have occurred and be continuing, the Administrative
Agent shall, at the request of the Required Lenders, notify the Borrower (by
telephone or otherwise) that all, or such lesser amount as the Administrative
Agent and the Required Lenders shall designate, of the outstanding Eurodollar
Loans, if any, shall be automatically converted to ABR Loans, in which event
such Eurodollar Loans of each Lender, at the option of such Lender, shall be
automatically converted to ABR Loans on the date such notice is given.
(c) Each such conversion shall be effected by each Lender by
applying the proceeds of the new ABR Loan or Eurodollar Loan, as the case may
be, to the Loan (or portion thereof) being converted (it being understood that
such conversion shall not constitute a borrowing for purposes of sections 4 or
5).
(d) Notwithstanding any other provision of this Agreement:
(i) If the Borrower shall have failed to elect a
Eurodollar Loan under sections 2.3 or 2.8, as the case may be, in
connection with any borrowing of new Loans or expiration of an Interest
Period with respect to any existing Eurodollar Loan, the amount of the
Loans subject to such borrowing or such existing Eurodollar Loan shall
thereafter be an ABR Loan until such time, if any, as the Borrower
shall elect a new Eurodollar Loan pursuant to section 2.8,
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(ii) The Borrower shall not be permitted to select
any Eurodollar Loan the Interest Period in respect of which ends later
than the Maturity Date,
(iii) When electing a Eurodollar Loan, the Borrower
shall select an Interest Peri od such that, on each date that a
mandatory principal payment is required to be made pursuant to section
2.5(c) in connection with a RC Commitment reduction pursuant to section
2.4(b), the outstanding principal amount of all Loans which are ABR
Loans, when added to the aggregate principal amount of all Loans which
are Eurodollar Loans the Interest Period in respect of which shall end
on such date, shall equal or exceed the aggregate principal amount of
the Loans required to be paid on such date, and
(iv) The Borrower shall not be permitted to have more
than twelve Interest Periods with respect to outstanding Eurodollar
Loans (when added to the number of Interest Periods with respect to
outstanding Eurodollar Loans, in each case under and as defined in the
Other Credit Agreement) at any one time.
2.9 Indemnification for Loss.
Subject to section 2.17 and notwithstanding anything contained
herein to the contrary, if the Borrower shall fail to borrow or convert a Loan
after it shall have given notice to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, as the case may be, or if a
Eurodollar Loan shall be terminated for any reason prior to the last day of the
Inter est Period applicable thereto, or if any repayment or prepayment of the
principal amount of a Euro dollar Loan is made for any reason on a date which is
prior to the last day of the Interest Period ap plicable thereto, the Borrower
agrees to indemnify each Lender against, and to pay on demand directly to such
Lender, any loss or expense suffered by such Lender as a result of such failure
to borrow or convert, or such termination, repayment or prepayment, including
without limitation, an amount equal to:
A x (B-C) x D
360
in which:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Loan;
"C" equals the Eurodollar Rate (expressed as a decimal) which would be
applicable to a Eurodollar Loan made on or about the date of such failure to
borrow or convert, or such termination, repayment or prepayment, in an amount
equal approximately to such Lender's pro rata share of the Affected Principal
Amount and having an Interest Period equal approximately to the Remaining
Interest Period with respect thereto; and
"D" equals the number of days during such Remaining Interest Period;
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and any other out-of-pocket loss, cost or expense (including any internal
processing charge cus tomarily charged by such Lender) suffered by such Lender
in liquidating or employing deposits acquired to fund or maintain the funding of
the Affected Principal Amount, or redeploying funds prepaid or repaid, in
amounts which correspond to such Lender's pro rata share of such proposed
borrowing, conversion, terminated Eurodollar Loan, prepayment or repayment.
2.10 Reimbursement for Costs.
The Borrower hereby agrees to reimburse each Lender on demand
for such Lender's reasonable costs (excluding general administrative and
overhead costs) directly attributable to its compliance with this Agreement
during the term hereof with all applicable future laws, executive orders, and
regulations of the governments of the United States and the United Kingdom, and
of any other applicable government, and of any regulatory or administrative
agency thereof (including, without limitation, the reserve requirements
established by the Board of Governors of the Federal Reserve System under
Regulation D), or any change in existing or future applicable laws, executive
orders and regulations and in the interpretations thereof which impose, modify
or deem applicable any reserve, asset, special deposit or special assessment
requirements on deposits obtained in the interbank eurodollar market, or which
subject any Lender to any tax (documentary, stamp or other wise) with respect to
this Agreement or any Note, or change the basis of taxation of payments to any
Lender, of principal, interest or fees payable under this Agreement or any Note
(except for any tax, or changes in the rate of tax, on each Lender's income or
receipts (including franchise taxes on or based upon such income or receipts)
imposed by the United States or any other jurisdiction). Each such Lender agrees
to provide the Borrower with notice of any law, executive order or regulation,
or change in the interpretation thereof, which would require the Borrower to
indemnify such Lender under this section 2.10 promptly upon such Lender
obtaining actual knowledge thereof and determining that it intends to require
the Borrower to reimburse it pursuant to this section 2.10 for any costs
resulting therefrom. The cost to each Lender in complying with laws, executive
orders or regulations which impose, modify or deem applicable any reserve,
asset, special deposit or special assessment requirements on deposits obtained
in the market for eurocurrency loans shall be computed by determining the amount
by which such requirements effectively increase such Lender's cost of making and
maintaining its Eurodollar Loans and by computing the additional amount which
would have been owing to such Lender hereunder if such effective increase had
been added to the Eurodollar Rate for purposes of determining the applicable
Eurodollar Rate during the period or applicable portion thereof in question.
Each Lender may make multiple requests for compensation under this section 2.10.
2.11 Illegality of Funding.
Subject to section 2.17 and notwithstanding anything contained
herein to the contrary, if any law, regulation, treaty or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for any Lender to make or maintain any Eurodollar Loan as contemplated
by this Agreement, (i) the commitment of such Lender to make Eurodollar Loans or
convert ABR Loans to Eurodollar Loans, as the case may be, shall forthwith be
suspended and (ii) such Lender's Loans then outstanding as Eurodollar Loans
affected thereby, if any, shall be converted automatically to ABR Loans on the
last day of the then current Interest Period applicable thereto or at such
earlier time as may be required. If the commitment of any Lender with respect to
Eurodollar Loans is suspended pursuant to this section 2.11 and such Lender
shall notify the
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Administrative Agent and the Borrower that it is once again legal for such
Lender to make or maintain Eurodollar Loans, such Lender's commitment to make or
maintain Eurodollar Loans shall be reinstated.
2.12 Option to Fund.
Each Lender has indicated that, if the Borrower requests a
Eurodollar Loan, such Lender may wish to purchase one or more deposits in order
to fund or maintain its funding of its pro rata share of such Loan during the
Interest Period with respect thereto; it being understood that the provisions of
this Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid on such Loan and any amounts owing
under sections 2.9, 2.10, 2.11 and 2.15. Each Lender shall be entitled to fund
and maintain its funding of all or any part of its Eurodollar Loans in any
manner it sees fit, but all such determinations hereunder shall be made as if
each Lender had actually funded and maintained its Eurodollar Loans during the
applicable Interest Period through the purchase of deposits in an amount equal
to its pro rata share of the Eurodollar Loans having a maturity corresponding to
such Interest Period. Any Lender may fund its pro rata share of the Eurodollar
Loans from any branch or office of such Lender as such Lender may choose from
time to time, subject to section 2.17.
2.13 Taxes; Net Payments.
(a) All payments made by the Loan Parties under the Loan
Documents shall be made free and clear of, and without reduction for or on
account of, any Taxes required by law to be withheld from any amounts payable
under the Loan Documents. In the event that any Loan Party is prohibited by law
from making payments hereunder free of deductions or withholdings, then it shall
pay such additional amounts to the Administrative Agent, for the benefit of the
Lenders, as may be necessary in order that the actual amounts received by each
Lender in respect of interest and any other amounts payable under the Loan
Documents after deduction or withholding (and after payment of any additional
Taxes or other charges due as a consequence of the payment of such additional
amounts) shall equal the amount that would have been received if such deduction
or withholding were not required. If any Loan Party shall make any payments
under this section 2.13(a) or shall make any deductions or withholdings from
amounts paid under the Loan Documents, it shall forth with forward to the
Administrative Agent original or certified copies of official receipts or other
evidence acceptable to the Administrative Agent establishing such payment and
the Administrative Agent in turn shall distribute copies of such receipts to
each Lender.
(b) Each Lender shall deliver to the Borrower and the
Administrative Agent such certificates, documents, or other evidence as the
Borrower or the Administrative Agent may reasonably require from time to time as
are necessary to establish that such Lender is not subject to withholding under
Section 1441, 1442 or 3406 of the Code or as may be necessary to establish,
under any law imposing an obligation to withhold any portion of the payments
made by the Borrower under the Loan Documents, that payments to the
Administrative Agent on behalf of such Lender are not subject to withholding.
Notwithstanding any provision herein to the contrary, the Borrower shall have no
obligation to pay to any Lender any amount which the Borrower is liable to
withhold due to the failure of such Lender to file any statement of exemption
required by the Code.
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2.14 Capital Adequacy.
If the amount of capital required or expected to be maintained
by any Lender or any Person directly or indirectly owning or controlling such
Lender (each a "Control Person"), shall be affected by
(a) the introduction or phasing in of any law, rule or
regulation after the date hereof,
(b) any change after the date hereof in the interpretation of
any existing law, rule or regulation by any central bank or United States or
foreign Governmental Authority charged with the administration thereof, or
(c) compliance by such Lender or such Control Person with any
directive, guideline or request from any central bank or United States or
foreign Governmental Authority (whether or not having the force of law)
promulgated or made after the date hereof,
and such Lender shall have determined that such introduction, phasing in, change
or compliance shall have had or will thereafter have the effect of reducing (i)
the rate of return on such Lender's or such Control Person's capital, or (ii)
the asset value to such Lender or such Control Person of the Loans made or
maintained by such Lender to a level below that which such Lender or such
Control Person could have achieved or would thereafter be able to achieve but
for such introduction, phasing in, change or compliance (after taking into
account such Lender's or such Control Person's policies regarding capital), in
either case by an amount which such Lender deems material, then, within ten days
after demand by such Lender, the Borrower shall pay to such Lender or such
Control Person such additional amount or amounts as shall be sufficient to
compensate such Lender or such Control Person, as the case may be, for such
reduction on an after-tax basis.
2.15 Substituted Interest Rate.
In the event that (i) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that by reason of circumstances affecting the interbank eurodollar
market either adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate applicable pursuant to section 2.6 or (ii) in the event that any
Lender shall have notified the Administrative Agent that it has determined
(which determination shall be conclusive and binding on the Borrower) that the
applicable Eurodollar Rate will not adequately and fairly reflect the cost to
such Lender of maintaining or funding loans bearing interest based on such
Eurodollar Rate, with respect to a proposed Loan that the Borrower has requested
be made as a Eurodollar Loan, or a Eurodollar Loan that will result from the
requested conversion of any Loan into a Eurodollar Loan (any such Loan being
herein called an "Affected Loan"), the Administrative Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise) of such de
termination, confirmed in writing, on or prior to the requested Borrowing Date
for such Affected Loan or the requested conversion date of such Loan. If the
Administrative Agent shall give such notice, (a) any requested Affected Loan
shall be made as an ABR Loan, (b) any Loan that was to have been converted to an
Affected Loan shall be converted to or continued as an ABR Loan and
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(c) any outstanding Affected Loan shall be converted, on the last day of the
then current Interest Period with respect thereto, to an ABR Loan. Until any
such notice under clause (i) of this section 2.15 has been withdrawn by the
Administrative Agent (by notice to the Borrower promptly upon the Administrative
Agent's having determined that such circumstances affecting the interbank
eurodollar market no longer exist and that adequate and reasonable means do
exist for determining the Eurodollar Rate pursuant to section 2.6) no further
Eurodollar Loans shall be made by the Lenders nor shall the Borrower have the
right to convert any Loans to Eurodollar Loans. Until any such notice under
clause (ii) of this section 2.15 has been withdrawn by the Administrative Agent
(by notice to the Borrower promptly upon the Administrative Agent's having been
notified by such Lender that circumstances no longer render any Loan an Affected
Loan), no further Eurodollar Loans shall be required to be made by such Lender
nor shall the Borrower have the right to convert any Loan of such Lender to a
Eurodollar Loan of such Lender.
2.16 Transaction Record.
The Administrative Agent's records regarding the amount of
each Loan, each payment by the Borrower of principal and interest on the Loans
and other information relating to the Loans shall be presumptively correct
absent manifest error.
2.17 Certificates of Payment and Reimbursement; Other Provisions
Regarding Yield Protection.
(a) In connection with any request by a Lender for payment or
reimbursement pursuant to section 2.9, 2.10, 2.11, 2.14 or 2.15, such Lender
shall provide the Borrower with a certificate, signed by an officer of such
Lender, setting forth a description, in reasonable detail, of any such payment
or reimbursement. Each Lender's determination of such amount or amounts owned by
the Borrower to it under any such section shall be presumed correct absent
manifest error, and shall be made without duplication as to any other amounts
owing by the Borrower to such Lender under section 2.9, 2.10, 2.11, 2.14 or
2.15.
(b) In the event that any amount is owed by the Borrower to
any Lender pursuant to section 2.9, 2.10, 2.11, 2.14 or 2.15 and an assignment
by such Lender of its rights and a delegation and transfer of its obligations
hereunder to another office or branch of such Lender would cause such amount to
cease to be owed by the Borrower, then such Lender shall make all reasonable
efforts (which shall not in any event require such Lender to incur a loss or
otherwise suffer any disadvantage) to make an assignment of its rights and a
delegation and transfer of its obligations hereunder to such other office or
branch, so long as such assignment and delegation will not cause other amounts
to be owed by the Borrower under section 2.9, 2.10, 2.11, 2.14 or 2.15 and so
long as the Lender shall be permitted under applicable law to make and maintain
Eurodollar Loans after giving effect to such assignment and delegation.
(c) The obligations of the Borrower under sections 2.9, 2.10,
2.11, 2.14 and 2.15 shall survive any termination of this Agreement, the
expiration of the RC Commitments and the payment of all indebtedness of the
Borrower hereunder and under the Loan Documents.
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3. FEES; PAYMENTS
3.1 Commitment Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of the Lenders the following fees computed on the basis of a 365/366
day year for the actual number of days elapsed (each, a "Commitment Fee" and,
collectively, the "Commitment Fees"):
(i) in accordance with each Lender's RC Commitment
Percentage, a fee payable quarterly in arrears during the RC Commitment Period
on the last day of each March, June, September and December of each year,
commencing on the first such date following the Effective Date, and on the RC
Commitment Termination Date, on the average daily excess of (i) the aggregate RC
Commitments of all the Lenders, over (ii) the aggregate outstanding principal
balance of the RC Loans, at a rate per annum equal to (a) at all times when the
Total Leverage Ratio is greater than or equal to 5.0:1.0, 0.375% and (b) at all
times when the Total Leverage Ratio is less than 5.0:1.0, 0.250%.
(b) Solely for purposes of calculating the Commitment Fees,
changes in the Total Leverage Ratio, as evidenced by a Ratio Certificate
delivered to the Administrative Agent pursuant to section 7.1(d) evidencing such
a change, shall become effective upon the first Business Day following the
delivery of (i) the Ratio Certificate and (ii) the applicable financial
statements required to be delivered pursuant to section 7.1(a) or (c), as the
case may be. Solely for purposes of calculating the Commitment Fees, if the
Borrower shall fail to deliver a Ratio Certificate within 45 days after the end
of each of the first three fiscal quarters, or within 90 days after the end of
the last fiscal quarter, of each fiscal year (each a "certificate delivery
date"), the Total Leverage Ratio from and including such certificate delivery
date to the date of delivery by the Borrower to the Ad ministrative Agent of
such Ratio Certificate shall be conclusively presumed to be greater than
5.00:1.00.
3.2 Pro Rata Treatment and Application of Payments.
All payments (including prepayments) made by the Borrower to
the Administrative Agent on account of principal of or interest on the RC Loans
shall be made pro rata according to the outstanding principal amount of each
Lender's RC Loans. All payments by the Borrower shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon on the date such payment is
due, to the Administrative Agent for the account of the Lenders, at the
Administrative Agent's office specified in section 11.2, in each case in lawful
money of the United States of America and in immediately available funds, and,
as between the Borrower and the Lenders, any payment by the Borrower to the
Administrative Agent for the account of the Lenders shall be deemed to be
payment by the Borrower to the Lenders. The failure of the Borrower to make any
such payment by 12:00 Noon on such due date shall not constitute a Default or
Event of Default hereunder, provided that such payment is made on such due date,
but any such payment received by the Administrative Agent on any Business Day
after 12:00 Noon shall be deemed to have been received on the immediately
succeeding Business Day for the purpose of calculating any interest payable in
respect thereof. The Administrative Agent agrees promptly to notify the Borrower
if it shall receive any such payment after 12:00 Noon on the due date hereof,
provided that the failure of the Administrative Agent to give such prompt notice
shall in no way affect the Borrower's
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obligation to make any payment hereunder on the date such payment is due. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. Unless otherwise set forth in the definition
of "Interest Period", if any payment hereunder or on any Note becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate or
rates during such extension.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders to enter into this Agreement and to make the Loans, the Borrower hereby
makes the following representations and warranties to the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents and to each Lender:
4.1 Subsidiaries.
The Borrower has only the Subsidiaries set forth on Schedule
4.1. The shares of each corporate Subsidiary owned by the Borrower are duly
authorized, validly issued, fully paid and nonassessable. The shares of each
Restricted Subsidiary are owned free and clear of any Liens, except (i) Liens in
favor of the Collateral Agent and the Lenders pursuant to the Collateral
Documents and (ii) Permitted Liens.
4.2 Corporate Existence and Power.
The Borrower and each Restricted Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to own its
Property and to carry on its business as now conducted, and is in good standing
and authorized to do business in each jurisdiction in which the failure to be so
authorized could reasonably be expected to have a Material Adverse Effect.
4.3 Corporate Authority.
The Borrower and each other Loan Party has full corporate
power and authority to enter into, execute, deliver and carry out the terms of
the Loan Documents to which it is a party, to make the borrowings contemplated
hereby, to execute, deliver and carry out the terms of the Notes and to incur
the obligations provided for herein and therein, all of which have been duly
authorized by all proper and necessary corporate action and are in full
compliance with its certificate of incorporation and by-laws.
4.4 Governmental Authority Approvals.
No consent, authorizations or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Authority or any other
Person (except for those which have been obtained, made or given and those which
will be obtained, made or given prior to the Effective
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Date) is required to authorize, or is required in connection with the execution,
delivery and performance of the Loan Documents, or is required as a condition to
the validity or, except as expressly set forth in the Collateral Documents with
respect to the FCC, the enforceability of the Loan Documents. Except as set
forth in the preceding sentence, no provision of any applicable stat ute, law
(including, without limitation, any applicable usury or similar law), rule or
regulation of any Governmental Authority will prevent the execution, delivery or
performance of, or affect the validity of, the Loan Documents.
4.5 Binding Agreement.
The Loan Documents constitute the valid and legally binding
obligations of the Borrower and each other Loan Party to which it is a party,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally.
4.6 Litigation.
Except as set forth in Schedule 4.6, there are no actions,
suits, arbitration proceedings or claims (whether or not purportedly on behalf
of the Borrower or any Subsidiary) pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary, or maintained by the Borrower
or any Subsidiary, at law or in equity, before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect. There are no
proceedings pending or, to the knowledge of the Borrower, threatened against the
Borrower or any Restricted Subsidiary which call into question the validity or
enforceability of any of the Loan Docu ments.
4.7 No Conflicting Agreements.
Except as set forth in Schedule 4.7, neither the Borrower nor
any Subsidiary is in default under any mortgage, indenture, contract, agreement,
judgment, decree or order to which it is a party or by which it or any of its
Property is bound, which defaults, taken as a whole, could reasonably be
expected to have a Material Adverse Effect. The execution, delivery or carrying
out of the terms of the Loan Documents will not constitute a default under,
conflict with, require any consent under (other than consents which have been
obtained) or result in the creation or imposition of, or obligation to create,
any Lien upon the Property of the Borrower or any Subsidiary pursuant to the
terms of any such mortgage, indenture, contract, agreement, judgment, decree or
order, which defaults, conflicts and consents, if not obtained, taken as a
whole, could reasonably be expected to have a Material Adverse Effect.
4.8 Taxes.
Except as set forth on Schedule 4.8, the Borrower and each
Subsidiary has filed or caused to be filed all tax returns required to be filed
and has paid, or has made adequate provision for the payment of, all Taxes shown
to be due and payable on said returns or in any assessments made against it
which would be material to the Borrower or any Subsidiary, and no tax Liens
(other than Permitted Liens) have been filed. Except as set forth on Schedule
4.8, the charges, accruals and reserves on the books of the Borrower and each
Subsidiary with respect to all federal, state,
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local and other Taxes are, to the best knowledge of the Borrower, adequate, and
the Borrower knows of no unpaid assessment which is due and payable against it
or any Subsidiary or any claims being asserted which could reasonably be
expected to have a Material Adverse Effect, except such thereof as are being
contested in good faith and by appropriate proceedings diligently conducted, and
for which adequate reserves have been set aside in accordance with GAAP.
4.9 Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect. The Borrower and each Subsidiary is complying in all
material respects with all applicable statutes and regulations, including ERISA,
of all Governmental Authorities, a violation of which could reasonably be
expected to have a Material Adverse Effect.
4.10 Governmental Regulations.
Neither the Borrower nor any Subsidiary is subject to
regulation under the Public Utility Holding Company Borrower Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, and neither the
Borrower nor any Subsidiary is subject to any statute or regulation which
prohibits or restricts the incurrence of Indebtedness under this Agreement or
the Notes, including, without limitation, statutes or regulations relative to
common or contract carriers or to the sale of electricity, gas, steam, water,
telephone, telegraph or other public utility services.
4.11 Property; Broadcasting Business.
The Borrower and each Restricted Subsidiary has good and,
except with respect to FCC licenses which cannot be transferred without the
consent of the applicable Governmental Authority, marketable title to all of its
Property, title to which is material to the Borrower and the Restricted
Subsidiaries taken as a whole, subject to no Liens, except Liens in favor of the
Collateral Agent and the Lenders pursuant to the Collateral Documents and
Permitted Liens. Except for the radio licenses relating to KUPL-FM, KKJZ-FM,
WQRS-FM, WFLN-FM and WAAF-FM, and except as otherwise permitted by section 7.11,
the License Subsidiaries are the registered holders of radio licenses duly
issued by the FCC in respect of all Broadcasting Stations owned and operated by
the Borrower and each Restricted Subsidiary. Such licenses constitute all of the
authorizations by the FCC or any other Governmental Authority necessary for the
operation of the business of the Borrower and each Restricted Subsidiary
substantially in the manner presently being conducted by it, and such licenses
are validly issued and in full force and effect, unimpaired by any act or omis
sion by the Borrower or such Restricted Subsidiary. To the best of the
Borrower's knowledge, except as set forth in Schedule 4.11, neither the Borrower
nor any Restricted Subsidiary is a party to any investigation, notice of
violation, order or complaint issued by or before the FCC. Except as set forth
in Schedule 4.11, there are no proceedings by or before the FCC, which could in
any manner materially threaten or adversely affect the validity of any of such
licenses. Neither the Bor rower nor any Restricted Subsidiary has knowledge of a
threat of any investigation, notice of viola tion, order, complaint or
proceeding before the FCC, and has no reason to believe that any of such
licenses will not be renewed in the ordinary course.
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4.12 Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Restricted Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, directly or indirectly, for a purpose
which violates any law, rule or regulation of any Governmental Authority,
including without limitation the provisions of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System, as amended. Following
application of the proceeds of each Loan, not more than 25% (or such greater or
lesser percentage as is provided in the exclusions from the definition of
"Indirectly Secured" contained in Regulation G and Regulation U in effect at the
time of the making of such Loan) of the value of the assets of (i) the Borrower
and (ii) the Borrower and the Restricted Subsidiaries on a Consolidated basis,
will be Margin Stock.
4.13 No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Restricted Subsidiary in connection with the transactions contemplated hereby,
contains or will contain a misstatement of material fact, or, to the best
knowledge of the Borrower or any Restricted Subsidiary omits or will omit to
state a material fact required to be stated in order to make the statements
herein or therein contained not misleading in the light of the circumstances
under which made.
4.14 Plans.
The Borrower and each Subsidiary have only the Plans listed on
Schedule 4.14. Each Single Employer Plan and, to the best knowledge of the
Borrower, each Multiemployer Plan is in compliance in all material respects with
the applicable provisions of ERISA and the Code, and the Borrower and each
Subsidiary have filed all reports required to be filed by them under ERISA and
the Code with respect to each such Plan. The Borrower and each Subsidiary have
met all material requirements imposed by ERISA and the Code with respect to the
funding of all Plans, including Multiemployer Plans. Since the effective date of
ERISA, there have not been, nor are there now existing, any events or conditions
which would permit any Single Employer Plan or, to the best knowledge of the
Borrower, Multiemployer Plan to be terminated under circumstances which would
cause the Lien provided under Section 4068 of ERISA to attach to the Property of
the Borrower or any Subsidiary. Since the effective date of ERISA, no Reportable
Event which may constitute grounds for the termination of any Single Employer
Plan or, to the best knowledge of the Borrower, Multiemployer Plan under Title
IV of ERISA has occurred and no Single Employer Plan or Multiemployer Plan has
been terminated in whole or in part.
4.15 FCC Matters.
The Borrower and each Restricted Subsidiary (i) have duly and
timely filed all filings which are required to be filed by the Borrower and each
Restricted Subsidiary under the Com munications Act and the rules and
regulations of the FCC, the failure to file of which could reasonably be
expected to have a Material Adverse Effect, and (ii) are in all material
respects in
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compliance with the Communications Act, including, without limitation, the rules
and regulations of the FCC relating to the transmission of radio signals.
4.16 Burdensome Obligations.
Neither the Borrower nor any Restricted Subsidiary is a party
to or bound by any franchise, agreement, deed, lease or other instrument, or
subject to any corporate restriction which, in the opinion of the management of
the Borrower, is so unusual or burdensome, in the context of the Borrower's or
such Restricted Subsidiary's business, as in the foreseeable future might
materially and adversely affect or impair the revenue or Operating Cash Flow of
the Borrower or any Restricted Subsidiary or the ability of the Borrower or any
Restricted Subsidiary to perform its respective obligations under the Loan
Documents. The Borrower does not presently anticipate that future expenditures
needed to meet the provisions of federal or state statutes, orders, rules or
regulations will be so burdensome as to have a Material Adverse Effect.
4.17 Financial Statements.
The Borrower has heretofore delivered to the Lenders a copy of
(i) the annual audited consolidated Balance Sheet of the Borrower and its
Subsidiaries as of December 31, 1995, together with the related consolidated
Statements of Operations, Shareholders' Equity and Cash Flows for the period
then ended, and (ii) the unaudited consolidated Balance Sheets of the Borrower
and its Subsidiaries as of March 31, 1996, June 30, 1996 and September 30, 1996,
together with the related consolidated Statements of Operations, Shareholders'
Equity and Cash Flows for the periods then ended. The foregoing financial
statements fairly present the consolidated financial condition and results in
the operations of the Borrower and its Subsidiaries as of the dates and for the
periods indicated therein and have been prepared in conformity with GAAP. Except
as reflected in such financial statements or in the footnotes thereto, neither
the Borrower nor any of its Sub sidiaries has any obligation or liability of any
kind (whether fixed, accrued, contingent, unmatured or otherwise) which, in
accordance with GAAP, should have been shown on such financial statements and
was not. Since December 31, 1995, the Borrower and its Restricted Subsidiaries
have conducted their business only in the ordinary course (except with respect
to the acquisitions of Broadcasting Stations permitted by the terms hereof or
the Existing Credit Agreement or otherwise consented to by the Required Lenders
(or the Required Lenders under the Existing Credit Agreement), and except as set
forth in the March 31, 1996, June 30, 1996 and September 30, 1996 financial
statements referred to above), and there has been no Material Adverse Change.
4.18 Environmental Matters.
Except as set forth on Schedule 4.18, neither the Borrower nor
any Subsidiary (i) has received written notice or otherwise learned of any
claim, demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect arising
in connection with (a) any non-compliance with or violation of the requirements
of any Environmental Law, or (b) the release or threatened release of any toxic
or hazardous waste, substance or constituent, or other substance into the
environment, (ii) to the best knowledge of the Borrower, has
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any threatened or actual liability in connection with the release or threatened
release of any toxic or hazardous waste, substance or constituent, or other
substance into the environment which individu ally or in the aggregate could
reasonably be expected to have a Material Adverse Effect, (iii) has received
notice of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release or threatened release of any toxic or
hazardous waste, substance or constituent or other substance into the
environment for which the Borrower or any Subsidiary is or may be liable, or
(iv) has received notice that the Borrower or any Subsidiary is or may be liable
to any Person under any Environmental Law. The Borrower and each Subsidiary is
in compliance in all material respects with the financial responsibility
requirements of all Environmental Laws to the extent applicable, including,
without limitation, those contained in 40 C.F.R., parts 264 and 265, subpart H,
and any analogous state law.
5. CONDITIONS OF LENDING
5.1 First Loans
In addition to the requirements set forth in section 5.2, the
obligation of each Lender to make one or more Loans on the first Borrowing Date
is subject to the fulfillment of the following conditions precedent:
(a) Evidence of Corporate Action. The Administrative Agent
shall have received a certificate, dated the first Borrowing Date, of the
Secretary or an Assistant Secretary of each Signatory Corporation (i) attaching
a true and complete copy of the resolutions of its Board of Directors and of all
documents evidencing all necessary corporate action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Loan Documents to which it is a party and the transactions contemplated
thereby, (ii) attaching a true and complete copy of its certificate of
incorporation and by-laws, (iii) setting forth the incumbency of its officer or
officers who may sign such Loan Documents, including therein a signature
specimen of such officer or officers and (iv) attaching a certificate of good
standing of the Secretary of State of the State of its incorporation and of each
other State in which it is qualified to do business.
(b) Notes. The Borrower shall have delivered to the
Administrative Agent the Notes, each duly executed on behalf of the Borrower by
an Authorized Signatory thereof.
(c) No Liens. The Administrative Agent shall have received a
certificate of the Borrower, signed by an Authorized Signatory thereof, dated
the first Borrowing Date, certifying that, upon the making of the first Loans,
there exist no Liens on the Collateral other than Permitted Liens.
(d) Subsidiary Guaranty and Borrower Security Agreement. The
Borrower shall have delivered to the Administrative Agent (i) the Subsidiary
Guaranty, dated as of the Effective Date, duly executed on behalf of each
Restricted Subsidiary by an Authorized Signatory thereof, (ii) the Borrower
Security Agreement, dated as of the Effective Date, duly executed on behalf of
the Borrower by an Authorized Signatory thereof, (iii) one or more share
certificates, representing all of the issued and outstanding Stock of each of
the Restricted Subsidiaries including, without limitation, the ARS License
Subsidiary, together with undated stock powers, duly executed in blank
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on behalf of the Borrower by an Authorized Signatory thereof and bearing an
appropriate signature guarantee in all respects satisfactory to the
Administrative Agent, in respect of each such certificate, and (iv) all
documents evidencing intercompany Indebtedness owing to the Borrower.
(e) ARS License Subsidiary Management Agreement. The ARS
License Subsidiary Management Agreement shall have been executed and delivered
by Authorized Signatories of the ARS License Subsidiary and the Borrower, and a
copy thereof shall have been delivered to the Administrative Agent.
(f) Filing of Financing Statements. The Borrower shall have
executed and caused to be filed or delivered to the Administrative Agent such
financing statements and other documents with respect to the Collateral
Documents as the Administrative Agent or Special Counsel may request for the
purpose of perfecting the Liens granted thereunder. All filing fees and Taxes in
connection with the filing of the Collateral Documents shall have been paid or
otherwise provided for and the Administrative Agent and Special Counsel shall
have received satisfactory evidence thereof.
(g) Existing Indebtedness. Prior to or simultaneously with the
making of the first Loans, the Borrower shall have paid all Indebtedness under
the Existing Credit Agreement, and all agreements with respect thereto shall
have been cancelled or terminated, all Liens, if any, securing the same shall
have been terminated, and the Administrative Agent shall have received
reasonably satisfactory evidence thereof.
(h) Approvals. The Administrative Agent shall have received
evidence reasonably satisfactory to it that all approvals and consents of all
Persons required to be obtained in connection with the consummation of the
transactions contemplated by the Loan Documents have been obtained and that all
required notices have been given and all required waiting periods have expired.
(i) Litigation. There shall be no injunction, writ,
preliminary restraining order or other order of any nature issued by any
Governmental Authority in any respect affecting any Loan Document, or any
transaction contemplated by the Loan Documents and no action or proceeding by or
before any Governmental Authority shall have been commenced and be pending
seeking to prevent or delay any of the foregoing or challenging any term or
provision thereof or seeking any damages in connection therewith, and the
Administrative Agent shall have received a certificate, in all respects
reasonably satisfactory to the Administrative Agent, of an Authorized Signatory
of the Borrower to the foregoing effect.
(j) Approval of Special Counsel. All legal matters incident to
the making of the Loans on the first Borrowing Date shall be reasonably
satisfactory to Special Counsel, and the Administrative Agent shall have
received from Special Counsel an opinion, dated the first Borrowing Date,
substantially in the form of Exhibit E.
(k) Opinion of Counsel to the Borrower and the Subsidiaries.
The Administrative Agent shall have received opinions of counsel to the Borrower
and its Subsidiaries, dated the first Borrowing Date, substantially in the form
of Exhibit F.
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(l) Opinion of FCC Counsel to the Borrower and the
Subsidiaries. The Administrative Agent shall have received opinions of special
FCC counsel to the Borrower and its Subsidiaries, dated the first Borrowing
Date, substantially in the form of Exhibit G.
(m) Payment of Fees. The Borrower shall have paid to the
Administrative Agent and the Lenders all fees and expenses which it shall have
agreed to pay, to the extent such fees and expenses have become payable on or
prior to the first Borrowing Date, and shall have paid the rea sonable fees and
disbursements of Special Counsel.
(n) Financial Statements and Financial Projections. The
Borrower shall have delivered to the Administrative Agent and the Lenders the
financial statements referred to in section 4.17 together with such projections
and other information as the Administrative Agent and the Lenders shall
reasonably require, all of which shall be in all material respects satisfactory
to the Administrative Agent and the Lenders.
(o) Ratio Certificate. The Administrative Agent shall have
received a Ratio Cer tificate duly executed by an Authorized Signatory of the
Borrower.
(p) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent shall reasonably
require in connection with the making of the first Loans.
5.2 All Loans
The obligation of the Lenders to make any Loan on a Borrowing
Date is subject to the satisfaction of the following conditions precedent as of
the date of such Loan:
(a) Compliance. On each Borrowing Date and after giving effect
to the Loans to be made or created thereon, (i) the Loan Parties shall be in
compliance with all of the terms, covenants and conditions of the Loan
Documents, (ii) there shall exist no Default or Event of De fault, (iii) the
representations and warranties contained in the Loan Documents shall be true and
correct with the same effect as though such representations and warranties had
been made on such Borrowing Date, except as the context otherwise requires,
except as otherwise permitted or contemplated by this Agreement, and except such
matters relating thereto as are indicated in each Borrowing Request which shall
be reasonably satisfactory to the Administrative Agent and the Required Lenders,
and (iv) there shall have occurred no Material Adverse Change since December 31,
1995. Each borrowing by the Borrower shall constitute a certification by the
Borrower as of the date of such borrowing that each of the foregoing matters is
true and correct in all respects.
(b) Loan Closings. All documents required by the provisions of
this Agreement to be executed or delivered to the Administrative Agent on or
before the applicable Borrowing Date shall have been executed and shall have
been delivered at the office of the Administrative Agent set forth in section
11.2 on or before such Borrowing Date.
(c) Borrowing Request. The Administrative Agent shall have
received a Borrowing Request duly executed by an Authorized Signatory of the
Borrower.
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(d) Approval of Counsel. All legal matters in connection with
the making of each Loan shall be reasonably satisfactory to Special Counsel.
(e) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent shall reasonably
request.
6. FINANCIAL COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under the Notes and the other Loan
Documents have been paid in full and all RC Commitments of the Lenders have been
terminated and no obligations of the Administrative Agent, the Collateral Agent,
the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents or any
of the Lenders exist under any of the Loan Documents, the Borrower shall:
6.1 Senior Leverage Ratio; Total Leverage Ratio.
(a) Senior Leverage Ratio. Maintain at all times a Senior
Leverage Ratio not greater than the ratio set forth below with respect to the
applicable period set forth below:
Periods Ratio
Effective Date through
December 30, 1997 5.75:1.00
December 31, 1997 through
December 30, 1998 5.50:1.00
December 31, 1998 through
December 30, 1999 5.00:1.00
December 31, 1999 through
December 30, 2000 4.00:1.00
December 31, 2000
and thereafter 3.25:1.00
(b) Total Leverage Ratio. Maintain at all times a Total
Leverage Ratio not greater than the applicable ratio set forth below with
respect to the applicable period set forth below:
Periods Ratio
Effective Date through
December 30, 1997 7.00:1.00
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December 31, 1997 through
December 30, 1998 6.50:1.00
December 31, 1998 through
December 30, 1999 6.00:1.00
December 31, 1999 through
December 30, 2000 5.00:1.00
December 31, 2000
and thereafter 4.00:1.00
Provided, however, that if at any time the Borrower shall make a
distribution pursuant to section 8.4(b) when the Total Leverage Ratio
requirement under this section 6.1(b) immediately before or after giving effect
thereto is greater than or equal to 5.00:1.00, the Total Leverage Ratio which
the Borrower shall be required to maintain under this section 6.1(b) shall be
automatically reduced to 5.00:1.00.
6.2 Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service.
Maintain as at the end of each fiscal quarter a ratio of
Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service not less than
1.10:1.00.
6.3 Consolidated Annual Operating Cash Flow to Interest Expense.
Maintain as at the end of each fiscal quarter during the
applicable periods set forth below a ratio of Consolidated Annual Operating Cash
Flow to Interest Expense not less than the ratio set forth below opposite the
applicable period:
Periods Ratio
Effective Date through
September 30, 1999 2.00:1.00
December 31, 1999 and
thereafter 2.25:1.00
6.4 Consolidated Annual Operating Cash Flow to Fixed Charges.
Maintain as at the end of each fiscal quarter a ratio of
Consolidated Annual Operating Cash Flow to Fixed Charges not less than
1.05:1.00.
7. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under the Notes and the other Loan
Documents have been paid in full
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and all RC Commitments of the Lenders have been terminated and no obligations of
the Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents or any of the Lenders exist under any
of the Loan Documents, the Borrower shall:
7.1 Financial Statements.
Maintain, and cause each Subsidiary to maintain, a standard
system of accounting in accordance with GAAP, and furnish or cause to be
furnished 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 consolidated
and consolidating Balance Sheets of the Borrower and its Subsidiaries as at the
end of such fiscal year, together with the related consolidated Statements of
Cash Flows and Shareholders' Equity and consolidated and consolidating
Statements of Operations as of and through the end of such fiscal year, setting
forth in each case, in comparative form, the consolidated figures for the
preceding fiscal year. The consolidated and consolidating Bal ance Sheets and
Statements of Operations and the consolidated Statements of Cash Flows and
Shareholders' Equity shall be certified without qualification by the
Accountants, which certification (i) shall state that the examination by such
Accountants in connection with such consolidated and consolidating financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, included such tests of the accounting records and
such other auditing procedures as were considered necessary in the
circumstances, (ii) shall include the opinion of such Accountants that such
consolidated and consolidating financial statements have been prepared in ac
cordance with GAAP in a manner consistent with prior fiscal periods, except as
otherwise specified in such opinion, and (iii) may, in the case of the
consolidating financial statements, be limited to the Borrower and its
Restricted Subsidiaries on a Consolidated basis. Notwithstanding the foregoing,
for purposes of this subsection (a), separate consolidating financial statements
with respect to the Li cense Subsidiaries shall not be required.
(b) Simultaneously with the delivery of the certified
financial statements required by clause (a) above, copies of a certificate of
such Accountants stating that, in making the examination necessary for their
audit of such financial statements for such fiscal year, nothing came to their
attention of an accounting nature that caused them to believe that the Borrower
was not in compliance with the terms, covenants, provisions, or conditions of
this Agreement, including, without limitation, sections 6.1, 6.2, 6.3, 6.4,
7.12, 8.1, 8.3, 8.4, 8.5 and 8.7, or, if so, specifying in such certificate all
such instances of noncompliance and the nature and status thereof.
(c) (i) As soon as available, but in any event not later than
45 days after the end of each of the first three quarterly accounting periods in
each fiscal year of the Borrower, a copy of the consolidated and consolidating
Balance Sheets of the Borrower and its Subsidiaries as at the end of each such
quarterly period, together with the related consolidated and consolidating
Statements of Operations, for such period and for the elapsed portion of the
fiscal year through such date, and the consolidated Statements of Cash Flows for
the elapsed portion of the fiscal year through such date, setting forth in each
case, in comparative form, the consolidated figures for the corresponding
periods of the preceding fiscal year, certified by the Chief Financial Officer
of the Borrower (or such
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other officer acceptable to the Administrative Agent), as being complete and
correct in all material respects and as presenting fairly the consolidated and
consolidating financial condition and the results of operations of each of the
Borrower and its Subsidiaries, subject to normal, non-material year-end
adjustments and (ii) as soon as available, but in any event not later than 45
days after the end of each of the first three fiscal quarters (90 days after the
end of the fourth fiscal quarter) of the Borrower, a certificate of the Chief
Financial Officer of the Borrower (or such other officer as shall be ac ceptable
to the Administrative Agent) in detail reasonably satisfactory to the
Administrative Agent (x) stating that there exists no violation of any of the
terms or provisions of the Loan Documents, or the occurrence of any condition or
event which would constitute a Default or Event of Default, and, if so,
specifying in such certificate all such violations, conditions and events, and
the nature and status thereof, and (y) containing computations showing
compliance with the provisions of sections 6.1, 6.2, 6.3, 6.4, 7.12, 8.1, 8.3,
8.4, 8.5 and 8.7. Notwithstanding the foregoing, for purposes of this subsection
(c), separate consolidating financial statements with respect to the License
Subsidiaries shall not be required.
(d) Within 45 days after the end of each of the first three
fiscal quarters (90 days after the end of the fourth fiscal quarter) of the
Borrower, a Ratio Certificate setting forth each of the Senior Leverage Ratio
and the Total Leverage Ratio as at the end of such fiscal quarter, certified by
the Chief Financial Officer of the Borrower (or such other officer as shall be
acceptable to the Administrative Agent).
(e) Within 30 days after the end of each month of the
Borrower, a management report setting forth a summary of revenues and Operating
Cash Flow and Station Cash Flow, on a station by station basis, for such month
and cumulative year to date periods, setting forth in each case in comparative
form the figures for such month and cumulative year to date period as set forth
in the internal budget prepared by the Borrower for such periods, all in detail
reasonably satisfactory to the Administrative Agent.
7.2 Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any Subsidiary is declared or shall become due and payable prior to
its stated maturity, or called and not paid when due, (ii) a default shall have
occurred under any note (other than the Notes) or the holder of any such note,
or other evidence of Indebtedness, certificate or security evidencing any such
Indebtedness or any obligee with respect to any other Indebtedness of the
Borrower or any Subsidiary has the right to declare any such Indebtedness due
and payable prior to its stated maturity as a result of such de fault, or (iii)
there shall occur and be continuing a Default or an Event of Default;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other order naming the Borrower or any
Subsidiary a party to any proceeding before any Governmental Authority which
might have a Material Adverse Effect or which call into question the validity or
enforceability of any of the Loan Documents and include with such notice a copy
of such citation, summons, subpoena, order to show cause or other order, (ii)
the commencement or threat of any action, suit, arbitration proceeding or claim
by, on behalf of or against the Borrower or any Subsidiary, at law or in equity,
before any Governmental Authority, which could reasonably be
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expected to have a Material Adverse Effect, (iii) any lapse or other termination
of any material li cense, permit, franchise or other authorization issued to the
Borrower or any Restricted Subsidiary by any Governmental Authority, (iv) any
refusal by any Governmental Authority to renew or extend any such material
license, permit, franchise or other authorization, and (v) any dispute between
the Borrower or any Subsidiary and any Governmental Authority, which dispute
might have a material adverse effect on any Broadcasting Station or a Material
Adverse Effect;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material which the
Borrower or any Restricted Subsidiary may now or hereafter be required to file
with or deliver to any securities exchange or the Securities and Exchange
Commission, or any other Governmental Authority succeeding to the functions
thereof, (ii) material reports, schedules and other material which the Borrower
or any Restricted Subsidiary may now or hereafter be required to file with or
deliver to the FCC and (iii) material news releases and annual reports relating
to the Borrower or any of its Restricted Subsidiaries;
(d) Prompt written notice in the event that (i) the Borrower
or any Subsidiary shall receive notice from the Internal Revenue Service or the
Department of Labor that the Borrower or such Subsidiary shall have failed to
meet the minimum funding requirements of Section 412 of the Code with respect to
a Plan, if applicable, and include therewith a copy of such notice, or (ii) the
Borrower or any Subsidiary gives or is required to give notice to the PBGC of
any Reportable Event with respect to a Plan, or knows that the plan
administrator of a Plan has given or is required to give notice of any such
Reportable Event;
(e) With respect to a Single Employer Plan of the Borrower or
any Subsidiary, copies of any request for a waiver of the funding standards or
any extension of the amortization periods required by Sections 303 and 304 of
ERISA or Section 412 of the Code promptly after any such request is submitted to
the Department of Labor or the Internal Revenue Service, as the case may be;
(f) Promptly after the filing thereof, a copy of the annual
report required to be filed pursuant to Section 103 of ERISA in connection with
each Single Employer Plan of the Borrower and each Subsidiary for each plan
year, including (i) a statement of the assets and liabilities of such Plan as of
the end of such plan year and statements of changes in fund balance and in
financial posi tion, or a statement of changes in net assets available for plan
benefits, for such plan year, certified by the Accountants and (ii) an actuarial
statement of such Plan applicable to such plan year, certified by an enrolled
actuary of recognized standing reasonably acceptable to the Administrative Agent
and the Required Lenders;
(g) Promptly upon request therefor, such other information and
reports relating to the past, present or future financial condition, operations,
plans and projections of the Borrower or its Restricted Subsidiaries as the
Administrative Agent, any Co-Syndication Agent or any other Lender (through the
Administrative Agent) may at any time and from time to time reasonably re quest;
(h) Promptly after the same are received by the Borrower,
copies of all management
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letters and similar reports provided to the Borrower or any Restricted
Subsidiary by its independent certified public accountants; and
(i) Prompt written notice of the occurrence of a Material
Adverse Change or the occurrence of any event or facts or circumstances which
are reasonably likely to result in a Material Adverse Change.
7.3 Legal Existence.
Except as otherwise permitted by section 8.3, maintain, and
cause each Subsidiary to maintain, its corporate existence, and maintain its
good standing in the jurisdiction of its incor poration or organization and in
each other jurisdiction in which the failure so to do could reasonably be
expected to have a Material Adverse Effect.
7.4 Taxes.
Pay and discharge when due, and cause each Subsidiary so to
do, all Taxes, assessments and governmental charges, license fees and levies
upon or with respect to the Borrower or such Subsidiary and upon the income,
profits and Property of the Borrower and the Subsidiaries taken as a whole,
which if unpaid, could reasonably be expected to have a Material Adverse Effect
or become a Lien on the Property of the Borrower or any Restricted Subsidiary
not permitted under section 8.2, unless and to the extent only that such Taxes,
assessments, charges, license fees and lev ies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Bor rower or such
Subsidiary and provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
7.5 Insurance.
(a) Liability Insurance. Maintain, and cause each Restricted
Subsidiary to maintain, insurance with financially sound insurance carriers on
such of its Property, against at least such risks, and in at least such amounts,
as are customarily insured against by similar businesses and which, in the case
of property insurance, shall be in amounts sufficient to prevent the Borrower or
any Restricted Subsidiary from becoming a co-insurer, including, without
limitation, public liability (bodily injury and property damage), fidelity,
bonding and workers' compensation with deductibles not exceeding $50,000 per
occurrence, in each case naming the Administrative Agent as an additional
insured under such policies, and file with the Administrative Agent within five
days after request therefor a detailed list of such insurance then in effect,
stating the names of the carriers thereof, the policy numbers, the insureds
thereunder, the amounts of insurance, dates of expiration thereof, and the
Property and risks covered thereby, together with a certificate of an Authorized
Signatory certifying that in the opinion of such officer such insurance is
adequate in nature and amount, complies with the obligations of the Borrower
under this section 7.5, and is in full force and effect.
(b) Business Interruption Insurance. Maintain such business
interruption insurance as is customarily maintained by companies engaged in
similar businesses with deductibles not exceeding $50,000 per occurrence.
Promptly upon request therefor, the Borrower shall deliver or
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cause to be delivered to the Administrative Agent originals or duplicate
originals of all such policies of insurance. Such insurance shall name the
Administrative Agent (together with the Administrative Agent under and as
defined in the Other Credit Agreement), under a standard loss payable clause, as
sole loss payees in respect of each claim resulting in a payment under any such
insurance policy exceeding $100,000. Provided that no Default or Event of
Default shall exist, the Administrative Agent agrees, promptly upon its receipt
thereof, to pay over to the Borrower the proceeds of any such payment received
by the Administrative Agent in its capacity as Administrative Agent hereunder.
If a Default or Event of Default shall exist, the Borrower, at the request of
the Administrative Agent, shall prepay the Loans with such proceeds, in an
amount equal to the Prepayment Fraction multiplied by the total amount of such
insurance payment.
7.6 Payment of Indebtedness and Performance of Obligations.
Pay and discharge, and cause each Subsidiary to pay and
discharge, when due all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise which, if unpaid, might (i) have a Material
Adverse Effect, or (ii) become a Lien upon Property of the Borrower or any
Restricted Subsidiary not permitted under section 8.2, unless and to the extent
only that the validity of such Indebtedness (other than Indebtedness under the
Loan Documents), obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
and that any such contested Indebtedness, obligations or claims shall not
constitute, or create, a Lien on any Property of the Borrower senior to the Lien
granted to the Collateral Agent by the Collateral Documents on such Property,
and further provided that the Borrower shall give the Administrative Agent and
the Lenders prompt notice of any such contest and that such reserve or other
appropriate provision as shall be required by the Accountants in accordance with
GAAP shall have been made therefor.
7.7 Condition of Property.
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each
Restricted Subsidiary so to do, all Property necessary to the operation of the
Borrower's or such Restricted Subsidiary's business.
7.8 Observance of Legal Requirements; ERISA; Environmental Laws.
Observe and comply in all respects, and cause each Subsidiary
so to do, with all laws (including ERISA and Environmental Laws), ordinances,
orders, judgments, rules, regulations, certifications, franchises, permits,
licenses, directions and requirements of all Governmental Authorities, which now
or at any time hereafter may be applicable to the Borrower or such Subsidiary, a
violation of which could reasonably be expected to have a Material Adverse
Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
provided that the Borrower shall give the Administrative Agent and the Lenders
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
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7.9 Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of the Administrative Agent and each
Lender, or potential assignees and/or participants of the Administrative Agent
or any Lender, to visit the offices of the Borrower and the Restricted
Subsidiaries, to inspect any of its Property and examine and make copies or
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired, and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower and the
Restricted Subsidiaries with the officers thereof and with the Accountants.
7.10 Licenses, Etc.
Maintain and cause each Restricted Subsidiary to maintain, in
full force and effect, the operating license issued by the FCC to it for each
Broadcasting Station. The Borrower shall also maintain and cause each Restricted
Subsidiary to maintain, in full force and effect, all other material licenses,
copyrights, patents, including all licenses, permits, applications, reports,
authorizations and other rights as are necessary for the conduct of its
business, except to the extent that such ownership or right to use shall
terminate as a matter of law or expire as a matter of contractual right through
no action or default by the Borrower or any Restricted Subsidiary.
7.11 Additional FCC Licenses.
Except for the FCC licenses relating to KUPL-FM, KKJZ-FM,
WQRS-FM, WFLN- FM and WAAF-FM and except to the extent that the Borrower has
made the determination (such determination to be reasonably satisfactory to the
Administrative Agent) that to do so would adversely affect the Borrower or any
Restricted Subsidiary because of potential material Taxes to be incurred, upon
the receipt by the Borrower or any Restricted Subsidiary of any additional FCC
license, the Borrower shall, or shall cause such Restricted Subsidiary to,
contribute such license to a License Subsidiary and cause the corresponding
License Subsidiary Management Agreement to be amended or otherwise modified to
reflect the contribution of such FCC license and grant to the Collateral Agent a
first priority perfected security interest therein.
7.12 Interest Rate Protection Arrangements.
For a period of three years from the Effective Date, maintain
one or more Interest Rate Protection Arrangements, if necessary, such that the
interest rate on at least 50% of outstanding Total Debt (which is not subject to
a fixed interest rate) shall be hedged, which Interest Rate Protection
Arrangements shall have a minimum term of three years, shall contain such terms
and conditions as shall be reasonably satisfactory to the Administrative Agent
and, with respect to Interest Rate Protection Agreements between the Borrower
and any Lender (or any Affiliate of any Lender), shall be secured on a pari
passu basis with the Collateral.
7.13 Subsidiary Guaranty.
Promptly upon the creation or acquisition of any Restricted
Subsidiary, cause such
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Restricted Subsidiary to execute and deliver to the Collateral Agent a
supplement to the Subsidiary Guaranty in the form attached thereto, together
with such other documents and opinions of counsel as the Administrative Agent
shall reasonably required in connection therewith.
8. NEGATIVE COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under Notes and the other Loan
Documents have been paid in full and all RC Commitments of the Lenders have been
terminated and no obligations of the Administrative Agent, the Collateral Agent,
the Co-Syndication Agents, the Managing Agents, the Agent, the Co- Agents or any
of the Lenders exist under any of the Loan Documents, the Borrower shall not:
8.1 Borrowing.
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any Restricted Subsidiary so to do, except (i)
Indebtedness under the Notes and the other Loan Documents, and Indebtedness
under the Notes and the other Loan Documents (in each case as defined in the
Other Credit Agreement); (ii) Indebtedness (including Contingent Obligations) of
the Borrower and the Restricted Subsidiaries existing on the date hereof as set
forth in Part A of Schedule 8.1; (iii) Indebtedness (including Contingent
Obligations) of EZ and its subsidiaries which, upon the consummation of the EZ
Acquisition, shall have been assumed by the Borrower and/or the Restricted
Subsidiaries as set forth in Part B of Schedule 8.1, (iv) unsecured Indebtedness
in an aggregate outstanding principal amount not in excess of $1,500,000 in
connection with the acquisition of Property by the Borrower, provided that
immediately before and after giving effect thereto all representations and
warranties contained in the Loan Documents shall be true and correct and no
Default or Event of Default shall exist; (v) unsecured Indebtedness of the
Borrower in an aggregate amount not in excess of $7,500,000 in connection with
the issuance of standby letters of credit for the account of the Borrower; (vi)
Indebtedness of the Borrower evidenced by (A) the ARS Subordinated Indenture
Notes, (B) the 1996 Exchange Subordinated Indenture Notes and the 1997 Exchange
Subordinated Indenture Notes, provided that, in the case of this clause (B),
immediately before and after giving effect to the incurrence thereof, no Default
or Event of Default shall exist, and (C) after the consummation of the EZ
Acquisition, the EZ Indenture Notes; (vii) Indebtedness of the Restricted
Subsidiaries evidenced by the ARS Subordinated Indenture Subsidiary Guaranty
and, after the consummation of the EZ Acquisition, the EZ Indenture Subsidiary
Guaranty; (viii) Permitted Subordinated Debt; (ix) refinancings of any
Indebtedness permitted under clause (ii), (iii), (iv) or (v) above with
Indebtedness permitted under clause (i) or (viii) above; and (x) refinancings of
any Indebtedness permitted under clause (vi), (vii) or (viii) above with other
Indebtedness permitted under clause (viii) above.
8.2 Liens.
Create, incur, assume or suffer to exist, or enter into any
agreement with any third Person agreeing not to create, incur, assume or suffer
to exist, any Lien upon any of its Property, whether now owned or hereafter
acquired, or permit any Restricted Subsidiary so to do, except (i)
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Liens for Taxes, assessments or similar charges incurred in the ordinary course
of business which are not delinquent or which are being contested in accordance
with section 7.4, provided that such Liens are not senior to the Liens granted
to the Collateral Agent and the Lenders by the Collateral Documents, (ii) Liens
in connection with workers' compensation, unemployment insurance or other social
security obligations (but not ERISA), (iii) deposits or pledges to secure bids,
tenders, contracts (other than contracts for the payment of money), leases,
statutory obligations, surety and appeal bonds and other obligations of like
nature arising in the ordinary course of business, (iv) zoning ordinances,
easements and other similar restrictions affecting real property which do not
materially adversely affect the value of such real property or the financial
condition of the Borrower or such Restricted Subsidiary or materially impair its
use for the operation of the business of the Borrower or such Restricted
Subsidiary, (v) the Liens created under the Collateral Documents, (vi) statutory
Liens arising by operation of law such as mechanics' liens incurred in the
ordinary course of business which are not delinquent or which are being
contested in accordance with section 7.4, (vii) Liens arising out of judgments
or decrees which are being contested in accordance with section 7.4, provided
that such Liens are not senior to the Liens granted to the Collateral Agent and
the Lenders by the Collateral Documents and provided further that enforcement of
such Liens is stayed during such contest, (viii) Liens on Property of the
Borrower and the Restricted Subsidiaries existing on the date hereof as set
forth in Schedule 8.2, (ix) agreements with third Persons not to create, incur,
assume or suffer to exist any Lien on any of its Property, provided that each
such agreement shall expressly permit the Liens (including any future Liens)
granted to the Collateral Agent pursuant to the Collateral Documents or as
otherwise contemplated by the other Loan Documents, as such Col lateral
Documents and other Loan Documents may be amended, supplemented, modified,
replaced, refinanced, increased or extended from time to time, and (x) Liens in
connection with the making of deposits in accordance with section 8.5(g).
8.3 Merger and Acquisition or Sale of Property.
Consolidate with, be acquired by, or merge into or with any
Person, or acquire all or substantially all of the Stock or Property of any
Person, or, except as otherwise permitted under section 8.7, sell, lease or
otherwise dispose of all or substantially all of its Property, or otherwise
alter or modify its structure, status or existence, or permit any Restricted
Subsidiary so to do, except: any wholly-owned Restricted Subsidiary (other than
a License Subsidiary) may merge with the Borrower (with the Borrower as
survivor) or with another wholly-owned Restricted Subsidiary (other than a
License Subsidiary); any License Subsidiary may merge with ARS License
Subsidiary (with ARS License Subsidiary as survivor); and, subject to the last
paragraph of this section 8.3:
(a) upon five Business Days' notice to the Administrative
Agent, the Borrower or any wholly-owned Restricted Subsidiary may acquire
Broadcasting Station(s) that are in the Top 75 Markets through an acquisition or
merger (with the Borrower or such wholly-owned Restricted Subsidiary (or a
Person that becomes a wholly-owned Restricted Subsidiary) as the survivor
thereof), provided that if the consideration for any such acquisition or merger
exceeds $50,000,000, there shall have been delivered to the Administrative Agent
and each Lender such details of such transaction as the Administrative Agent,
any Co-Syndication Agent or any other Lender (through the Administrative Agent)
shall reasonably request;
(b) upon five Business Days' notice to the Administrative
Agent, the Borrower or any wholly-owned Restricted Subsidiary may acquire
Broadcasting Station(s) that are not in the Top
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75 Markets through an acquisition or merger (with the Borrower or such
wholly-owned Restricted Subsidiary (or a Person that becomes a wholly-owned
Restricted Subsidiary) as the survivor thereof), provided that (i) after giving
effect to each such acquisition, the Consolidated Annual Operating Cash Flow
allocable to all Broadcast Stations that are not in the Top 75 Markets
(calculated on a pro-forma basis to include the Broadcasting Station being
acquired) is less than 25% of the Consolidated Annual Operating Cash Flow
(calculated in the same manner), and (ii) if the consideration for any such
acquisition or merger exceeds $50,000,000, there shall have been delivered to
the Admin istrative Agent and each Lender such details of such transaction as
the Administrative Agent, any Co-Syndication Agent or any other Lender (through
the Administrative Agent) shall reasonably request; and
(c) the Borrower may consummate the EZ Acquisition pursuant to
the terms of section 8.21.
Immediately before and after giving effect to any proposed acquisition or merger
permitted under this section 8.3, all representations and warranties contained
in the Loan Documents shall be true and correct and no Default or Event of
Default shall exist and, prior to the consummation of such acquisition or
merger, the Borrower shall have delivered to the Administrative Agent a
certificate of an Authorized Signatory of the Borrower certifying as to the
foregoing. Immediately upon the consummation of any acquisition or merger
permitted under this section 8.3, (i) the Borrower shall have delivered to the
Administrative Agent such documents as the Administrative Agent shall reasonably
require in order to grant to the Collateral Agent a first priority perfected
security interest in the Stock and/or Property, as applicable, of such
Broadcasting Station under and pursuant to the Collateral Documents, subject to
no Liens other than Permitted Liens, (ii) if the Borrower shall have acquired a
Restricted Subsidiary in connection with such acquisition, such Restricted
Subsidiary shall have become a party to the Subsidiary Guaranty, (iii) subject
to section 7.11, the FCC license of the Broadcasting Station shall have been
transferred to a License Subsidiary, and a management agreement, substantially
in the form of Exhibit D, or a supplement or amendment to a License Subsidiary
Management Agreement, shall have been executed and delivered in connection
therewith and pledged to the Collateral Agent under and in accordance with the
applicable Collateral Document, (iv) the Borrower shall have received (A) with
respect to each pending acquisition listed on Schedule 8.3, a Preliminary Order,
and (B) with respect to each other transaction, a final order from the FCC, and
all other similar material orders from all other applicable Governmental Authori
ties, with regard to the acquisition or merger, the transfer of the FCC license
of such acquired Broadcasting Station to a License Subsidiary, and the execution
of the management agreement, each of which shall be in all respects reasonably
satisfactory to the Administrative Agent, and the Administrative Agent shall
have received true, complete and correct copies, certified by an Authorized
Signatory of the Borrower, of all such orders and (v) the Borrower shall have
delivered to the Administrative Agent such opinions and other documents as the
Administrative Agent shall reasonably require in connection therewith.
8.4 Dividends; Purchase of Stock.
Declare or pay any dividends payable in cash or otherwise or
apply any of its Property to the purchase, redemption or other retirement of, or
set apart any sum for the payment
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of any dividends on, or make any other distribution by reduction of capital or
otherwise in respect of, any of its Stock (each a "Restricted Payment") or
permit any Restricted Subsidiary so to do, except that:
(a) any wholly-owned Restricted Subsidiary (other than a
License Subsidiary) may declare and pay dividends to the Borrower from time to
time;
(b) the Borrower may declare and pay cash dividends or
purchase its capital Stock commencing January 1, 1999, provided that (i) the
aggregate amount of dividends declared and paid and capital stock purchased
under this subsection (b) shall not exceed an amount equal to 50% of Excess Cash
Flow for the period commencing January 1, 1998 through the end of the fiscal
quarter immediately preceding the declaration and payment of any such dividends
or any such purchase, (ii) immediately before and after giving effect to such
declaration and payment (1) (x) either the Total Leverage Ratio is less than
4.50:1.00 or (y) the Total Leverage Ratio is less than 5.00:1.00 and the Senior
Leverage Ratio is less than 3.00:1.00, and (2) all representations and
warranties contained in the Loan Documents are true and correct and no Default
or Event of Default shall exist and (iii) the Loans shall have been prepaid, and
the RC Commitments shall have been permanently reduced by an amount equal to the
Prepayment Fraction or the Commitment Reduction Fraction, as the case may be,
multiplied by the amount of such dividends or purchase;
(c) the Borrower may declare and pay dividends payable solely
in Class A, B or C common stock of the Borrower;
(d) the Borrower may purchase its capital Stock in an amount
not to exceed $15,000,000 in any fiscal year (determined on a cumulative basis)
and $75,000,000 in the aggregate, provided that immediately before and after
giving effect to any such purchase (i) the Total Leverage Ratio is less than
6.50:1.00, and (ii) no Default or Event of Default shall exist; and
(e) the Borrower may declare and pay (i) cash dividends on the
preferred Stock issued pursuant to the 1996 Convertible Exchangeable Preferred
Stock Issuance and the 1997 Preferred Stock Issuance, provided that immediately
before and after giving effect to any such declaration and payment, no Default
or Event of Default shall exist, and (ii) non-cash dividends on the preferred
Stock issued pursuant to the 1997 Preferred Stock Issuance in the form of
additional shares of such preferred Stock.
8.5 Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or advance
(excluding deposits or pledges permitted under section 8.2(iii)) to, or enter
into any arrangement for the purpose of providing funds or credit to, or make
any other investment, whether by way of capital contribution or otherwise, in or
with any Person (all of which are sometimes referred to herein as
"Investments"), or permit any Restricted Subsidiary so to do, except:
(a) Investments in short-term domestic and eurodollar
certificates of deposit issued by any Lender, or any other commercial bank,
trust company or national banking association incorporated under the laws of the
United States or any State thereof and having undivided capital
surplus and retained earnings exceeding $500,000,000;
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(b) Investments in short-term direct obligations of the United
States of America or agencies thereof which obligations are guaranteed by the
United States of America;
(c) Investments existing on the date hereof as set forth in
Schedule 8.5(c);
(d) Investments by the Borrower in an aggregate amount (at
cost) at any time outstanding not to exceed $75,000,000, provided that (i)
immediately before and after giving effect to the making of any such Investment,
no Default or Event of Default shall exist, (ii) if any such Investment consists
of Margin Stock, the representation and warranty contained in Section 4.12 shall
be true and correct immediately before and after giving effect to the making of
any such Investment, and (iii) the Borrower shall have delivered to the
Administrative Agent such documents as the Administrative Agent shall reasonably
require in order to grant to the Collateral Agent a first priority perfected
security interest in the Stock (excluding Margin Stock) and/or other Collateral
(as defined in the Collateral Documents), as applicable, received in
consideration of any such Investment under and pursuant to the Collateral
Documents, subject to no Liens other than Permitted Liens;
(e) Investments by the Borrower to the extent permitted under
section 8.4(d);
(f) Investments to the extent the same are acquisitions
permitted pursuant to section 8.3;
(g) Investments by the Borrower in the form of deposits or
options made in the ordinary course of business in connection with any proposed
acquisition or acquisitions of Property permitted pursuant to the terms of this
Agreement; and
(h) Investments by the Borrower in the Tower Subsidiaries
(excluding Investments by the Borrower in the Tower Subsidiaries permitted
pursuant to Section 8.5(c)) in an aggregate amount not to exceed $50,000,000,
provided that immediately before and after giving effect to the making of any
such Investment, no Default or Event of Default shall exist.
8.6 Business Changes.
Materially change or permit any Restricted Subsidiary so to do
the nature of its business from that of owning and managing radio broadcasting
stations and related businesses, including the syndication of radio programming
and the ownership and management of communications antenna towers.
8.7 Sale of Property.
Sell, exchange, lease, transfer or otherwise dispose of any
Property to any Person, or permit any Restricted Subsidiary so to do, except
sales, exchanges, leases, transfers or other dispositions made in the ordinary
course of business (which shall not include the sale or other disposition of any
Property of a License Subsidiary or all or substantially all of the Stock or
assets
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of any Broadcasting Station or involve an FCC license of the Borrower or any of
its Restricted Subsidiaries), except that, subject to the last sentence of this
section 8.7:
(a) the Borrower may sell or exchange any Broadcasting Station
set forth on Schedule 8.7;
(b) the Borrower may sell or exchange any Broadcasting
Station, provided that (i) the aggregate amount of the Station Annual Cash Flow
for all Broadcasting Stations which have been sold or exchanged pursuant to the
provisions of this section 8.7(b) during the Station Sale Measuring Period
(including the Broadcasting Station then being contemplated to be sold or
exchanged but excluding in any event those permitted pursuant to section 8.7(a))
shall not exceed 25% of Consolidated Annual Broadcast Cash Flow (calculated
before subtracting Station Annual Cash Flow with respect to each Broadcasting
Station sold or exchanged pursuant to the provisions of this section 8.7(b)
during such Station Sale Measuring Period), and (ii) the aggregate amount of the
Station Annual Cash Flow for all Broadcasting Stations which have been sold or
exchanged pursuant to the provisions of this section 8.7(b) during the period
commencing on the Effective Date and ending through and including the date of
determination (including the Broadcasting Station then being contemplated to be
sold or exchanged but excluding in any event those permitted pursuant to section
8.7(a)) (calculated as of the time each such Broadcasting Station was sold or
exchanged pursuant to the provisions of this section 8.7(b)) (collectively, the
"Aggregate Station Annual Cash Flow") shall not exceed 50% of the sum of (A) the
Aggregate Station Annual Cash Flow, and (B) Consolidated Annual Broadcast Cash
Flow (calculated after subtracting Station Annual Cash Flow with respect to each
Broadcasting Station sold or exchanged pursuant to the provisions of this
section 8.7(b) (including the Broadcasting Station then being contemplated to be
sold or exchanged) during the four fiscal quarter period for which Consolidated
Annual Broadcast Cash Flow is being measured);
(c) the Borrower may sell and leaseback (i) tower assets to
any Tower Subsidiary, and (ii) real property and buildings used in connection
with radio towers or studios to any of its Subsidiaries or any other Person;
(d) the Borrower or any Restricted Subsidiary may sell the
real property and buildings set forth in Schedule 8.7; and
(e) in the event that the Borrower shall elect not to
consummate any acquisition pursuant to a loan/purchase arrangement substantially
similar to the arrangements in connection with the PBB Note Purchase Agreements,
the Borrower may assign the applicable purchase agreement(s) to a qualified
third party.
Provided, however, in connection with any sale or exchange permitted under
section 8.7(b), (c) or (d), (i) immediately before and after giving effect to
the proposed sale or exchange (including any related change in Indebtedness),
all representations and warranties contained in the Loan Documents shall be true
and correct and no Default or Event of Default shall exist, and the Borrower
shall have delivered to the Administrative Agent a certificate of an Authorized
Signatory of the Borrower certifying as to the same, and (ii) the Borrower shall
prepay the Loans in accordance with section 2.5(e).
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8.8 Subsidiaries.
Create or acquire any other Subsidiary, or permit any
Subsidiary (other than a Tower Subsidiary) so to do, except in connection with
an Acquisition permitted in section 8.3.
8.9 Compliance with ERISA.
Adopt any Plan other than those listed on Schedule 4.14 or
permit any Subsidiary so to do, or engage in any "prohibited transaction", as
such term is defined in Section 4975 of the Code or Section 406 of ERISA, with
respect to any Plan, or incur any "accumulated funding deficiency", as such term
is defined in Section 412 of the Code or Section 302 of ERISA, or terminate, or
permit any member of a Commonly Controlled Entity to terminate, any Plan which
would result in any liability of the Borrower or any member of a Commonly
Controlled Entity to the PBGC, or permit the occurrence of any Reportable Event
or any other event or condition which presents a risk of such a termination by
the PBGC of any Plan, or withdraw or effect a partial withdrawal from a
Multiemployer Plan, or permit any member of a Commonly Controlled Entity which
is an employer under such a Multiemployer Plan so to do, if any such withdrawal
would result in such withdrawing employer incurring any withdrawal liability in
excess of $250,000.
8.10 Certificate of Incorporation and By-laws.
Amend or otherwise modify its certificate of incorporation,
by-laws or other organizational documents, or permit any Restricted Subsidiary
so to do, in any way which would adversely affect the interests of the Lenders
or the obligations of any Loan Party under any of the Loan Documents.
8.11 Prepayments of Indebtedness.
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness (other than the Loans and the Other Credit Agreement Loans) prior
to the due date thereof, or permit any Restricted Subsidiary so to do, other
than (i) the prepayment by any Restricted Subsidiary of Indebtedness owing by
such Restricted Subsidiary to the Borrower, (ii) the prepayment of Indebtedness
permitted under section 8.1(ii) or (iii) with the proceeds of Indebtedness
permitted under section 8.1 (i) or (vi) or the proceeds of Stock issued by the
Borrower pursuant to section 8.18, (iii) the prepayment in whole or in part of
the EZ Indenture Notes with the proceeds of the SD/TL Loans (as defined in the
Other Credit Agreement) and (iv) the prepayment of the ARS Subordinated
Indenture Notes, the 1996 Exchange Subordinated Indenture Notes, the 1997
Exchange Subordinated Indenture Notes, the EZ Indenture Notes and the Permitted
Subordinated Indenture Notes to the extent permitted under section 8.19.
8.12 Fiscal Year.
Change its fiscal year from a fiscal year commencing January
1st and ending December 31st, or permit any of its Restricted Subsidiaries so to
do.
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8.13 Amendments, Etc. of Certain Agreements.
Enter into or agree to any amendment, modification or waiver
of any term or condition of the PBB Documents, the Tax Sharing Agreement or any
License Subsidiary Management Agreement, which amendment, modification or
waiver, in the opinion of the Administrative Agent, would materially and
adversely affect the interest of the Lenders under any of the Loan Documents. In
the event of any amendment, modification or waiver to any of such documents, the
Borrower shall promptly deliver to the Administrative Agent a copy of the same.
8.14 Transactions with Affiliates.
Become, or permit any Restricted Subsidiary to become, a party
to any transaction with any Affiliate of the Borrower or any Restricted
Subsidiary on a basis less favorable to the Borrower or such Restricted
Subsidiary in any material respect than if such transaction were not with an
Affiliate of the Borrower or such Restricted Subsidiary, provided that nothing
contained in this section 8.14 shall limit the Borrower's making Investments in
any Tower Subsidiary pursuant to section 8.5(h) provided that immediately before
and after giving effect thereto such Tower Subsidiary is a wholly owned
Subsidiary of the Borrower.
8.15 License Subsidiaries.
Permit any License Subsidiary to engage in any business other
than (i) owning, holding and maintaining in full force and effect the broadcast
licenses and other assets transferred to such License Subsidiary, (ii)
performing the obligations of such License Subsidiary under the applicable
License Subsidiary Management Agreement and (iii) executing, delivering and
performing its obligations under the Subsidiary Guaranty, the ARS Subordinated
Indenture Subsidiary Guaranty, the EZ Indenture Subsidiary Guaranty and the
Permitted Subordinated Indenture Subsidiary Guaranty.
8.16 Sale and Leaseback.
Enter into any arrangement with any Person, or permit any
Restricted Subsidiary so to do, providing for the leasing by the Borrower or
such Restricted Subsidiary of Property which has been or is to be sold or
transferred by the Borrower or such Restricted 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
Restricted Subsidiary, except as permitted pursuant to section 8.7(c).
8.17 Prohibition on Management and Similar Fees.
Make any payment of, or enter into any agreement for the
payment of, any management fees or similar fees with any Affiliate of the
Borrower.
8.18 Stock Issuance.
Issue any additional shares of Stock, or permit any of its
Restricted Subsidiaries so to do, except (i) the Borrower may issue shares of
its common Stock or Non Redeemable Preferred Stock, provided that the Borrower
shall prepay the Loans in an amount equal to the Prepayment
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Fraction multiplied by the net proceeds received by the Borrower in connection
with such issuance of Stock by the Borrower immediately upon its receipt thereof
to the extent required by section 2.5(f), and (ii) any Restricted Subsidiary
(other than a License Subsidiary) may issue shares of its Stock to the Borrower
or any wholly-owned Restricted Subsidiary.
8.19 Indentures, Notes, Subsidiary Guaranties.
(a) Enter into or agree to any amendment, modification or
waiver of any term or condition of the ARS Subordinated Indenture, the ARS
Subordinated Indenture Notes, the ARS Subordinated Indenture Subsidiary
Guaranty, the 1996 Exchange Subordinated Indenture, the 1997 Exchange
Subordinated Indenture, the 1996 Exchange Subordinated Indenture Notes, the 1997
Exchange Subordinated Indenture Notes, the Permitted Subordinated Indenture, the
Permitted Subordinated Indenture Notes or the Permitted Subordinated Indenture
Subsidiary Guaranty or purchase, redeem or make any payment with respect to
Indebtedness under the ARS Subordinated Indenture Notes, the ARS Subordinated
Indenture Subsidiary Guaranty, the 1996 Exchange Subordinated Indenture Notes,
the 1997 Exchange Subordinated Indenture Notes, the Permitted Subordinated
Indenture Notes or the Permitted Subordinated Indenture Subsidiary Guaranty or
permit any of its Restricted Subsidiaries so to do, except for required payments
to the extent expressly permitted pursuant to the subordination terms set forth
therein, and except as permitted under section 8.1(x).
(b) Except for the supplemental indenture contemplated by the
EZ Consent Solicitation, enter into or agree to any amendment, modification or
waiver of any term or condition of the EZ Indenture, the EZ Indenture Notes or
the EZ Indenture Subsidiary Guaranty or purchase, redeem or make any payment
with respect to Indebtedness under the EZ Indenture Notes or the EZ Indenture or
permit any of its Restricted Subsidiaries so to do, except for payments to the
extent required pursuant to the terms set forth therein, and except as permitted
under section 8.1(x).
8.20 Federal Reserve Regulations.
Own, or permit any of its Restricted Subsidiaries to own,
Margin Stock in excess of 25% (or such greater or lesser percentage as is
provided in the exclusions from the definition of "Indirectly Secured" contained
in Regulation G and Regulation U in effect at the time of the making of such
Loan) of the value of the assets of (i) the Borrower, or (ii) the Borrower and
the Restricted Subsidiaries on a Consolidated basis.
8.21 EZ Acquisition.
Consummate the EZ Acquisition, unless:
(a) The EZ Indenture shall have been amended substantially in
accordance with the EZ Consent Solicitation, and the Administrative Agent shall
have received a true and complete copy of such amendment as executed and
delivered by the parties thereto.
(b) There shall exist no injunction or other material
litigation affecting the EZ
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Acquisition or any transaction contemplated thereby, and the Administrative
Agent shall have received a certificate to such effect from the Borrower.
(c) All conditions precedent to the consummation of the EZ
Acquisition shall have been satisfied in accordance with the terms of the EZ
Transaction Documents (with no waiver of any material condition thereof without
the prior written consent of the Administrative Agent and the Co- Syndication
Agents, which consent shall not be unreasonably withheld) and the EZ Acquisition
shall have been consummated in such manner, and the Administrative Agent shall
have received a certificate to such effect from the Borrower.
(d) The Borrower shall have repaid in full and cancelled the
Existing EZ Indebtedness and all liens securing the same shall have been
terminated, and the Administrative Agent shall have received satisfactory
evidence of the foregoing.
(e) The Administrative Agent and the Lenders shall have
received pro-forma financial statements of the Borrower and its Restricted
Subsidiaries (including EZ and its subsidiaries), in each case after giving
effect to the consummation of the EZ Acquisition.
(f) No material adverse change shall have occurred in the
financial condition, operations, business or prospects of (i) the Borrower and
its Restricted Subsidiaries taken as a whole, (ii) EZ and its subsidiaries taken
as a whole and (iii) the Borrower and its Restricted Subsidiaries (including EZ
and its subsidiaries) on a pro-forma basis taken as a whole, in each case since
December 31, 1995 and in the case of clause (iii) above from that shown on the
pro-forma financial statements and projections previously provided to and
approved by the Lenders.
(g) The representations and warranties contained in the Loan
Documents shall be true and correct immediately before and after giving effect
to the consummation of the EZ Acquisition, except as otherwise expressly
permitted or contemplated by this Agreement, and no Default or Event of Default
shall exist immediately before or after giving effect thereto, and the
Administrative Agent shall have received a certificate to such effect from the
Borrower.
(h) All notices, approvals and waiting periods (except as
otherwise contemplated by section 8.21(n)) from all Governmental Authorities
shall have been given, received or expired, as the case may be, in connection
with the consummation of the EZ Acquisition.
(i) The Collateral Agent shall have received such UCC searches
and UCC-1 Financing Statements as it may require, together with (i) stock
certificates representing all issued and outstanding Stock of each subsidiary of
EZ that is owned by EZ or any of its subsidiaries, with undated stock powers
accompanying such certificates executed in blank and (ii) all intercompany notes
made by EZ or any of its subsidiaries endorsed to the order of the Collateral
Agent.
(j) The Administrative Agent shall have received such
certificates, legal opinions (including opinions of FCC counsel) and other
documents as it shall reasonably require, all of which shall be satisfactory to
the Administrative Agent.
(k) The Administrative Agent shall have received a certificate
from the Borrower in all respects satisfactory to the Administrative Agent that,
immediately before and after giving effect to the EZ Acquisition, the Borrower
is Solvent.
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(l) The Collateral Agent shall have received from the Borrower
such documents as the Collateral Agent shall reasonably require in order to
grant to the Collateral Agent a first priority perfected security interest in
the Stock and other Collateral (as defined in the Collateral Documents) acquired
in connection with the EZ Acquisition under and pursuant to the Collateral
Documents, subject to no Liens other than Permitted Liens.
(m) Management agreements, substantially in the form of
Exhibit D, between PBI and each EZ License Subsidiary (collectively, as each may
be amended, supplemented or otherwise modified from time to time pursuant to
section 8.13, the "EZ License Subsidiary Management Agreements") shall have been
executed and delivered in connection with the EZ Acquisition and pledged to the
Collateral Agent under and in accordance with the applicable Collateral
Document.
(n) The Borrower shall have received Preliminary Orders from
the FCC, and all other similar material orders from all other applicable
Governmental Authorities, with regard to the EZ Acquisition and the transfer of
control of the FCC licenses of the EZ License Subsidiaries, each of which shall
be in all respects reasonably satisfactory to the Administrative Agent, and the
Administrative Agent shall have received true, complete and correct copies,
certified by an Authorized Signatory of the Borrower, of all such orders.
9. DEFAULT
9.1 Events of Default.
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of the Borrower to pay any installment of
principal on any Note on the date when due and payable; or
(b) The failure of the Borrower to pay any installment of
interest or any other fees or expenses payable hereunder or under or in
connection with any other Loan Documents within three Business Days of the date
when due and payable; or
(c) The use by the Borrower of the proceeds of any Loan in a
manner inconsistent with or in violation of section 2.7; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in section 6, section 7.3, 7.5, 7.10, 7.11, 7.12
or 7.13, or section 8; or
(e) The failure of the Borrower to observe or perform any
other term, covenant, or agreement contained in this Agreement and such failure
shall have continued unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
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(f) Any representation or warranty of any Loan Party (or of
any officer on its behalf) made in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant to any Loan Document, shall prove to have been
incorrect or misleading (whether because of misstatement or omission) in any
material respect when made; or
(g) Any obligation of the Borrower (other than its obligations
under the Notes) or any Restricted Subsidiary, whether as principal, guarantor,
surety or other obligor, for the payment of any Indebtedness or operating
lease(s) (i) shall become or shall be declared to be due and payable prior to
the expressed maturity thereof, or (ii) shall not be paid when due or within any
grace period for the payment thereof, or (iii) the holder of any such
obligation(s) in excess of $2,500,000 in the aggregate shall have the right to
declare such obligation(s) due and payable prior to the expressed maturity
thereof; or
(h) The Borrower or any Restricted Subsidiary shall (i)
suspend or discontinue its business, or (ii) make an assignment for the benefit
of creditors, or (iii) generally not be paying its debts as such debts become
due, or (iv) admit in writing its inability to pay its debts as they become due,
or (v) file a voluntary petition in bankruptcy, or (vi) become insolvent
(however such insolvency shall be evidenced), or (vii) file any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment of debt, liquidation or dissolution or similar relief under any
present or future statute, law or regulation of any jurisdiction, or (viii)
petition or apply to any tribunal for any receiver, custodian or any trustee for
any substantial part of its Property, or (ix) be the subject of any such
proceeding filed against it which remains undismissed for a period of 60 days,
or (x) file any answer admitting or not contesting the material allegations of
any such petition filed against it or of any order, judgment or decree approving
such petition in any such proceeding, or (xi) seek, approve, consent to, or
acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidator, or fiscal agent for it, or any substantial part
of its Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains in effect for 60
days, or (xii) take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dis solution of the Borrower or such
Restricted Subsidiary; or
(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any Restricted Subsidiary a bankrupt
or insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of the Borrower or any Restricted Subsidiary under the United States
bankruptcy laws or any other applicable Federal or state law, or (iii)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Borrower or any Restricted Subsidiary or of
any substantial part of the Property thereof, or (iv) ordering the winding up or
liquidation of the affairs of the Borrower or any Restricted Subsidiary, and any
such decree or order continues unstayed and in effect for a period of 60 days;
or
(j) Any judgments or decrees against the Borrower or its
Restricted Subsidiaries aggregating in excess of $2,500,000 for all such parties
shall remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed
for a period of 30 days; or
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(k) The occurrence of an Event of Default under and as defined
in any Collateral Document or the occurrence of an Event of Default under and as
defined in the Other Credit Agreement; or
(l) Any of the Loan Documents shall cease, for any reason, to
be in full force and effect, or any Loan Party shall so assert in writing or
shall disavow its obligations thereunder; or
(m) A Change of Control shall occur.
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clauses (h) or (i) above, the RC Commitments shall immediately and
automatically terminate and the Loans, all accrued and unpaid interest thereon
and all other amounts owing under the Loan Documents shall immediately become
due and payable, and the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and the Notes, and (b) if such event is any other
Event of Default, any or all of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, and upon the
direction of the Required Lenders shall, by notice to the Borrower, declare the
RC Commitments to be terminated, forthwith, whereupon the RC Commitments shall
immediately terminate, and (ii) with the consent of the Required Lenders, the
Administrative Agent may, and upon the direction of the Required Lenders shall,
by notice of default to the Borrower, declare the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents to be due
and payable forthwith, whereupon the same shall immediately become due and
payable, and the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and the Notes. Except as otherwise provided in this
section 9.1, presentment, demand, protest and all other notices of any kind are
hereby expressly waived to the extent permitted by applicable law. The Borrower
hereby further expressly waives and covenants not to assert any appraisement,
valuation, stay, extension, redemption or similar laws, to the extent permitted
by applicable law, now or at any time hereafter in force, which might delay,
prevent or otherwise impede the performance or enforcement of any of the Loan
Documents.
In the event that the RC Commitments shall have been terminated or all
of the Notes shall have been declared due and payable pursuant to the provisions
of this section 9.1, the Lenders agree, among themselves, that any funds
received in respect of this Agreement and the Notes from or on behalf of the
Borrower by any of the Lenders (except funds received by any Lender as a result
of a purchase from such Lender pursuant to the provisions of section 11.9) shall
be remitted to the Administrative Agent, and shall be applied by the
Administrative Agent in payment of the Loans and the obligations of the Borrower
under the Loan Documents in the following manner and order: (i) first, to
reimburse the Administrative Agent, the Collateral Agent and the Lenders for any
expenses due from the Borrower pursuant to the provisions of section 11.5; (ii)
second, to the payment of the Commitment Fees, pro rata according to the RC
Commitment Percentage of each Lender; (iii) third, to the payment of any other
fees, expenses or amounts (other than the principal of and interest on the Notes
and any obligations to any Lender arising out of any Interest Rate Protection
Arrangement entered into under, and required by, section 7.12) payable by the
Borrower to the Administrative
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Agent, the Collateral Agent or any of the Lenders under the Loan Documents; (iv)
fourth, to the payment, pro rata according to the outstanding Loans of each
Lender, of interest due on the Notes; (v) fifth, on a pro rata basis, to the
payment of (1) principal outstanding on the Notes, pro rata according to each
Lender's outstanding Loans and (2) the obligations of the Borrower to the
Lenders (and any Affiliate of any Lender) arising out of any Interest Rate
Protection Arrangements entered into under, and required by, section 7.12; and
(vi) sixth, any remaining funds shall be paid to whomsoever shall be entitled
thereto or as a court of competent jurisdiction shall direct.
10. THE ADMINISTRATIVE AGENT; THE COLLATERAL AGENT; THE CO-
SYNDICATION AGENTS; THE MANAGING AGENTS; THE AGENT; THE CO-
AGENTS; THE ARRANGERS
10.1 Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Administrative Agent of such Lender under this Agreement and the Notes and
BNY as the Collateral Agent of each Lender under the Collateral Documents. Each
such Lender hereby irrevocably authorizes BNY as the Administrative Agent or the
Collateral Agent, as the case may be, for such Lender to take such action on its
behalf under the provisions of the Loan Documents and to exercise such powers
and perform such duties as are expressly delegated to the Administrative Agent
or the Collateral Agent, as the case may be, by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or any
of the other Loan Documents, neither the Administrative Agent nor the Collateral
Agent shall have any duties or responsibilities, except those expressly set
forth herein or therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist against the
Administrative Agent or the Collateral Agent.
10.2 Delegation of Duties.
The Administrative Agent and the Collateral Agent each may
execute any of its duties under the Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to rely upon the advice of counsel
concerning all matters pertaining to such duties.
10.3 Exculpatory Provisions.
Neither the Administrative Agent, the Collateral Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with the Loan Documents (except for its
own 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 the Borrower or any officer thereof contained in the Loan
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent or the Collateral
Agent under or in connection with, the Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of any of
the Loan Documents or for any failure of the Borrower or any other Person to
perform its obligations hereunder or thereunder. Neither the
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Administrative Agent nor the Collateral Agent shall 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, the Loan Documents, or to
inspect the properties, books or records of the Borrower or any Restricted
Subsidiary. Neither the Administrative Agent nor the Collateral Agent shall be
under any liability or responsibility whatsoever to the Borrower or any other
Person as a conse quence of any failure or delay in performance, or any breach,
by any Lender of any of its obliga tions under any of the Loan Documents.
10.4 Reliance by Administrative Agent and Collateral Agent.
The Administrative Agent and the Collateral Agent each shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, opinion, letter, cablegram,
telegram, 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, without limitation, counsel to the
Borrower), independent accountants and other experts selected by it. Subject to
section 11.7, the Administrative Agent and the Collateral Agent each may treat
each Lender as the holder of all of the interests of such Lender in its Loans
and in its Notes. Neither the Administrative Agent nor the Collateral Agent
shall be under any duty to examine or pass upon the validity, effectiveness or
genuineness of the Loan Documents or any instrument, document or com munication
furnished pursuant thereto or in connection therewith, and the Administrative
Agent and the Collateral Agent each shall be entitled to assume that the same
are valid, effective and genuine, have been signed or sent by the proper parties
and are what they purport to be. The Administrative Agent and the Collateral
Agent each shall be fully justified in failing or refusing to take any action
under the Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate. The Administrative
Agent and the Collateral Agent each shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request of the Required 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 Notes.
10.5 Notice of Default.
Neither the Administrative Agent nor the Collateral Agent
shall be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless it has received written notice thereof from a
Lender or the Borrower. In the event that the Administrative Agent or the
Collateral Agent receives such a notice, it shall promptly give notice thereof
to the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided, however, that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders. The Collateral Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Combined
Required Lenders; provided, however, that unless and until the Collateral Agent
shall have received such directions, the Collateral Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or
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Event of Default as it shall deem to be in the best interests of the Lenders and
the Lenders (as defined in the Other Credit Agreement).
10.6 Non-Reliance.
Each Lender expressly acknowledges that neither the
Administrative Agent, the Collateral Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by the Administrative Agent or the
Collateral Agent hereinafter, including any review of the affairs of the
Borrower or the Subsidiaries, shall be deemed to constitute any representation
or warranty by the Administrative Agent or the Collateral Agent to any Lender.
Each Lender represents to the Administrative Agent and the Collateral Agent that
it has, independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries and made its
own decision to enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, con tinue to make its own
credit analysis, evaluations and decisions in taking or not taking action under
this Agreement or any of the Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, Property,
financial and other condition and creditwor thiness of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent or the Collateral
Agent hereunder, neither the Administrative Agent nor the Collateral Agent shall
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, Property, financial and other
condition or creditworthiness of the Borrower or its Sub sidiaries which may
come into the possession of the Administrative Agent, the Collateral Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7 Indemnification.
(a) Each Lender agrees to indemnify the Administrative Agent
in its capacity as such (to the extent not promptly reimbursed by or on behalf
of the Borrower and without limiting the obligation of the Borrower or any other
Loan Party to do so), ratably according to its Credit Exposure at such time,
from and against any and all liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever including, without limitation, any amounts paid to the Lenders
(through the Administrative Agent) by the Borrower pursuant to the terms hereof,
that are subsequently rescinded or avoided, or must otherwise be restored or
returned) which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, the other Loan Documents or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or any action taken
or omitted to be taken by the Administrative Agent under or in connection with
any of the foregoing; provided, however, 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 to the
extent resulting directly and primarily from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this
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section 10.7(a) shall survive the payment of the Notes and all other amounts
payable under the Loan Documents.
(b) Each Lender agrees to indemnify the Collateral Agent in
its capacity as such (to the extent not promptly reimbursed by or on behalf of
the Borrower and without limiting the obligation of the Borrower or any other
Loan Party to do so), ratably according to its Combined Credit Exposure at such
time, from and against any and all liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever including, without limitation, any amounts paid to the
Lenders (through the Administrative Agent) by the Borrower pursuant to the terms
hereof, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Collateral Agent in any way relating to or arising out of
this Agreement, the other Loan Documents or any other documents contemplated by
or referred to herein or the transactions contemplated hereby or any action
taken or omitted to be taken by the Collateral Agent under or in connection with
any of the foregoing; provided, however, that no Lender shall be liable for the
pay ment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting directly and primarily from the gross negligence or willful
misconduct of the Collateral Agent. The agreements in this section 10.7(b) shall
survive the payment of the Notes and all other amounts payable under the Loan
Documents.
10.8 Administrative Agent and Collateral Agent in its Individual
Capacity.
BNY and its Affiliates, may make loans to, accept deposits
from, issue letters of credit for the account of and generally engage in any
kind of business with, the Borrower and its Subsidiaries as though BNY were not
the Administrative Agent or the Collateral Agent. With respect to the RC
Commitment made by BNY and each Note issued to BNY, the Administrative Agent and
the Collateral 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 was not the Administrative Agent or the Collateral Agent, as the case may be,
and the terms "Lender" and "Lenders" shall in each case include BNY.
10.9 Successor.
(a) If at any time the Administrative Agent deems it
advisable, in its sole discretion, it may submit to each of the Lenders a
written notification of its resignation as Administrative Agent under this
Agreement and the Notes, such resignation to be effective on the later to occur
of (i) the thirtieth day after the date of such notice and (ii) the date upon
which any successor Administrative Agent, in accordance with the provisions of
this section 10.9, shall have accepted in writing its appointment as such
successor Administrative Agent. Upon any such resignation of the Administrative
Agent, the Required Lenders shall have the right to appoint from among the
Lenders a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may,
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on behalf of the Lenders, appoint a successor Administrative Agent, which
successor Administrative Agent shall be a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $100,000,000. Upon the acceptance of
any appointment as Administrative Agent by a successor Administrative Agent,
such successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under this Agreement and the Notes
shall be terminated. The Borrower and the Lenders shall execute such documents
as shall be necessary to effect such appointment. After any retiring
Administrative Agent's resignation or re moval as Administrative Agent, the
provisions of section 10 shall inure to its benefit as to any ac tions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement
and the Notes. If at any time hereunder there shall not be a duly appointed and
acting Administrative Agent, the Borrower agrees to make each payment due
hereunder and under the Notes directly to the Lenders entitled thereto during
such time.
(b) If at any time the Collateral Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notification
of its resignation as Collateral Agent under the Collateral Documents, such
resignation to be effective on the later to occur of (i) the thirtieth day after
the date of such notice and (ii) the date upon which any successor Collateral
Agent, in accordance with the provisions of this section 10.9 (and section 10.9
of the Other Credit Agreement), shall have accepted in writing its appointment
as such successor Collateral Agent. Upon any such resignation of the Collateral
Agent, the Required Lenders (together with the Required Lenders under and as
defined in the Other Credit Agreement) shall have the right to appoint from
among the Lenders a successor Collateral Agent. If no successor Collateral Agent
shall have been so appointed and accepted such appointment within 30 days after
the retiring Collateral Agent's giving of notice of resignation, then the
retiring Collateral Agent may, on behalf of the Lenders (and the Lenders under
and as defined in the Other Credit Agreement), appoint a successor Collateral
Agent, which successor Collateral Agent shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Collateral Agent by a successor Collateral
Agent, such successor Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent's rights, powers, privileges
and duties as Collateral Agent under the Collateral Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Collateral Agent's
resignation or removal as Collateral Agent, the provisions of section 10 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Collateral Agent under the Collateral Documents.
10.10 Updating Exhibits and Schedules.
The Administrative Agent is hereby authorized and directed
from time to time to (i) amend Exhibit A to reflect the RC Commitments of each
Lender as of the date of each assignment pursuant to section 11.7 and each
increase in the RC Commitment pursuant to Section 2.4(d) and, in connection
therewith, the Lending Offices and address for notices of each assignee
"Lender", (ii) amend Schedule 1.1(L) to reflect any change of address of which
the Administrative Agent has received written notice pursuant to section 11.2,
and (iii) in each such case, to send a copy thereof to each party hereto.
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10.11 Co-Syndication Agents.
The Co-Syndication Agents shall have only the duties and
obligations expressly set forth in the Loan Documents in their capacity as
Co-Syndication Agents and shall have the same rights, protections, immunities
and indemnities as the Administrative Agent.
10.12 The Managing Agents.
The Managing Agents shall have no duties or obligations under
the Loan Documents in their capacity as Managing Agents.
10.13 The Agent.
The Agent shall have no duties or obligations under the Loan
Documents in its capacity as Agent.
10.14 The Co-Agents.
The Co-Agents shall have no duties or obligations under the
Loan Documents in their capacity as Co-Agents.
10.15 The Arrangers.
The Arrangers shall have no duties or obligations under the
Loan Documents in their capacity as Arrangers.
11. MISCELLANEOUS
11.1 Amendments and Waivers.
With the written consent of the Required Lenders, which
consent may be transmitted by telecopier, the Administrative Agent or the
Collateral Agent, as the case may be, and the appropriate Loan Parties may, from
time to time, enter into written amendments, supplements or modifications of the
Loan Documents and, with the consent of the Required Lenders, the Administrative
Agent or the Collateral Agent, as the case may be, on behalf of the Lenders may
execute and deliver to any such parties a written instrument waiving or
consenting to the departure from, on such terms and conditions as the
Administrative Agent or the Collateral Agent, as the case may be, may specify in
such instrument, any of the requirements of the Loan Documents or any Default or
Event of Default and its consequences; provided, however, that:
(a) no such amendment, supplement, modification, waiver or
consent shall, without the written consent of all of the Lenders, (i) increase
or decrease the RC Commitments (other than pursuant to the terms of section
2.4), (ii) extend the Maturity Date or the RC Commitment Termination Date, (iii)
extend the date or decrease the amount of any mandatory reduction of the
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RC Commitments pursuant to section 2.4(b)(ii), (iv) decrease the rate, extend
the time or change the pro rata method of payment of interest or principal on or
applicable to any Note, (v) decrease the amount, extend the time or change the
pro rata method of payment of the Commitment Fee, (vi) release all or any part
of the Collateral or any Subsidiary Guaranty except in connection with a
permitted sale or other permitted disposition of the Collateral or the
applicable Subsidiary Guarantor, as the case may be, or to the extent that the
Administrative Agent or the Collateral Agent shall be required or permitted to
do so under the terms and provisions of the Loan Documents, (vii) change the
definition of Required Lenders, or (viii) change the provisions of this section
11.1;
(b) any amendment, supplement, modification, waiver or consent
to the Collateral Documents shall be subject to the receipt by the Collateral
Agent of the consent of the Combined Required Lenders or all of the Lenders
hereunder and under and as defined in the Other Credit Agreement, as the context
may require.
(c) without the written consent of the Administrative Agent or
the Collateral Agent, as the case may be, no such amendment, supplement,
modification or waiver shall amend, modify or waive any provision of section 10
or otherwise change any of the rights or obligations of the Administrative Agent
or the Collateral Agent, as the case may be, under the Loan Documents; and
(d) without the written consent of the Co-Syndication Agents,
no such amendment, supplement, modification or waiver shall amend, modify or
waive any provision of section 10 applicable to the Co-Syndication Agents or
otherwise change any of the rights or obligations of the Co-Syndication Agents
hereunder or under the Loan Documents.
Any such amendment, supplement, modification or waiver shall
apply equally to each of the Lenders and shall be binding upon the parties to
the applicable agreement, the Lenders, the Administrative Agent, the Collateral
Agent, the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents
and all future holders of the Notes. In the case of any waiver, the parties to
the applicable agreement, the Lenders, the Administrative Agent, the Collateral
Agent, the Co- Syndication Agents, the Managing Agents, the Agent, the Co-Agents
shall be restored to their former position and rights under the Loan Documents
to the extent provided for in such waiver, and any Default or Event of Default
waived shall not extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
11.2 Notices.
Except as otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made (i) when delivered by hand, (ii) one
Business Day after having been sent by overnight courier service, (iii) five
Business Days after having been deposited in the mail, first-class postage
prepaid, or (iv) in the case of telecopier notice, when sent and transmission
confirmed (which may include electronic confirmation), addressed as follows in
the case of the Borrower, the Administrative Agent and the Collateral Agent, and
as set forth in Schedule 1.1(L) hereto in the case of each of the Lenders, or to
such other addresses as to which the Administrative Agent and the Collateral
Agent may be hereafter notified by the respective parties hereto or any future
holders of the Notes:
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The Borrower:
American Radio Systems Corporation
116 Huntington Avenue
Boston, MA 02116
Attention: Joseph L. Winn
Chief Financial Officer
Telephone: (617) 375-7500
Telecopy: (617) 375-7575
The Administrative Agent, the Collateral Agent and/or BNY:
The Bank of New York
Communications, Publishing & Entertainment Division
One Wall Street, 16th Floor
New York, New York 10286
Attention: Geoffrey C. Brooks
Vice President
Telephone: (212) 635-8475
Telecopy: (212) 635-8593
with a copy to, in the case of all Borrowing Requests, prepayment notices under
section 2.5(a) and conversion notices under section 2.8, and to the attention
of, in the case of all fundings by the Lenders:
The Bank of New York, as Administrative Agent
Agency Function Administration
One Wall Street, 18th Floor
New York, New York 10286
Attention: Michael Pizarro
Telephone: (212) 635-4697
Telecopy: (212) 635-6365 (or 6366/6367)
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to section 2.3, 2.4, 2.5 or 2.8
shall not be effective until received.
11.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent, the Collateral Agent or any Lender, any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
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remedy, power or privilege under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges under the Loan Documents are
cumulative and not exclusive of any rights, remedies, pow ers and privileges
provided by law.
11.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement, the Notes
and the other Loan Documents.
11.5 Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether or not any Loan is made, (i) to pay or
reimburse the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents and the Arrangers for all their out-of-pocket reasonable costs and
expenses incurred in connection with the development, preparation, execution and
syn dication of, and any amendment, waiver, consent, supplement or modification
to, the Loan Documents, any documents prepared in connection therewith and the
consummation of the transactions contemplated hereby and thereby, whether such
Loan Documents or any such other documents are executed and whether the
transactions contemplated thereby are consummated, including, without
limitation, the reasonable fees and disbursements of Special Counsel, (ii) to
pay or reimburse the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents, the
Arrangers and the Lenders for all of their respec tive reasonable costs and
expenses incurred in connection with the work-out, enforcement or preservation
of any rights under the Loan Documents and any such documents, including,
without limitation, reasonable fees and disbursements of counsel to the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents, the Arrangers and the Lenders
including, without limitation, reasonable expenses of the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents, the Arrangers and the Lenders in connection with or attributable
to commercial finance examiners, accountants, investment banks and environmental
consultants, (iii) to pay, indemnify, and hold each Lender, the Administrative
Agent, the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the
Agent, the Co-Agents and the Arrangers 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 Taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
any of the Loan Documents and any such other documents, and (iv) to pay,
indemnify and hold each Lender, the Administrative Agent, the Collateral Agent,
the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Arrangers and each of their respective officers, directors, employees and agents
harmless from and against any and all other liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without limitation,
reasonable counsel fees and disbursements) with respect to the execution,
delivery, enforcement and performance of the Loan Documents or the use of the
proceeds of the Loans hereunder (all the foregoing, collectively, the
"indemnified liabilities") and, if and to the extent that the foregoing
indemnity may be unenforceable for any reason, the
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Borrower agrees to make the maximum payment permitted under applicable law;
provided, however, that the Borrower shall have no obligation hereunder to pay
indemnified liabilities to the Administrative Agent, the Collateral Agent, any
Co-Syndication Agent, any Managing Agent, the Agent, any Co-Agent, any Arranger
or any Lender to the extent arising directly and primarily from the gross
negligence or willful misconduct of the Administrative Agent, the Collateral
Agent, such Co-Syndication Agent, such Managing Agent, the Agent, such Co-Agent,
such Arranger or such Lender, as the case may be. The agreements in this section
11.5 shall survive the termination of the RC Commitments and the payment of the
Notes and all other amounts payable hereunder.
11.6 Lending Offices.
Subject to section 2.17(b), each Lender shall have the right
at any time and from time to time to transfer any Loan to a different office of
such Lender, provided that such Lender shall promptly notify the Administrative
Agent and the Borrower of any such change of office. Such office shall thereupon
become such Lender's Lending Office.
11.7 Successors and Assigns.
(a) This Agreement, the Notes and the other Loan Documents to
which the Borrower is a party shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents, all future
holders of the Notes and their respective successors and assigns, except that
the Borrower may not assign, delegate or transfer any of its rights or
obligations under this Agreement, the Notes and the Loan Documents to which the
Borrower is a party without the prior written consent of each Lender.
(b) Each Lender shall have the right at any time, upon written
notice to the Administrative Agent of its intent to do so, to sell or assign
(each an "Assignment") all or any part of its Loans, its RC Commitment and its
Notes (together and simultaneously with its Loans, its Commitments and its Notes
in each case under and as defined in the Other Credit Agreement), on a pro rata
basis (unless otherwise consented to by the Borrower), to one or more of the
other Lenders (or to affiliates of such Lender or such other Lenders) or, with
the written consent of the Borrower and the Administrative Agent (such consent
not to be (A) unreasonably withheld or delayed, or (B) with respect to the
Borrower, required during the continuance of an Event of Default), to any other
bank, insurance company, pension fund, mutual fund or other financial institu
tion, provided that (i) each such partial Assignment (together with the
simultaneous assignment made under the Other Credit Agreement) shall be in a
minimum aggregate amount of $5,000,000 (unless otherwise consented to by the
Borrower), (ii) the parties to each such Assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption Agreement along with a fee
(the "Assignment Fee") of $1,500 ($3,000 if no simultaneous assignment is being
made by such parties under the Other Credit Agreement) with respect to the
Assignment made under this Agreement and (iii) no such assignment may be made to
the Borrower or to any Affiliate of the Borrower. Upon receipt of each such duly
executed Assignment and Assumption Agreement together with the Assignment Fee
therefor in compliance with the provisions hereof, the Administrative Agent
shall (x) record the same and signify its acceptance thereof by executing two
copies of such Assignment
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and Assumption Agreement in the appropriate place and delivering one copy to the
assignor and one copy to the assignee and (y) request the Borrower to execute
and deliver (1) to such assignee one or more Notes, in an aggregate principal
amount equal to the Loans assigned to, and RC Commit ments assumed by, such
assignee and (2) to such assignor one or more Notes, in an aggregate principal
amount equal to the balance of such assignor Lender's Loans and RC Commitment,
if any, in each case against receipt of such assignor Lender's existing Notes.
The Borrower agrees that it shall, upon each such request of the Administrative
Agent, execute and deliver such new Notes at its own cost and expense. Upon such
delivery, acceptance and recording by the Administrative Agent, from and after
the effective date specified in such Assignment and Assumption Agreement, the
assignee thereunder shall be a party hereto and shall for all purposes of this
Agreement and the other Loan Documents be deemed a "Lender" and, to the extent
provided in such Assignment and Assumption Agreement, the assignor Lender
thereunder shall be released from its obligations under this Agreement and the
other Loan Documents.
(c) Each Lender may grant participations in all or any part of
its Loans, its Notes or its RC Commitment to any other bank, insurance company,
pension fund, mutual fund, financial institution or other entity, provided that
no such participant shall have any right to require such Lender to take or omit
to take any action under any Loan Document except any action which would require
the consent of all Lenders pursuant to section 11.1. The Borrower hereby
acknowledges and agrees that any such participant shall for purposes of sections
2.9, 11.5, 11.9, 11.11 and 11.16 be deemed to be a "Lender".
(d) No Lender shall, as between and among the Borrower, the
Administrative Agent, the Collateral Agent, and such Lender, be relieved of any
of its obligations under the Loan Documents as a result of any Assignment or
granting of a participation in, all or any part of its Loans, its RC Commitment
or its Notes, except that a Lender shall be relieved of its obligations to the
extent of any Assignment of all or any part of its Loans, its RC Commitment or
its Notes pursu ant to subsection (b) above.
(e) Notwithstanding anything to the contrary contained in this
section 11.7, any Lender may at any time assign all or any portion of its rights
under the Loan Documents to a Federal Reserve Bank. No such assignment shall
release such Lender from its obligations thereunder.
11.8 Counterparts.
This Agreement and each of the other Loan Documents (other
than the Notes) may be executed by one or more of the parties to this Agreement
or to such other Loan Document, as the case may be, on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. It shall not be necessary in making proof
of any Loan Document to produce or account for more than one counterpart signed
by the party to be charged. Any of the parties to this Agreement and the other
Loan Documents may rely on signatures of such parties hereto and thereto which
are transmitted by telecopier or other electronic means as fully as if
originally signed. A set of the copies of this Agreement and each of the other
Loan Documents signed by all the parties shall be lodged with each of the
Borrower, the Administrative Agent and the Collateral Agent.
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11.9 Adjustments; Set-off.
(a) If any Lender (a "benefited Lender") shall at any time
receive any payment of all or any part of its Loans, or interest thereon, 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 9.1 (h) or (i), or otherwise) in a greater proportion than any such
payment to and collat eral received by any other Lender, if any, in respect of
such other Lender's Loans, or interest thereon, such benefited Lender shall
notify the Administrative Agent and shall purchase for cash from the other
Lenders such portion of each such other Lender's Loans, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds 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, unless the benefitted Lender is required to pay
interest on the amount of the excess payment to be returned, in which case the
other Lenders shall pay their pro rata share of such interest. The Borrower
agrees that each Lender so purchasing a portion of another Lender's Loans may
exercise all rights of payment (including, without limitation, rights of
set-off) with respect to such portion as fully as if such Lender were the direct
holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and acceleration of
the obligations owing in connection with this Agreement, or at any time upon the
occurrence and during the continuance of an Event of Default under section
9.1(a) or 9.1(b), each Lender shall have the right, without prior notice to the
Bor rower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, to set off and apply against any indebtedness,
whether matured or unmatured, of the Borrower to such Lender, any amount owing
from such Lender to the Borrower, at, or at any time after, the happening of any
of the above-mentioned events. To the extent permitted by applicable law, the
aforesaid right of set-off may be exercised by such Lender against the Borrower
or against any trustee in bankruptcy, custodian, debtor in possession, assignee
for the benefit of creditors, receiver, or execution, judgment or attachment
creditor of the Borrower, or against anyone else claiming through or against the
Borrower or such trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off shall
not have been exercised by such Lender prior to the making, filing or issuance,
or service upon such Lender of, or of notice of, any such petition, assignment
for the benefit of creditors, appointment or application for the appointment of
a receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off and ap plication.
11.10 No Third Party Beneficiary.
This Agreement is among the Borrower, the Lenders, the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents and
-78-
<PAGE>
the Arrangers and no other Person is intended to or shall have any rights
hereunder or shall be permitted to rely hereon.
11.11 Indemnity.
(a) The Borrower agrees to indemnify and hold harmless each of
the Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co- Agents, the Arrangers, each Lender and each
of their respective officers, directors, employees and agents (each an
"Indemnified Party") from and against any loss, cost, liability, damage or
expense (including the reasonable fees and out-of-pocket expenses of counsel to
each such Indemnified Party, including all local counsel hired by any such
counsel) incurred by each such Indemnified Party in investigating, preparing
for, defending against, or providing evidence, producing documents or taking any
other action in respect of, any claim, commenced or threatened litigation,
administrative proceeding or investigation under any federal securities law or
any other statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon (i) any untrue
statement or alleged untrue statement of any material fact of the Borrower or
any Subsidiary in any document or schedule executed or filed with the Securities
and Exchange Commission or any other Governmental Authority by or on behalf of
the Borrower or any Subsidiary, (ii) any omission or alleged omission to state
any material fact required to be stated in such document or schedule, or
necessary to make the statements made therein, in light of the circum stances
under which made, not misleading, (iii) any of the Loan Documents, the
transactions contemplated hereby or thereby or any acts, practices or omissions
or alleged acts, practices or omissions of the Borrower or any of its agents
relating to the use of the proceeds of any or all borrowings made by the
Borrower which are alleged to be in violation of section 2.7, or in violation of
any federal securities law or of any other statute, regulation or other law of
any jurisdiction ap plicable thereto, or (iv) any acquisition or proposed
acquisition by the Borrower or any Subsidiary of all or a portion of the Stock,
or all or a portion of the assets, of any Person, in each case whether or not
any Indemnified Party is a party thereto.
(b) In addition to the indemnity provided under section
11.11(a), the Borrower agrees to defend, indemnify and hold harmless each
Indemnified Party from and against any loss, cost, liability, fine, penalties,
damage or expense (including the reasonable fees and out-of-pocket expenses of
counsel to each such Indemnified Party, including all local counsel hired by any
such counsel) suffered or incurred by each such Indemnified Party, pertaining to
any release or threatened release of a reportable quantity of any hazardous
substance or hazardous waste at any Property of the Borrower or any of its
Subsidiaries (a "Hazardous Discharge"), including, but not limited to, claims of
any Governmental Authority or any third Person, whether arising under or on
account of any Environmental Law or tort, contract or common law, including,
without limitation, the assertion of any Lien thereunder, with respect to any
Hazardous Discharge, the presence of any hazardous substances or hazardous
wastes affecting any Property of the Borrower or any of its Subsidiaries,
whether or not the same originates or engages from such Property or any
contiguous real estate, including any loss of value of such Property as a result
of the foregoing. The Borrower's obligations under this section 11.11(b) shall
arise upon the discovery of any Hazardous Discharge at such Property, whether or
not any Governmental Authority or any other Person has taken or threatened any
action in connection with the presence of any hazardous substances or hazardous
wastes.
(c) The indemnities set forth herein shall be in addition to
any other obligations or
-79-
<PAGE>
liabilities of the Borrower to the Indemnified Parties hereunder or at common
law or otherwise, and shall survive any termination of this Agreement, the
expiration of the RC Commitments and the pay ment of all indebtedness of the
Borrower hereunder and under the other Loan Documents, provided that the
Borrower shall have no obligation under this section 11.11 to an Indemnified
Party with respect to any of the foregoing to the extent arising directly and
primarily out of the gross negligence or wilful misconduct of such Indemnified
Party.
11.12 Governing Law.
This Agreement, the Notes and the other Loan Documents and the
rights and obligations of the parties under this Agreement, the Notes and the
other Loan Documents shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York, without regard to principles
of conflict of laws.
11.13 Headings.
Section headings have been inserted herein and in the other
Loan Documents for convenience only and shall not be construed to be a part
hereof or thereof.
11.14 Severability.
Every provision of this Agreement and the other Loan Documents
is intended to be severable, and if any term or provision hereof or thereof
shall be invalid, illegal or unenforceable for any reason, the validity,
legality and enforceability of the remaining provisions hereof or thereof shall
not be affected or impaired thereby, and any invalidity, illegality or
unenforceability in any jurisdiction shall not affect the validity, legality or
enforceability of any such term or provision in any other jurisdiction.
11.15 Integration.
All exhibits and schedules to this Agreement shall be deemed
to be a part of this Agreement or the applicable Loan Document, as the case may
be. Except for agreements between the Borrower and the Administrative Agent with
respect to certain fees, this Agreement and the other Loan Documents embody the
entire agreement and understanding among the Borrower, the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents, the Arrangers and the Lenders with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings among
the Borrower, the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Managing Agents, the Agent, the Co-Agents, the Arrangers and the
Lenders with respect to the subject matter hereof and thereof.
11.16 Consent to Jurisdiction.
The Borrower hereby irrevocably submits to the jurisdiction of
any New York State or Federal Court sitting in the City of New York over any
suit, action or proceeding arising out of
-80-
<PAGE>
or relating to the Loan Documents. The Borrower hereby irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding brought
in such a court and any claim that any such suit, action or proceeding brought
in such a court has been brought in an inconvenient forum. The Borrower hereby
agrees that a final judgment in any such suit, action or proceeding brought in
such a court, after all appropriate appeals, shall be conclusive and binding
upon it.
11.17 Service of Process.
The Borrower hereby agrees that process may be served in any
suit, action, counterclaim or proceeding of the nature referred to in section
11.16 by mailing copies thereof by registered or certified mail, postage
prepaid, return receipt requested, to the address of the Borrower set forth in
section 11.2 or to any other address of which the Borrower shall have given
written notice to the Administrative Agent. The Borrower hereby agrees that such
service, to the extent permitted by applicable law (i) shall be deemed in every
respect effective service of process upon it in any such suit, action,
counterclaim or proceeding, and (ii) shall to the fullest extent enforceable by
law, be taken and held to be valid personal service upon and personal delivery
to it.
11.18 No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver, or
amendment thereto shall affect the right of the Administrative Agent, the
Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent, the
Co-Agents or any Lender to serve process in any manner permitted by law or limit
the right of the Administrative Agent, the Collateral Agent, the Co- Syndication
Agents, the Managing Agents, the Agent, the Co-Agents or any Lender to bring
proceedings against the Borrower in the courts of any jurisdiction or
jurisdictions.
11.19 WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-
SYNDICATION AGENTS, THE MANAGING AGENTS, THE AGENT, THE CO-AGENTS, THE LENDERS
AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREIN. FUR THER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-SYNDICATION AGENTS,
THE MANAGING AGENTS, THE AGENT, THE CO-AGENTS OR THE LENDERS, OR COUNSEL TO THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO- SYNDICATION AGENTS, THE
MANAGING AGENTS, THE AGENT, THE CO-AGENTS OR THE LENDERS, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
CO-SYNDICATION AGENTS, THE MANAGING AGENTS, THE AGENT, THE CO-AGENTS OR THE
LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-SYNDICATION AGENTS, THE
MANAGING AGENTS, THE AGENT, THE CO-AGENTS AND THE LENDERS HAVE
-81-
<PAGE>
BEEN INDUCED TO ENTER INTO THE LOAN DOCUMENTS BY, INTER ALIA, THE PROVISIONS OF
THIS SECTION.
11.20 Confidentiality.
The Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders each agree that, without the prior written consent of the Borrower, it
will not disclose the terms of this Agreement or any material confidential
information with respect to the Borrower, or any of its Subsidiaries which is
furnished pursuant to this Agreement to any Person except (i) its accountants,
attorneys and other advisors who have a need to know such information or its
Affiliates, and in each case who agree to be bound by the provisions of this
section 11.20, (ii) to the extent such information is requested to be disclosed
to any regulatory or administrative body or commission to whose jurisdiction the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co- Agents or such Lender is subject, (iii) to
the extent such information is requested or required to be disclosed by subpoena
or similar process of applicable law or regulation, (iv) to the extent the
Borrower has previously disclosed such information publicly or such information
is otherwise in the public domain (except by virtue of a breach by the
Administrative Agent, the Collateral Agent, any of the Co-Syndication Agents,
any of the Managing Agents, the Agent, any of the Co-Agents or such Lender of
its obligations under this section 11.20) at the time of disclosure, (v) such
information which is disclosed in connection with any litigation or dispute
between the Administrative Agent, the Collateral Agent, any of the
Co-Syndication Agents, any of the Managing Agents, the Agent, any of the
Co-Agents or such Lender and any Loan Party concerning this Agreement, any other
Loan Document, or any instrument or document executed or delivered in connection
herewith or therewith, (vi) such information which was in the possession of such
Person or such Person's Affili ates without the obligation of confidentiality
prior to the Administrative Agent, the Collateral Agent, such Co-Syndication
Agent, such Managing Agent, the Agent, such Co-Agent or such Lender furnishing
it to such Person, and (vii) in connection with a prospective assignment, grant
of a par ticipation interest or other transfer by a Lender of any of its
interest in this Agreement or the Notes, provided that the Person to whom such
information is disclosed shall agree to be bound by the provisions of this
section 11.20.
-82-
<PAGE>
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.
AMERICAN RADIO SYSTEMS CORPORATION
By:
Name:
Title:
THE BANK OF NEW YORK,
Individually and as Administrative Agent and
Collateral Agent
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
Individually and as a Co-Syndication Agent
By:
Name:
Title:
THE TORONTO-DOMINION BANK,
Individually and as a Co-Syndication Agent
By:
Name:
Title:
-1-
<PAGE>
BANK OF MONTREAL,
Individually and as a Managing Agent
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
Individually and as a Managing Agent
By:
Name:
Title:
By:
Name:
Title:
FLEET NATIONAL BANK,
Individually and as a Managing Agent
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
Individually and as a Managing Agent
By:
Name:
Title:
-2-
<PAGE>
BARCLAYS BANK PLC,
Individually and as Agent
By:
Name:
Title:
BANK OF AMERICA ILLINOIS,
Individually and as a Co-Agent
By:
Name:
Title:
THE SANWA BANK, LIMITED,
Individually and as a Co-Agent
By:
Name:
Title:
VAN KAMPEN AMERICAN CAPITAL PRIME RATE
INCOME TRUST, Individually and as a Co-Agent
By:
Name:
Title:
-3-
<PAGE>
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By:
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Name:
Title:
-4-
<PAGE>
LTCB TRUST COMPANY
By:
Name:
Title:
MERITA BANK LTD. - NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
NATIONAL BANK OF CANADA
By:
Name:
Title:
By:
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By:
Name:
Title:
-5-
<PAGE>
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
SUMMIT BANK
By:
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Name:
Title:
THE TOYO TRUST & BANKING CO., LTD.
By:
Name:
Title:
US BANK OF WASHINGTON, N.A.
By:
Name:
Title:
-6-
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
1. DEFINITIONS.............................................................................................-1-
1.1 Defined Terms.........................................................................-1-
1.2 Principles of Construction...........................................................-23-
2. AMOUNT AND TERMS OF LOANS..............................................................................-24-
2.1 Loans................................................................................-24-
2.2 Notes................................................................................-24-
2.3 Procedure for Borrowing Loans........................................................-25-
2.4 Termination or Reduction of RC Commitments; Increases of RC
Commitments
.............................................................................................-26-
2.5 Prepayments of the Loans.............................................................-28-
2.6 Interest Rate and Payment Dates; Highest Lawful Rate.................................-30-
2.7 Use of Proceeds......................................................................-31-
2.8 Conversions; Other Matters...........................................................-32-
2.9 Indemnification for Loss.............................................................-33-
2.10 Reimbursement for Costs..............................................................-34-
2.11 Illegality of Funding................................................................-34-
2.12 Option to Fund.......................................................................-35-
2.13 Taxes; Net Payments..................................................................-35-
2.14 Capital Adequacy.....................................................................-36-
2.15 Substituted Interest Rate............................................................-36-
2.16 Transaction Record...................................................................-37-
2.17 Certificates of Payment and Reimbursement; Other Provisions Regarding
Yield Protection.....................................................................-37-
3. FEES; PAYMENTS.........................................................................................-38-
3.1 Commitment Fees......................................................................-38-
3.2 Pro Rata Treatment and Application of Payments.......................................-38-
4. REPRESENTATIONS AND WARRANTIES.........................................................................-39-
4.1 Subsidiaries.........................................................................-39-
4.2 Corporate Existence and Power........................................................-39-
4.3 Corporate Authority..................................................................-39-
4.4 Governmental Authority Approvals.....................................................-39-
4.5 Binding Agreement....................................................................-40-
4.6 Litigation...........................................................................-40-
-i-
<PAGE>
4.7 No Conflicting Agreements............................................................-40-
4.8 Taxes................................................................................-40-
4.9 Compliance with Applicable Laws......................................................-41-
4.10 Governmental Regulations.............................................................-41-
4.11 Property; Broadcasting Business......................................................-41-
4.12 Federal Reserve Regulations; Use of Loan Proceeds....................................-42-
4.13 No Misrepresentation.................................................................-42-
4.14 Plans................................................................................-42-
4.15 FCC Matters..........................................................................-42-
4.16 Burdensome Obligations...............................................................-43-
4.17 Financial Statements.................................................................-43-
4.18 Environmental Matters................................................................-43-
5. CONDITIONS OF LENDING..................................................................................-44-
5.1 First Loans..........................................................................-44-
5.2 All Loans............................................................................-46-
6. FINANCIAL COVENANTS....................................................................................-47-
6.1 Senior Leverage Ratio; Total Leverage Ratio..........................................-47-
6.2 Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service....................-48-
6.3 Consolidated Annual Operating Cash Flow to Interest Expense..........................-48-
6.4 Consolidated Annual Operating Cash Flow to Fixed Charges.............................-48-
7. AFFIRMATIVE COVENANTS..................................................................................-48-
7.1 Financial Statements.................................................................-49-
7.2 Certificates; Other Information......................................................-50-
7.3 Legal Existence......................................................................-52-
7.4 Taxes................................................................................-52-
7.5 Insurance............................................................................-52-
7.6 Payment of Indebtedness and Performance of Obligations...............................-53-
7.7 Condition of Property................................................................-53-
7.8 Observance of Legal Requirements; ERISA; Environmental Laws..........................-53-
7.9 Inspection of Property; Books and Records; Discussions...............................-54-
7.10 Licenses, Etc........................................................................-54-
7.11 Additional FCC Licenses..............................................................-54-
7.12 Interest Rate Protection Arrangements................................................-54-
7.13 Subsidiary Guaranty..................................................................-54-
8. NEGATIVE COVENANTS.....................................................................................-55-
8.1 Borrowing............................................................................-55-
8.2 Liens................................................................................-55-
8.3 Merger and Acquisition or Sale of Property...........................................-56-
8.4 Dividends; Purchase of Stock.........................................................-57-
8.5 Investments, Loans, Etc..............................................................-58-
8.6 Business Changes.....................................................................-59-
8.7 Sale of Property.....................................................................-59-
8.8 Subsidiaries.........................................................................-60-
8.9 Compliance with ERISA................................................................-61-
-ii-
<PAGE>
8.10 Certificate of Incorporation and By-laws.............................................-61-
8.11 Prepayments of Indebtedness..........................................................-61-
8.12 Fiscal Year..........................................................................-61-
8.13 Amendments, Etc. of Certain Agreements...............................................-61-
8.14 Transactions with Affiliates.........................................................-62-
8.15 License Subsidiaries.................................................................-62-
8.16 Sale and Leaseback...................................................................-62-
8.17 Prohibition on Management and Similar Fees...........................................-62-
8.18 Stock Issuance.......................................................................-62-
8.19 Indentures, Notes, Subsidiary Guaranties.............................................-63-
8.20 Federal Reserve Regulations..........................................................-63-
8.21 EZ Acquisition.......................................................................-63-
9. DEFAULT................................................................................................-65-
9.1 Events of Default....................................................................-65-
10. THE ADMINISTRATIVE AGENT; THE COLLATERAL AGENT; THE CO-SYNDICATION
AGENTS; THE MANAGING AGENTS; THE AGENT; THE CO-AGENTS; THE
ARRANGERS..............................................................................................-68-
10.1 Appointment..........................................................................-68-
10.2 Delegation of Duties.................................................................-68-
10.3 Exculpatory Provisions...............................................................-68-
10.4 Reliance by Administrative Agent and Collateral Agent................................-69-
10.5 Notice of Default....................................................................-69-
10.6 Non-Reliance.........................................................................-70-
10.7 Indemnification......................................................................-70-
10.8 Administrative Agent and Collateral Agent in its Individual Capacity.................-71-
10.9 Successor............................................................................-71-
10.10 Updating Exhibits and Schedules.......................................................-72-
10.11 Co-Syndication Agents.................................................................-73-
10.12 The Managing Agents...................................................................-73-
10.13 The Agent.............................................................................-73-
10.14 The Co-Agents.........................................................................-73-
10.15 The Arrangers.........................................................................-73-
11. MISCELLANEOUS..........................................................................................-73-
11.1 Amendments and Waivers...............................................................-73-
11.2 Notices..............................................................................-74-
11.3 No Waiver; Cumulative Remedies.......................................................-75-
11.4 Survival of Representations and Warranties...........................................-76-
11.5 Payment of Expenses and Taxes........................................................-76-
11.6 Lending Offices......................................................................-77-
11.7 Successors and Assigns...............................................................-77-
11.8 Counterparts.........................................................................-78-
11.9 Adjustments; Set-off.................................................................-79-
-iii-
<PAGE>
11.10 No Third Party Beneficiary............................................................-79-
11.11 Indemnity.............................................................................-80-
11.12 Governing Law.........................................................................-81-
11.13 Headings..............................................................................-81-
11.14 Severability..........................................................................-81-
11.15 Integration...........................................................................-81-
11.16 Consent to Jurisdiction...............................................................-81-
11.17 Service of Process....................................................................-82-
11.18 No Limitation on Service or Suit......................................................-82-
11.19 WAIVER OF TRIAL BY JURY...............................................................-82-
11.20 Confidentiality.......................................................................-83-
-iv-
</TABLE>
Exhibit 99.2
AMERICAN RADIO SYSTEMS CORPORATION
-------------------------------------
CREDIT AGREEMENT
Dated as of January 24, 1997
$350,000,000
-------------------------------------
by and among
AMERICAN RADIO SYSTEMS CORPORATION,
THE BANK OF NEW YORK,
as COLLATERAL AGENT and ADMINISTRATIVE AGENT,
THE CHASE MANHATTAN BANK and
THE TORONTO-DOMINION BANK,
as CO-SYNDICATION AGENTS,
BANK OF MONTREAL, CREDIT SUISSE FIRST BOSTON,
FLEET NATIONAL BANK and UNION BANK OF CALIFORNIA, N.A.,
as MANAGING AGENTS,
BARCLAYS BANK PLC,
as AGENT,
BANK OF AMERICA ILLINOIS, THE SANWA BANK, LIMITED
and VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME TRUST,
as CO-AGENTS,
and
THE LENDERS PARTY HERETO
WITH
BNY CAPITAL MARKETS, INC.,
CHASE SECURITIES, INC., and
TORONTO DOMINION SECURITIES, INC.,
as ARRANGERS
<PAGE>
CREDIT AGREEMENT, dated as of January 24, 1997, by and among AMERICAN
RADIO SYSTEMS CORPORATION, a Delaware corporation (the "Borrower"), THE BANK OF
NEW YORK, as Collateral Agent and as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent"), THE CHASE MANHATTAN
BANK and THE TORONTO-DOMINION BANK, as co-syndication agents (each in such
capacity, a "Co-Syndication Agent" and, collectively, the "Co-Syndication
Agents"), Bank of Montreal, Credit Suisse First Boston, Fleet National Bank and
Union Bank of California, N.A., as managing agents (each in such capacity, a
"Managing Agent" and, collectively, the "Managing Agents"), Barclays Bank PLC,
as agent (in such capacity, the "Agent"), Bank of America Illinois, The Sanwa
Bank, Limited and Van Kampen American Capital Prime Rate Income Trust, as
co-agents (each in such capacity, a "Co-Agent" and, collectively, the
"Co-Agents") and each Lender party hereto or which becomes a "Lender" pursuant
to the provisions of section 11.7 (each a "Lender" and, collectively, the
"Lenders").
1. DEFINITIONS
1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR Loans": the Loans (or any portions thereof) at such time as they
(or such portions) are made or are being maintained at a rate of interest based
upon the Alternate Base Rate.
"Accountants": Deloitte & Touche LLP, or such other firm of certified
public accountants of recognized national standing selected by the Borrower and
reasonably satisfactory to the Administrative Agent.
"Affected Loan": as defined in section 2.15.
"Affected Principal Amount": (i) in the event that the Borrower shall
fail for any reason to borrow or convert a Loan after it shall have notified the
Administrative Agent of its intent to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, as the case may be, an amount
equal to the principal amount of such Loan; (ii) in the event that a Eurodollar
Loan shall terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such Loan; and
(iii) in the event that the Borrower shall prepay or repay all or any part of
the principal amount of a Eurodollar Loan prior to the last day of the Interest
Period applicable thereto, an amount equal to the principal amount of such Loan
so prepaid or repaid.
"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 shall mean the
power, direct or indirect, (i) to vote 10% or more of the securities having
ordinary vot ing power for the election of directors of such Person or (ii) to
direct or cause direction of the management and policies of such Person whether
by contract or otherwise.
"Aggregate Station Annual Cash Flow": as defined in section 8.7(b).
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum equal
to the higher of (i) the BNY Rate in effect on such date or (ii) 1/2 of 1% plus
the Federal Funds Rate in effect on such date.
<PAGE>
"Applicable Margin": (a) subject to paragraph (b) of this definition, at
all times during the applicable periods set forth below, (i) with respect to the
unpaid principal amount of the ABR Loans, the percentage set forth below under
the heading "Alternate Base Rate Margin" next to the applicable period and (ii)
with respect to the unpaid principal amount of the Eurodollar Loans, the
percentage set forth below under the heading "Eurodollar Rate Margin" next to
the applicable period:
Alternate Base Eurodollar
Period Rate Margin Rate Margin
when the Total
Leverage Ratio
is equal to or
greater than
6.75:1.00 0.750% 2.000%
when the Total
Leverage Ratio
is equal to or greater
than 6.50:1.00 but
less than 6.75:1.00 0.625% 1.875%
when the Total
Leverage Ratio
is equal to or greater
than 6.00:1.00 but
less than 6.50:1.00 0.250% 1.500%
when the Total
Leverage Ratio
is equal to or greater
than 5.50:1.00 but less
than 6.00:1.00 0.000% 1.250%
when the Total
Leverage Ratio
is equal to or greater
than 5.00:1.00 but
less than 5.50:1.00 0.000% 1.000%
when the Total
Leverage Ratio
is equal to or greater
than 4.50:1.00 but
less than 5.00:1.00 0.000% 0.750%
when the Total
Leverage Ratio
is equal to or greater
than 4.00:1.00 but
less than 4.50:1.00 0.000% 0.625%
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when the Total
Leverage Ratio
is less than 4.00:1.00 0.000% 0.500%
(b) Changes in the Applicable Margin resulting from a change
in the Total Leverage Ratio, as evidenced by a Ratio Certificate delivered to
the Administrative Agent pursuant to section 7.1(d) evi dencing such a change,
shall become effective upon the first Business Day following the delivery of (i)
the Ratio Certificate and (ii) the applicable financial statements required to
be delivered pursuant to section 7.1(a) or (c), as the case may be. If the
Borrower shall fail to deliver a Ratio Certificate within 45 days after the end
of any of the first three fiscal quarters, or within 90 days after the end of
the last fiscal quarter, of each fiscal year (each a "certificate delivery
date"), for purposes of calculating the Applicable Margin, the Total Leverage
Ratio from and including such certificate delivery date to the date of delivery
by the Borrower to the Administrative Agent of such Ratio Certificate shall be
conclusively presumed to be greater than 6.75:1.00.
"Arrangers": BNY Capital Markets, Inc., Chase Securities, Inc. and
Toronto Dominion Securities, Inc.
"ARS License Subsidiary": American Radio Systems License Corp., a 100%
owned Restricted Subsidiary of the Borrower holding certain of the FCC licenses
of the Borrower and its Restricted Subsidiaries.
"ARS License Subsidiary Management Agreement": the Borrower License
Subsidiary Management Agreement, dated as of the date hereof, between the
Borrower and the ARS License Subsidiary, substantially in the form attached
hereto as Exhibit D, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with section 8.13.
"ARS Subordinated Indenture": the Indenture, dated as of February 1,
1996, between the Borrower and Fleet National Bank, as trustee, as amended by
supplemental indenture dated October 1, 1996, as the same may be further
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
"ARS Subordinated Indenture Notes": the 9% Senior Subordinated Notes,
due 2006, in the aggregate principal amount of $175,000,000, issued pursuant to
the ARS Subordinated Indenture, as amended by supplemental indenture dated
October 1, 1996, as the same may be further amended, supplemented or otherwise
modified from time to time in accordance with section 8.19.
"ARS Subordinated Indenture Subsidiary Guaranty": the subordinated
guaranty or guaranties executed and delivered by one or more of the Restricted
Subsidiaries in connection with the ARS Subordinated Indenture, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with section 8.19.
"Assignment": as defined in section 11.7(b).
"Assignment and Assumption Agreement": an agreement substantially in
the form of Exhibit K.
"Assignment Fee": as defined in section 11.7(b).
"Authorized Signatory": the chief executive officer, the chief
financial officer, the chief operating officer, the president or any other duly
authorized officer (acceptable to the Administrative Agent) of a Loan Party.
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"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrower Security Agreement": the Borrower Security Agreement, dated
as of the date hereof, between the Borrower and the Collateral Agent,
substantially in the form attached hereto as Exhibit I, as the same may be
amended, supplemented or otherwise modified from time to time.
"Borrowing Date": any Business Day specified in a Borrowing Request as
a date on which the Bor rower requests the Lenders to make Loans.
"Borrowing Request": a Borrowing Request substantially in the form of
Exhibit C.
"Broadcasting Station": all related licenses, franchises and permits
issued under federal, state or local laws from time to time which authorize a
Person to receive or distribute, or both, over the airwaves, audio and visual,
radio or microwave signals within a geographic area for the purpose of providing
commercial broadcasting radio programming, together with all Property owned or
used in connection with the programming provided pursuant to, and all interest
of such Person to receive revenues from any other Person which derives revenues
from or pursuant to, said licenses, franchises and permits. The term
"Broadcasting Station" shall also include a corporation incorporated in the
United States which shall own one or more Broadcasting Stations.
"Business Day": (i) for all purposes other than as set forth in
clause (ii) below, any day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law or other
governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) above
and which is also a day on which dealings in foreign currency and exchange
between banks in the interbank eurodollar market may be carried on as determined
by the Administrative Agent.
"Capital Stock": (i) in the case of a corporation, capital stock,
(ii) in the case of any association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) or
capital stock and (iii) in the case of a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"CERCLA": the Comprehensive Environmental Response, Compensation and
Liability Act, as set forth at 42 U.S.C. ss.9601, et seq. as the same may be
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"Change of Control": any of the following:
(i) the sale, lease, transfer, in one or a series of related
transactions, of all or substantially all of the Borrower's assets to any Person
or group (as such term is used in Section 13(d)(3) of the Exchange Act) (other
than the Principal Shareholders or their Related Parties);
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Borrower;
(iii) the acquisition, directly or indirectly, by any Person
or group (as such term is used in Section 13(d)(3) of the Exchange Act) (other
than the Principal Shareholders and their Related Parties) of 40% or more of the
voting power of the voting stock of the Borrower by way of merger or
consolidation or
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otherwise, provided that such acquisition will not constitute a "Change of
Control" unless or until such Person or group owns, directly or indirectly, more
of the voting power of the voting stock of the Borrower than the Principal
Shareholders and their Related Parties; or
(iv) the Continuing Directors cease for any reason to
constitute a majority of the directors of the Borrower then in office. For
purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Borrower shall
be deemed to be a transfer of such portion of such voting stock as corresponds
to the portion of the equity of such entity that has been so transferred.
"Code": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"Collateral": collectively, the Collateral under and as defined in the
Collateral Documents.
"Collateral Agent": BNY in its capacity as collateral agent under the
Collateral Documents.
"Collateral Documents": collectively, the Borrower Security Agreement
and the Subsidiary Guaranty.
"Combined Credit Exposure": with respect to any Lender hereunder or any
Lender (as defined in the Other Credit Agreement) at any time, the sum of (i)
its Credit Exposure hereunder and (ii) its Credit Exposure (under and as defined
in the Other Credit Agreement), in each case at such time.
"Combined Required Lenders": at any date of determination, Lenders
hereunder and Lenders (as defined in the Other Credit Agreement) having Combined
Credit Exposures, without duplication, equal to or greater than 51% of the Total
Combined Credit Exposure.
"Commitment": as to any Lender, its RC/TL Commitment or SD/TL
Commitment, as the context may require.
"Commitment Reduction Fraction": in respect of any mandatory
reduction of the RC/TL Commitments pursuant to section 2.4(b), a fraction the
numerator of which is the aggregate amount of the RC/TL Commitments and the
denominator of which is the sum of the aggregate amount of the RC/TL Commitments
and the aggregate amount of the RC Commitments (under and as defined in the
Other Credit Agreement), in each case determined immediately prior to such
mandatory reduction.
"Commitment Fee" and "Commitment Fees": as defined in section 3.1.
"Commitment Percentage": as to any Lender, its RC/TL Commitment
Percentage or SD/TL Commitment Percentage, as the context may require.
"Commitments": the RC/TL Commitments and the SD/TL Commitments.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
414(b) or 414(c) of the Code.
"Communications Act": the Communications Act of 1934, as the same may
be amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
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"Consolidated": the Borrower and its Restricted Subsidiaries which are
consolidated for financial reporting purposes, excluding any interest of the
Borrower or any of its Restricted Subsidiaries in the Tower Subsidiaries.
"Consolidated Annual Broadcast Cash Flow": Consolidated Annual
Operating Cash Flow plus the sum of corporate office, general and administrative
expenses (exclusive of depreciation and amortization included in such corporate
office, general and administrative expenses) of the Borrower and its Restricted
Subsidiaries.
"Consolidated Annual Operating Cash Flow": at any time, Consolidated
Operating Cash Flow for the immediately preceding four fiscal quarters for which
financial statements have been delivered pursuant to section 7.1, or, in the
event that the date of determination is a fiscal quarter ending date, the fiscal
quarter then ended and the immediately preceding three fiscal quarters.
Notwithstanding anything to the contrary contained in this definition,
(i) solely for purposes of determining the Total Leverage Ratio under
sections 1.1 (with respect to the definition of Applicable Margin) and 3.1 and
the Total Leverage Ratio and the Senior Leverage Ratio under section 6.1, there
shall be added, without duplication, to Consolidated Annual Operating Cash Flow:
(a) the Operating Cash Flow of PBB (the "PBB Cash
Flow") for the immediately preceding four fiscal quarters for which
financial statements for PBB or its predecessor (prepared in a manner
substantially similar to the financial statements required to be
delivered pursuant to sections 7.1(a) and (c) and otherwise in all
respects reasonably satisfactory to the Administrative Agent) have
been delivered to the Administrative Agent and the Lenders or, in the
event that the date of determination is a fiscal quarter ending date,
the fiscal quarter then ended and the immediately preceding three
fiscal quarters, and
(b) the Operating Cash Flow of any entity with
which the Borrower has entered into a loan/purchase arrangement
permitted hereunder in connection with the acquisition of a
Broadcasting Station similar to the arrangements entered into by the
Borrower with PBB (to the extent allocable to such acquired
Broadcasting Station) (the "Additional Cash Flow") for the
immediately preceding four fiscal quarters for which financial
statements for such entity or its pre decessor (prepared in a manner
substantially similar to the financial statements required to be
delivered pursuant to sections 7.1(a) and (c) and otherwise in all
respects reasonably satisfactory to the Administrative Agent) have
been delivered to the Administrative Agent and the Lenders or, in the
event that the date of determination is a fiscal quarter ending date,
the fiscal quarter then ended and the immediately preceding three
fiscal quarters;
provided that (i) the aggregate amount of PBB Cash Flow and
Additional Cash Flow (if any) (collectively, the "Acquired Station
Cash Flow") which is added to Consolidated Annual Operating Cash Flow
pursuant to this sentence shall not exceed an aggregate amount equal
to (A) for the period through June 30, 1997, 100% of the Acquired
Station Cash Flow, and (B) thereafter, 0% of the Acquired Station
Cash Flow, and (ii) each of the PBB Documents, and the documents
evidencing any arrangement contemplated by paragraph (b) above shall
be in full force and effect and no default shall exist thereunder;
(ii) solely for purposes of determining compliance with sections 6.2,
6.3 and 6.4, there shall be added to Consolidated Annual Operating Cash Flow,
without duplication, actual payments of interest on (A) the PBB Notes and any
note payable to the Borrower in connection with an arrangement contemplated by
paragraph (b) above received by the Borrower during the applicable four fiscal
quarter period, and (B) Investments made pursuant to sections 8.5(c) or 8.5(d);
and
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(iii) solely for purposes of determining the Total Leverage Ratio
under sections 1.1 (with respect to the definition of Applicable Margin) and 3.1
and the Total Leverage Ratio and the Senior Leverage Ratio under section 6.1,
there shall be excluded from Consolidated Annual Operating Cash Flow the
Operating Cash Flow attributable to all Non-License Subsidiary Broadcasting
Stations to the extent that the aggregate Operating Cash Flow attributable to
all such Non-License Subsidiary Broadcasting Stations exceeds 10% of
Consolidated Annual Operating Cash Flow (determined without giving effect to
this clause (iii)).
"Consolidated Operating Cash Flow": Operating Cash Flow of the
Borrower and its Restricted Subsidiaries on a Consolidated basis.
Notwithstanding the foregoing, for purposes of determining Excess Cash Flow,
there shall be added to Consolidated Operating Cash Flow for the applicable
period, without duplication, actual payments of interest on the PBB Notes and
any note payable to the Borrower in connection with an arrangement contemplated
by paragraph (b) of the definition of Consolidated Annual Operating Cash Flow
received by the Borrower during such applicable period.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any Property constituting direct
or indirect security therefor, (ii) to advance or supply funds (a) for the
purchase or payment of any such primary obligation or (b) 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 beneficiary 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 beneficiary of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include the
indorsement of instruments for deposit or collection in the ordinary course of
business. The term Contingent Obligation shall also include the liability of a
general partner in respect of the Indebtedness of a partnership in which it is a
general partner, excluding Indebtedness which is non-recourse to such general
partner. The amount of any Contingent Obligation of a Person shall be deemed to
be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
"Continuing Director": any member of the Board of Directors of the
Borrower who (i) is a member of that Board of Directors on the Effective Date or
(ii) was nominated for election by either (a) one or more of the Principal
Shareholders (or a Related Party thereof) or (b) the Board of Directors a
majority of whom were directors at the Effective Date or whose election or
nomination for election was previously approved by one or more of the Principal
Shareholders or such directors.
"Control Person": as defined in section 2.14.
"Copyright Act": Title 17 of the United States Code, as amended, and
the rules and regulations issued thereunder, as from time to time in effect.
"Credit Exposure" with respect to any Lender at any time, the sum of
(i) its RC/TL Commitment or, if no RC/TL Commitment is in effect, its
outstanding RC/TL Loans and (ii) its SD/TL Commitment or, if no SD/TL Commitment
is in effect, its outstanding SD/TL Loans, in each case at such time.
"Debt Service": the sum of Interest Expense and scheduled principal
amortization (including
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scheduled mandatory reductions of revolving credit and similar commitments) of
Total Debt, whether or not actually paid, for, as applicable, the immediately
preceding four fiscal quarters for which financial statements have been
delivered pursuant to section 7.1, or, in the event that the date of
determination is a fiscal quarter ending date, the fiscal quarter then ended and
the immediately preceding three fiscal quarters.
"Default": any of the events specified in section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Disqualified Stock": any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than upon a Change of Control of the
Borrower in circumstances where the holders of the Notes would have similar
rights), in whole or in part on or prior to one year after the Maturity Date.
The amount of Disqualified Stock shall be the greater of the liquidation
preference or mandatory or optional redemption price thereof.
"Dollars" and "$": lawful currency of the United States of America.
"Effective Date": January 24, 1997.
"Environmental Laws": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene and including, without limitation, (i) CERCLA;
(ii) the Resource Conservation and Recovery Act of 1976, as amended, 42 USCA
ss.6901 et seq.; (iii) the Toxic Substance Control Act, as amended, 15 USCA
ss.2601 et. seq.; (iv) the Water Pollution Control Act, as amended, 33 USCA
ss.1251 et. seq.; (v) the Clean Air Act, as amended, 42 USCA ss.7401 et seq.;
(vi) the Hazardous Material Transportation Authorization Act of 1994, as
amended, 49 USCA ss.5101 et seq. and (viii) all rules, regulations, judgments,
decrees, injunctions and restrictions thereunder and any analogous state law, in
each case as from time to time in effect.
"Equity Interests": Capital Stock and all warrants, options or other
rights to acquire Capital Stock (including any Indebtedness or Disqualified
Stock that is convertible into, or exchangeable for, Capital Stock).
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"Eurodollar Loan": a portion of the Loans selected by the Borrower to
bear interest during an Interest Period selected by the Borrower at a rate per
annum based upon a Eurodollar Rate determined with reference to such Interest
Period, all pursuant to and in accordance with sections 2.3 and 2.8.
"Eurodollar Rate": with respect to any Interest Period, the rate per
annum, as determined by the Administrative Agent, obtained by dividing (and then
rounding to the nearest 1/16 of 1%, or, if there is no nearest 1/16 of 1%, the
next higher 1/16 of 1%):
(a) the rate quoted by the Administrative Agent to major
banks in the interbank euro dollar market as the rate at which the
Administrative Agent is offering Dollar deposits in an amount approxi mately
equal to BNY's pro rata share of the given portion of the Loans selected by the
Borrower to bear interest during such Interest Period based upon a rate of
interest determined under this definition, and having a term to maturity
corresponding to such Interest Period, as quoted at approximately 10:00 A.M. two
Business Days prior to the date upon which such Interest Period is to commence,
by
(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates
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during such Interest Period of all reserve requirements (including, without
limitation, marginal, emergency, supplemental and special reserves), expressed
as a decimal, established by the Board of Governors of the Federal Reserve
System and any other banking authority to which BNY and other major United
States banks or money center banks are subject, in respect of eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board of Governors of the Federal Reserve System). Such reserve requirements
shall include, without limitation, those imposed under such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and as
such shall be deemed to be subject to such reserve requirements without benefit
of credits for proration, exceptions or offsets which may be available from time
to time to any Lender under such Regulation D. The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change in any such
reserve requirement.
"Event of Default": any of the events specified in section 9,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Excess Cash Flow": at any time, in respect of any period,
Consolidated Operating Cash Flow for such period (before any adjustments to
reflect acquisitions, sales and exchanges of Property during such period) less
the sum of, without duplication, (i) Debt Service (excluding, to the extent
included therein, principal payments made pursuant to sections 2.5(d), (f), (g)
and (h) hereof, and principal payments made pursuant to sections 2.5(b), (d),
(e) and (f) of the Other Credit Agreement), (ii) voluntary principal prepayments
made pursuant to section 2.5(a) hereof and voluntary principal payments made
pursuant to section 2.5(a) of the Other Credit Agreement (excluding, to the
extent not otherwise excluded from this definition of "Excess Cash Flow",
principal payments made with cash the source of which is not included in the
Borrower's Operating Cash Flow), provided that the Commitments are permanently
reduced in an aggregate amount equal to such prepayments made under section
2.5(a) hereof, (iii) capital expenditures made (excluding capital expenditures
made with insurance proceeds), (iv) cash taxes paid, (excluding cash taxes
attributable to the Tower Subsidiaries) (v) non-recurring cash expense items
included in Consolidated Operating Cash Flow pursuant to clause (iii) of the
definition of Operating Cash Flow, (vi) Finance Costs and (vii) any cash
dividends paid with respect to Non Redeemable Preferred Stock (including,
without limitation, the preferred Stock issued pursuant to the 1996 Convertible
Exchangeable Preferred Stock Issuance and the preferred Stock issued pursuant to
the 1997 Preferred Stock Issuance).
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement": the Credit Agreement, dated as of
December 19, 1995, by and among the Borrower, the lenders party thereto, Bank of
Montreal, Banque Paribas, Chemical Bank, CIBC Inc., Fleet National Bank and
Toronto Dominion (Texas), Inc., as co-agents, and The Bank of New York, as
agent, as amended.
"Existing EZ Indebtedness": all of the obligations of EZ and its
subsidiaries under the Credit Agreement, dated as of November 20, 1995, among
EZ, the lenders party thereto, and Chase Manhattan Bank (National Association),
as agent, as amended, and all other Basic Documents (as defined in such Credit
Agreement) executed and delivered in connection therewith, in each case as
amended.
"EZ": EZ Communications, Inc., a Commonwealth of Virginia
corporation.
"EZ Acquisition": the acquisition of EZ by the Borrower by way of a
merger of EZ into and with the Borrower with the Borrower as the survivor, all
pursuant to and in accordance with the EZ Transaction Documents.
"EZ Consent Solicitation": the Consent Solicitation Statement, dated
December 4, 1996, by the
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Borrower to the holders of the EZ Indenture Notes to amend the covenants under
the EZ Indenture to conform them in all material respects or to make them
compatible with the ARS Subordinated Indenture.
"EZ Indenture": the Indenture, dated as of November 21, 1995, among
EZ, the subsidiary guarantors party thereto and State Street Bank and Trust
Company, as trustee, pursuant to which EZ issued the EZ Indenture Notes, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with section 8.19.
"EZ Indenture Notes": the 9.75% senior subordinated notes due 2005 in
the aggregate principal amount of $150 million issued by EZ pursuant to the EZ
Indenture, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with section 8.19.
"EZ Indenture Subsidiary Guaranty": the guaranty or guaranties
executed and delivered by one or more of EZ's (and after the EZ Acquisition, the
Borrower's) subsidiaries in connection with the EZ Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
"EZ License Subsidiaries": EZ Charlotte, Inc., EZ Kansas City, Inc.,
EZ Philadelphia, Inc., EZ Pittsburgh, Inc., EZ Sacramento, Inc. and EZ St.
Louis, Inc., each of which is wholly-owned by PBI and is incorporated in the
Commonwealth of Virginia.
"EZ License Subsidiary Management Agreements": as defined in section
8.21(m).
"EZ Transaction Documents": the Agreement and Plan of Merger, dated
as of August 5, 1996, between the Borrower and EZ, as amended and restated as of
September 27, 1996 among the Borrower, American Merger Corporation and EZ (as
amended and restated, the "American/EZ Merger Agreement"), together with the
American Registration Rights Agreement, the Stockholder Agreement, the American
Voting Agreement and the EZ Voting Agreement, in each case as referred to in the
American/EZ Merger Agreement.
"FCC": the Federal Communications Commission, or any Governmental
Authority succeeding to the functions thereof.
"Federal Funds Rate": for any day, the rate per annum (rounded to the
nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next
higher 1/16 of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day, provided that (i) if
the day for which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds Rate
for such day shall be the average rate charged to the Administrative Agent on
such day on such transactions as determined by the Administrative Agent.
"Finance Costs": non-capitalized costs incurred by the Borrower in
connection with the issuance of equity or the incurrence of Indebtedness.
"Fixed Charges": the sum, without duplication, of (a) Debt Service,
(b) cash taxes paid (excluding (i) capital gains taxes paid in connection with
permitted dispositions of Property pursuant to section 8.7 and (ii) cash taxes
paid by the Borrower attributable to the Tower Subsidiaries to the extent
reimbursed in cash by the Tower Subsidiaries (but including cash paid to the
Tower Subsidiaries in lieu of taxes pursuant to the Tax Sharing Agreement)), (c)
capital expenditures (excluding permitted capital expenditures made with
insurance proceeds), and (d) Restricted Payments made in cash pursuant to and in
accordance with sections 8.4(b) and (e) (excluding Restricted Payments made with
funds received from the Tower Subsidiaries), in each case of
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the Borrower and its Restricted Subsidiaries on a Consolidated basis, determined
in accordance with GAAP, for, as applicable, the immediately preceding four
fiscal quarters for which financial statements have been delivered pursuant to
section 7.1, or, in the event that the date of determination is a fiscal quarter
ending date, the fiscal quarter then ended and the immediately preceding three
fiscal quarters.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statement by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circum stances as of the date of
determination, consistently applied. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in this
Agreement, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent, and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator.
"Hazardous Discharge": as defined in section 11.11(b).
"Highest Lawful Rate": as to any Lender, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender on the Notes held thereby, or which
may be owing to such Lender pursuant to this Agreement and the other Loan
Documents under the laws applicable to such Lender and this transaction.
"Immediate Family Member": with respect to any individual, such
individual's spouse (past or current), descendants (natural or adoptive, of the
whole or half blood) of the parents of such individual, such individual's
grandparents and parents (natural or adoptive), and the grandparents, parents
and descendants of parents (natural or adoptive, of the whole or half blood) of
such individual's spouse (past or current).
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money or
the deferred purchase price of Property (other than trade payables incurred in
the ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale agreement or title retention agreement, (iv) indebtedness
arising under acceptance facilities and the amount available to be drawn under
all letters of credit issued for the account of such Person (except for letters
of credit issued in connection with the Red Sox Network Contract) and, without
duplication, all drafts drawn thereunder (including drafts drawn under the
letters of credit issued in connection with the Red Sox Network Contract) to the
extent such Person shall not have reimbursed the issuer in respect of the
issuer's payment of such drafts, (v) all liabilities secured by any Lien on any
Property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof (other than Liens permitted
under sections 8.2(i) through (iv) and carriers', warehousemen's, mechanics',
repairmen's or other like non-consensual Liens arising in the ordinary course of
business), (vi) obligations for principal payments under leases which have been,
or under GAAP are required to be, capitalized and (vii) all Contingent
Obligations.
"Indemnified Party": shall have the meaning set forth in section
11.11(a).
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<PAGE>
"Interest Expense": the sum of all (i) interest (adjusted to give
effect to all Interest Rate Protection Arrangements and fees and expenses paid
in connection with same, all as determined in accordance with GAAP) on Total
Debt and (ii) commitment and similar fees, in each case of the Borrower and its
Restricted Subsidiaries on a Consolidated basis, determined in accordance with
GAAP, for, as applicable, the immediately preceding four fiscal quarters for
which financial statements have been delivered pursuant to section 7.1, or, in
the event that the date of determination is a fiscal quarter ending date, the
fiscal quarter then ended and the immediately preceding three fiscal quarters.
"Interest Payment Date": (i) as to any ABR Loan, the last day of each
March, June, September and December commencing on the first of such days to
occur after such ABR Loan is made, (ii) as to any Eurodollar Loan in respect of
which the Borrower has selected an Interest Period of one, two or three months,
the last day of such Interest Period and (iii) as to any Eurodollar Loan in
respect of which the Borrower has selected an Interest Period of six months, the
last day of such Interest Period and the corresponding day of the month which is
three months after the date of the commencement of such Interest Period, or, if
such day is not a Business Day or does not exist, on the immediately preceding
Business Day.
"Interest Period": the period commencing on any Business Day selected
by the Borrower in accordance with section 2.3 or 2.8 and ending one, two, three
or six months thereafter, as selected by the Borrower in accordance with such
section, subject to the following:
(a) if any Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall be extended to the
immediately succeeding Business Day unless the result of such extension would be
to carry the end of such Interest Period into another calendar month, in which
event such Interest Period shall end on the Business Day immediately preceding
such day; and
(b) if any Interest Period shall begin 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),
such Interest Period shall end on the last Business Day of a calendar month.
"Interest Rate Protection Arrangement": any interest rate swap, cap
or collar arrangement or any other derivative product customarily offered by
banks to their customers in order to manage the exposure of such customers to
interest rate fluctuations.
"Investments": as defined in section 8.5.
"Lending Office": in respect of any Lender, initially, the office or
offices of such Lender designated as such on Schedule 1.1(L) hereto; thereafter,
such other office or offices of such Lender, if any, which shall be making or
maintaining Loans.
"License Subsidiaries": collectively, (i) the ARS License Subsidiary,
(ii) the EZ License Subsidiaries and (iii) each other License Subsidiary which
the Borrower or any Restricted Subsidiary may acquire in accordance with section
8.3, each of which shall be a wholly-owned Restricted Subsidiary of the
Borrower.
"License Subsidiary Management Agreements": collectively, (i) the ARS
License Subsidiary Management Agreement, (ii) upon the consummation of the EZ
Acquisition, the EZ License Subsidiary Management Agreements and (iii) each
other management agreement entered into pursuant to section 8.3.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or other security agreement
or security interest of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement and any
financing lease having substantially the same economic effect as any of the
foregoing.
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"Loans": the RC/TL Loans and the SD/TL Loans.
"Loan Documents": collectively, this Agreement, the Notes, the
Collateral Documents and the License Subsidiary Management Agreements.
"Loan Party": the Borrower, each Subsidiary Guarantor and each other
party (other than the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders) that is a signatory to a Loan Document.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
operations, business, prospects, Property or condition (financial or otherwise),
except for the status of the matters as described under "Risk Factors-Factors
Relating to American and its Business--Antitrust Matters" in the 1997 Preferred
Stock Offering Circular (provided no material adverse change in such status
shall occur), of (a) the Borrower (excluding any interest of the Borrower in the
Tower Subsidiaries) or (b) the Borrower and its Restricted Subsidiaries on a
Consolidated basis, (ii) the ability of the Borrower or any other Loan Party to
perform its obligations under the Loan Documents to which it is a party or (iii)
the ability of the Administrative Agent, the Collateral Agent or any of the
Lenders to enforce any of the Loan Documents (other than as a result of facts or
circumstances pertaining to the Administrative Agent, the Collateral Agent or
such Lender which are not related to the Borrower or its Restricted
Subsidiaries).
"Material Adverse Effect": a material adverse effect on (i) the
operations, business, prospects, Property or conditions (financial or
otherwise), except for the status of the matters as described under "Risk
Factors-Factors Relating to American and its Business--Antitrust Matters" in the
1997 Preferred Stock Offering Circular (provided no material adverse change in
such status shall occur), of (a) the Borrower (excluding any interest of the
Borrower in the Tower Subsidiaries) or (b) the Borrower and its Restricted
Subsidiaries on a Consolidated basis, (ii) the ability of the Borrower or any
other Loan Party to perform its obligations under the Loan Documents to which it
is a party or (iii) the ability of the Administrative Agent, the Collateral
Agent or any of the Lenders to enforce any of the Loan Documents (other than as
a result of facts or circumstances pertaining to the Administrative Agent, the
Collateral Agent or such Lender which are not related to the Borrower or its
Restricted Subsidiaries).
"Maturity Date": December 31, 2004.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Equity Proceeds": as defined in section 2.5(h).
"1996 Convertible Exchangeable Preferred Stock Issuance": the
issuance of convertible exchangeable preferred Stock of the Borrower having a
total liquidation value (including any such Stock sold pursuant to the
over-allotment option of the initial purchasers) equal to $137,500,000, as
described in the Confidential Offering Circular, dated June 19, 1996.
"1996 Exchange Subordinated Indenture": in the event that the
Borrower elects to exchange shares of the preferred Stock issued in connection
with the 1996 Preferred Stock Issuance for 1996 Exchange Subordinated Indenture
Notes, the indenture between the Borrower and the applicable trustee relating
thereto, such indenture to contain subordination terms with respect to the Loan
Documents at least as favorable to the
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Administrative Agent, the Collateral Agent and the Lenders as those contained in
the ARS Subordinated Indenture and to be in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.19.
"1996 Exchange Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the 1996 Exchange Subordinated Indenture, such subordinated
notes to be subordinated to the Loan Documents at least to the same extent as
the ARS Subordinated Indenture Notes and to be in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.19.
"1997 Exchange Subordinated Indenture": in the event that the
Borrower elects to exchange shares of the preferred Stock issued in connection
with the 1997 Preferred Stock Issuance for 1997 Exchange Subordinated Indenture
Notes, the indenture between the Borrower and the applicable trustee relating
thereto, such indenture to contain subordination terms with respect to the Loan
Documents at least as favorable to the Administrative Agent, the Collateral
Agent and the Lenders as those contained in the ARS Subordinated Indenture and
to be in form and substance reasonably satisfactory to the Administrative Agent,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with section 8.19.
"1997 Exchange Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the 1997 Exchange Subordinated Indenture, such subordinated
notes to be subordinated to the Loan Documents at least to the same extent as
the ARS Subordinated Indenture Notes and to be in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.19.
"1997 Preferred Stock Issuance": the issuance of exchangeable
preferred Stock (including any exchangeable preferred Stock issued in exchange
therefor) of the Borrower having a total liquidation value not to exceed
$200,000,000 (excluding any increase in total liquidation value resulting from
the Borrower's election to pay dividends in the form of additional shares of
such exchangeable preferred Stock), all as de scribed in the 1997 Preferred
Stock Offering Circular.
"1997 Preferred Stock Offering Circular": the Confidential
Preliminary Offering Circular, dated January 2, 1997.
"Non-License Subsidiary Broadcasting Stations": all Broadcasting
Stations the FCC licenses for which are not held by a License Subsidiary,
provided, however, that the term "Non-License Subsidiary Broadcasting Stations"
shall not include any Broadcasting Station held for disposition by the Borrower
or any Restricted Subsidiary for which the Borrower has notified the
Administrative Agent in writing thereof, provided that such decision to hold for
disposition is reasonably satisfactory to the Administrative Agent.
"Non Redeemable Preferred Stock": preferred Stock issued by the
Borrower which is not, under any contingency, at any time prior to three years
after the Maturity Date (except upon the occurrence of a Change of Control),
subject to any mandatory dividend, redemption or similar requirement (except to
the extent permitted by the provisions of section 8.4) and which is not
convertible or exchangeable into any Indebtedness or Stock (other than common
Stock or other Non Redeemable Preferred Stock or, solely at the option of the
Borrower, exchangeable into Permitted Subordinated Debt).
"Notes": the RC/TL Notes and the SD/TL Notes.
"Other Credit Agreement": the $550,000,000 Credit Agreement, dated as
of the date hereof, by and among the Borrower, The Bank of New York, as
collateral agent and administrative agent, The Chase Manhattan Bank and The
Toronto-Dominion Bank, as co-syndication agents, Bank of Montreal, Credit Suisse
First Boston, Fleet National Bank and Union Bank of California, N.A., as
managing agents, Barclays Bank
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PLC, as agent, Bank of America Illinois, The Sanwa Bank, Limited and Van Kampen
American Capital Prime Rate Income Trust, as co-agents, and the lenders party
thereto, as the same may be amended, supplemented or otherwise modified from
time to time.
"Other Credit Agreement Loans": the Loans under and as defined in the
Other Credit Agreement.
"Operating Cash Flow": at any time, with respect to any Person, for
any period: (i) broadcasting revenues (exclusive of reciprocal and barter
revenues) of such Person, determined in accordance with GAAP, for such period,
less (ii) the sum of, without duplication: (a) station operating expenses
(exclusive of depreciation, amortization and reciprocal and barter expenses
included therein), (b) the amount of any cash payments related to non-cash
expense items added pursuant to clause (iii) below and (c) corporate office,
general and administrative expenses (exclusive of Finance Costs, depreciation
and amortization included therein), plus (iii) non-cash or non-recurring expense
items of such Person for such period, in each case mutu ally agreed upon between
the Borrower and the Administrative Agent, to the extent deducted in accordance
with clause (ii) above. Operating Cash Flow shall be adjusted on a consistent
basis to reflect the acquisition, sale, exchange and disposition of Property
during such period. Operating Cash Flow will exclude all extraordinary gains and
losses and all gains and losses from acquisitions, sales, exchanges and
dispositions of assets.
"PBB": Palm Beach Radio Broadcasting, Inc., a Delaware corporation.
"PBB Appreciation Rights": the rights granted by PBB to the Borrower
pursuant to the PBB Note Purchase Agreements to share in all or part of the
increase in the value of PBB.
"PBB Collateral Documents": the security agreements, by and between
PBB and the Borrower granting in favor of the Borrower a security interest in
substantially all assets of PBB and the pledge agreements, by and among each
shareholder of PBB and the Borrower pledging to the Borrower all issued and
outstanding Stock of PBB.
"PBB Documents": collectively, the PBB Stockholder Agreements, the
PBB Notes, the PBB Note Purchase Agreements and the PBB Collateral Documents.
"PBB Notes": the promissory notes issued by PBB to the Borrower,
including any accrued and unpaid interest which may have been paid in the form
of additional PBB Notes.
"PBB Note Purchase Agreements": the note purchase agreements between
PBB and the Borrower with respect to the PBB Appreciation Rights and the PBB
Notes.
"PBB Station Acquisitions": the acquisitions by PBB of the assets of
certain Broadcasting Stations pursuant to and in accordance with the PBB Note
Purchase Agreements.
"PBB Stockholder Agreements": the stockholder agreements, among PBB,
the Borrower and each of the shareholders of PBB.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"PBI": Professional Broadcasting Inc., a wholly-owned, direct
subsidiary of EZ and a Commonwealth of Virginia corporation.
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"Permitted Liens": Liens permitted to exist pursuant to section 8.2.
"Permitted Subordinated Debt": unsecured subordinated Indebtedness of
the Borrower (which Indebtedness may be guaranteed on an unsecured subordinated
basis by one or more of the Restricted Subsidiaries), provided that such
Indebtedness (a) is issued on substantially the terms and conditions (or terms
more favorable to the Borrower, the Administrative Agent, the Collateral Agent
and the Lenders than those) set forth in the ARS Subordinated Indenture and is
in form and substance reasonably satisfactory to the Administrative Agent and
the Co-Syndication Agents, and (b) immediately before and after giving effect to
the incurrence of such subordinated Indebtedness, all representations and
warranties contained in the Loan Documents shall be true and correct and no
Default or Event of Default shall exist.
"Permitted Subordinated Indenture": in connection with any Permitted
Subordinated Debt, the indenture between the Borrower and the applicable trustee
relating thereto, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with section 8.19.
"Permitted Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the Permitted Subordinated Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
"Permitted Subordinated Indenture Subsidiary Guaranty": the
subordinated guaranty or guaranties, if any, executed and delivered by one or
more of the Restricted Subsidiaries in connection with the Permitted
Subordinated Indenture, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with section 8.19.
"Permitted Transferee": with respect to any natural Person, the
spouse, parents, brothers, sisters and children (natural or adopted) of such
Person and the trustees of an immediate family of such Person.
"Person": an individual, a partnership, a corporation, a business
trust, a joint stock company, a trust, an unincorporated association, a joint
venture, a limited liability company, a Governmental Authority or any other
entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of ERISA and
which is maintained by or to which contributions are made by the Borrower or a
Commonly Controlled Entity or in respect of which the Borrower or a Commonly
Controlled Entity has or may have any liability.
"Preliminary Order": with respect to the acquisition or merger of any
Broadcasting Station, the FCC order consenting to such acquisition or merger
which has not been reversed, stayed, enjoined, set aside, annulled or suspended
and with respect to which no request for administrative or judicial review,
reconsideration, appeal or stay has been filed.
"Prepayment Fraction": in respect of any mandatory prepayment of the
Loans pursuant to section 2.5(d), (f), (g), (h) or (i), a fraction the numerator
of which is the aggregate outstanding principal amount of the Loans and the
denominator of which is the sum of the aggregate outstanding principal amount of
the Loans and the aggregate outstanding principal amount of the Other Credit
Agreement Loans, in each case determined immediately prior to such mandatory
prepayment.
"Principal Shareholders": Steven B. Dodge and Thomas H. Stoner.
"Pro-Forma Debt Service": the sum of Pro-Forma Interest Expense and
the scheduled payments of principal (including scheduled mandatory reductions of
revolving credit and similar commitments) in respect of Total Debt required to
be made during the four fiscal quarters of the Borrower immediately succeeding
any determination thereof. For purposes of calculating Pro-Forma Debt Service,
the principal amount outstanding
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under any revolving or line of credit facility on the date of any calculation of
Pro-Forma Debt Service shall be assumed to be outstanding during the entire
applicable four fiscal quarter period, subject to any mandatory scheduled
payments of principal required to be made during such period.
"Pro-Forma Interest Expense": the sum of all interest (adjusted to
give effect to all Interest Rate Protection Arrangements and fees and expenses
paid in connection with the same, all as determined in accordance with GAAP) in
respect of Total Debt for the four fiscal quarters of the Borrower immediately
succeeding any determination thereof. Where any item of interest varies or
depends upon a variable rate of interest (or other rate of interest which is not
fixed for such entire four fiscal quarters), such rate, for purposes of
calculating Pro-Forma Interest Expense, shall be assumed to equal the Alternate
Base Rate plus the Applicable Margin in effect on the date of such calculation,
or, if such rate is a Eurodollar Rate, the applicable Eurodollar Rate plus the
Applicable Margin until the end of the applicable Interest Period and, for the
period after the end of such applicable Interest Period, the applicable
Eurodollar Rate plus the Applicable Margin in effect on the date of such
calculation (such applicable Eurodollar Rate being calculated with respect to a
Loan for a principal amount and for an Interest Period equal to the principal
amount and Interest Period of the Eurodollar Loan the Interest Period for which
has just ended). Also, for purposes of calculating Pro-Forma Interest Expense,
the principal amount outstanding under any revolving or line of credit facility
on the date of any calculation of Pro-Forma Debt Service shall be assumed to be
outstanding during the entire applicable four fiscal quarter period, subject to
any mandatory scheduled payments of principal required to be made during such
period.
"Property": all types of real, personal, tangible, intangible or
mixed property.
"Ratio Certificate": a certificate substantially in the form of
Exhibit H.
"RC/TL Commitment": as to any Lender, the amount set forth next to
the name of such Lender on Exhibit A under the heading "RC/TL Commitment", as
such RC/TL Commitment may be reduced from time to time pursuant to section 2.4.
"RC/TL Commitments": the RC/TL Commitments of all Lenders.
"RC/TL Commitment Percentage": as to any Lender, the percentage set
forth opposite the name of such Lender on Exhibit A under the heading "RC/TL
Commitment Percentage".
"RC/TL Commitment Period": the period from the Effective Date until
the RC/TL Commitment Termination Date.
"RC/TL Commitment Termination Date": the earlier of the Business Day
immediately preceding December 31, 1997 or such other date upon which the RC/TL
Commitments shall have been terminated in accordance with section 2.4 or 9.1.
"RC/TL Loan" and "RC/TL Loans": as defined in section 2.1(a).
"RC/TL Note" and "RC/TL Notes": as defined in section 2.2(a).
"Red Sox Network Contract": the agreement, dated as of July 29, 1993,
between the Borrower and Boston Red Sox Baseball Club, L.P. with respect to a
continuation of the rights of the Borrower to broadcast the Boston Red Sox
baseball games, as amended by Amendment No. 1, dated as of February 25, 1994,
and Amendment No. 2, dated as of May 18, 1995, and as the same may be further
amended, supplemented or otherwise modified from time to time.
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"Reinvested Proceeds": net cash proceeds from the sale, exchange or
other disposition of all or substantially all of a Broadcasting Station, after
giving effect to the payment of cash taxes payable in connection with the same,
which cash proceeds are used to acquire one or more additional Broadcasting
Stations through a merger or acquisition in accordance with section 8.3 during
the Reinvestment Period.
"Reinvestment Period": the period which is nine months from the date
that proceeds from the sale, exchange or other disposition of all or
substantially all of a Broadcasting Station, permitted pursuant to section 8.7,
are received by the Borrower.
"Related Party": with respect to any Principal Shareholder means (i)
any 80% (or more) owned Subsidiary or Immediate Family Member (in the case of an
individual) of such Principal Shareholder or (ii) any Person, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal Shareholder or an
Immediate Family Member, or (iii) any Person employed by the Borrower in a
management capacity as of the Effective Date.
"Remaining Interest Period": (i) in the event that the Borrower shall
fail for any reason to borrow or convert Loans after it shall have notified the
Administrative Agent of its intent to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, a period equal to the Interest
Period that the Borrower elected in respect of such Eurodollar Loan; (ii) in the
event that a Eurodollar Loan shall terminate for any reason prior to the last
day of the Interest Period applicable thereto, a period equal to the period from
and including the date of such termination to but excluding the last day of such
Interest Period; and (iii) in the event that the Borrower shall prepay or repay
all or any part of the principal amount of a Eurodollar Loan prior to the last
day of the Interest Period applicable thereto, a period equal to the period from
and including the date of such prepayment or repayment to but excluding the last
day of such Interest Period.
"Reportable Event": any event described in Section 4043(b) of ERISA,
other than an event (excluding an event described in Section 4043(b)(1) relating
to tax disqualification) with respect to which the 30-day notice requirement has
been waived.
"Required Lenders": at any date of determination, Lenders having
Credit Exposure equal to or greater than 51% of the Total Credit Exposure.
"Restricted Payment": as defined in section 8.4.
"Restricted Subsidiaries": all Subsidiaries of the Borrower, other
than (i) the Tower Subsidiaries, (ii) American Merger Corporation (a shell
corporation with no assets) and (iii), following the EZ Acquisition, Radio Data,
Inc.
"SD/TL Commitment": as to any Lender, the amount set forth next to
the name of such Lender on Exhibit A under the heading "SD/TL Commitment", as
such SD/TL Commitment may be reduced from time to time pursuant to section 2.4.
"SD/TL Commitments": the SD/TL Commitments of all Lenders.
"SD/TL Commitment Percentage": as to any Lender, the percentage set
forth opposite the name of such Lender on Exhibit A under the heading "SD/TL
Commitment Percentage".
"SD/TL Commitment Period": the period from the Effective Date until
the SD/TL Commitment Termination Date.
"SD/TL Commitment Termination Date": the earliest to occur of (i) the
first Borrowing Date with respect to SD/TL Loans, (ii) 60 days from the
consummation of the EZ Acquisition, (iii) the Business Day
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immediately preceding November 30, 1997, or (iv) such other date upon which the
SD/TL Commitments shall have been terminated in accordance with section 2.4 or
9.1.
"SD/TL Loan" and "SD/TL Loans": as defined in section 2.1(b).
"SD/TL Note" and "SD/TL Notes": as defined in section 2.2(b).
"Senior Debt": the aggregate Indebtedness of the Borrower and its
Restricted Subsidiaries (other than the Indebtedness evidenced by the ARS
Subordinated Indenture Notes, the ARS Subordinated Indenture Subsidiary
Guaranty, the 1996 Exchange Subordinated Indenture Notes, the 1997 Exchange
Subordinated Indenture Notes, the Permitted Subordinated Indenture Notes and the
Permitted Subordinated Indenture Subsidiary Guaranty) on a Consolidated basis,
determined in accordance with GAAP.
"Senior Leverage Ratio": the ratio of Senior Debt to Consolidated
Annual Operating Cash Flow.
"Signatory Corporation": any corporation (other than the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents or the Lenders) which is a party to,
or an Authorized Signatory of, any Loan Document.
"Single Employer Plan": any Plan which is not a Multiemployer Plan.
"Solvent": with respect to any Person as of any date of
determination, on such date (i) the fair value of the assets of such Person
(both at fair valuation and at present fair saleable value) is, as of such date
of determination, greater than the total amount of liabilities, including,
without limitation, contingent and unliquidated liabilities, of such Person,
(ii) such Person is able to pay all of its liabilities as they mature, and (iii)
such Person does not have unreasonably small capital with which to carry on its
business. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel to
the Administrative Agent and the Collateral Agent.
"Station Annual Cash Flow": at any time with respect to any
Broadcasting Station, Station Cash Flow of such Broadcasting Station for the
immediately preceding four fiscal quarters for which financial statements have
been delivered pursuant to section 7.1, or in the event that the date of
determination is a fiscal quarter ending date, the fiscal quarter then ended and
the immediately preceding three fiscal quarters.
"Station Cash Flow": at any time, with respect to any Broadcasting
Station, for any period: (i) broadcasting revenues (exclusive of reciprocal and
barter revenues) of such Broadcasting Station, determined in accordance with
GAAP, for such period, less (ii) station operating expenses (exclusive of
depreciation, amortization and reciprocal and barter expenses included therein)
of such Broadcasting Station for such period.
"Station Sale Measuring Period": for any date of determination, the
period commencing on the first day of the immediately preceding four fiscal
quarter period for which financial statements have been delivered pursuant to
section 7.1 (or, in the event that such date of determination is a fiscal
quarter ending date, the first day of the four fiscal quarter period ending on
such date of determination) through and including such date of determination.
"Stock": any and all shares, interests, participations, options,
warrants or other equivalents (however
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designated) of corporate stock, including, without limitation, so called phantom
stock.
"Stock Option Plan": the Amended and Restated 1993 Stock Option Plan
of Borrower, as the same may be amended, supplemented or otherwise modified from
time to time.
"Subsidiary": any corporation, association, partnership, joint
venture or other business entity of which the Borrower and/or any Subsidiary of
the Borrower, directly or indirectly, either (i) in respect of a cor poration,
owns or controls more than 50% of the outstanding Stock having ordinary voting
power to elect a majority of the board of directors or similar managing body,
irrespective of whether or not a class or classes shall or might have voting
power by reason of the happening of any contingency, or (ii) in respect of an as
sociation, partnership, joint venture or other business entity, is entitled to
share in more than 50% of the profits and losses, however determined.
"Subsidiary Guaranty": the Subsidiary Guaranty and Security
Agreement, dated as of the date hereof, made by the Restricted Subsidiaries to
the Collateral Agent, substantially in the form attached hereto as Exhibit J, as
the same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary Guarantor": each Restricted Subsidiary.
"Taxes": any present or future income, stamp or other taxes, levies,
imposts, duties, fees, assessments, deductions, withholding, or other charges of
whatever nature, now or hereafter imposed, levied, collected, withheld, or
assessed by any jurisdiction, or by any department, agency, state or other
political subdivision thereof or therein.
"Tax Sharing Agreement": the Tax Sharing Agreement, dated as of
October 15, 1996, among the Borrower and its Subsidiaries, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
section 8.13.
"Top 75 Markets": domestic markets ranked 1-75 by a nationally
recognized independent source as measured in terms of radio advertising revenue.
"Total Combined Credit Exposure": at any time, the sum, without
duplication, of the Combined Credit Exposures of all Lenders hereunder and all
Lenders (as defined in the Other Credit Agreement) at such time.
"Total Credit Exposure": at any time, the sum of the Credit Exposures
of all Lenders at such time.
"Total Debt": the aggregate Indebtedness of the Borrower and its
Restricted Subsidiaries on a Consolidated basis, determined in accordance with
GAAP.
"Total Leverage Ratio": the ratio of Total Debt to Consolidated
Annual Operating Cash Flow.
"Tower Subsidiaries": collectively, American Tower Systems Holding
Corporation, a Delaware corporation, and its subsidiaries.
1.2 Principles of Construction.
(a) All terms defined in this Agreement shall have the
meanings given such terms herein when used in the Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto,
unless otherwise defined therein.
(b) Unless otherwise specified herein, as used in the Loan
Documents and in any cer tificate, opinion or other document made or delivered
pursuant hereto or thereto, all accounting terms used herein shall be
interpreted, and all accounting determinations hereunder shall be made, in
accordance with GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder"
and similar words when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
paragraph, schedule and exhibit references contained herein shall refer to
sections or paragraphs hereof or schedules or exhibits hereto unless otherwise
expressly provided herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive; and the singular includes the plural.
(e) Unless otherwise specifically set forth herein, all
references to time shall refer to New York City time.
2. AMOUNT AND TERMS OF LOANS.
2.1 Loans.
(a) RC/TL Loans. Subject to the terms and conditions hereof,
each Lender having an RC/TL Commitment agrees to make loans (each an "RC/TL
Loan" and, collectively with the other RC/TL Loans of such Lender and/or with
the RC/TL Loans of each other Lender, the "RC/TL Loans") to the Borrower from
time to time during the RC/TL Commitment Period. At all times during the RC/TL
Commit ment Period, the Borrower may borrow, prepay and reborrow RC/TL Loans in
accordance with the provisions hereof, provided that the aggregate unpaid
principal amount of all RC/TL Loans at any one time outstanding during the RC/TL
Commitment Period shall not exceed the RC/TL Commitments then in effect of all
the Lenders, and provided further that the aggregate unpaid principal amount of
each Lender's RC/TL Loans at any one time outstanding during the RC/TL
Commitment Period shall not exceed such Lender's RC/TL Com mitment. The
principal amount of each Lender's RC/TL Loan made on a Borrowing Date shall be
an amount equal to its RC/TL Commitment Percentage of all RC/TL Loans made on
such date. Subject to the provisions of sections 2.3, 2.8 and 2.15, RC/TL Loans
may be (i) ABR Loans, (ii) Eurodollar Loans or (iii) any combination thereof.
(b) SD/TL Loans. Subject to the terms and conditions hereof,
each Lender having an SD/TL Commitment agrees to make a single loan (its "SD/TL
Loan" and, collectively with the other SD/TL Loans of each other Lender, the
"SD/TL Loans") to the Borrower during the SD/TL Commitment Period. At any one
time during the SD/TL Commitment Period, the Borrower may borrow the SD/TL Loans
in accordance with the provisions hereof, provided that the aggregate principal
amount of all SD/TL Loans being borrowed on such Borrowing Date shall not exceed
the SD/TL Commitments then in effect of all the Lenders, and provided further
that the principal amount of each Lender's SD/TL Loan being borrowed on such
Borrowing Date shall not exceed such Lender's SD/TL Commitment. The principal
amount of each Lender's SD/TL Loan made on such Borrowing Date shall be an
amount equal to its SD/TL Commitment Percentage of all SD/TL Loans made on such
date. Subject to the provisions of sections 2.3, 2.8 and 2.15, SD/TL Loans may
be (i) ABR Loans, (ii) Eurodollar Loans or (iii) any combination thereof.
2.2 Notes.
(a) RC/TL Notes. The RC/TL Loans of each Lender shall be
evidenced by a promissory note in the form of Exhibit B-1 (each as indorsed or
modified from time to time, including all
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replacements thereof and substitutions therefor, an "RC/TL Note" and,
collectively with the RC/TL Note of each other Lender, the "RC/TL Notes"), dated
the Effective Date, payable to the order of such Lender, in the maximum stated
principal amount equal to such Lender's RC/TL Commitment. Each RC/TL Note shall
(i) be dated the Effective Date, (ii) be stated to mature on the Maturity Date
and (iii) bear interest on the unpaid principal amount thereof at the applicable
interest rate or rates per annum determined as provided in section 2.6, payable
as specified in section 2.6. Each Lender is hereby irrevocably authorized by the
Borrower to enter on the schedule attached to its RC/TL Note and/or in its
internal books and records the amount of each RC/TL Loan made by it thereunder,
each payment thereon, and the other information provided for on such schedule,
and such schedule and books and records shall be presumptively correct absent
manifest error as to the amount of such Lender's RC/TL Loans and as to the
amount of principal and interest paid by the Borrower in respect of such RC/TL
Loans and as to the other information set forth on such schedule or books and
records relating to the RC/TL Loans, provided, however, that the failure to make
any such entry (or any error therein) with respect to any RC/TL Loan shall not
limit or otherwise affect the obligations of the Borrower hereunder or under
such RC/TL Note. Each Lender may attach one or more continuations to such
schedule as and when required. In all events, the principal amount owing by the
Borrower to each Lender in respect of such Lender's RC/TL Note shall be the
aggregate amount of all RC/TL Loans made by such Lender thereunder less all
payments of principal thereon made by the Borrower.
(b) SD/TL Notes. The SD/TL Loan of each Lender shall be
evidenced by a promissory note in the form of Exhibit B-2 (each as indorsed or
modified from time to time, including all replacements thereof and substitutions
therefor, an "SD/TL Note" and, collectively with the SD/TL Note of each other
Lender, the "SD/TL Notes"), dated the Effective Date, payable to the order of
such Lender, in the maximum stated principal amount equal to such Lender's SD/TL
Commitment. Each SD/TL Note shall (i) be dated the Effective Date, (ii) be
stated to mature on the Maturity Date and (iii) bear interest on the unpaid
principal amount thereof at the applicable interest rate or rates per annum
determined as provided in section 2.6, payable as specified in section 2.6. Each
Lender is hereby irrevocably authorized by the Borrower to enter on the schedule
attached to its SD/TL Note and/or in its internal books and records the amount
of the SD/TL Loan made by it thereunder, each payment thereon, and the other
information provided for on such schedule, and such schedule and books and
records shall be presumptively correct absent manifest error as to the amount of
such Lender's SD/TL Loan and as to the amount of principal and interest paid by
the Borrower in respect of such SD/TL Loan and as to the other information set
forth on such schedule or books and records relating to the SD/TL Loan,
provided, however, that the failure to make any such entry (or any error
therein) with respect to such SD/TL Loan shall not limit or otherwise affect the
obligations of the Borrower hereunder or under such SD/TL Note. Each Lender may
attach one or more continuations to such schedule as and when required. In all
events, the principal amount owing by the Borrower to each Lender in respect of
such Lender's SD/TL Note shall be the amount of the SD/TL Loan made by such
Lender thereunder less all payments of principal thereon made by the Borrower.
2.3 Procedure for Borrowing Loans.
(a) The Borrower may borrow (i) RC/TL Loans on any Business
Day occurring during the RC/TL Commitment Period or (ii) SD/TL Loans on any
Business Day occurring during the SD/TL Commitment Period, provided that, with
respect to any requested borrowing, the Borrower shall notify the Administrative
Agent (by telephone or telecopy) no later than 11:00 A.M., three Business Days
prior to the requested Borrowing Date, in the case of Eurodollar Loans, and no
later than 11:00 A.M., one Business Day prior to the requested Borrowing Date,
in the case of ABR Loans (the same Business Day in the case of ABR Loans on the
first Borrowing Date), specifying (i) the aggregate amounts to be borrowed under
the RC/TL Commitments or the SD/TL Commitments, as the case may be, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be a Eurodollar
Loan, an ABR Loan, or a combination thereof, and (iv) if the borrowing is to be
a Eurodollar Loan, the length of the initial Interest Period for such Eurodollar
Loan. Each such notice shall be irrevocable and confirmed immediately by
delivery to the Administrative Agent of a Bor rowing Request. Each borrowing of
RC/TL Loans or SD/TL Loans, as the case may be, consisting of ABR
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Loans shall be in an aggregate principal amount equal to $1,000,000 or such
amount plus an integral multiple of $500,000 in excess thereof or, if less, the
unused amount of the RC/TL Commitments or the SD/TL Commitments, as the case may
be. Each borrowing of RC/TL Loans or SD/TL Loans, as the case may be, consisting
of Eurodollar Loans shall be in a minimum aggregate principal amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof. Upon receipt
of each notice of borrowing from the Borrower, the Administrative Agent shall
promptly notify each Lender (by telephone or otherwise, such notice to be
confirmed by telecopy or other writing) of the requested borrowing. Subject to
its receipt of the notice referred to in the preceding sentence and to the other
terms and conditions of this Agreement, each Lender will make the amount of its
applicable RC/TL Commitment Percentage or SD/TL Commitment Percentage, as the
case may be, of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent set forth in
section 11.2 not later than 12:00 Noon, on the Borrowing Date requested by the
Borrower, in funds immediately available to the Administrative Agent at such
office. The amounts so made available to the Administrative Agent on a Borrowing
Date will then, subject to the satisfaction of the terms and conditions of this
Agreement as determined by the Administrative Agent, be made available on such
date to the Borrower by the Administrative Agent, in immediately available
funds, at the of fice of the Administrative Agent specified in section 11.2 by
crediting the account of the Borrower on the books of such office with the
aggregate of said amounts received by the Administrative Agent.
(b) Unless the Administrative Agent shall have received
prior notice from a Lender (by telephone or otherwise, such notice to be
confirmed by telecopy or other writing) that such Lender will not make available
to the Administrative Agent such Lender's pro rata share of the Loans requested
by the Borrower, the Administrative Agent may assume that such Lender has made
such share available to the Administrative Agent on such Borrowing Date in
accordance with this section 2.3 provided that such Lender received notice of
the proposed borrowing from the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such Borrowing Date a corresponding amount. If and to the extent such Lender
shall not have so made such pro rata share available to the Administrative
Agent, such Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount (to the extent not
previously paid by the other), together with interest thereon for each day from
the date such amount is made available to the Borrower until the date such
amount is paid to the Administrative Agent, at a rate per annum equal to, in the
case of the Borrower, the applicable interest rate set forth in section 2.6,
and, in the case of such Lender, the Federal Funds Rate in effect on such date
(as determined by the Administrative Agent). Such payment by the Borrower,
however, shall be without prejudice to its rights against such Lender. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Loan as part of such Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by such
Lender on the Borrowing Date applicable to such Loans.
2.4 Termination or Reduction of Commitments.
(a) Voluntary Reductions. The Borrower shall have the right,
upon at least three Business Days' prior irrevocable written notice to the
Administrative Agent, to reduce permanently the RC/TL Commitments or the SD/TL
Commitments in whole at any time, or in part from time to time, without premium
or penalty, to an amount not less than the sum of the aggregate outstanding
principal balance of (i) the RC/TL Loans, if reducing the RC/TL Commitments, or
(ii) the SD/TL Loans, if reducing the SD/TL Commitments, in each case after
giving effect to any contemporaneous prepayment thereof, provided that each
partial reduction of such Commitments shall be in a minimum amount of $5,000,000
or such amount plus a whole multiple thereof or, if less, the aggregate amount
of the RC/TL Commitments or the SD/TL Commitments, as the case may be, then in
effect.
(b) Mandatory Reductions of Commitments.
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On each date that a prepayment is made pursuant to section
2.5(d), (f), (g), (h) or (i), the RC/TL Commitments shall be automatically and
permanently reduced in an amount equal to the amount of the required prepayment
of the RC/TL Loans.
(c) Application of Reductions.
(i) Each reduction of the RC/TL Commitments or the SD/TL
Commitments, as the case may be, made pursuant to this section 2.4 shall effect
a corresponding reduction of each Lender's applicable Commitment by an amount
equal to such Lender's applicable Commitment Percentage of such reduction.
(ii) Simultaneously with each reduction of any of the
Commitments under this section 2.4, the Borrower shall pay the applicable
Commitment Fee accrued on the amount by which such Com mitments have been
reduced.
2.5 Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the RC/TL Loans or the SD/TL Loans, in whole or in part, without premium
or penalty, at any time and from time to time, by notifying the Administrative
Agent at least three Business Days' prior to the proposed prepayment date with
respect to Eurodollar Loans, and at least two Business Days prior to the
proposed prepayment date with respect to ABR Loans. Each such notice shall be in
writing and shall specify the Loans to be prepaid (whether RC/TL Loans or SD/TL
Loans and whether Eurodollar Loans or ABR Loans), the amount to be prepaid, and
the date of prepayment. Upon receipt by the Administrative Agent of any such
notice, the Administrative Agent shall promptly notify each Lender thereof. If
any such notice of the Borrower is given pursuant to this section 2.5, such
notice shall be irrevocable and the payment amount specified in such notice
shall be due and payable on the date specified, together with accrued interest
to the date of such payment on the amount prepaid. Partial prepayments of ABR
Loans shall be in an aggregate principal amount of $500,000 or an integral
multiple thereof and partial prepayments of Eurodollar Loans shall be in an
aggregate principal amount of $1,000,000 or an integral multiple thereof, or, if
less, the outstanding principal balance of the RC/TL Loans or the SD/TL Loans,
as the case may be.
(b) Mandatory Scheduled Amortization of RC/TL Loans. The
Borrower shall, so long as any RC/TL Loans are outstanding, on each date set
forth below, make a scheduled repayment of the outstanding principal amount of
the RC/TL Loans, together with accrued interest on all such amounts so repaid,
in the following percentages of the aggregate outstanding principal balance of
the RC/TL Loans as of 5:00 P.M. on March 30, 1999:
Dates Percentages
March 31, 1999 1.3750%
June 30, 1999 1.3750%
September 30, 1999 1.3750%
December 31, 1999 1.3750%
March 31, 2000 2.7500%
June 30, 2000 2.7500%
September 30, 2000 2.7500%
December 31, 2000 2.7500%
March 31, 2001 4.1250%
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June 30, 2001 4.1250%
September 30, 2001 4.1250%
December 31, 2001 4.1250%
March 31, 2002 4.7500%
June 30, 2002 4.7500%
September 30, 2002 4.7500%
December 31, 2002 4.7500%
March 31, 2003 5.5625%
June 30, 2003 5.5625%
September 30, 2003 5.5625%
December 31, 2003 5.5625%
March 31, 2004 6.4375%
June 30, 2004 6.4375%
September 30, 2004 6.4375%
December 31, 2004 6.4375%
(c) Mandatory Scheduled Amortization of SD/TL Loans. The
Borrower shall, so long as any SD/TL Loans are outstanding, on each date set
forth below, make a scheduled repayment of the outstanding principal amount of
the SD/TL Loans, together with accrued interest on all such amounts so repaid,
in the following percentages of the aggregate outstanding principal balance of
the SD/TL Loans as of 5:00 P.M. on March 30, 1999:
Dates Percentages
March 31, 1999 1.3750%
June 30, 1999 1.3750%
September 30, 1999 1.3750%
December 31, 1999 1.3750%
March 31, 2000 2.7500%
June 30, 2000 2.7500%
September 30, 2000 2.7500%
December 31, 2000 2.7500%
March 31, 2001 4.1250%
June 30, 2001 4.1250%
September 30, 2001 4.1250%
December 31, 2001 4.1250%
March 31, 2002 4.7500%
June 30, 2002 4.7500%
September 30, 2002 4.7500%
December 31, 2002 4.7500%
March 31, 2003 5.5625%
June 30, 2003 5.5625%
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September 30, 2003 5.5625%
December 31, 2003 5.5625%
March 31, 2004 6.4375%
June 30, 2004 6.4375%
September 30, 2004 6.4375%
December 31, 2004 6.4375%
(d) Mandatory Prepayments Relating to Excess Cash Flow. On the
earlier of (i) the date the annual financial statements in respect of each
fiscal year (commencing with the fiscal year ending December 31, 1998), are
delivered to the Administrative Agent pursuant to section 7.1(a) or (ii) the
90th day following the end of each such fiscal year (commencing with the fiscal
year ending December 31, 1998), the Borrower shall make a prepayment of the
Loans in an aggregate amount equal to the Prepayment Fraction multiplied by 50%
of Excess Cash Flow with respect to such fiscal year, provided that no such
prepayment in respect of such fiscal year shall be required if (x) the Total
Leverage Ratio as at the end of such fiscal year is less than 5.00:1.00 and (y)
no Default or Event of Default shall exist.
(e) Mandatory Prepayments of Loans. The Borrower shall
immediately prepay the RC/TL Loans at any time at which the aggregate
outstanding principal amount of the outstanding RC/TL Loans, during the RC/TL
Commitment Period, exceeds the aggregate RC/TL Commitments of all Lenders, in
each case in an amount equal to the amount of such excess.
(f) Mandatory Prepayments Relating to Proceeds of Insurance.
The Borrower shall prepay the Loans in the aggregate amounts and at the times
and to the extent required by section 7.5.
(g) Mandatory Prepayments Relating to Proceeds of Broadcasting
Station Sales and Sales and Leasebacks of Property. The Borrower shall prepay
the Loans in an aggregate amount equal to the Prepayment Fraction multiplied by
the difference between (i) 100% of the proceeds of the sale, exchange or other
disposition of (A) all or substantially all of any Broadcasting Station of the
Borrower or any of its Restricted Subsidiaries (other than any Broadcasting
Station listed on Schedule 8.7), or (B) any Property pursuant to section 8.7(c),
(net of (1) sales and other commissions and legal and other expenses incurred,
(2) cash taxes payable (or which would have been payable but for the existence
of the Tax Sharing Agreement with respect solely to the Tower Subsidiaries), and
(3) Indebtedness permitted under sections 8.1(ii) and (iv) which is required to
be repaid and is repaid) in excess of $25,000,000 (measured with respect to each
transaction involving one or more such sales, exchanges or other dispositions),
and (ii) the amount of Reinvested Proceeds in connection with such sale,
exchange or other disposition which have been used prior to the date prepayment
is required to be made to acquire one or more additional Broadcasting Stations
through a merger or acquisition in accordance with section 8.3. Such prepayment
shall be made on the earlier of (x) the last day of the Reinvestment Period with
respect to such sale, exchange or other disposition, or (y) the occurrence of a
Default or Event of Default.
(h) Mandatory Prepayments Relating to Issuances of Equity. The
Borrower shall prepay the Loans immediately upon receipt by the Borrower of the
aggregate proceeds of any issuance by the Borrower of equity (net of sales and
other commissions and legal and other related expenses incurred in connection
with such issuance) (the "Net Equity Proceeds") to the extent such Net Equity
Proceeds exceed $100,000,000 on a cumulative basis measured from the Effective
Date (excluding the issuance of equity under and in accordance with the Stock
Option Plan and the 1997 Preferred Stock Issuance and the issuance of equity to
the extent the proceeds are used as provided in the last paragraph of this
section 2.5(h)), in an amount equal to:
(i) if the Total Leverage Ratio is greater than 6.50:1.00,
the lesser of (x) the Prepayment Fraction multiplied by 100% of the Net Equity
Proceeds and (y) if no Default or Event of Default shall then exist, the amount
of the Net Equity Proceeds which when applied to the prepayment of Senior Debt
will result in the Total Leverage Ratio being equal to 6.50:1.00;
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(ii) if the Total Leverage Ratio is greater than 5.00:1.00
but less than or equal to 6.50:1.00 (whether before or after giving effect to
clause (i) above), the lesser of (x) the Prepayment Fraction multiplied by 50%
of the Net Equity Proceeds (excluding the amount of Net Equity Proceeds prepaid
pursuant to clause (i) above) if no Default or Event of Default shall then exist
and (y) if no Default or Event of Default shall then exist, the amount of the
Net Equity Proceeds which when applied to the prepayment of Senior Debt will
result in the Total Leverage Ratio not exceeding 5.00:1.00; and
(iii) if a Default or Event of Default shall then exist, the
Prepayment Fraction multiplied by 100% of the Net Equity Proceeds.
Notwithstanding the foregoing, provided that no Default or Event of Default
shall exist immediately before or after giving effect thereto, if such equity
issuance is, among other things, for the express purpose of financing the
acquisition of the stock or assets of a specified Broadcasting Station pursuant
to section 8.3, Net Equity Proceeds shall not be required to be applied to
prepay the Loans to the extent the proceeds from such equity issuance are used
for such purchase.
(i) Mandatory Prepayments Relating to Dividends. The Borrower
shall prepay the Loans in the amounts and at the times and to the extent
required by section 8.4(b).
(j) Application of Prepayments. All prepayments of Loans made
pursuant to section 2.5(d), (f), (g), (h) or (i) shall be applied pro rata
between the RC/TL Loans and the SD/TL Loans in accordance with the respective
outstanding principal amounts thereof and, in each case, applied against the
remaining installments of principal required to be made pursuant to section
2.5(b) or (c), as the case may be, on a pro rata basis among such remaining
installments.
(k) In General. If any prepayment is made under this section
2.5 with respect to any Eurodollar Loans, in whole or in part, prior to the last
day of the applicable Interest Period, the Borrower agrees to indemnify the
Lenders in accordance with section 2.9. After giving effect to any partial
prepayment with respect to Eurodollar Loans which were made (whether as the
result of a borrowing or a conversion) on the same date and which had the same
Interest Period, the outstanding principal amount of such Eurodollar Loans shall
not be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. The Borrower may designate which Loans (ABR Loans or Eurodollar Loans)
are to be prepaid in connection with any prepayment made under this section 2.5.
2.6 Interest Rate and Payment Dates; Highest Lawful Rate.
(a) Prior to Maturity. Prior to maturity, the outstanding
principal amount of the Loans shall bear interest on the unpaid principal amount
thereof at the Alternate Base Rate or the Eurodollar Rate, as applicable, plus
the Applicable Margin.
(b) Default Rate. During the continuance of any Event of
Default, the outstanding principal amount of all Loans hereunder shall bear
interest, notwithstanding the rate which would otherwise be applicable pursuant
to section 2.6(a) above, at a rate of interest per annum equal to 2% above such
otherwise applicable rate.
(c) Late Payment Rate. Any payment of interest on any Note or
any payment of any Commitment Fee or other fee or payment payable by the
Borrower under any Loan Document and not paid on the date when due and payable
shall bear interest, to the extent permitted by law, at the Alternate Base Rate
plus the Applicable Margin for ABR Loans plus 2% per annum from the due date
thereof until the date such payment is made.
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(d) General. Interest on ABR Loans, to the extent based on the
BNY Rate, shall be calculated on the basis of a 365 or 366 day year (as the case
may be), and interest on all Eurodollar Loans and ABR Loans, to the extent based
on the Federal Funds Rate, shall be calculated on the basis of a 360 day year,
in each case for the actual number of days elapsed. Interest shall be payable in
arrears on each Interest Payment Date and upon payment (including prepayment) of
the Loans, except that interest payable pursuant to sections 2.6(b) and 2.6(c)
shall be payable on demand. Any change in the interest rate on a Loan resulting
from a change in the Alternate Base Rate shall become effective as of the
opening of business on the day on which such change in the Alternate Base Rate
shall become effective. The Administrative Agent shall, as soon as practicable,
notify the Borrower and the Lenders of the effective date and the amount of each
such change in the Alternate Base Rate, but failure to so notify shall not in
any manner affect the obligation of the Borrower to pay interest on the Loans in
the amounts and on the dates required. Each determination of the Alternate Base
Rate or Eurodollar Rate by the Administrative Agent pursuant to this Agreement
shall be conclusive and binding on the Borrower and the Lenders absent manifest
error.
(e) Highest Lawful Rate. At no time shall the interest rate
payable on the Loans of any Lender, together with the Commitment Fees and all
other fees and other amounts payable hereunder, to the extent the same are
construed to constitute interest, exceed the Highest Lawful Rate applicable to
such Lender. If interest payable to a Lender on any date would exceed the
maximum amount permitted by the Highest Lawful Rate, such interest payment shall
automatically be reduced to such maximum permitted amount, and interest for any
subsequent period, to the extent less than the maximum amount permitted for such
period by the Highest Lawful Rate, shall be increased by the unpaid amount of
such reduction. Any interest actually received for any period in excess of such
maximum allowable amount for such period shall be deemed to have been applied as
a prepayment of such Lender's Loans. The Borrower acknowledges that to the
extent interest payable on ABR Loans is based on the BNY Rate, such BNY Rate is
only one of the bases for computing interest on loans made by the Lenders, and
by basing interest payable on ABR Loans on the BNY Rate, the Lenders have not
committed to charge, and the Borrower has not in any way bargained for, interest
based on a lower or the lowest rate at which the Lenders may now or in the
future make loans to other borrowers.
2.7 Use of Proceeds.
(a) The proceeds of the RC/TL Loans made hereunder (together
with the proceeds of the Other Credit Agreement Loans) shall be used first to
repay in full all obligations under the Existing Credit Agreement and,
thereafter, (i) to repay in full the Existing EZ Indebtedness, (ii) to finance
the EZ Acquisition, (iii) to finance acquisitions of Broadcasting Stations
permitted hereunder, including transaction expenses in connection therewith,
(iv) to make capital expenditures permitted hereunder, (v) to make investments
in the Tower Subsidiaries permitted hereunder, (vi) for working capital purposes
and (vii) for general corporate purposes.
(b) The proceeds of the SD/TL Loans made hereunder shall be
used solely to repay any or all of the EZ Indenture Notes.
(c) Notwithstanding anything to the contrary contained in any
Loan Document, the Borrower agrees that no part of the proceeds of any Loan have
been or will be used, directly or indirectly, for a purpose which violates any
law, rule or regulation of any Governmental Authority, including without
limitation the provi sions of Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System, as amended.
2.8 Conversions; Other Matters.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to ABR Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election, specifying whether
such Eurodollar Loans comprise RC/TL Loans or SD/TL Loans and the amount to be
so converted, provided, that any such conversion shall only be made on the last
day of the Interest Period applicable thereto. In addition, the Borrower may
elect from time to time to convert ABR Loans to Eurodollar Loans or to
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convert Eurodollar Loans to new Eurodollar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election,
specifying whether such ABR Loans comprise RC/TL Loans or SD/TL Loans and the
amount to be so converted and the initial Interest Period relating thereto,
provided that any such conversion of ABR Loans to Eurodollar Loans shall only be
made on a Business Day and any such conver sion of Eurodollar Loans to new
Eurodollar Loans shall only be made on the last day of the Interest Period
applicable to the Eurodollar Loans which are to be converted to such new
Eurodollar Loans. The Administrative Agent shall promptly provide the Lenders
with notice of any such election. Loans may be converted pursuant to this
section 2.8(a) in whole or in part, provided that conversions of ABR Loans to
Eurodollar Loans, or Eurodollar Loans to new Eurodollar Loans having the same
Interest Period, shall be in an aggregate principal amount of $5,000,000 or such
amount plus a whole multiple of $1,000,000.
(b) Notwithstanding anything in this Agreement to the
contrary, upon the occurrence and during the continuance of a Default or Event
of Default, the Borrower shall have no right to elect to convert any ABR Loan to
a Eurodollar Loan or to convert any Eurodollar Loan to a new Eurodollar Loan. In
such event, such ABR Loan shall be automatically continued as an ABR Loan or
such Eurodollar Loan shall be automatically converted to an ABR Loan on the last
day of the Interest Period applicable to such Eurodollar Loan. If a Default or
an Event of Default shall have occurred and be continuing, the Administrative
Agent shall, at the request of the Required Lenders, notify the Borrower (by
telephone or otherwise) that all, or such lesser amount as the Administrative
Agent and the Required Lenders shall designate, of the outstanding Eurodollar
Loans, if any, shall be automatically converted to ABR Loans, in which event
such Eurodollar Loans of each Lender, at the option of such Lender, shall be
automatically converted to ABR Loans on the date such notice is given.
(c) Each such conversion shall be effected by each Lender by
applying the proceeds of the new ABR Loan or Eurodollar Loan, as the case may
be, to the Loan (or portion thereof) being converted (it being understood that
such conversion shall not constitute a borrowing for purposes of sections 4 or
5).
(d) Notwithstanding any other provision of this Agreement:
(i) If the Borrower shall have failed to elect a
Eurodollar Loan under sections 2.3 or 2.8, as the case may be, in
connection with any borrowing of new Loans or expiration of an Interest
Period with respect to any existing Eurodollar Loan, the amount of the
Loans subject to such borrowing or such existing Eurodollar Loan shall
thereafter be an ABR Loan until such time, if any, as the Borrower
shall elect a new Eurodollar Loan pursuant to section 2.8,
(ii) The Borrower shall not be permitted to select
any Eurodollar Loan the Interest Period in respect of which ends later
than the Maturity Date,
(iii) When electing a Eurodollar Loan, the Borrower
shall select an Interest Period such that, on each date that a
mandatory principal payment is required to be made pursuant to section
2.5(e) in connection with a Commitment reduction pursuant to section
2.4(b), the outstanding principal amount of all Loans which are ABR
Loans, when added to the aggregate principal amount of all Loans which
are Eurodollar Loans the Interest Period in respect of which shall end
on such date, shall equal or exceed the aggregate principal amount of
the Loans required to be paid on such date, and
(iv) The Borrower shall not be permitted to have more
than twelve Interest Periods with respect to outstanding Eurodollar
Loans (when added to the number of Interest Periods with respect to
outstanding Eurodollar Loans, in each case under and as defined in the
Other Credit Agreement) at any one time.
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2.9 Indemnification for Loss.
Subject to section 2.17 and notwithstanding anything contained
herein to the contrary, if the Borrower shall fail to borrow or convert a Loan
after it shall have given notice to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, as the case may be, or if a
Eurodollar Loan shall be terminated for any reason prior to the last day of the
Interest Period applicable thereto, or if any repayment or prepayment of the
principal amount of a Eurodollar Loan is made for any reason on a date which is
prior to the last day of the Interest Period applicable thereto, the Borrower
agrees to indemnify each Lender against, and to pay on demand directly to such
Lender, any loss or expense suffered by such Lender as a result of such failure
to borrow or convert, or such termination, repayment or prepayment, including
without limitation, an amount equal to:
A x (B-C) x D
360
in which:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Loan;
"C" equals the Eurodollar Rate (expressed as a decimal) which would be
applicable to a Eurodollar Loan made on or about the date of such failure to
borrow or convert, or such termination, repayment or prepayment, in an amount
equal approximately to such Lender's pro rata share of the Affected Principal
Amount and having an In terest Period equal approximately to the Remaining
Interest Period with respect thereto; and
"D" equals the number of days during such Remaining Interest Period;
and any other out-of-pocket loss, cost or expense (including any internal
processing charge customarily charged by such Lender) suffered by such Lender in
liquidating or employing deposits acquired to fund or maintain the funding of
the Affected Principal Amount, or redeploying funds prepaid or repaid, in
amounts which correspond to such Lender's pro rata share of such proposed
borrowing, conversion, terminated Eurodollar Loan, prepayment or repayment.
2.10 Reimbursement for Costs.
The Borrower hereby agrees to reimburse each Lender on demand
for such Lender's reasonable costs (excluding general administrative and
overhead costs) directly attributable to its compliance with this Agreement
during the term hereof with all applicable future laws, executive orders, and
regulations of the govern ments of the United States and the United Kingdom, and
of any other applicable government, and of any regulatory or administrative
agency thereof (including, without limitation, the reserve requirements
established by the Board of Governors of the Federal Reserve System under
Regulation D), or any change in existing or fu ture applicable laws, executive
orders and regulations and in the interpretations thereof which impose, modify
or deem applicable any reserve, asset, special deposit or special assessment
requirements on deposits obtained in the interbank eurodollar market, or which
subject any Lender to any tax (documentary, stamp or otherwise) with respect to
this Agreement or any Note, or change the basis of taxation of payments to any
Lender, of principal, interest or fees payable under this Agreement or any Note
(except for any tax, or changes in the rate of tax, on each Lender's income or
receipts (including franchise taxes on or based upon such income or receipts)
imposed by the United States or any other jurisdiction). Each such Lender agrees
to provide the Borrower with notice of any law, executive order or regulation,
or change in the interpretation thereof, which would require the Borrower to
indemnify such Lender under this section 2.10 promptly upon such Lender
obtaining actual knowledge thereof and determining that it intends to require
the Borrower to reimburse it pursuant to this section 2.10 for any costs
resulting therefrom. The cost to each Lender in complying with laws, executive
orders or regulations which
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impose, modify or deem applicable any reserve, asset, special deposit or special
assessment requirements on deposits obtained in the market for eurocurrency
loans shall be computed by determining the amount by which such requirements
effectively increase such Lender's cost of making and maintaining its Eurodollar
Loans and by computing the additional amount which would have been owing to such
Lender hereunder if such effective increase had been added to the Eurodollar
Rate for purposes of determining the applicable Eurodollar Rate during the
period or applicable portion thereof in question. Each Lender may make multiple
requests for compensation under this section 2.10.
2.11 Illegality of Funding.
Subject to section 2.17 and notwithstanding anything contained
herein to the contrary, if any law, regulation, treaty or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for any Lender to make or maintain any Eurodollar Loan as contemplated
by this Agreement, (i) the commitment of such Lender to make Eurodollar Loans or
convert ABR Loans to Eurodollar Loans, as the case may be, shall forthwith be
suspended and (ii) such Lender's Loans then outstanding as Eurodollar Loans
affected thereby, if any, shall be converted automatically to ABR Loans on the
last day of the then current Interest Period applicable thereto or at such
earlier time as may be required. If the commitment of any Lender with respect to
Eurodollar Loans is suspended pursuant to this section 2.11 and such Lender
shall notify the Administrative Agent and the Borrower that it is once again
legal for such Lender to make or maintain Eurodollar Loans, such Lender's
commitment to make or maintain Eurodollar Loans shall be reinstated.
2.12 Option to Fund.
Each Lender has indicated that, if the Borrower requests a
Eurodollar Loan, such Lender may wish to purchase one or more deposits in order
to fund or maintain its funding of its pro rata share of such Loan during the
Interest Period with respect thereto; it being understood that the provisions of
this Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid on such Loan and any amounts owing
under sections 2.9, 2.10, 2.11 and 2.15. Each Lender shall be entitled to fund
and maintain its funding of all or any part of its Eurodollar Loans in any
manner it sees fit, but all such determinations hereunder shall be made as if
each Lender had actually funded and maintained its Eurodollar Loans during the
applicable Interest Period through the purchase of deposits in an amount equal
to its pro rata share of the Eurodollar Loans having a maturity corresponding to
such Interest Period. Any Lender may fund its pro rata share of the Eurodollar
Loans from any branch or office of such Lender as such Lender may choose from
time to time, subject to section 2.17.
2.13 Taxes; Net Payments.
(a) All payments made by the Loan Parties under the Loan
Documents shall be made free and clear of, and without reduction for or on
account of, any Taxes required by law to be withheld from any amounts payable
under the Loan Documents. In the event that any Loan Party is prohibited by law
from making payments hereunder free of deductions or withholdings, then it shall
pay such additional amounts to the Administrative Agent, for the benefit of the
Lenders, as may be necessary in order that the actual amounts received by each
Lender in respect of interest and any other amounts payable under the Loan
Documents after deduction or withholding (and after payment of any additional
Taxes or other charges due as a consequence of the payment of such additional
amounts) shall equal the amount that would have been received if such deduction
or withholding were not required. If any Loan Party shall make any payments
under this section 2.13(a) or shall make any deductions or withholdings from
amounts paid under the Loan Documents, it shall forthwith forward to the
Administrative Agent original or certified copies of official receipts or other
evidence acceptable to the Administrative Agent establishing such payment and
the Administrative Agent in turn shall distribute copies of such receipts to
each Lender.
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(b) Each Lender shall deliver to the Borrower and the
Administrative Agent such certificates, documents, or other evidence as the
Borrower or the Administrative Agent may reasonably require from time to time as
are necessary to establish that such Lender is not subject to withholding under
Section 1441, 1442 or 3406 of the Code or as may be necessary to establish,
under any law imposing an obligation to withhold any portion of the payments
made by the Borrower under the Loan Documents, that payments to the
Administrative Agent on behalf of such Lender are not subject to withholding.
Notwithstanding any provision herein to the contrary, the Borrower shall have no
obligation to pay to any Lender any amount which the Borrower is liable to
withhold due to the failure of such Lender to file any statement of exemption
required by the Code.
2.14 Capital Adequacy.
If the amount of capital required or expected to be maintained
by any Lender or any Person di rectly or indirectly owning or controlling such
Lender (each a "Control Person"), shall be affected by
(a) the introduction or phasing in of any law, rule or
regulation after the date hereof,
(b) any change after the date hereof in the interpretation
of any existing law, rule or regula tion by any central
bank or United States or foreign Governmental Authority
charged with the administration thereof, or
(c) compliance by such Lender or such Control Person with
any directive, guideline or request from any central
bank or United States or foreign Governmental Authority
(whether or not having the force of law) promulgated or
made after the date hereof,
and such Lender shall have determined that such introduction, phasing in, change
or compliance shall have had or will thereafter have the effect of reducing (i)
the rate of return on such Lender's or such Control Person's capital, or (ii)
the asset value to such Lender or such Control Person of the Loans made or
maintained by such Lender to a level below that which such Lender or such
Control Person could have achieved or would thereafter be able to achieve but
for such introduction, phasing in, change or compliance (after taking into
account such Lender's or such Control Person's policies regarding capital), in
either case by an amount which such Lender deems material, then, within ten days
after demand by such Lender, the Borrower shall pay to such Lender or such
Control Person such additional amount or amounts as shall be sufficient to
compensate such Lender or such Control Person, as the case may be, for such
reduction on an after-tax basis.
2.15 Substituted Interest Rate.
In the event that (i) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that by reason of circumstances affecting the interbank eurodollar
market either adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate applicable pursuant to section 2.6 or (ii) in the event that any
Lender shall have notified the Administrative Agent that it has determined
(which determination shall be conclusive and binding on the Borrower) that the
applicable Eurodollar Rate will not adequately and fairly reflect the cost to
such Lender of maintaining or funding loans bearing interest based on such
Eurodollar Rate, with respect to a proposed Loan that the Borrower has requested
be made as a Eurodollar Loan, or a Eurodollar Loan that will result from the
requested conversion of any Loan into a Euro dollar Loan (any such Loan being
herein called an "Affected Loan"), the Administrative Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise) of such
determination, confirmed in writing, on or prior to the requested Borrowing Date
for such Affected Loan or the requested conversion date of such Loan. If the
Administrative Agent shall give such notice, (a) any requested Affected Loan
shall be made as an ABR Loan, (b) any Loan that was to have been converted to an
Affected Loan shall be converted to or continued as an ABR Loan and (c) any
outstanding Affected Loan shall be converted, on the last day of the then
current Interest Period with respect thereto, to an ABR Loan. Until any such
notice under clause (i) of this section 2.15 has been
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withdrawn by the Administrative Agent (by notice to the Borrower promptly upon
the Administrative Agent's having determined that such circumstances affecting
the interbank eurodollar market no longer exist and that adequate and reasonable
means do exist for determining the Eurodollar Rate pursuant to section 2.6) no
further Eurodollar Loans shall be made by the Lenders nor shall the Borrower
have the right to convert any Loans to Eurodollar Loans. Until any such notice
under clause (ii) of this section 2.15 has been withdrawn by the Administrative
Agent (by notice to the Borrower promptly upon the Administrative Agent's having
been notified by such Lender that circumstances no longer render any Loan an
Affected Loan), no further Eurodollar Loans shall be required to be made by such
Lender nor shall the Borrower have the right to convert any Loan of such Lender
to a Eurodollar Loan of such Lender.
2.16 Transaction Record.
The Administrative Agent's records regarding the amount of
each Loan, each payment by the Borrower of principal and interest on the Loans
and other information relating to the Loans shall be presumptively correct
absent manifest error.
2.17 Certificates of Payment and Reimbursement; Other Provisions
Regarding Yield Protection.
(a) In connection with any request by a Lender for payment or
reimbursement pursuant to section 2.9, 2.10, 2.11, 2.14 or 2.15, such Lender
shall provide the Borrower with a certificate, signed by an officer of such
Lender, setting forth a description, in reasonable detail, of any such payment
or reimbursement. Each Lender's determination of such amount or amounts owned by
the Borrower to it under any such section shall be presumed correct absent
manifest error, and shall be made without duplication as to any other amounts
owing by the Borrower to such Lender under section 2.9, 2.10, 2.11, 2.14 or
2.15.
(b) In the event that any amount is owed by the Borrower to
any Lender pursuant to section 2.9, 2.10, 2.11, 2.14 or 2.15 and an assignment
by such Lender of its rights and a delegation and transfer of its obligations
hereunder to another office or branch of such Lender would cause such amount to
cease to be owed by the Borrower, then such Lender shall make all reasonable
efforts (which shall not in any event require such Lender to incur a loss or
otherwise suffer any disadvantage) to make an assignment of its rights and a
delegation and transfer of its obligations hereunder to such other office or
branch, so long as such assignment and delegation will not cause other amounts
to be owed by the Borrower under section 2.9, 2.10, 2.11, 2.14 or 2.15 and so
long as the Lender shall be permitted under applicable law to make and maintain
Eurodollar Loans after giving effect to such assignment and delegation.
(c) The obligations of the Borrower under sections 2.9, 2.10,
2.11, 2.14 and 2.15 shall survive any termination of this Agreement, the
expiration of the RC/TL Commitments and the SD/TL Commitments and the payment of
all indebtedness of the Borrower hereunder and under the Loan Documents.
3. FEES; PAYMENTS
3.1 Commitment Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of the Lenders the following fees computed on the basis of a 365/366
day year for the actual number of days elapsed (each, a "Commitment Fee" and,
collectively, the "Commitment Fees"):
(i) in accordance with each Lender's RC/TL Commitment
Percentage, a fee payable quarterly in arrears during the RC/TL Commitment
Period on the last day of each March, June, Sep tember and December of each
year, commencing on the first such date following the Effective Date, and on the
RC/TL Commitment Termination Date, on the average daily excess of (i) the
aggregate RC/TL Commitments of all the Lenders, over (ii) the aggregate
outstanding principal balance of the RC/TL Loans, at a rate per annum equal to
(a) at all times when the Total Leverage Ratio is greater than or equal to
5.0:1.0, 0.1875% and (b) at all times when the Total Leverage Ratio is less than
5.0:1.0, 0.1250%; and
(ii) in accordance with each Lender's SD/TL Commitment
Percentage, a fee payable quarterly in arrears during the SD/TL Commitment
Period on the last day of each March, June, Sep tember and December of each
year, commencing on the first such date following the Effective Date, and on the
SD/TL Commitment Termination Date, on the aggregate SD/TL Commitments of all the
Lenders, at a rate per annum equal to (a) at all times when the Total Leverage
Ratio is greater than or equal to 5.0:1.0, 0.1875% and (b) at all times when the
Total Leverage Ratio is less than 5.0:1.0, 0.1250%.
(b) Solely for purposes of calculating the Commitment Fees,
changes in the Total Leverage Ratio, as evidenced by a Ratio Certificate
delivered to the Administrative Agent pursuant to section 7.1(d) evi dencing
such a change, shall become effective upon the first Business Day following the
delivery of (i) the Ratio Certificate and (ii) the applicable financial
statements required to be delivered pursuant to section 7.1(a) or (c), as the
case may be. Solely for purposes of calculating the Commitment Fees, if the
Borrower shall fail to deliver a Ratio Certificate within 45 days after the end
of each of the first three fiscal quarters, or within 90 days after the end of
the last fiscal quarter, of each fiscal year (each a "certificate delivery
date"), the Total Leverage Ratio from and including such certificate delivery
date to the date of delivery by the Borrower to the Administrative Agent of such
Ratio Certificate shall be conclusively presumed to be greater than 5.00:1.00.
3.2 Pro Rata Treatment and Application of Payments.
All payments (including prepayments) made by the Borrower to
the Administrative Agent on ac count of principal of or interest on the RC/TL
Loans or the SD/TL Loans shall be made pro rata according to the outstanding
principal amount of each Lender's RC/TL Loans or SD/TL Loans, as the case may
be. All payments by the Borrower shall be made without set-off or counterclaim
and shall be made prior to 12:00 Noon on the date such payment is due, to the
Administrative Agent for the account of the Lenders, at the Administrative
Agent's office specified in section 11.2, in each case in lawful money of the
United States of America and in immediately available funds, and, as between the
Borrower and the Lenders, any payment by the Borrower to the Administrative
Agent for the account of the Lenders shall be deemed to be payment by the
Borrower to the Lenders. The failure of the Borrower to make any such payment by
12:00 Noon on such due date shall not constitute a Default or Event of Default
hereunder, provided that such payment is made on such due date, but any such
payment received by the Administrative Agent on any Business Day after 12:00
Noon shall be deemed to have been received on the immediately succeeding
Business Day for the purpose of calculating any interest payable in respect
thereof. The Administrative Agent agrees promptly to notify the Borrower if it
shall receive any such payment after 12:00 Noon on the due date hereof, provided
that the failure of the Administrative Agent to give such prompt notice shall in
no way affect the Borrower's obligation to make any payment hereunder on the
date such payment is due. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. Unless
otherwise set forth in the definition of "Interest Period", if any payment
hereunder or on any Note becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate or rates during such extension.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders to enter into this Agreement and to make the Loans, the Borrower hereby
makes the following representations and warranties to the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents and to each Lender:
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4.1 Subsidiaries.
The Borrower has only the Subsidiaries set forth on Schedule
4.1. The shares of each corporate Subsidiary owned by the Borrower are duly
authorized, validly issued, fully paid and nonassessable. The shares of each
Restricted Subsidiary are owned free and clear of any Liens, except (i) Liens in
favor of the Collateral Agent and the Lenders pursuant to the Collateral
Documents and (ii) Permitted Liens.
4.2 Corporate Existence and Power.
The Borrower and each Restricted Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to own its
Property and to carry on its business as now conducted, and is in good standing
and authorized to do busi ness in each jurisdiction in which the failure to be
so authorized could reasonably be expected to have a Material Adverse Effect.
4.3 Corporate Authority.
The Borrower and each other Loan Party has full corporate
power and authority to enter into, execute, deliver and carry out the terms of
the Loan Documents to which it is a party, to make the borrowings contemplated
hereby, to execute, deliver and carry out the terms of the Notes and to incur
the obligations provided for herein and therein, all of which have been duly
authorized by all proper and necessary corporate action and are in full
compliance with its certificate of incorporation and by-laws.
4.4 Governmental Authority Approvals.
No consent, authorizations or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Authority or any other
Person (except for those which have been obtained, made or given and those which
will be obtained, made or given prior to the Effective Date) is required to
authorize, or is required in connection with the execution, delivery and
performance of the Loan Documents, or is required as a condition to the validity
or, except as expressly set forth in the Collateral Documents with respect to
the FCC, the enforceability of the Loan Documents. Except as set forth in the
preceding sentence, no provision of any applicable statute, law (including,
without limitation, any applicable usury or similar law), rule or regulation of
any Governmental Authority will prevent the execution, delivery or performance
of, or affect the validity of, the Loan Documents.
4.5 Binding Agreement.
The Loan Documents constitute the valid and legally binding
obligations of the Borrower and each other Loan Party to which it is a party,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally.
4.6 Litigation.
Except as set forth in Schedule 4.6, there are no actions,
suits, arbitration proceedings or claims (whether or not purportedly on behalf
of the Borrower or any Subsidiary) pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary, or maintained by the Borrower
or any Subsidiary, at law or in equity, before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect. There are no
proceedings pending or, to the knowledge of the Borrower, threatened against the
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Borrower or any Restricted Subsidiary which call into question the validity or
enforceability of any of the Loan Documents.
4.7 No Conflicting Agreements.
Except as set forth in Schedule 4.7, neither the Borrower nor
any Subsidiary is in default under any mortgage, indenture, contract, agreement,
judgment, decree or order to which it is a party or by which it or any of its
Property is bound, which defaults, taken as a whole, could reasonably be
expected to have a Material Adverse Effect. The execution, delivery or carrying
out of the terms of the Loan Documents will not constitute a default under,
conflict with, require any consent under (other than consents which have been
obtained) or result in the creation or imposition of, or obligation to create,
any Lien upon the Property of the Borrower or any Subsi diary pursuant to the
terms of any such mortgage, indenture, contract, agreement, judgment, decree or
order, which defaults, conflicts and consents, if not obtained, taken as a
whole, could reasonably be expected to have a Material Adverse Effect.
4.8 Taxes.
Except as set forth on Schedule 4.8, the Borrower and each
Subsidiary has filed or caused to be filed all tax returns required to be filed
and has paid, or has made adequate provision for the payment of, all Taxes shown
to be due and payable on said returns or in any assessments made against it
which would be material to the Borrower or any Subsidiary, and no tax Liens
(other than Permitted Liens) have been filed. Except as set forth on Schedule
4.8, the charges, accruals and reserves on the books of the Borrower and each
Subsidiary with respect to all federal, state, local and other Taxes are, to the
best knowledge of the Borrower, adequate, and the Borrower knows of no unpaid
assessment which is due and payable against it or any Subsidiary or any claims
being asserted which could reasonably be expected to have a Material Adverse
Effect, except such thereof as are being contested in good faith and by
appropriate proceedings diligently conducted, and for which adequate reserves
have been set aside in accordance with GAAP.
4.9 Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect. The Borrower and each Subsidiary is complying in all
material respects with all applicable statutes and regulations, including ERISA,
of all Governmental Authorities, a violation of which could reasonably be
expected to have a Material Adverse Effect.
4.10 Governmental Regulations.
Neither the Borrower nor any Subsidiary is subject to
regulation under the Public Utility Holding Company Borrower Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, and neither the
Borrower nor any Subsidiary is subject to any statute or regulation which
prohibits or restricts the incurrence of Indebtedness under this Agreement or
the Notes, including, without limitation, statutes or regulations relative to
common or contract carriers or to the sale of electricity, gas, steam, water,
telephone, telegraph or other public utility services.
4.11 Property; Broadcasting Business.
The Borrower and each Restricted Subsidiary has good and,
except with respect to FCC licenses which cannot be transferred without the
consent of the applicable Governmental Authority, marketable title to all of its
Property, title to which is material to the Borrower and the Restricted
Subsidiaries taken as a whole, subject to no Liens, except Liens in favor of the
Collateral Agent and the Lenders pursuant to the Collateral Documents and
Permitted Liens. Except for the radio licenses relating to KUPL-FM, KKJZ-FM,
WQRS-FM, WFLN-FM
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and WAAF-FM, and except as otherwise permitted by section 7.11, the License
Subsidiaries are the registered holders of radio licenses duly issued by the FCC
in respect of all Broadcasting Stations owned and operated by the Borrower and
each Restricted Subsidiary. Such licenses constitute all of the authorizations
by the FCC or any other Governmental Authority necessary for the operation of
the business of the Borrower and each Restricted Subsidiary substantially in the
manner presently being conducted by it, and such licenses are validly issued and
in full force and effect, unimpaired by any act or omission by the Borrower or
such Restricted Subsidiary. To the best of the Borrower's knowledge, except as
set forth in Schedule 4.11, neither the Borrower nor any Restricted Subsidiary
is a party to any investigation, notice of violation, order or complaint issued
by or before the FCC. Except as set forth in Schedule 4.11, there are no
proceedings by or before the FCC, which could in any manner materially threaten
or adversely affect the validity of any of such licenses. Neither the Borrower
nor any Restricted Subsidiary has knowledge of a threat of any investigation,
notice of violation, order, complaint or proceeding before the FCC, and has no
reason to believe that any of such licenses will not be renewed in the ordinary
course.
4.12 Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Restricted Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, directly or indirectly, for a purpose
which violates any law, rule or regulation of any Governmental Authority,
including without limitation the provisions of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System, as amended. Following
application of the proceeds of each Loan, not more than 25% (or such greater or
lesser percentage as is provided in the exclusions from the definition of
"Indirectly Secured" contained in Regulation G and Regulation U in effect at the
time of the making of such Loan) of the value of the assets of (i) the Borrower
and (ii) the Borrower and the Re stricted Subsidiaries on a Consolidated basis,
will be Margin Stock.
4.13 No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Restricted Subsidiary in connection with the transactions contemplated hereby,
contains or will contain a misstatement of material fact, or, to the best
knowledge of the Borrower or any Restricted Subsidiary omits or will omit to
state a material fact required to be stated in order to make the state ments
herein or therein contained not misleading in the light of the circumstances
under which made.
4.14 Plans.
The Borrower and each Subsidiary have only the Plans listed on
Schedule 4.14. Each Single Employer Plan and, to the best knowledge of the
Borrower, each Multiemployer Plan is in compliance in all material respects with
the applicable provisions of ERISA and the Code, and the Borrower and each
Subsidiary have filed all reports required to be filed by them under ERISA and
the Code with respect to each such Plan. The Borrower and each Subsidiary have
met all material requirements imposed by ERISA and the Code with respect to the
funding of all Plans, including Multiemployer Plans. Since the effective date of
ERISA, there have not been, nor are there now existing, any events or conditions
which would permit any Single Employer Plan or, to the best knowledge of the
Borrower, Multiemployer Plan to be terminated under circumstances which would
cause the Lien provided under Section 4068 of ERISA to attach to the Property of
the Borrower or any Subsidiary. Since the effective date of ERISA, no Reportable
Event which may constitute grounds for the termination of any Single Employer
Plan or, to the best knowledge of the Borrower, Multiemployer Plan under Title
IV of ERISA has occurred and no Single Employer Plan or Multiemployer Plan has
been terminated in whole or in part.
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4.15 FCC Matters.
The Borrower and each Restricted Subsidiary (i) have duly and
timely filed all filings which are required to be filed by the Borrower and each
Restricted Subsidiary under the Communications Act and the rules and regulations
of the FCC, the failure to file of which could reasonably be expected to have a
Material Adverse Effect, and (ii) are in all material respects in compliance
with the Communications Act, including, without limi tation, the rules and
regulations of the FCC relating to the transmission of radio signals.
4.16 Burdensome Obligations.
Neither the Borrower nor any Restricted Subsidiary is a party
to or bound by any franchise, agreement, deed, lease or other instrument, or
subject to any corporate restriction which, in the opinion of the management of
the Borrower, is so unusual or burdensome, in the context of the Borrower's or
such Restricted Subsidiary's business, as in the foreseeable future might
materially and adversely affect or impair the revenue or Operating Cash Flow of
the Borrower or any Restricted Subsidiary or the ability of the Borrower or any
Restricted Subsidiary to perform its respective obligations under the Loan
Documents. The Borrower does not presently anticipate that future expenditures
needed to meet the provisions of federal or state statutes, orders, rules or
regulations will be so burdensome as to have a Material Adverse Effect.
4.17 Financial Statements.
The Borrower has heretofore delivered to the Lenders a copy of
(i) the annual audited consolidated Balance Sheet of the Borrower and its
Subsidiaries as of December 31, 1995, together with the related consolidated
Statements of Operations, Shareholders' Equity and Cash Flows for the period
then ended, and (ii) the unaudited consolidated Balance Sheets of the Borrower
and its Subsidiaries as of March 31, 1996, June 30, 1996 and September 30, 1996,
together with the related consolidated Statements of Operations, Shareholders'
Equity and Cash Flows for the periods then ended. The foregoing financial
statements fairly present the consolidated financial condition and results in
the operations of the Borrower and its Subsidiaries as of the dates and for the
periods indicated therein and have been prepared in conformity with GAAP. Except
as reflected in such financial statements or in the footnotes thereto, neither
the Borrower nor any of its Subsidiaries has any obligation or liability of any
kind (whether fixed, accrued, contingent, unmatured or otherwise) which, in
accordance with GAAP, should have been shown on such financial statements and
was not. Since December 31, 1995, the Borrower and its Restricted Subsidiaries
have conducted their business only in the ordinary course (except with respect
to the acquisitions of Broadcasting Stations permitted by the terms hereof or
the Existing Credit Agreement or otherwise consented to by the Required Lenders
(or the Required Lenders under the Existing Credit Agreement), and except as set
forth in the March 31, 1996, June 30, 1996 and September 30, 1996 financial
statements referred to above), and there has been no Material Adverse Change.
4.18 Environmental Matters.
Except as set forth on Schedule 4.18, neither the Borrower nor
any Subsidiary (i) has received written notice or otherwise learned of any
claim, demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect arising
in connection with (a) any non-compliance with or violation of the requirements
of any Environmental Law, or (b) the release or threatened release of any toxic
or hazardous waste, substance or constituent, or other substance into the
environment, (ii) to the best knowledge of the Borrower, has any threatened or
actual liability in connection with the release or threatened release of any
toxic or hazardous waste, substance or constituent, or other substance into the
environment which individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect, (iii) has received notice of any federal or
state investigation evaluating whether any remedial action is needed to respond
to a release or threatened release of any toxic or hazardous waste, substance or
constituent or other substance into the environment for which the Borrower or
any Subsidiary is or may be liable, or (iv) has received notice that the
Borrower or any Subsidiary is or may be liable to any Person under any
Environmental Law. The Borrower and each Subsidiary is in
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compliance in all material respects with the financial responsibility
requirements of all Environmental Laws to the extent applicable, including,
without limitation, those contained in 40 C.F.R., parts 264 and 265, subpart H,
and any analogous state law.
5. CONDITIONS OF LENDING
5.1 First Loans
In addition to the requirements set forth in section 5.2, the
obligation of each Lender to make one or more Loans on the first Borrowing Date
is subject to the fulfillment of the following conditions precedent:
(a) Evidence of Corporate Action. The Administrative Agent
shall have received a certificate, dated the first Borrowing Date, of the
Secretary or an Assistant Secretary of each Signatory Corpora tion (i) attaching
a true and complete copy of the resolutions of its Board of Directors and of all
documents evidencing all necessary corporate action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Loan Documents to which it is a party and the transactions contemplated
thereby, (ii) attaching a true and complete copy of its certificate of
incorporation and by-laws, (iii) setting forth the incumbency of its officer or
officers who may sign such Loan Documents, including therein a signature
specimen of such officer or officers and (iv) attaching a certificate of good
standing of the Secretary of State of the State of its incorporation and of each
other State in which it is qualified to do business.
(b) Notes. The Borrower shall have delivered to the
Administrative Agent the Notes, each duly executed on behalf of the Borrower by
an Authorized Signatory thereof.
(c) No Liens. The Administrative Agent shall have received a
certificate of the Borrower, signed by an Authorized Signatory thereof, dated
the first Borrowing Date, certifying that, upon the making of the first Loans,
there exist no Liens on the Collateral other than Permitted Liens.
(d) Subsidiary Guaranty and Borrower Security Agreement. The
Borrower shall have delivered to the Administrative Agent (i) the Subsidiary
Guaranty, dated as of the Effective Date, duly executed on behalf of each
Restricted Subsidiary by an Authorized Signatory thereof, (ii) the Borrower
Security Agreement, dated as of the Effective Date, duly executed on behalf of
the Borrower by an Authorized Signatory thereof, (iii) one or more share
certificates, representing all of the issued and outstanding Stock of each of
the Restricted Subsidiaries including, without limitation, the ARS License
Subsidiary, together with undated stock powers, duly executed in blank on behalf
of the Borrower by an Authorized Signatory thereof and bearing an appropriate
signature guarantee in all respects satisfactory to the Administrative Agent, in
respect of each such certificate, and (iv) all documents evidencing intercompany
Indebtedness owing to the Borrower.
(e) ARS License Subsidiary Management Agreement. The ARS
License Subsidiary Management Agreement shall have been executed and delivered
by Authorized Signatories of the ARS License Subsidiary and the Borrower, and a
copy thereof shall have been delivered to the Administrative Agent.
(f) Filing of Financing Statements. The Borrower shall have
executed and caused to be filed or delivered to the Administrative Agent such
financing statements and other documents with respect to the Collateral
Documents as the Administrative Agent or Special Counsel may request for the
purpose of perfecting the Liens granted thereunder. All filing fees and Taxes in
connection with the filing of the Collateral Documents shall have been paid or
otherwise provided for and the Administrative Agent and Special Counsel shall
have re ceived satisfactory evidence thereof.
(g) Existing Indebtedness. Prior to or simultaneously with the
making of the first Loans,
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the Borrower shall have paid all Indebtedness under the Existing Credit
Agreement, and all agreements with re spect thereto shall have been cancelled or
terminated, all Liens, if any, securing the same shall have been terminated, and
the Administrative Agent shall have received reasonably satisfactory evidence
thereof.
(h) Approvals. The Administrative Agent shall have received
evidence reasonably satisfactory to it that all approvals and consents of all
Persons required to be obtained in connection with the consummation of the
transactions contemplated by the Loan Documents have been obtained and that all
required notices have been given and all required waiting periods have expired.
(i) Litigation. There shall be no injunction, writ,
preliminary restraining order or other order of any nature issued by any
Governmental Authority in any respect affecting any Loan Document, or any
transaction contemplated by the Loan Documents and no action or proceeding by or
before any Governmental Authority shall have been commenced and be pending
seeking to prevent or delay any of the foregoing or challenging any term or
provision thereof or seeking any damages in connection therewith, and the
Administrative Agent shall have received a certificate, in all respects
reasonably satisfactory to the Administrative Agent, of an Authorized Signatory
of the Borrower to the foregoing effect.
(j) Approval of Special Counsel. All legal matters incident to
the making of the Loans on the first Borrowing Date shall be reasonably
satisfactory to Special Counsel, and the Administrative Agent shall have
received from Special Counsel an opinion, dated the first Borrowing Date,
substantially in the form of Exhibit E.
(k) Opinion of Counsel to the Borrower and the Subsidiaries.
The Administrative Agent shall have received opinions of counsel to the Borrower
and its Subsidiaries, dated the first Borrowing Date, sub stantially in the form
of Exhibit F.
(l) Opinion of FCC Counsel to the Borrower and the
Subsidiaries. The Administrative Agent shall have received opinions of special
FCC counsel to the Borrower and its Subsidiaries, dated the first Borrowing
Date, substantially in the form of Exhibit G.
(m) Payment of Fees. The Borrower shall have paid to the
Administrative Agent and the Lenders all fees and expenses which it shall have
agreed to pay, to the extent such fees and expenses have become payable on or
prior to the first Borrowing Date, and shall have paid the reasonable fees and
disbursements of Special Counsel.
(n) Financial Statements and Financial Projections. The
Borrower shall have delivered to the Administrative Agent and the Lenders the
financial statements referred to in section 4.17 together with such projections
and other information as the Administrative Agent and the Lenders shall
reasonably require, all of which shall be in all material respects satisfactory
to the Administrative Agent and the Lenders.
(o) Ratio Certificate. The Administrative Agent shall have
received a Ratio Certificate duly executed by an Authorized Signatory of the
Borrower.
(p) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent shall reasonably
require in connection with the making of the first Loans.
5.2 All Loans
The obligation of the Lenders to make any Loan on a Borrowing
Date is subject to the satis faction of the following conditions precedent as of
the date of such Loan:
(a) Compliance. On each Borrowing Date and after giving effect
to the Loans to be made
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or created thereon, (i) the Loan Parties shall be in compliance with all of the
terms, covenants and conditions of the Loan Documents, (ii) there shall exist no
Default or Event of Default, (iii) the representations and warranties contained
in the Loan Documents shall be true and correct with the same effect as though
such representations and warranties had been made on such Borrowing Date, except
as the context otherwise requires, except as otherwise permitted or contemplated
by this Agreement, and except such matters relating thereto as are indicated in
each Borrowing Request which shall be reasonably satisfactory to the
Administrative Agent and the Required Lenders, and (iv) there shall have
occurred no Material Adverse Change since December 31, 1995. Each borrow ing by
the Borrower shall constitute a certification by the Borrower as of the date of
such borrowing that each of the foregoing matters is true and correct in all
respects.
(b) Loan Closings. All documents required by the provisions of
this Agreement to be executed or delivered to the Administrative Agent on or
before the applicable Borrowing Date shall have been executed and shall have
been delivered at the office of the Administrative Agent set forth in section
11.2 on or before such Borrowing Date.
(c) Borrowing Request. The Administrative Agent shall have
received a Borrowing Request duly executed by an Authorized Signatory of the
Borrower.
(d) Approval of Counsel. All legal matters in connection with
the making of each Loan shall be reasonably satisfactory to Special Counsel.
(e) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent shall reasonably
request.
6. FINANCIAL COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under the Notes and the other Loan
Documents have been paid in full and all Commitments of the Lenders have been
terminated and no obligations of the Administrative Agent, the Collateral Agent,
the Co- Syndication Agents, the Managing Agents, the Agent, the Co-Agents or any
of the Lenders exist under any of the Loan Documents, the Borrower shall:
6.1 Senior Leverage Ratio; Total Leverage Ratio.
(a) Senior Leverage Ratio. Maintain at all times a Senior
Leverage Ratio not greater than the ratio set forth below with respect to the
applicable period set forth below:
Periods Ratio
Effective Date through
December 30, 1997 5.75:1.00
December 31, 1997 through
December 30, 1998 5.50:1.00
December 31, 1998 through
December 30, 1999 5.00:1.00
December 31, 1999 through
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December 30, 2000 4.00:1.00
December 31, 2000
and thereafter 3.25:1.00
(b) Total Leverage Ratio. Maintain at all times a Total
Leverage Ratio not greater than the applicable ratio set forth below with
respect to the applicable period set forth below:
Periods Ratio
Effective Date through
December 30, 1997 7.00:1.00
December 31, 1997 through
December 30, 1998 6.50:1.00
December 31, 1998 through
December 30, 1999 6.00:1.00
December 31, 1999 through
December 30, 2000 5.00:1.00
December 31, 2000
and thereafter 4.00:1.00
Provided, however, that if at any time the Borrower shall make a
distribution pursuant to section 8.4(b) when the Total Leverage Ratio
requirement under this section 6.1(b) immediately before or after giving effect
thereto is greater than or equal to 5.00:1.00, the Total Leverage Ratio which
the Borrower shall be required to maintain under this section 6.1(b) shall be
automatically reduced to 5.00:1.00.
6.2 Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service.
Maintain as at the end of each fiscal quarter a ratio of
Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service not less than
1.10:1.00.
6.3 Consolidated Annual Operating Cash Flow to Interest Expense.
Maintain as at the end of each fiscal quarter during the
applicable periods set forth below a ratio of Consolidated Annual Operating Cash
Flow to Interest Expense not less than the ratio set forth below opposite the
applicable period:
Periods Ratio
Effective Date through
September 30, 1999 2.00:1.00
December 31, 1999 and
thereafter 2.25:1.00
6.4 Consolidated Annual Operating Cash Flow to Fixed Charges.
Maintain as at the end of each fiscal quarter a ratio of
Consolidated Annual Operating Cash Flow to Fixed Charges not less than
1.05:1.00.
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7. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under the Notes and the other Loan
Documents have been paid in full and all Commitments of the Lenders have been
terminated and no obligations of the Administrative Agent, the Collateral Agent,
the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents or any
of the Lenders exist under any of the Loan Documents, the Borrower shall:
7.1 Financial Statements.
Maintain, and cause each Subsidiary to maintain, a standard
system of accounting in ac cordance with GAAP, and furnish or cause to be
furnished 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 consolidated
and consolidating Balance Sheets of the Borrower and its Subsidiaries as at the
end of such fiscal year, together with the related consolidated Statements of
Cash Flows and Shareholders' Equity and consolidated and consolidating
Statements of Operations as of and through the end of such fiscal year, setting
forth in each case, in comparative form, the consolidated figures for the preced
ing fiscal year. The consolidated and consolidating Balance Sheets and
Statements of Operations and the consolidated Statements of Cash Flows and
Shareholders' Equity shall be certified without qualification by the
Accountants, which certification (i) shall state that the examination by such
Accountants in connection with such consolidated and consolidating financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, included such tests of the accounting records and
such other auditing procedures as were considered necessary in the
circumstances, (ii) shall include the opinion of such Accountants that such
consolidated and consolidating financial statements have been prepared in
accordance with GAAP in a manner consistent with prior fiscal periods, except as
otherwise specified in such opinion, and (iii) may, in the case of the
consolidating financial statements, be limited to the Borrower and its
Restricted Subsidiaries on a Consolidated basis. Notwithstanding the foregoing,
for purposes of this subsection (a), separate consolidating financial statements
with respect to the License Subsidiaries shall not be required.
(b) Simultaneously with the delivery of the certified
financial statements required by clause (a) above, copies of a certificate of
such Accountants stating that, in making the examination necessary for their
audit of such financial statements for such fiscal year, nothing came to their
attention of an accounting nature that caused them to believe that the Borrower
was not in compliance with the terms, covenants, provi sions, or conditions of
this Agreement, including, without limitation, sections 6.1, 6.2, 6.3, 6.4,
7.12, 8.1, 8.3, 8.4, 8.5 and 8.7, or, if so, specifying in such certificate all
such instances of noncompliance and the nature and status thereof.
(c) (i) As soon as available, but in any event not later than
45 days after the end of each of the first three quarterly accounting periods in
each fiscal year of the Borrower, a copy of the consolidated and consolidating
Balance Sheets of the Borrower and its Subsidiaries as at the end of each such
quarterly period, together with the related consolidated and consolidating
Statements of Operations, for such period and for the elapsed portion of the
fiscal year through such date, and the consolidated Statements of Cash Flows for
the elapsed portion of the fiscal year through such date, setting forth in each
case, in comparative form, the consolidated figures for the corresponding
periods of the preceding fiscal year, certified by the Chief Financial Officer
of the Borrower (or such other officer acceptable to the Administrative Agent),
as being com plete and correct in all material respects and as presenting fairly
the consolidated and consolidating financial
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condition and the results of operations of each of the Borrower and its
Subsidiaries, subject to normal, non-material year-end adjustments and (ii) as
soon as available, but in any event not later than 45 days after the end of each
of the first three fiscal quarters (90 days after the end of the fourth fiscal
quarter) of the Borrower, a certificate of the Chief Financial Officer of the
Borrower (or such other officer as shall be acceptable to the Administrative
Agent) in detail reasonably satisfactory to the Administrative Agent (x) stating
that there exists no violation of any of the terms or provisions of the Loan
Documents, or the occurrence of any condition or event which would constitute a
Default or Event of Default, and, if so, specifying in such certificate all such
violations, conditions and events, and the nature and status thereof, and (y)
containing computations showing compliance with the provisions of sections 6.1,
6.2, 6.3, 6.4, 7.12, 8.1, 8.3, 8.4, 8.5 and 8.7. Notwithstanding the foregoing,
for purposes of this subsection (c), separate consolidating financial statements
with respect to the License Subsidiaries shall not be required.
(d) Within 45 days after the end of each of the first three
fiscal quarters (90 days after the end of the fourth fiscal quarter) of the
Borrower, a Ratio Certificate setting forth each of the Senior Leverage Ratio
and the Total Leverage Ratio as at the end of such fiscal quarter, certified by
the Chief Financial Officer of the Borrower (or such other officer as shall be
acceptable to the Administrative Agent).
(e) Within 30 days after the end of each month of the
Borrower, a management report setting forth a summary of revenues and Operating
Cash Flow and Station Cash Flow, on a station by station basis, for such month
and cumulative year to date periods, setting forth in each case in comparative
form the figures for such month and cumulative year to date period as set forth
in the internal budget prepared by the Borrower for such periods, all in detail
reasonably satisfactory to the Administrative Agent.
7.2 Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any Subsidiary is declared or shall become due and payable prior to
its stated maturity, or called and not paid when due, (ii) a default shall have
occurred under any note (other than the Notes) or the holder of any such note,
or other evidence of Indebtedness, certificate or security evidencing any such
Indebtedness or any obligee with respect to any other Indebtedness of the
Borrower or any Subsidiary has the right to declare any such Indebtedness due
and payable prior to its stated maturity as a result of such default, or (iii)
there shall occur and be con tinuing a Default or an Event of Default;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other order naming the Borrower or any
Subsidiary a party to any proceeding before any Governmental Authority which
might have a Material Adverse Effect or which call into question the validity or
enforceability of any of the Loan Documents and include with such notice a copy
of such citation, summons, subpoena, order to show cause or other order, (ii)
the commencement or threat of any action, suit, arbitration proceeding or claim
by, on behalf of or against the Borrower or any Subsidiary, at law or in equity,
before any Governmental Authority, which could reasonably be expected to have a
Material Adverse Effect, (iii) any lapse or other termination of any material
license, permit, franchise or other authorization issued to the Borrower or any
Restricted Subsidiary by any Governmental Authority, (iv) any refusal by any
Governmental Authority to renew or extend any such material license, permit,
franchise or other authorization, and (v) any dispute between the Borrower or
any Subsidiary and any Governmental Authority, which dispute might have a
material adverse effect on any Broadcasting Station or a Material Adverse
Effect;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material which the
Borrower or any Restricted Subsidiary may now or hereafter be required to file
with or deliver to any securities exchange or the Securities and Exchange
Commission, or any other Governmental Authority succeeding to the functions
thereof, (ii) material reports, schedules and other
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material which the Borrower or any Restricted Subsidiary may now or hereafter be
required to file with or deliver to the FCC and (iii) material news releases and
annual reports relating to the Borrower or any of its Restricted Subsidiaries;
(d) Prompt written notice in the event that (i) the Borrower
or any Subsidiary shall receive notice from the Internal Revenue Service or the
Department of Labor that the Borrower or such Subsidiary shall have failed to
meet the minimum funding requirements of Section 412 of the Code with respect to
a Plan, if applicable, and include therewith a copy of such notice, or (ii) the
Borrower or any Subsidiary gives or is required to give notice to the PBGC of
any Reportable Event with respect to a Plan, or knows that the plan
administrator of a Plan has given or is required to give notice of any such
Reportable Event;
(e) With respect to a Single Employer Plan of the Borrower or
any Subsidiary, copies of any request for a waiver of the funding standards or
any extension of the amortization periods required by Sections 303 and 304 of
ERISA or Section 412 of the Code promptly after any such request is submitted to
the Department of Labor or the Internal Revenue Service, as the case may be;
(f) Promptly after the filing thereof, a copy of the annual
report required to be filed pursuant to Section 103 of ERISA in connection with
each Single Employer Plan of the Borrower and each Subsidiary for each plan
year, including (i) a statement of the assets and liabilities of such Plan as of
the end of such plan year and statements of changes in fund balance and in
financial position, or a statement of changes in net assets available for plan
benefits, for such plan year, certified by the Accountants and (ii) an actuarial
statement of such Plan applicable to such plan year, certified by an enrolled
actuary of recognized standing reasonably acceptable to the Administrative Agent
and the Required Lenders;
(g) Promptly upon request therefor, such other information and
reports relating to the past, present or future financial condition, operations,
plans and projections of the Borrower or its Restricted Subsidiaries as the
Administrative Agent, any Co-Syndication Agent or any other Lender (through the
Administrative Agent) may at any time and from time to time reasonably request;
(h) Promptly after the same are received by the Borrower,
copies of all management letters and similar reports provided to the Borrower or
any Restricted Subsidiary by its independent certified public accountants; and
(i) Prompt written notice of the occurrence of a Material
Adverse Change or the occurrence of any event or facts or circumstances which
are reasonably likely to result in a Material Adverse Change.
7.3 Legal Existence.
Except as otherwise permitted by section 8.3, maintain, and
cause each Subsidiary to maintain, its corporate existence, and maintain its
good standing in the jurisdiction of its incorporation or organization and in
each other jurisdiction in which the failure so to do could reasonably be
expected to have a Material Adverse Effect.
7.4 Taxes.
Pay and discharge when due, and cause each Subsidiary so to
do, all Taxes, assessments and governmental charges, license fees and levies
upon or with respect to the Borrower or such Subsidiary and upon the income,
profits and Property of the Borrower and the Subsidiaries taken as a whole,
which if unpaid, could reasonably be expected to have a Material Adverse Effect
or become a Lien on the Property of the
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Borrower or any Restricted Subsidiary not permitted under section 8.2, unless
and to the extent only that such Taxes, assessments, charges, license fees and
levies shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Subsidiary and provided that the
Borrower shall give the Administrative Agent prompt notice of such contest and
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.5 Insurance.
(a) Liability Insurance. Maintain, and cause each Restricted
Subsidiary to maintain, insurance with financially sound insurance carriers on
such of its Property, against at least such risks, and in at least such amounts,
as are customarily insured against by similar businesses and which, in the case
of property insurance, shall be in amounts sufficient to prevent the Borrower or
any Restricted Subsidiary from becoming a co-insurer, including, without
limitation, public liability (bodily injury and property damage), fidel ity,
bonding and workers' compensation with deductibles not exceeding $50,000 per
occurrence, in each case naming the Administrative Agent as an additional
insured under such policies, and file with the Administrative Agent within five
days after request therefor a detailed list of such insurance then in effect,
stating the names of the carriers thereof, the policy numbers, the insureds
thereunder, the amounts of insurance, dates of expiration thereof, and the
Property and risks covered thereby, together with a certificate of an Authorized
Signatory certifying that in the opinion of such officer such insurance is
adequate in nature and amount, complies with the obligations of the Borrower
under this section 7.5, and is in full force and effect.
(b) Business Interruption Insurance. Maintain such business
interruption insurance as is customarily maintained by companies engaged in
similar businesses with deductibles not exceeding $50,000 per occurrence.
Promptly upon request therefor, the Borrower shall deliver or cause to be
delivered to the Administrative Agent originals or duplicate originals of all
such policies of insurance. Such insurance shall name the Administrative Agent
(together with the Administrative Agent under and as defined in the Other Credit
Agreement), under a standard loss payable clause, as sole loss payees in respect
of each claim resulting in a payment under any such insurance policy exceeding
$100,000. Provided that no Default or Event of Default shall exist, the
Administrative Agent agrees, promptly upon its receipt thereof, to pay over to
the Borrower the proceeds of any such payment received by the Administrative
Agent in its capacity as Administrative Agent hereunder. If a Default or Event
of Default shall exist, the Borrower, at the request of the Administrative
Agent, shall prepay the Loans with such proceeds, in an amount equal to the
Prepayment Fraction multiplied by the total amount of such insurance payment.
7.6 Payment of Indebtedness and Performance of Obligations.
Pay and discharge, and cause each Subsidiary to pay and
discharge, when due all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise which, if unpaid, might (i) have a Material
Adverse Effect, or (ii) become a Lien upon Property of the Borrower or any
Restricted Subsidiary not permitted under section 8.2, unless and to the extent
only that the validity of such Indebtedness (other than Indebtedness under the
Loan Documents), obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
and that any such contested Indebtedness, obligations or claims shall not
constitute, or create, a Lien on any Property of the Bor rower senior to the
Lien granted to the Collateral Agent by the Collateral Documents on such
Property, and further provided that the Borrower shall give the Administrative
Agent and the Lenders prompt notice of any such contest and that such reserve or
other appropriate provision as shall be required by the Accountants in
accordance with GAAP shall have been made therefor.
7.7 Condition of Property.
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each
Restricted Subsidiary so to do, all Property necessary to the operation of the
Borrower's or such Restricted Subsidiary's business.
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7.8 Observance of Legal Requirements; ERISA; Environmental Laws.
Observe and comply in all respects, and cause each Subsidiary
so to do, with all laws (including ERISA and Environmental Laws), ordinances,
orders, judgments, rules, regulations, certifications, franchises, permits,
licenses, directions and requirements of all Governmental Authorities, which now
or at any time hereafter may be applicable to the Borrower or such Subsidiary, a
violation of which could reasonably be expected to have a Material Adverse
Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
provided that the Borrower shall give the Administrative Agent and the Lenders
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
7.9 Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of the Administrative Agent and each
Lender, or potential assignees and/or participants of the Administrative Agent
or any Lender, to visit the offices of the Borrower and the Re stricted
Subsidiaries, to inspect any of its Property and examine and make copies or
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired, and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower and the
Restricted Subsidiaries with the officers thereof and with the Accountants.
7.10 Licenses, Etc.
Maintain and cause each Restricted Subsidiary to maintain, in
full force and effect, the operating license issued by the FCC to it for each
Broadcasting Station. The Borrower shall also maintain and cause each Restricted
Subsidiary to maintain, in full force and effect, all other material licenses,
copyrights, patents, including all licenses, permits, applications, reports,
authorizations and other rights as are necessary for the conduct of its
business, except to the extent that such ownership or right to use shall
terminate as a matter of law or expire as a matter of contractual right through
no action or default by the Borrower or any Restricted Subsidiary.
7.11 Additional FCC Licenses.
Except for the FCC licenses relating to KUPL-FM, KKJZ-FM,
WQRS-FM, WFLN-FM and WAAF-FM and except to the extent that the Borrower has made
the determination (such determination to be reasonably satisfactory to the
Administrative Agent) that to do so would adversely affect the Borrower or any
Restricted Subsidiary because of potential material Taxes to be incurred, upon
the receipt by the Borrower or any Restricted Subsidiary of any additional FCC
license, the Borrower shall, or shall cause such Restricted Subsidiary to,
contribute such license to a License Subsidiary and cause the corresponding
License Subsidiary Management Agreement to be amended or otherwise modified to
reflect the contribution of such FCC license and grant to the Collateral Agent a
first priority perfected security interest therein.
7.12 Interest Rate Protection Arrangements.
For a period of three years from the Effective Date, maintain
one or more Interest Rate Protection Arrangements, if necessary, such that the
interest rate on at least 50% of outstanding Total Debt
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(which is not subject to a fixed interest rate) shall be hedged, which Interest
Rate Protection Arrangements shall have a minimum term of three years, shall
contain such terms and conditions as shall be reasonably satisfactory to the
Administrative Agent and, with respect to Interest Rate Protection Agreements
between the Borrower and any Lender (or any Affiliate of any Lender), shall be
secured on a pari passu basis with the Collateral.
7.13 Subsidiary Guaranty.
Promptly upon the creation or acquisition of any Restricted
Subsidiary, cause such Restricted Subsidiary to execute and deliver to the
Collateral Agent a supplement to the Subsidiary Guaranty in the form attached
thereto, together with such other documents and opinions of counsel as the
Administrative Agent shall reasonably required in connection therewith.
8. NEGATIVE COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under Notes and the other Loan
Documents have been paid in full and all Commitments of the Lenders have been
terminated and no obligations of the Administrative Agent, the Collateral Agent,
the Co- Syndication Agents, the Managing Agents, the Agent, the Co-Agents or any
of the Lenders exist under any of the Loan Documents, the Borrower shall not:
8.1 Borrowing.
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any Restricted Subsidiary so to do, except (i)
Indebtedness under the Notes and the other Loan Documents, and Indebtedness
under the Notes and the other Loan Documents (in each case as defined in the
Other Credit Agreement); (ii) Indebtedness (including Contingent Obligations) of
the Borrower and the Restricted Subsidiaries existing on the date hereof as set
forth in Part A of Schedule 8.1; (iii) Indebtedness (including Contingent
Obligations) of EZ and its subsidiaries which, upon the consummation of the EZ
Acquisition, shall have been assumed by the Borrower and/or the Restricted
Subsidiaries as set forth in Part B of Schedule 8.1, (iv) unsecured Indebtedness
in an aggregate outstanding principal amount not in excess of $1,500,000 in
connection with the acquisition of Property by the Borrower, provided that
immediately before and after giving effect thereto all representations and
warranties contained in the Loan Documents shall be true and correct and no
Default or Event of Default shall exist; (v) unsecured Indebtedness of the
Borrower in an aggregate amount not in excess of $7,500,000 in connection with
the issuance of standby letters of credit for the account of the Borrower; (vi)
Indebtedness of the Borrower evidenced by (A) the ARS Subordinated Indenture
Notes, (B) the 1996 Exchange Subordinated Indenture Notes and the 1997 Exchange
Subordinated Indenture Notes, provided that, in the case of this clause (B),
immediately before and after giving effect to the incurrence thereof, no Default
or Event of Default shall exist, and (C) after the consummation of the EZ
Acquisition, the EZ Indenture Notes; (vii) Indebtedness of the Restricted
Subsidiaries evidenced by the ARS Subordinated Indenture Subsidiary Guaranty
and, after the consummation of the EZ Acquisition, the EZ Indenture Subsidiary
Guaranty; (viii) Permitted Subordinated Debt; (ix) refinancings of any
Indebtedness permitted under clause (ii), (iii), (iv) or (v) above with
Indebtedness permitted under clause (i) or (viii) above; and (x) refinancings of
any Indebtedness permitted under clause (vi), (vii) or (viii) above with other
Indebtedness permitted under clause (viii) above.
8.2 Liens.
Create, incur, assume or suffer to exist, or enter into any
agreement with any third Person agreeing not to create, incur, assume or suffer
to exist, any Lien upon any of its Property, whether now owned or hereafter
acquired, or permit any Restricted Subsidiary so to do, except (i) Liens for
Taxes, assessments or similar charges incurred in the ordinary course of
business which are not delinquent or which are being con tested in accordance
with section 7.4, provided that such Liens are not senior to the Liens granted
to the Collateral Agent and the Lenders by the Collateral Documents, (ii) Liens
in connection with workers' compensation, unemployment insurance or other social
security obligations (but not ERISA), (iii) deposits or pledges to secure bids,
tenders, contracts (other than contracts for the payment of money), leases,
statutory obligations, surety and appeal bonds and other obligations of like
nature arising in the ordinary course of busi ness, (iv) zoning ordinances,
easements and other similar restrictions affecting real property which do not
materially adversely affect the value of such real property or the financial
condition of the Borrower or such Restricted Subsidiary or materially impair its
use for the operation of the business of the Borrower or such Restricted
Subsidiary, (v) the Liens created under the Collateral Documents, (vi) statutory
Liens arising by operation of law such as mechanics' liens incurred in the
ordinary course of business which are not delinquent or which are being
contested in accordance with section 7.4, (vii) Liens arising out of judgments
or decrees which are being contested in accordance with section 7.4, provided
that such Liens are not senior to the Liens granted to the Collateral Agent and
the Lenders by the Collateral Documents and provided further that enforcement of
such Liens is stayed during such contest, (viii) Liens on Property of the
Borrower and the Restricted Subsidiaries existing on the date hereof as set
forth in Schedule 8.2, (ix) agreements with third Per sons not to create, incur,
assume or suffer to exist any Lien on any of its Property, provided that each
such agreement shall expressly permit the Liens (including any future Liens)
granted to the Collateral Agent pursuant to the Collateral Documents or as
otherwise contemplated by the other Loan Documents, as such Col lateral
Documents and other Loan Documents may be amended, supplemented, modified,
replaced, refinanced, increased or extended from time to time, and (x) Liens in
connection with the making of deposits in accordance with section 8.5(g).
8.3 Merger and Acquisition or Sale of Property.
Consolidate with, be acquired by, or merge into or with any
Person, or acquire all or substantially all of the Stock or Property of any
Person, or, except as otherwise permitted under section 8.7, sell, lease or
otherwise dispose of all or substantially all of its Property, or otherwise
alter or modify its structure, status or existence, or permit any Restricted
Subsidiary so to do, except: any wholly-owned Restricted Subsidiary (other than
a License Subsidiary) may merge with the Borrower (with the Borrower as
survivor) or with another wholly-owned Restricted Subsidiary (other than a
License Subsidiary); any License Subsidiary may merge with ARS License
Subsidiary (with ARS License Subsidiary as survivor); and, subject to the last
paragraph of this section 8.3:
(a) upon five Business Days' notice to the Administrative
Agent, the Borrower or any wholly-owned Restricted Subsidiary may acquire
Broadcasting Station(s) that are in the Top 75 Markets through an acquisition or
merger (with the Borrower or such wholly-owned Restricted Subsidiary (or a
Person that becomes a wholly-owned Restricted Subsidiary) as the survivor
thereof), provided that if the consideration for any such acquisition or merger
exceeds $50,000,000, there shall have been delivered to the Administrative Agent
and each Lender such details of such transaction as the Administrative Agent,
any Co-Syndication Agent or any other Lender (through the Administrative Agent)
shall reasonably request;
(b) upon five Business Days' notice to the Administrative
Agent, the Borrower or any wholly-owned Restricted Subsidiary may acquire
Broadcasting Station(s) that are not in the Top 75 Markets through an
acquisition or merger (with the Borrower or such wholly-owned Restricted
Subsidiary (or a Person that becomes a wholly-owned Restricted Subsidiary) as
the survivor thereof), provided that (i) after giving effect to each such
acquisition, the Consolidated Annual Operating Cash Flow allocable to all
Broadcast Stations that are not in the Top 75 Markets (calculated on a pro-forma
basis to include the Broadcasting Station being acquired) is less than 25% of
the Consolidated Annual Operating Cash Flow (calculated in the same manner), and
(ii) if the consideration for any such acquisition or merger exceeds
$50,000,000, there shall have been delivered to the Administrative Agent and
each Lender such details of such transaction as the
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Administrative Agent, any Co-Syndication Agent or any other Lender (through the
Administrative Agent) shall reasonably request; and
(c) the Borrower may consummate the EZ Acquisition pursuant to
the terms of section 8.21.
Immediately before and after giving effect to any proposed acquisition or merger
permitted under this section 8.3, all representations and warranties contained
in the Loan Documents shall be true and correct and no Default or Event of
Default shall exist and, prior to the consummation of such acquisition or
merger, the Borrower shall have delivered to the Administrative Agent a
certificate of an Authorized Signatory of the Borrower certifying as to the
foregoing. Immediately upon the consummation of any acquisition or merger
permitted under this section 8.3, (i) the Borrower shall have delivered to the
Administrative Agent such docu ments as the Administrative Agent shall
reasonably require in order to grant to the Collateral Agent a first priority
perfected security interest in the Stock and/or Property, as applicable, of such
Broadcasting Station under and pursuant to the Collateral Documents, subject to
no Liens other than Permitted Liens, (ii) if the Borrower shall have acquired a
Restricted Subsidiary in connection with such acquisition, such Restricted
Subsidiary shall have become a party to the Subsidiary Guaranty, (iii) subject
to section 7.11, the FCC license of the Broadcasting Station shall have been
transferred to a License Subsidiary, and a management agreement, substantially
in the form of Exhibit D, or a supplement or amendment to a License Subsidiary
Management Agreement, shall have been executed and delivered in connection
therewith and pledged to the Collateral Agent under and in accordance with the
applicable Collateral Document, (iv) the Borrower shall have received (A) with
respect to each pending acquisition listed on Schedule 8.3, a Preliminary Order,
and (B) with respect to each other transaction, a final order from the FCC, and
all other similar material orders from all other applicable Governmental
Authorities, with regard to the acquisition or merger, the transfer of the FCC
license of such acquired Broadcasting Station to a License Subsidiary, and the
execution of the management agreement, each of which shall be in all respects
reasonably satisfactory to the Administrative Agent, and the Administrative
Agent shall have received true, complete and correct copies, certified by an
Authorized Signatory of the Borrower, of all such orders and (v) the Borrower
shall have delivered to the Administrative Agent such opinions and other
documents as the Administrative Agent shall reasonably require in connection
therewith.
8.4 Dividends; Purchase of Stock.
Declare or pay any dividends payable in cash or otherwise or
apply any of its Property to the purchase, redemption or other retirement of, or
set apart any sum for the payment of any dividends on, or make any other
distribution by reduction of capital or otherwise in respect of, any of its
Stock (each a "Restricted Payment") or permit any Restricted Subsidiary so to
do, except that:
(a) any wholly-owned Restricted Subsidiary (other than a
License Subsidiary) may declare and pay dividends to the Borrower from time to
time;
(b) the Borrower may declare and pay cash dividends or
purchase its capital Stock commencing January 1, 1999, provided that (i) the
aggregate amount of dividends declared and paid and capital stock purchased
under this subsection (b) shall not exceed an amount equal to 50% of Excess Cash
Flow for the period commencing January 1, 1998 through the end of the fiscal
quarter immediately preceding the declaration and payment of any such dividends
or any such purchase, (ii) immediately before and after giving effect to such
declaration and payment (1) (x) either the Total Leverage Ratio is less than
4.50:1.00 or (y) the Total Leverage Ratio is less than 5.00:1.00 and the Senior
Leverage Ratio is less than 3.00:1.00, and (2) all representations and
warranties contained in the Loan Documents are true and correct and no Default
or Event of Default shall exist and (iii) the Loans shall have been prepaid, and
the RC/TL Commitments shall have been permanently reduced by an amount equal to
the Prepayment Fraction or the Commitment Reduction Fraction, as the case may
be, multiplied by the amount of such dividends or purchase;
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(c) the Borrower may declare and pay dividends payable solely
in Class A, B or C common stock of the Borrower;
(d) the Borrower may purchase its capital Stock in an amount
not to exceed $15,000,000 in any fiscal year (determined on a cumulative basis)
and $75,000,000 in the aggregate, provided that immediately before and after
giving effect to any such purchase (i) the Total Leverage Ratio is less than
6.50:1.00, and (ii) no Default or Event of Default shall exist; and
(e) the Borrower may declare and pay (i) cash dividends on the
preferred Stock issued pursuant to the 1996 Convertible Exchangeable Preferred
Stock Issuance and the 1997 Preferred Stock Issuance, provided that immediately
before and after giving effect to any such declaration and payment, no Default
or Event of Default shall exist, and (ii) non-cash dividends on the preferred
Stock issued pursuant to the 1997 Preferred Stock Issuance in the form of
additional shares of such preferred Stock.
8.5 Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or advance
(excluding deposits or pledges permitted under section 8.2(iii)) to, or enter
into any arrangement for the purpose of providing funds or credit to, or make
any other investment, whether by way of capital contribution or otherwise, in or
with any Person (all of which are sometimes referred to herein as
"Investments"), or permit any Restricted Subsidiary so to do, except:
(a) Investments in short-term domestic and eurodollar
certificates of deposit issued by any Lender, or any other commercial bank,
trust company or national banking association incorporated under the laws of the
United States or any State thereof and having undivided capital surplus and
retained earnings exceeding $500,000,000;
(b) Investments in short-term direct obligations of the United
States of America or agencies thereof which obligations are guaranteed by the
United States of America;
(c) Investments existing on the date hereof as set forth in
Schedule 8.5(c);
(d) Investments by the Borrower in an aggregate amount (at
cost) at any time outstanding not to exceed $75,000,000, provided that (i)
immediately before and after giving effect to the making of any such Investment,
no Default or Event of Default shall exist, (ii) if any such Investment consists
of Margin Stock, the representation and warranty contained in Section 4.12 shall
be true and correct immediately before and after giving effect to the making of
any such Investment, and (iii) the Borrower shall have delivered to the
Administrative Agent such documents as the Administrative Agent shall reasonably
require in order to grant to the Collateral Agent a first priority perfected
security interest in the Stock (excluding Margin Stock) and/or other Collateral
(as defined in the Collateral Documents), as applicable, received in
consideration of any such Investment under and pursuant to the Collateral
Documents, subject to no Liens other than Permitted Liens;
(e) Investments by the Borrower to the extent permitted under
section 8.4(d);
(f) Investments to the extent the same are acquisitions
permitted pursuant to section 8.3;
(g) Investments by the Borrower in the form of deposits or
options made in the ordinary course of business in connection with any proposed
acquisition or acquisitions of Property permitted pursuant to the terms of this
Agreement; and
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(h) Investments by the Borrower in the Tower Subsidiaries
(excluding Investments by the Borrower in the Tower Subsidiaries permitted
pursuant to Section 8.5(c)) in an aggregate amount not to exceed $50,000,000,
provided that immediately before and after giving effect to the making of any
such Investment, no Default or Event of Default shall exist.
8.6 Business Changes.
Materially change or permit any Restricted Subsidiary so to do
the nature of its business from that of owning and managing radio broadcasting
stations and related businesses, including the syndication of radio programming
and the ownership and management of communications antenna towers.
8.7 Sale of Property.
Sell, exchange, lease, transfer or otherwise dispose of any
Property to any Person, or permit any Restricted Subsidiary so to do, except
sales, exchanges, leases, transfers or other dispositions made in the ordinary
course of business (which shall not include the sale or other disposition of any
Property of a License Subsidiary or all or substantially all of the Stock or
assets of any Broadcasting Station or involve an FCC license of the Borrower or
any of its Restricted Subsidiaries), except that, subject to the last sentence
of this section 8.7:
(a) the Borrower may sell or exchange any Broadcasting Station
set forth on Schedule 8.7;
(b) the Borrower may sell or exchange any Broadcasting
Station, provided that (i) the aggregate amount of the Station Annual Cash Flow
for all Broadcasting Stations which have been sold or exchanged pursuant to the
provisions of this section 8.7(b) during the Station Sale Measuring Period
(including the Broadcasting Station then being contemplated to be sold or
exchanged but excluding in any event those permitted pursuant to section 8.7(a))
shall not exceed 25% of Consolidated Annual Broadcast Cash Flow (calculated
before subtracting Station Annual Cash Flow with respect to each Broadcasting
Station sold or exchanged pursuant to the provisions of this section 8.7(b)
during such Station Sale Measuring Period), and (ii) the aggregate amount of the
Station Annual Cash Flow for all Broadcasting Stations which have been sold or
exchanged pursuant to the provisions of this section 8.7(b) during the period
commencing on the Effective Date and ending through and including the date of
determination (including the Broadcasting Station then being contemplated to be
sold or exchanged but excluding in any event those permitted pursuant to section
8.7(a)) (calculated as of the time each such Broadcasting Station was sold or
exchanged pursuant to the provisions of this section 8.7(b)) (collectively, the
"Aggregate Station Annual Cash Flow") shall not exceed 50% of the sum of (A) the
Aggregate Station Annual Cash Flow, and (B) Consolidated Annual Broadcast Cash
Flow (calculated after subtracting Station Annual Cash Flow with respect to each
Broadcasting Station sold or exchanged pursuant to the provisions of this
section 8.7(b) (including the Broadcasting Station then being contemplated to be
sold or exchanged) during the four fiscal quarter period for which Consolidated
Annual Broadcast Cash Flow is being measured);
(c) the Borrower may sell and leaseback (i) tower assets to
any Tower Subsidiary, and (ii) real property and buildings used in connection
with radio towers or studios to any of its Subsidiaries or any other Person;
(d) the Borrower or any Restricted Subsidiary may sell the
real property and buildings set forth in Schedule 8.7; and
(e) In the event that the Borrower shall elect not to
consummate any acquisition pursuant to a loan/purchase arrangement substantially
similar to the arrangements in connection with the PBB
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Note Purchase Agreements, the Borrower may assign the applicable purchase
agreement(s) to a qualified third party.
Provided, however, in connection with any sale or exchange permitted under
section 8.7(b), (c) or (d), (i) im mediately before and after giving effect to
the proposed sale or exchange (including any related change in Indebtedness),
all representations and warranties contained in the Loan Documents shall be true
and correct and no Default or Event of Default shall exist, and the Borrower
shall have delivered to the Administrative Agent a certificate of an Authorized
Signatory of the Borrower certifying as to the same, and (ii) the Borrower shall
prepay the Loans in accordance with section 2.5(g).
8.8 Subsidiaries.
Create or acquire any other Subsidiary, or permit any
Subsidiary (other than a Tower Subsidiary) so to do, except in connection with
an Acquisition permitted in section 8.3.
8.9 Compliance with ERISA.
Adopt any Plan other than those listed on Schedule 4.14 or
permit any Subsidiary so to do, or engage in any "prohibited transaction", as
such term is defined in Section 4975 of the Code or Section 406 of ERISA, with
respect to any Plan, or incur any "accumulated funding deficiency", as such term
is defined in Section 412 of the Code or Section 302 of ERISA, or terminate, or
permit any member of a Commonly Controlled Entity to terminate, any Plan which
would result in any liability of the Borrower or any member of a Commonly
Controlled Entity to the PBGC, or permit the occurrence of any Reportable Event
or any other event or condition which presents a risk of such a termination by
the PBGC of any Plan, or withdraw or effect a partial withdrawal from a
Multiemployer Plan, or permit any member of a Commonly Controlled Entity which
is an employer under such a Multiemployer Plan so to do, if any such withdrawal
would result in such withdrawing employer incurring any withdrawal liability in
excess of $250,000.
8.10 Certificate of Incorporation and By-laws.
Amend or otherwise modify its certificate of incorporation,
by-laws or other organizational documents, or permit any Restricted Subsidiary
so to do, in any way which would adversely affect the interests of the Lenders
or the obligations of any Loan Party under any of the Loan Documents.
8.11 Prepayments of Indebtedness.
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness (other than the Loans and the Other Credit Agreement Loans) prior
to the due date thereof, or permit any Restricted Subsidiary so to do, other
than (i) the prepayment by any Restricted Subsidiary of Indebtedness owing by
such Restricted Subsidiary to the Borrower, (ii) the prepayment of Indebtedness
permitted under section 8.1(ii) or (iii) with the proceeds of Indebtedness
permitted under section 8.1 (i) or (vi) or the proceeds of Stock issued by the
Borrower pursuant to section 8.18, (iii) the prepayment in whole or in part of
the EZ Indenture Notes with the proceeds of the SD/TL Loans and (iv) the
prepayment of the ARS Subordinated Indenture Notes, the 1996 Exchange
Subordinated Indenture Notes, the 1997 Exchange Subordinated Indenture Notes,
the EZ Indenture Notes and the Permitted Subordinated Indenture Notes to the
extent permitted under section 8.19.
8.12 Fiscal Year.
Change its fiscal year from a fiscal year commencing January
1st and ending December 31st, or permit any of its Restricted Subsidiaries so to
do.
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8.13 Amendments, Etc. of Certain Agreements.
Enter into or agree to any amendment, modification or waiver
of any term or condition of the PBB Documents, the Tax Sharing Agreement or any
License Subsidiary Management Agreement, which amendment, modification or
waiver, in the opinion of the Administrative Agent, would materially and
adversely affect the interest of the Lenders under any of the Loan Documents. In
the event of any amendment, modification or waiver to any of such documents, the
Borrower shall promptly deliver to the Administrative Agent a copy of the same.
8.14 Transactions with Affiliates.
Become, or permit any Restricted Subsidiary to become, a party
to any transaction with any Affiliate of the Borrower or any Restricted
Subsidiary on a basis less favorable to the Borrower or such Restricted
Subsidiary in any material respect than if such transaction were not with an
Affiliate of the Borrower or such Restricted Subsidiary, provided that nothing
contained in this section 8.14 shall limit the Borrower's making Investments in
any Tower Subsidiary pursuant to section 8.5(h) provided that immediately before
and after giving effect thereto such Tower Subsidiary is a wholly owned
Subsidiary of the Borrower.
8.15 License Subsidiaries.
Permit any License Subsidiary to engage in any business other
than (i) owning, holding and maintaining in full force and effect the broadcast
licenses and other assets transferred to such License Subsidiary, (ii)
performing the obligations of such License Subsidiary under the applicable
License Subsidiary Management Agreement and (iii) executing, delivering and
performing its obligations under the Subsidiary Guaranty, the ARS Subordinated
Indenture Subsidiary Guaranty, the EZ Indenture Subsidiary Guaranty and the
Permitted Subordinated Indenture Subsidiary Guaranty.
8.16 Sale and Leaseback.
Enter into any arrangement with any Person, or permit any
Restricted Subsidiary so to do, providing for the leasing by the Borrower or
such Restricted Subsidiary of Property which has been or is to be sold or
transferred by the Borrower or such Restricted 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
Restricted Subsidiary, except as permitted pursuant to section 8.7(c).
8.17 Prohibition on Management and Similar Fees.
Make any payment of, or enter into any agreement for the
payment of, any management fees or similar fees with any Affiliate of the
Borrower.
8.18 Stock Issuance.
Issue any additional shares of Stock, or permit any of its
Restricted Subsidiaries so to do, except (i) the Borrower may issue shares of
its common Stock or Non Redeemable Preferred Stock, provided that the Borrower
shall prepay the Loans in an amount equal to the Prepayment Fraction multiplied
by the net proceeds received by the Borrower in connection with such issuance of
Stock by the Borrower immediately upon its receipt thereof to the extent
required by section 2.5(h), and (ii) any Restricted Subsidiary (other than a
License Subsidiary) may issue shares of its Stock to the Borrower or any
wholly-owned Restricted Subsidiary.
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8.19 Indentures, Notes, Subsidiary Guaranties.
(a) Enter into or agree to any amendment, modification or
waiver of any term or condition of the ARS Subordinated Indenture, the ARS
Subordinated Indenture Notes, the ARS Subordinated Indenture Subsidiary
Guaranty, the 1996 Exchange Subordinated Indenture, the 1997 Exchange
Subordinated Indenture, the 1996 Exchange Subordinated Indenture Notes, the 1997
Exchange Subordinated Indenture Notes, the Permitted Subordinated Indenture, the
Permitted Subordinated Indenture Notes or the Permitted Subordinated Indenture
Subsidiary Guaranty or purchase, redeem or make any payment with respect to
Indebtedness under the ARS Subordinated Indenture Notes, the ARS Subordinated
Indenture Subsidiary Guaranty, the 1996 Exchange Subordinated Indenture Notes,
the 1997 Exchange Subordinated Indenture Notes, the Permitted Subordinated
Indenture Notes or the Permitted Subordinated Indenture Subsidiary Guaranty or
permit any of its Restricted Subsidiaries so to do, except for required payments
to the extent expressly permitted pursuant to the subordination terms set forth
therein, and except as permitted under section 8.1(x).
(b) Except for the supplemental indenture contemplated by the
EZ Consent Solicitation, enter into or agree to any amendment, modification or
waiver of any term or condition of the EZ Indenture, the EZ Indenture Notes or
the EZ Indenture Subsidiary Guaranty or purchase, redeem or make any payment
with respect to Indebtedness under the EZ Indenture Notes or the EZ Indenture or
permit any of its Restricted Subsidiaries so to do, except for payments to the
extent required pursuant to the terms set forth therein, and except as permitted
under section 8.1(x).
8.20 Federal Reserve Regulations.
Own, or permit any of its Restricted Subsidiaries to own,
Margin Stock in excess of 25% (or such greater or lesser percentage as is
provided in the exclusions from the definition of "Indirectly Secured" contained
in Regulation G and Regulation U in effect at the time of the making of such
Loan) of the value of the assets of (i) the Borrower, or (ii) the Borrower and
the Restricted Subsidiaries on a Consolidated basis.
8.21 EZ Acquisition.
Consummate the EZ Acquisition, unless:
(a) The EZ Indenture shall have been amended substantially in
accordance with the EZ Consent Solicitation, and the Administrative Agent shall
have received a true and complete copy of such amendment as executed and
delivered by the parties thereto.
(b) There shall exist no injunction or other material
litigation affecting the EZ Acquisition or any transaction contemplated thereby,
and the Administrative Agent shall have received a certificate to such effect
from the Borrower.
(c) All conditions precedent to the consummation of the EZ
Acquisition shall have been satisfied in accordance with the terms of the EZ
Transaction Documents (with no waiver of any material condition thereof without
the prior written consent of the Administrative Agent and the Co-Syndication
Agents, which consent shall not be unreasonably withheld) and the EZ Acquisition
shall have been consummated in such manner, and the Administrative Agent shall
have received a certificate to such effect from the Borrower.
(d) The Borrower shall have repaid in full and cancelled the
Existing EZ Indebtedness and all liens securing the same shall have been
terminated, and the Administrative Agent shall have received satisfactory
evidence of the foregoing.
(e) The Administrative Agent and the Lenders shall have
received pro-forma financial
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statements of the Borrower and its Restricted Subsidiaries (including EZ and its
subsidiaries), in each case after giving effect to the consummation of the EZ
Acquisition.
(f) No material adverse change shall have occurred in the
financial condition, operations, business or prospects of (i) the Borrower and
its Restricted Subsidiaries taken as a whole, (ii) EZ and its subsidiaries taken
as a whole and (iii) the Borrower and its Restricted Subsidiaries (including EZ
and its subsidiaries) on a pro-forma basis taken as a whole, in each case since
December 31, 1995 and in the case of clause (iii) above from that shown on the
pro-forma financial statements and projections previously provided to and
approved by the Lenders.
(g) The representations and warranties contained in the Loan
Documents shall be true and correct immediately before and after giving effect
to the consummation of the EZ Acquisition except as otherwise expressly
permitted or contemplated by this Agreement and no Default or Event of Default
shall exist immediately before or after giving effect thereto, and the
Administrative Agent shall have received a certificate to such effect from the
Borrower.
(h) All notices, approvals and waiting periods (except as
contemplated by section 8.21(n)) from all Governmental Authorities shall have
been given, received or expired, as the case may be, in connection with the
consummation of the EZ Acquisition.
(i) The Collateral Agent shall have received such UCC searches
and UCC-1 Financing Statements as it may require, together with (i) stock
certificates representing all issued and outstanding Stock of each subsidiary of
EZ that is owned by EZ or any of its subsidiaries, with undated stock powers ac
companying such certificates executed in blank and (ii) all intercompany notes
made by EZ or any of its subsidiaries endorsed to the order of the Collateral
Agent.
(j) The Administrative Agent shall have received such
certificates, legal opinions (including opinions of FCC counsel) and other
documents as it shall reasonably require, all of which shall be satisfactory to
the Administrative Agent.
(k) The Administrative Agent shall have received a certificate
from the Borrower in all respects satisfactory to the Administrative Agent that,
immediately before and after giving effect to the EZ Acquisition, the Borrower
is Solvent.
(l) The Collateral Agent shall have received from the Borrower
such documents as the Collateral Agent shall reasonably require in order to
grant to the Collateral Agent a first priority perfected security interest in
the Stock and other Collateral (as defined in the Collateral Documents) acquired
in connection with the EZ Acquisition under and pursuant to the Collateral
Documents, subject to no Liens other than Permitted Liens.
(m) Management agreements, substantially in the form of
Exhibit D, between PBI and each EZ License Subsidiary (collectively, as each may
be amended, supplemented or otherwise modified from time to time pursuant to
section 8.13, the "EZ License Subsidiary Management Agreements") shall have been
executed and delivered in connection with the EZ Acquisition and pledged to the
Collateral Agent under and in accordance with the applicable Collateral
Document.
(n) The Borrower shall have received Preliminary Orders from
the FCC, and all other similar material orders from all other applicable
Governmental Authorities, with regard to the EZ Acquisition and the transfer of
control of the FCC licenses of the EZ License Subsidiaries, each of which shall
be in all respects reasonably satisfactory to the Administrative Agent, and the
Administrative Agent shall have received true, complete and correct copies,
certified by an Authorized Signatory of the Borrower, of all such orders.
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9. DEFAULT
9.1 Events of Default.
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of the Borrower to pay any installment of
principal on any Note on the date when due and payable; or
(b) The failure of the Borrower to pay any installment of
interest or any other fees or expenses payable hereunder or under or in
connection with any other Loan Documents within three Business Days of the date
when due and payable; or
(c) The use by the Borrower of the proceeds of any Loan in a
manner inconsistent with or in violation of section 2.7; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in section 6, section 7.3, 7.5, 7.10, 7.11, 7.12
or 7.13, or section 8; or
(e) The failure of the Borrower to observe or perform any
other term, covenant, or agreement contained in this Agreement and such failure
shall have continued unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
(f) Any representation or warranty of any Loan Party (or of
any officer on its behalf) made in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant to any Loan Document, shall prove to have been
incorrect or misleading (whether because of misstatement or omission) in any
material respect when made; or
(g) Any obligation of the Borrower (other than its obligations
under the Notes) or any Restricted Subsidiary, whether as principal, guarantor,
surety or other obligor, for the payment of any Indebtedness or operating
lease(s) (i) shall become or shall be declared to be due and payable prior to
the expressed maturity thereof, or (ii) shall not be paid when due or within any
grace period for the payment thereof, or (iii) the holder of any such
obligation(s) in excess of $2,500,000 in the aggregate shall have the right to
declare such obligation(s) due and payable prior to the expressed maturity
thereof; or
(h) The Borrower or any Restricted Subsidiary shall (i)
suspend or discontinue its business, or (ii) make an assignment for the benefit
of creditors, or (iii) generally not be paying its debts as such debts become
due, or (iv) admit in writing its inability to pay its debts as they become due,
or (v) file a voluntary petition in bankruptcy, or (vi) become insolvent
(however such insolvency shall be evidenced), or (vii) file any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment of debt, liquidation or dissolution or similar relief under any
present or future statute, law or regulation of any jurisdiction, or (viii)
petition or apply to any tribunal for any receiver, custodian or any trustee for
any substantial part of its Property, or (ix) be the subject of any such
proceeding filed against it which remains undismissed for a period of 60 days,
or (x) file any answer admitting or not contesting the material allegations of
any such petition filed against it or of any order, judgment or decree approving
such petition in any such proceeding, or (xi) seek, approve, consent to, or
acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidator, or fiscal agent for it, or any substantial part
of its Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains in effect for 60
days, or (xii) take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dissolution of the Borrower or such
Restricted Subsidiary; or
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(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any Restricted Subsidiary a bankrupt
or insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of the Borrower or any Restricted Subsid iary under the United States
bankruptcy laws or any other applicable Federal or state law, or (iii)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Borrower or any Restricted Subsidiary or of
any substantial part of the Property thereof, or (iv) ordering the winding up or
liquidation of the affairs of the Borrower or any Restricted Subsidiary, and any
such decree or order con tinues unstayed and in effect for a period of 60 days;
or
(j) Any judgments or decrees against the Borrower or its
Restricted Subsidiaries aggregating in excess of $2,500,000 for all such parties
shall remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed
for a period of 30 days; or
(k) The occurrence of an Event of Default under and as defined
in any Collateral Document or the occurrence of an Event of Default under and as
defined in the Other Credit Agreement; or
(l) Any of the Loan Documents shall cease, for any reason, to
be in full force and effect, or any Loan Party shall so assert in writing or
shall disavow its obligations thereunder; or
(m) A Change of Control shall occur.
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clauses (h) or (i) above, the Commitments shall immediately and
automatically terminate and the Loans, all accrued and unpaid interest thereon
and all other amounts owing under the Loan Documents shall immediately become
due and payable, and the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and the Notes, and (b) if such event is any other
Event of Default, any or all of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, and upon the
direction of the Required Lenders 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, and upon the direction of the Required Lenders shall,
by notice of default to the Borrower, declare the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents to be due
and payable forthwith, whereupon the same shall immediately become due and
payable, and the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and the Notes. Except as otherwise provided in this
section 9.1, presentment, de mand, protest and all other notices of any kind are
hereby expressly waived to the extent permitted by applicable law. The Borrower
hereby further expressly waives and covenants not to assert any appraisement,
valuation, stay, extension, redemption or similar laws, to the extent permitted
by applicable law, now or at any time hereafter in force, which might delay,
prevent or otherwise impede the performance or enforcement of any of the Loan
Documents.
In the event that the Commitments shall have been terminated or all of
the Notes shall have been declared due and payable pursuant to the provisions of
this section 9.1, the Lenders agree, among themselves, that any funds received
in respect of this Agreement and the Notes from or on behalf of the Borrower by
any of the Lenders (except funds received by any Lender as a result of a
purchase from such Lender pursuant to the provisions of section 11.9) shall be
remitted to the Administrative Agent, and shall be applied by the Administrative
Agent in payment of the Loans and the obligations of the Borrower under the Loan
Documents in the following manner and order: (i) first, to reimburse the
Administrative Agent, the Collateral Agent and the Lenders for any expenses due
from the Borrower pursuant to the provisions of section 11.5; (ii) second,
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to the payment of the Commitment Fees, pro rata according to the Commitment
Percentage of each Lender; (iii) third, to the payment of any other fees,
expenses or amounts (other than the principal of and interest on the Notes and
any obligations to any Lender arising out of any Interest Rate Protection
Arrangement entered into under, and required by, section 7.12) payable by the
Borrower to the Administrative Agent, the Collateral Agent or any of the Lenders
under the Loan Documents; (iv) fourth, to the payment, pro rata according to the
outstanding Loans of each Lender, of interest due on the Notes; (v) fifth, on a
pro rata basis, to the payment of (1) principal outstanding on the Notes, pro
rata according to each Lender's outstanding Loans and (2) the obligations of the
Borrower to the Lenders (and any Affiliate of any Lender) arising out of any
Interest Rate Protection Arrangements entered into under, and required by,
section 7.12; and (vi) sixth, any remaining funds shall be paid to whomsoever
shall be entitled thereto or as a court of competent jurisdiction shall direct.
10. THE ADMINISTRATIVE AGENT; THE COLLATERAL AGENT; THE CO-SYNDICATION
AGENTS; THE MANAGING AGENTS; THE AGENT; THE CO-AGENTS; THE ARRANGERS
10.1 Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Administrative Agent of such Lender under this Agreement and the Notes and
BNY as the Collateral Agent of each Lender under the Collateral Documents. Each
such Lender hereby irrevocably authorizes BNY as the Administrative Agent or the
Collateral Agent, as the case may be, for such Lender to take such action on its
behalf under the provisions of the Loan Documents and to exercise such powers
and perform such duties as are expressly delegated to the Administrative Agent
or the Collateral Agent, as the case may be, by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or any
of the other Loan Documents, neither the Administrative Agent nor the Collateral
Agent shall have any duties or responsibilities, except those expressly set
forth herein or therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist against the
Administrative Agent or the Collateral Agent.
10.2 Delegation of Duties.
The Administrative Agent and the Collateral Agent each may
execute any of its duties under the Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to rely upon the advice of counsel
concerning all matters pertaining to such duties.
10.3 Exculpatory Provisions.
Neither the Administrative Agent, the Collateral Agent nor any
of its officers, directors, em ployees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with the Loan Documents (except for its
own gross neg ligence or willful misconduct), or (ii) responsible in any manner
to any of the Lenders for any recitals, state ments, representations or
warranties made by the Borrower or any officer thereof contained in the Loan
Docu ments or in any certificate, report, statement or other document referred
to or provided for in, or received by the Administrative Agent or the Collateral
Agent under or in connection with, the Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of any of
the Loan Documents or for any failure of the Borrower or any other Person to
perform its obligations hereunder or thereunder. Neither the Administrative
Agent nor the Collateral Agent shall 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, the Loan Documents, or to inspect the
properties, books or records of the Borrower or any Restricted Subsidiary.
Neither the Administrative Agent nor the Collateral Agent shall be under any
liability or responsibility
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whatsoever to the Borrower or any other Person as a consequence of any failure
or delay in performance, or any breach, by any Lender of any of its obligations
under any of the Loan Documents.
10.4 Reliance by Administrative Agent and Collateral Agent.
The Administrative Agent and the Collateral Agent each shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, opinion, letter, cablegram,
telegram, 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, without limitation, counsel to the
Borrower), independent accountants and other experts selected by it. Subject to
section 11.7, the Administrative Agent and the Collateral Agent each may treat
each Lender as the holder of all of the interests of such Lender in its Loans
and in its Notes. Neither the Administrative Agent nor the Collateral Agent
shall be under any duty to examine or pass upon the validity, effectiveness or
genuineness of the Loan Documents or any instrument, document or communication
furnished pursuant thereto or in connection therewith, and the Administrative
Agent and the Collateral Agent each shall be entitled to assume that the same
are valid, ef fective and genuine, have been signed or sent by the proper
parties and are what they purport to be. The Administrative Agent and the
Collateral Agent each shall be fully justified in failing or refusing to take
any action under the Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate. The Administrative
Agent and the Collateral Agent each shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request of the Required 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 Notes.
10.5 Notice of Default.
Neither the Administrative Agent nor the Collateral Agent
shall be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless it has received written notice thereof from a
Lender or the Borrower. In the event that the Administrative Agent or the
Collateral Agent receives such a notice, it shall promptly give notice thereof
to the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided, however, that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders. The Collateral Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Combined
Required Lenders; provided, however, that unless and until the Collateral Agent
shall have received such directions, the Collateral Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders and the Lenders (as defined in the Other Credit Agreement).
10.6 Non-Reliance.
Each Lender expressly acknowledges that neither the
Administrative Agent, the Collateral Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by the Administrative Agent or the
Collateral Agent hereinafter, including any review of the affairs of the
Borrower or the Subsidiaries, shall be deemed to constitute any representation
or warranty by the Administrative Agent or the Collateral Agent to any Lender.
Each Lender represents to the Administrative Agent and the Collateral Agent that
it has, independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries and made its
own decision to enter into this Agreement. Each Lender also represents that it
will,
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independently and without reliance upon the Administrative Agent, the Collateral
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,
evaluations and decisions in taking or not taking action under this Agreement or
any of the Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent or the Collateral Agent hereunder, neither
the Administrative Agent nor the Collateral Agent shall have any duty or
responsibility to provide any Lender with any credit or other information con
cerning the business, operations, Property, financial and other condition or
creditworthiness of the Borrower or its Subsidiaries which may come into the
possession of the Administrative Agent, the Collateral Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
(a) Each Lender agrees to indemnify the Administrative Agent
in its capacity as such (to the extent not promptly reimbursed by or on behalf
of the Borrower and without limiting the obligation of the Borrower or any other
Loan Party to do so), ratably according to its Credit Exposure at such time,
from and against any and all liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever including, without limitation, any amounts paid to the Lenders
(through the Administrative Agent) by the Borrower pursuant to the terms hereof,
that are subse quently rescinded or avoided, or must otherwise be restored or
returned) which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, the other Loan Documents or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or any action taken
or omitted to be taken by the Administrative Agent under or in connection with
any of the foregoing; provided, however, 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 to the
extent resulting directly and primarily from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this section 10.7(a)
shall survive the payment of the Notes and all other amounts payable under the
Loan Documents.
(b) Each Lender agrees to indemnify the Collateral Agent in
its capacity as such (to the extent not promptly reimbursed by or on behalf of
the Borrower and without limiting the obligation of the Borrower or any other
Loan Party to do so), ratably according to its Combined Credit Exposure at such
time, from and against any and all liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever including, without limitation, any amounts paid to the
Lenders (through the Administrative Agent) by the Borrower pursuant to the terms
hereof, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (in cluding, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Collateral Agent in any way relating to or arising out of
this Agreement, the other Loan Documents or any other documents contemplated by
or referred to herein or the transactions contemplated hereby or any action
taken or omitted to be taken by the Collateral Agent under or in connection with
any of the foregoing; provided, however, 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 to the
extent resulting directly and primarily from the gross negligence or willful
misconduct of the Collateral Agent. The agreements in this section 10.7(b) shall
survive the payment of the Notes and all other amounts payable under the Loan
Documents.
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10.8 Administrative Agent and Collateral Agent in its Individual
Capacity.
BNY and its Affiliates, may make loans to, accept deposits
from, issue letters of credit for the account of and generally engage in any
kind of business with, the Borrower and its Subsidiaries as though BNY were not
the Administrative Agent or the Collateral Agent. With respect to the
Commitments made by BNY and each Note issued to BNY, the Administrative Agent
and the Collateral 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 was not the Administrative Agent or the Collateral Agent, as the
case may be, and the terms "Lender" and "Lenders" shall in each case include
BNY.
10.9 Successor.
(a) If at any time the Administrative Agent deems it
advisable, in its sole discretion, it may submit to each of the Lenders a
written notification of its resignation as Administrative Agent under this
Agreement and the Notes, such resignation to be effective on the later to occur
of (i) the thirtieth day after the date of such notice and (ii) the date upon
which any successor Administrative Agent, in accordance with the provisions of
this section 10.9, shall have accepted in writing its appointment as such
successor Administrative Agent. Upon any such resignation of the Administrative
Agent, the Required Lenders shall have the right to appoint from among the
Lenders a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which successor
Administrative Agent shall be a commercial bank organized under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Ad ministrative Agent, and
the retiring Administrative Agent's rights, powers, privileges and duties as
Administrative Agent under this Agreement and the Notes shall be terminated. The
Borrower and the Lenders shall execute such documents as shall be necessary to
effect such appointment. After any retiring Administrative Agent's resignation
or removal as Administrative Agent, the provisions of section 10 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 Notes. If at any time
hereunder there shall not be a duly appointed and acting Ad ministrative Agent,
the Borrower agrees to make each payment due hereunder and under the Notes
directly to the Lenders entitled thereto during such time.
(b) If at any time the Collateral Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notification
of its resignation as Collateral Agent under the Collateral Documents, such
resignation to be effective on the later to occur of (i) the thirtieth day after
the date of such notice and (ii) the date upon which any successor Collateral
Agent, in accordance with the provisions of this section 10.9 (and section 10.9
of the Other Credit Agreement), shall have accepted in writing its appointment
as such successor Collateral Agent. Upon any such resignation of the Collateral
Agent, the Required Lenders (together with the Required Lenders under and as
defined in the Other Credit Agreement) shall have the right to appoint from
among the Lenders a successor Collateral Agent. If no successor Collateral Agent
shall have been so appointed and accepted such appointment within 30 days after
the retiring Collateral Agent's giving of notice of resignation, then the
retiring Collateral Agent may, on behalf of the Lenders (and the Lenders under
and as defined in the Other Credit Agreement), appoint a successor Collateral
Agent, which successor Collateral Agent shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Collateral Agent by a successor Collateral
Agent, such successor Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent's rights, powers, privileges
and duties as Collateral Agent under the Collateral Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Collateral Agent's
resignation or removal as Collateral Agent, the provisions of section 10 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Collateral Agent under the Collateral Documents.
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10.10 Updating Exhibits and Schedules.
The Administrative Agent is hereby authorized and directed
from time to time to (i) amend Exhibit A to reflect the Commitments of each
Lender as of the date of each assignment pursuant to section 11.7 and, in
connection therewith, the Lending Offices and address for notices of each
assignee "Lender", (ii) amend Schedule 1.1(L) to reflect any change of address
of which the Administrative Agent has received written notice pursuant to
section 11.2, and (iii) in each such case, to send a copy thereof to each party
hereto.
10.11 Co-Syndication Agents.
The Co-Syndication Agents shall have only the duties and
obligations expressly set forth in the Loan Documents in their capacity as
Co-Syndication Agents and shall have the same rights, protections, immunities
and indemnities as the Administrative Agent.
10.12 The Managing Agents.
The Managing Agents shall have no duties or obligations under
the Loan Documents in their capacity as Managing Agents.
10.13 The Agent.
The Agent shall have no duties or obligations under the Loan
Documents in its capacity as Agent.
10.14 The Co-Agents.
The Co-Agents shall have no duties or obligations under the
Loan Documents in their capacity as Co-Agents.
10.15 The Arrangers.
The Arrangers shall have no duties or obligations under the
Loan Documents in their capacity as Arrangers.
11. MISCELLANEOUS
11.1 Amendments and Waivers.
With the written consent of the Required Lenders, which
consent may be transmitted by telecopier, the Administrative Agent or the
Collateral Agent, as the case may be, and the appropriate Loan Parties may, from
time to time, enter into written amendments, supplements or modifications of the
Loan Documents and, with the consent of the Required Lenders, the Administrative
Agent or the Collateral Agent, as the case may be, on behalf of the Lenders may
execute and deliver to any such parties a written instrument waiving or
consenting to the departure from, on such terms and conditions as the
Administrative Agent or the Collateral Agent, as the case may be, may specify in
such instrument, any of the requirements of the Loan Documents or any Default or
Event of Default and its consequences; provided, however, that:
(a) no such amendment, supplement, modification, waiver or
consent shall, without the
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written consent of all of the Lenders, (i) increase or decrease the Commitments
(other than pursuant to the terms of section 2.4), (ii) extend the Maturity
Date, the RC/TL Commitment Termination Date or the SD/TL Commitment Termination
Date, (iii) extend the date or decrease the amount of any required principal
amortization payment of the Loans pursuant to section 2.5(b) or (c), (iv)
decrease the rate, extend the time or change the pro rata method of payment of
interest or principal on or applicable to any Note, (v) decrease the amount,
extend the time or change the pro rata method of payment of the Commitment Fee,
(vi) release all or any part of the Collateral or any Subsidiary Guaranty except
in connection with a permitted sale or other permitted disposition of the
Collateral or the applicable Subsidiary Guarantor, as the case may be, or to the
extent that the Administrative Agent or the Collateral Agent shall be required
or permitted to do so under the terms and provisions of the Loan Documents,
(vii) change the definition of Required Lenders, or (viii) change the provisions
of this section 11.1;
(b) any amendment, supplement, modification, waiver or consent
to the Collateral Documents shall be subject to the receipt by the Collateral
Agent of the consent of the Combined Required Lenders or all of the Lenders
(hereunder and under and as defined in the Other Credit Agreement, as the
context may require.
(c) without the written consent of the Administrative Agent or
the Collateral Agent, as the case may be, no such amendment, supplement,
modification or waiver shall amend, modify or waive any provision of section 10
or otherwise change any of the rights or obligations of the Administrative Agent
or the Collateral Agent, as the case may be, under the Loan Documents; and
(d) without the written consent of the Co-Syndication Agents,
no such amendment, supplement, modification or waiver shall amend, modify or
waive any provision of section 10 applicable to the Co-Syndication Agents or
otherwise change any of the rights or obligations of the Co-Syndication Agents
hereunder or under the Loan Documents.
Any such amendment, supplement, modification or waiver shall
apply equally to each of the Lenders and shall be binding upon the parties to
the applicable agreement, the Lenders, the Administrative Agent, the Collateral
Agent, the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents
and all future holders of the Notes. In the case of any waiver, the parties to
the applicable agreement, the Lenders, the Administrative Agent, the Collateral
Agent, the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents
shall be restored to their former position and rights under the Loan Documents
to the extent provided for in such waiver, and any Default or Event of Default
waived shall not extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
11.2 Notices.
Except as otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made (i) when delivered by hand, (ii) one
Business Day after having been sent by overnight courier service, (iii) five
Business Days after having been deposited in the mail, first-class postage
prepaid, or (iv) in the case of telecopier notice, when sent and transmission
confirmed (which may include electronic confirmation), addressed as follows in
the case of the Borrower, the Administrative Agent and the Collateral Agent, and
as set forth in Schedule 1.1(L) hereto in the case of each of the Lenders, or to
such other addresses as to which the Administrative Agent and the Collateral
Agent may be hereafter notified by the respective parties hereto or any future
holders of the Notes:
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The Borrower:
American Radio Systems Corporation
116 Huntington Avenue
Boston, MA 02116
Attention: Joseph L. Winn
Chief Financial Officer
Telephone: (617) 375-7500
Telecopy: (617) 375-7575
The Administrative Agent, the Collateral Agent and/or BNY:
The Bank of New York
Communications, Publishing & Entertainment Division
One Wall Street, 16th Floor
New York, New York 10286
Attention: Geoffrey C. Brooks
Vice President
Telephone: (212) 635-8475
Telecopy: (212) 635-8593
with a copy to, in the case of all Borrowing Requests, prepayment notices under
section 2.5(a) and conversion notices under section 2.8, and to the attention
of, in the case of all fundings by the Lenders:
The Bank of New York, as Administrative Agent
Agency Function Administration
One Wall Street, 18th Floor
New York, New York 10286
Attention: Michael Pizarro
Telephone: (212) 635-4697
Telecopy: (212) 635-6365 (or 6366/6367)
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to section 2.3, 2.4, 2.5 or 2.8
shall not be effective until received.
11.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent, the Collateral Agent or any Lender, any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges under the Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
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11.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement, the Notes
and the other Loan Documents.
11.5 Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether or not any Loan is made, (i) to pay or
reimburse the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents and the Arrangers for all their out-of-pocket reasonable costs and
expenses incurred in connection with the development, preparation, execution and
syndication of, and any amendment, waiver, consent, supplement or modification
to, the Loan Documents, any documents prepared in connection therewith and the
consummation of the transactions contemplated hereby and thereby, whether such
Loan Documents or any such other documents are executed and whether the
transactions contemplated thereby are consummated, including, without
limitation, the reasonable fees and disbursements of Special Counsel, (ii) to
pay or reimburse the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents, the
Arrangers and the Lenders for all of their respective reasonable costs and
expenses incurred in connection with the work-out, enforcement or preservation
of any rights under the Loan Documents and any such documents, including,
without limitation, reasonable fees and disbursements of counsel to the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents, the Arrangers and the Lenders
including, without limitation, reasonable expenses of the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents, the Arrangers and the Lenders in connection with or attributable
to commercial finance examiners, accountants, investment banks and environmental
consultants, (iii) to pay, indemnify, and hold each Lender, the Administrative
Agent, the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the
Agent, the Co-Agents and the Arrangers 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 Taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
any of the Loan Documents and any such other documents, and (iv) to pay,
indemnify and hold each Lender, the Administrative Agent, the Collateral Agent,
the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Arrangers and each of their respective officers, directors, employees and agents
harmless from and against any and all other liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without limitation,
reasonable counsel fees and dis bursements) with respect to the execution,
delivery, enforcement and performance of the Loan Documents or the use of the
proceeds of the Loans hereunder (all the foregoing, collectively, the
"indemnified liabilities") and, if and to the extent that the foregoing
indemnity may be unenforceable for any reason, the Borrower agrees to make the
maximum payment permitted under applicable law; provided, however, that the
Borrower shall have no obligation hereunder to pay indemnified liabilities to
the Administrative Agent, the Collateral Agent, any Co-Syndication Agent, any
Managing Agent, the Agent, any Co-Agent, any Arranger or any Lender to the
extent arising directly and primarily from the gross negligence or willful
misconduct of the Administrative Agent, the Collateral Agent, such
Co-Syndication Agent, such Managing Agent, the Agent, such Co-Agent, such
Arranger or such Lender, as the case may be. The agreements in this section 11.5
shall survive the termination of the Commitments and the payment of the Notes
and all other amounts payable hereunder.
11.6 Lending Offices.
Subject to section 2.17(b), each Lender shall have the right
at any time and from time to time to transfer any Loan to a different office of
such Lender, provided that such Lender shall promptly notify the Administrative
Agent and the Borrower of any such change of office. Such office shall thereupon
become such Lender's Lending Office.
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11.7 Successors and Assigns.
(a) This Agreement, the Notes and the other Loan Documents to
which the Borrower is a party shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents, all future
holders of the Notes and their respective successors and assigns, except that
the Borrower may not assign, delegate or transfer any of its rights or
obligations under this Agreement, the Notes and the Loan Documents to which the
Borrower is a party without the prior written consent of each Lender.
(b) Each Lender shall have the right at any time, upon written
notice to the Administrative Agent of its intent to do so, to sell or assign
(each an "Assignment") all or any part of its Loans, its Commitments and its
Notes (together and simultaneously with its Loans, its RC Commitments and its
Notes in each case under and as defined in the Other Credit Agreement), on a pro
rata basis (unless otherwise consented to by the Borrower), to one or more of
the other Lenders (or to affiliates of such Lender or such other Lenders) or,
with the written consent of the Borrower and the Administrative Agent (such
consent not to be (A) unreasonably withheld or delayed, or (B) with respect to
the Borrower, required during the continuance of an Event of Default) to any
other bank, insurance company, pension fund, mutual fund or other financial
institution, provided that (i) each such partial Assignment (together with the
simultaneous assignment made under the Other Credit Agreement) shall be in a
minimum aggregate amount of $5,000,000 (unless otherwise consented to by the
Borrower), (ii) the parties to each such Assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption Agreement along with a fee
(the "Assign ment Fee") of $1,500 ($3,000 if no simultaneous assignment is being
made by such parties under the Other Credit Agreement) with respect to the
Assignment made under this Agreement, and (iii) no such assignment may be made
to the Borrower or to any Affiliate of the Borrower. Upon receipt of each such
duly executed Assignment and Assumption Agreement together with the Assignment
Fee therefor in compliance with the provisions hereof, the Administrative Agent
shall (x) record the same and signify its acceptance thereof by executing two
copies of such Assignment and Assumption Agreement in the appropriate place and
delivering one copy to the assignor and one copy to the assignee and (y) request
the Borrower to execute and deliver (1) to such assignee one or more Notes, in
an aggregate principal amount equal to the Loans assigned to, and Commitments
assumed by, such assignee and (2) to such assignor one or more Notes, in an
aggregate principal amount equal to the balance of such assignor Lender's Loans
and Commitments, if any, in each case against receipt of such assignor Lender's
existing Notes. The Borrower agrees that it shall, upon each such request of the
Administrative Agent, execute and deliver such new Notes at its own cost and
expense. Upon such delivery, acceptance and recording by the Administrative
Agent, from and after the effective date specified in such Assignment and
Assumption Agreement, the assignee thereunder shall be a party hereto and shall
for all purposes of this Agreement and the other Loan Documents be deemed a
"Lender" and, to the extent pro vided in such Assignment and Assumption
Agreement, the assignor Lender thereunder shall be released from its obligations
under this Agreement and the other Loan Documents.
(c) Each Lender may grant participations in all or any part of
its Loans, its Notes or its Commitment to any other bank, insurance company,
pension fund, mutual fund, financial institution or other entity, provided that
no such participant shall have any right to require such Lender to take or omit
to take any action under any Loan Document except any action which would require
the consent of all Lenders pursuant to section 11.1. The Borrower hereby
acknowledges and agrees that any such participant shall for purposes of sections
2.9, 11.5, 11.9, 11.11 and 11.16 be deemed to be a "Lender".
(d) No Lender shall, as between and among the Borrower, the
Administrative Agent, the Collateral Agent, and such Lender, be relieved of any
of its obligations under the Loan Documents as a result of any Assignment or
granting of a participation in, all or any part of its Loans, its Commitments or
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its Notes, except that a Lender shall be relieved of its obligations to the
extent of any Assignment of all or any part of its Loans, its Commitments or its
Notes pursuant to subsection (b) above.
(e) Notwithstanding anything to the contrary contained in this
section 11.7, any Lender may at any time assign all or any portion of its rights
under the Loan Documents to a Federal Reserve Bank. No such assignment shall
release such Lender from its obligations thereunder.
11.8 Counterparts.
This Agreement and each of the other Loan Documents (other
than the Notes) may be executed by one or more of the parties to this Agreement
or to such other Loan Document, as the case may be, on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. It shall not be necessary in making proof
of any Loan Document to produce or account for more than one counterpart signed
by the party to be charged. Any of the parties to this Agreement and the other
Loan Documents may rely on signatures of such parties hereto and thereto which
are transmitted by telecopier or other electronic means as fully as if
originally signed. A set of the copies of this Agreement and each of the other
Loan Documents signed by all the parties shall be lodged with each of the
Borrower, the Administrative Agent and the Collateral Agent.
11.9 Adjustments; Set-off.
(a) If any Lender (a "benefited Lender") shall at any time
receive any payment of all or any part of its Loans, or interest thereon, 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 9.1 (h) or (i), or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender, if any, in respect of
such other Lender's Loans, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Loans, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender shall notify the Administrative Agent and to share the excess
payment or benefits of such collateral or proceeds 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, unless the benefited Lender is required to
pay interest on the amount of the excess payment to be returned, in which case
the other Lenders shall pay their pro rata share of such interest. The Borrower
agrees that each Lender so purchasing a portion of another Lender's Loans may
exercise all rights of payment (including, without limitation, rights of
set-off) with respect to such portion as fully as if such Lender were the direct
holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and acceleration of
the obligations owing in connection with this Agreement, or at any time upon the
occurrence and during the continuance of an Event of Default under section
9.1(a) or 9.1(b), 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, to set off and apply against any indebtedness,
whether matured or unmatured, of the Borrower to such Lender, any amount owing
from such Lender to the Borrower, at, or at any time after, the happening of any
of the above-mentioned events. To the extent permitted by applicable law, the
aforesaid right of set-off may be exercised by such Lender against the Borrower
or against any trustee in bankruptcy, custodian, debtor in possession, assignee
for the benefit of creditors, receiver, or execution, judgment or attachment
creditor of the Borrower, or against anyone else claiming through or against the
Borrower or such trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off shall
not have been exercised by such Lender prior to the making, filing or issuance,
or service upon such Lender of, or of notice of, any such petition, assignment
for the benefit of
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creditors, appointment or application for the appointment of a receiver, or
issuance of execution, subpoena, order or warrant. Each Lender agrees promptly
to notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
11.10 No Third Party Beneficiary.
This Agreement is among the Borrower, the Lenders, the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents and the Arrangers and no other Person
is intended to or shall have any rights hereunder or shall be permitted to rely
hereon.
11.11 Indemnity.
(a) The Borrower agrees to indemnify and hold harmless each of
the Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents, the Arrangers, each Lender and each
of their respective officers, directors, employees and agents (each an
"Indemnified Party") from and against any loss, cost, liability, damage or
expense (including the reasonable fees and out-of-pocket expenses of counsel to
each such Indemnified Party, including all local counsel hired by any such
counsel) incurred by each such Indemnified Party in investigating, preparing
for, defending against, or providing evidence, producing documents or taking any
other action in respect of, any claim, commenced or threatened litigation,
administrative proceeding or investigation under any federal securities law or
any other statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon (i) any untrue
statement or alleged untrue statement of any material fact of the Borrower or
any Subsidiary in any document or schedule executed or filed with the Securities
and Exchange Commission or any other Governmental Authority by or on behalf of
the Borrower or any Subsidiary, (ii) any omission or alleged omission to state
any material fact required to be stated in such document or schedule, or
necessary to make the statements made therein, in light of the circumstances
under which made, not misleading, (iii) any of the Loan Documents, the
transactions contemplated hereby or thereby or any acts, practices or omissions
or alleged acts, practices or omissions of the Borrower or any of its agents
relating to the use of the proceeds of any or all borrowings made by the
Borrower which are alleged to be in violation of section 2.7, or in violation of
any federal securities law or of any other statute, regulation or other law of
any jurisdiction applicable thereto, or (iv) any acquisition or proposed
acquisition by the Borrower or any Subsidiary of all or a portion of the Stock,
or all or a portion of the assets, of any Person, in each case whether or not
any Indemnified Party is a party thereto.
(b) In addition to the indemnity provided under section
11.11(a), the Borrower agrees to defend, indemnify and hold harmless each
Indemnified Party from and against any loss, cost, liability, fine, penalties,
damage or expense (including the reasonable fees and out-of-pocket expenses of
counsel to each such Indemnified Party, including all local counsel hired by any
such counsel) suffered or incurred by each such Indemnified Party, pertaining to
any release or threatened release of a reportable quantity of any hazardous
substance or hazardous waste at any Property of the Borrower or any of its
Subsidiaries (a "Hazardous Discharge"), including, but not limited to, claims of
any Governmental Authority or any third Person, whether arising under or on
account of any Environmental Law or tort, contract or common law, including,
without limitation, the assertion of any Lien thereunder, with respect to any
Hazardous Discharge, the presence of any hazardous substances or hazardous
wastes affecting any Property of the Borrower or any of its Subsidiaries,
whether or not the same originates or engages from such Property or any
contiguous real estate, including any loss of value of such Property as a result
of the foregoing. The Borrower's obligations under this section 11.11(b) shall
arise upon the discovery of any Hazardous Discharge at such Property, whether or
not any Governmental Authority or any other Person has taken or threatened any
action in connection with the presence of any hazardous substances or hazardous
wastes.
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(c) The indemnities set forth herein shall be in addition to
any other obligations or liabilities of the Borrower to the Indemnified Parties
hereunder or at common law or otherwise, and shall survive any termination of
this Agreement, the expiration of the RC/TL Commitments and the SD/TL Commit
ments and the payment of all indebtedness of the Borrower hereunder and under
the other Loan Documents, provided that the Borrower shall have no obligation
under this section 11.11 to an Indemnified Party with respect to any of the
foregoing to the extent arising directly and primarily out of the gross
negligence or wilful misconduct of such Indemnified Party.
11.12 Governing Law.
This Agreement, the Notes and the other Loan Documents and the
rights and obligations of the parties under this Agreement, the Notes and the
other Loan Documents shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York, without regard to principles
of conflict of laws.
11.13 Headings.
Section headings have been inserted herein and in the other
Loan Documents for convenience only and shall not be construed to be a part
hereof or thereof.
11.14 Severability.
Every provision of this Agreement and the other Loan Documents
is intended to be severable, and if any term or provision hereof or thereof
shall be invalid, illegal or unenforceable for any reason, the validity,
legality and enforceability of the remaining provisions hereof or thereof shall
not be affected or impaired thereby, and any invalidity, illegality or
unenforceability in any jurisdiction shall not affect the validity, legality or
enforceability of any such term or provision in any other jurisdiction.
11.15 Integration.
All exhibits and schedules to this Agreement shall be deemed
to be a part of this Agreement or the applicable Loan Document, as the case may
be. Except for agreements between the Borrower and the Administrative Agent with
respect to certain fees, this Agreement and the other Loan Documents embody the
entire agreement and understanding among the Borrower, the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents, the Arrangers and the Lenders with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings among
the Borrower, the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Managing Agents, the Agent, the Co-Agents, the Arrangers and the
Lenders with respect to the subject matter hereof and thereof.
11.16 Consent to Jurisdiction.
The Borrower hereby irrevocably submits to the jurisdiction of
any New York State or Federal Court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents. The
Borrower hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. The Borrower hereby agrees that a final judgment in any such
suit, action or proceeding brought in such a court, after all appropriate
appeals, shall be conclusive and binding upon it.
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11.17 Service of Process.
The Borrower hereby agrees that process may be served in any
suit, action, counterclaim or proceeding of the nature referred to in section
11.16 by mailing copies thereof by registered or certified mail, postage
prepaid, return receipt requested, to the address of the Borrower set forth in
section 11.2 or to any other address of which the Borrower shall have given
written notice to the Administrative Agent. The Borrower hereby agrees that such
service, to the extent permitted by applicable law (i) shall be deemed in every
respect effective service of process upon it in any such suit, action,
counterclaim or proceeding, and (ii) shall to the fullest extent enforceable by
law, be taken and held to be valid personal service upon and personal delivery
to it.
11.18 No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver, or
amendment thereto shall affect the right of the Administrative Agent, the
Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent, the
Co-Agents or any Lender to serve process in any manner permitted by law or limit
the right of the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Managing Agents, the Agent, the Co-Agents or any Lender to bring
proceedings against the Borrower in the courts of any jurisdiction or
jurisdictions.
11.19 WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-
SYNDICATION AGENTS, THE MANAGING AGENTS, THE AGENT, THE CO-AGENTS, THE LENDERS
AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-SYNDICATION AGENTS,
THE MANAGING AGENTS, THE AGENT, THE CO- AGENTS OR THE LENDERS, OR COUNSEL TO THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-SYNDICATION AGENTS, THE
MANAGING AGENTS, THE AGENT, THE CO-AGENTS OR THE LENDERS, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
CO-SYNDICATION AGENTS, THE MANAGING AGENTS, THE AGENT, THE CO-AGENTS OR THE
LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-SYNDICATION AGENTS, THE
MANAGING AGENTS, THE AGENT, THE CO-AGENTS AND THE LENDERS HAVE BEEN INDUCED TO
ENTER INTO THE LOAN DOCUMENTS BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.20 Confidentiality.
The Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders each agree that, without the prior written consent of the Borrower, it
will not disclose the terms of this Agreement or any material confidential
information with respect to the Borrower, or any of its Subsidiaries which is
furnished pursuant to this Agreement to any Person except (i) its accountants,
attorneys and other advisors who have a need to know such information or its
Affiliates, and, in each case, who agree to be bound by the provisions of this
section 11.20, (ii) to the extent such information is requested to be disclosed
to any regulatory or administrative body or commission to whose
-68-
<PAGE>
jurisdiction the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Managing Agents, the Agent, the Co-Agents or such Lender is subject,
(iii) to the extent such information is requested or required to be disclosed by
subpoena or similar process of applicable law or regulation, (iv) to the extent
the Borrower has previously disclosed such information publicly or such
information is otherwise in the public domain (except by virtue of a breach by
the Administrative Agent, the Collateral Agent, any of the Co-Syndication
Agents, any of the Managing Agents, the Agent, any of the Co-Agents or such
Lender of its obligations under this section 11.20) at the time of disclosure,
(v) such information which is disclosed in connection with any litigation or
dispute between the Administrative Agent, the Collateral Agent, any of the
Co-Syndication Agents, any of the Managing Agents, the Agent, any of the
Co-Agents or such Lender and any Loan Party concerning this Agreement, any other
Loan Document, or any instrument or document executed or delivered in connection
herewith or therewith, (vi) such information which was in the possession of such
Person or such Person's Affiliates without the obligation of confidentiality
prior to the Administrative Agent, the Collateral Agent, such Co-Syndication
Agent, such Managing Agent, the Agent, such Co-Agent or such Lender furnishing
it to such Person, and (vii) in connection with a prospective assignment, grant
of a participation interest or other transfer by a Lender of any of its interest
in this Agreement or the Notes, provided that the Person to whom such
information is disclosed shall agree to be bound by the provisions of this
section 11.20.
-69-
<PAGE>
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.
AMERICAN RADIO SYSTEMS CORPORATION
By:
Name:
Title:
THE BANK OF NEW YORK,
Individually and as Administrative Agent and
Collateral Agent
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
Individually and as a Co-Syndication Agent
By:
Name:
Title:
THE TORONTO-DOMINION BANK,
Individually and as a Co-Syndication Agent
By:
Name:
Title:
BANK OF MONTREAL,
Individually and as a Managing Agent
By:
Name:
Title:
-1-
<PAGE>
CREDIT SUISSE FIRST BOSTON,
Individually and as a Managing Agent
By:
Name:
Title:
By:
Name:
Title:
FLEET NATIONAL BANK,
Individually and as a Managing Agent
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
Individually and as a Managing Agent
By:
Name:
Title:
BARCLAYS BANK PLC,
Individually and as Agent
By:
Name:
Title:
BANK OF AMERICA ILLINOIS,
Individually and as a Co-Agent
By:
Name:
Title:
-2-
<PAGE>
THE SANWA BANK, LIMITED,
Individually and as a Co-Agent
By:
Name:
Title:
VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME
TRUST, Individually and as a Co-Agent
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By:
Name:
Title:
-3-
<PAGE>
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Name:
Title:
LTCB TRUST COMPANY
By:
Name:
Title:
MERITA BANK LTD. - NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
NATIONAL BANK OF CANADA
By:
Name:
Title:
By:
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By:
Name:
Title:
-4-
<PAGE>
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
SUMMIT BANK
By:
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Name:
Title:
THE TOYO TRUST & BANKING CO., LTD.
By:
Name:
Title:
US BANK OF WASHINGTON, N.A.
By:
Name:
Title:
-5-
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
1. DEFINITIONS.............................................................................................-1-
1.1 Defined Terms.........................................................................-1-
1.2 Principles of Construction...........................................................-20-
2. AMOUNT AND TERMS OF LOANS..............................................................................-21-
2.1 Loans................................................................................-21-
2.2 Notes................................................................................-21-
2.3 Procedure for Borrowing Loans........................................................-22-
2.4 Termination or Reduction of Commitments..............................................-23-
2.5 Prepayments of the Loans.............................................................-24-
2.6 Interest Rate and Payment Dates; Highest Lawful Rate.................................-27-
2.7 Use of Proceeds......................................................................-28-
2.8 Conversions; Other Matters...........................................................-28-
2.9 Indemnification for Loss.............................................................-29-
2.10 Reimbursement for Costs..............................................................-30-
2.11 Illegality of Funding................................................................-31-
2.12 Option to Fund.......................................................................-31-
2.13 Taxes; Net Payments..................................................................-31-
2.14 Capital Adequacy.....................................................................-32-
2.15 Substituted Interest Rate............................................................-32-
2.16 Transaction Record...................................................................-33-
2.17 Certificates of Payment and Reimbursement; Other Provisions Regarding Yield
Protection...........................................................................-33-
3. FEES; PAYMENTS.........................................................................................-33-
3.1 Commitment Fees......................................................................-33-
3.2 Pro Rata Treatment and Application of Payments.......................................-34-
4. REPRESENTATIONS AND WARRANTIES.........................................................................-34-
4.1 Subsidiaries.........................................................................-35-
4.2 Corporate Existence and Power........................................................-35-
4.3 Corporate Authority..................................................................-35-
4.4 Governmental Authority Approvals.....................................................-35-
4.5 Binding Agreement....................................................................-35-
4.6 Litigation...........................................................................-35-
4.7 No Conflicting Agreements............................................................-36-
4.8 Taxes................................................................................-36-
4.9 Compliance with Applicable Laws......................................................-36-
4.10 Governmental Regulations.............................................................-36-
4.11 Property; Broadcasting Business......................................................-36-
4.12 Federal Reserve Regulations; Use of Loan Proceeds....................................-37-
4.13 No Misrepresentation.................................................................-37-
4.14 Plans................................................................................-37-
4.15 FCC Matters..........................................................................-37-
4.16 Burdensome Obligations...............................................................-38-
4.17 Financial Statements.................................................................-38-
4.18 Environmental Matters................................................................-38-
5. CONDITIONS OF LENDING..................................................................................-39-
5.1 First Loans..........................................................................-39-
5.2 All Loans............................................................................-40-
6. FINANCIAL COVENANTS....................................................................................-41-
6.1 Senior Leverage Ratio; Total Leverage Ratio..........................................-41-
6.2 Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service....................-42-
6.3 Consolidated Annual Operating Cash Flow to Interest Expense..........................-42-
6.4 Consolidated Annual Operating Cash Flow to Fixed Charges.............................-42-
7. AFFIRMATIVE COVENANTS..................................................................................-43-
7.1 Financial Statements.................................................................-43-
7.2 Certificates; Other Information......................................................-44-
-i-
<PAGE>
7.3 Legal Existence......................................................................-45-
7.4 Taxes................................................................................-45-
7.5 Insurance............................................................................-46-
7.6 Payment of Indebtedness and Performance of Obligations...............................-46-
7.7 Condition of Property................................................................-46-
7.8 Observance of Legal Requirements; ERISA; Environmental Laws..........................-47-
7.9 Inspection of Property; Books and Records; Discussions...............................-47-
7.10 Licenses, Etc........................................................................-47-
7.11 Additional FCC Licenses..............................................................-47-
7.12 Interest Rate Protection Arrangements................................................-47-
7.13 Subsidiary Guaranty..................................................................-48-
8. NEGATIVE COVENANTS.....................................................................................-48-
8.1 Borrowing............................................................................-48-
8.2 Liens................................................................................-48-
8.3 Merger and Acquisition or Sale of Property...........................................-49-
8.4 Dividends; Purchase of Stock.........................................................-50-
8.5 Investments, Loans, Etc..............................................................-51-
8.6 Business Changes.....................................................................-52-
8.7 Sale of Property.....................................................................-52-
8.8 Subsidiaries.........................................................................-53-
8.9 Compliance with ERISA................................................................-53-
8.10 Certificate of Incorporation and By-laws.............................................-53-
8.11 Prepayments of Indebtedness..........................................................-53-
8.12 Fiscal Year..........................................................................-53-
8.13 Amendments, Etc. of Certain Agreements...............................................-54-
8.14 Transactions with Affiliates.........................................................-54-
-ii-
<PAGE>
8.15 License Subsidiaries.................................................................-54-
8.16 Sale and Leaseback...................................................................-54-
8.17 Prohibition on Management and Similar Fees...........................................-54-
8.18 Stock Issuance.......................................................................-54-
8.19 Indentures, Notes, Subsidiary Guaranties.............................................-54-
8.20 Federal Reserve Regulations..........................................................-55-
8.21 EZ Acquisition.......................................................................-55-
9. DEFAULT................................................................................................-57-
9.1 Events of Default....................................................................-57-
10. THE ADMINISTRATIVE AGENT; THE COLLATERAL AGENT; THE CO-SYNDICATION
AGENTS; THE MANAGING AGENTS; THE AGENT; THE CO-AGENTS; THE ARRANGERS...................................-59-
10.1 Appointment..........................................................................-59-
10.2 Delegation of Duties.................................................................-59-
10.3 Exculpatory Provisions...............................................................-59-
10.4 Reliance by Administrative Agent and Collateral Agent................................-60-
10.5 Notice of Default....................................................................-60-
10.6 Non-Reliance.........................................................................-60-
10.7 Indemnification......................................................................-61-
10.8 Administrative Agent and Collateral Agent in its Individual Capacity.................-61-
10.9 Successor............................................................................-62-
10.10 Updating Exhibits and Schedules......................................................-63-
10.11 Co-Syndication Agents................................................................-63-
10.12 The Managing Agents..................................................................-63-
10.13 The Agent............................................................................-63-
10.14 The Co-Agents........................................................................-63-
10.15 The Arrangers
11. MISCELLANEOUS..........................................................................................-63-
11.1 Amendments and Waivers...............................................................-63-
11.2 Notices..............................................................................-64-
11.3 No Waiver; Cumulative Remedies.......................................................-65-
11.4 Survival of Representations and Warranties...........................................-65-
11.5 Payment of Expenses and Taxes........................................................-66-
11.6 Lending Offices......................................................................-66-
11.7 Successors and Assigns...............................................................-67-
11.8 Counterparts.........................................................................-68-
11.9 Adjustments; Set-off.................................................................-68-
11.10 No Third Party Beneficiary...........................................................-69-
11.11 Indemnity............................................................................-69-
11.12 Governing Law........................................................................-70-
11.13 Headings.............................................................................-70-
11.14 Severability.........................................................................-70-
11.15 Integration..........................................................................-70-
11.16 Consent to Jurisdiction..............................................................-70-
11.17 Service of Process...................................................................-71-
11.18 No Limitation on Service or Suit.....................................................-71-
11.19 WAIVER OF TRIAL BY JURY..............................................................-71-
11.20 Confidentiality......................................................................-71-
</TABLE>
Exhibit 99.3
AMERICAN RADIO EXHIBIT I
FORM OF BORROWER SECURITY AGREEMENT
BORROWER SECURITY AGREEMENT (this "Agreement"), dated as of January 24,
1997, made by AMERICAN RADIO SYSTEMS CORPORATION, a Delaware corporation (the
"Borrower"), to THE BANK OF NEW YORK, in its capacity as Collateral Agent (the
"Collateral Agent") for the following Persons (collectively, the "Secured
Creditors"): (i) the Administrative Agent and the Lenders under, and as each
term is defined in, the $550,000,000 Credit Agreement (as hereinafter defined),
(ii) the Administrative Agent and the Lenders under, and as each term is defined
in, the $350,000,000 Credit Agreement (as hereinafter defined) and (iii) for
such of the Lenders under the $550,000,000 Credit Agreement, the Lenders under
the $350,000,000 Credit Agreement and any of their respective Affiliates which
from time to time enter into Interest Rate Protection Agreements with the
Borrower.
RECITALS
I. Capitalized terms used herein which are not defined herein shall have
the meanings set forth in the Credit Agreements (as hereinafter
defined) as in effect on the date hereof.
II. The Borrower has entered into (i) a $550,000,000 Credit Agreement,
dated as of the date hereof, among the Borrower, the lenders party
thereto, the Co-Syndication Agents, the Managing Agents, the Agent, the
Co-Agents, the Collateral Agent and the Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the
"$550,000,000 Credit Agreement") and (ii) a $350,000,000 Credit
Agreement, dated as of the date hereof, among the Borrower, the lenders
party thereto, the Co-Syndication Agents, the Managing Agents, the
Agent, the Co-Agents, the Collateral Agent and the Administrative Agent
(as amended, supplemented or otherwise modified from time to time, the
"$350,000,000 Credit Agreement", and together with the $550,000,000
Credit Agreement, the "Credit Agreements").
III. It is a condition precedent to the making of the Loans under the Credit
Agreements that the Borrower enter into this Borrower Security
Agreement.
IV. In consideration of the premises and in order to induce the
Administrative
<PAGE>
Agent, the Collateral Agent, the Co-Syndication Agents, the Managing
Agents, the Agent, the Co-Agents and the Lenders to execute and deliver
the Credit Agreements, and induce the Lenders to make the Loans
thereunder and any Secured Creditor to enter into an Interest Rate
Protection Agreement, the Borrower hereby agrees with the Collateral
Agent for its benefit and the ratable benefit of the Secured Creditors
as follows:
1. Grant of Security.
To secure the prompt and complete payment, observance and
performance of all of the obligations of the Borrower now or hereafter existing
under the Loan Documents as defined in the $550,000,000 Credit Agreement and the
Loan Documents as defined in the $350,000,000 Credit Agreement, and in respect
of any Interest Rate Protection Agreements entered into with any Lender under
the $550,000,000 Credit Agreement or the $350,000,000 Credit Agreement or any of
their respective Affiliates (as the same may be amended, increased, modified,
renewed, refinanced, refunded or extended from time to time, collectively, the
"Obligations"), the Borrower hereby assigns and pledges to the Collateral Agent,
for its benefit and for the ratable benefit of the Secured Creditors, and hereby
grants to the Collateral Agent, for its benefit and for the ratable benefit of
the Secured Creditors, a security interest in all of the Borrower's right, title
and interest in and to the following, in each case whether now owned or existing
or hereafter arising or acquired and wherever located (collectively, the
"Collateral"):
CAPITAL STOCK: All capital Stock of each Person which now is or may
hereafter become a Restricted Subsidiary of the Borrower, including, without
limitation, the Stock listed in Part A of Schedule 1 (the "Pledged Capital
Stock"), and all payments thereunder and instruments and other Property (other
than real Property) from time to time delivered in respect thereof or in
exchange therefor), together with all substitutions, exchanges and replacements
therefor, and all Proceeds thereof (collectively, the "Capital Stock");
INSTRUMENTS: All "instruments" (excluding the unsecured promissory
note, dated August 11, 1995, made by Chase Dover, Inc. to the Borrower in the
original principal amount of $8,500,000) as defined in the UCC, including,
without limitation, the notes and debt instruments described in Part B of
Schedule 1 (the "Pledged Debt"), and all payments thereunder and instruments and
other Property (other than real Property) from time to time delivered in respect
thereof or in exchange therefor), together with all substitutions, exchanges and
replacements therefor, and the Proceeds thereof (collectively, the
"Instruments"); and
MATERIAL AGREEMENTS: The License Subsidiary Management Agreements, the
PBB Documents and all other similar documents and agreements, and all local
marketing
<PAGE>
agreements and time brokerage agreements and all other similar agreements,
together with all substitutions, exchanges and replacements therefor, and the
Proceeds thereof (collectively, the "Material Agreements").
As used herein, the term "Proceeds" shall have the meaning assigned to
it under Article 9 of the New York Uniform Commercial Code (as the same is
amended from time to time, the "UCC") and, to the extent not otherwise included,
shall include, but not be limited to, (i) any stock dividend or distribution in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off or
split-off; (ii) any option or other right, whether received as an addition, in
substitution or exchange, or otherwise; (iii) dividends or distributions on
dissolution, or in partial or total liquidation, or from capital, capital
surplus, or paid-in surplus; (iv) any and all proceeds of any insurance, causes
and rights of action or settlements thereof, escrowed amounts or Property,
judicial and arbitration judgments and awards, payable to the Borrower from or
in respect of any Person from time to time whether with respect to the
Collateral; (v) any and all payments (in any form whatsoever) made or due and
payable to the Borrower from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any Governmental Authority; (vi) all claims of the Borrower for
losses or damages arising out of or relating to or for any breach of any
agreements, covenants, representations or warranties or any default whether or
not with respect to or under any of the foregoing Collateral (without limiting
any direct or independent rights of the Collateral Agent or any Secured Creditor
with respect to the Collateral); and (vii) any and all other amounts from time
to time paid or payable under or in connection with the Collateral.
2. Borrower Remains Liable.
Anything herein to the contrary notwithstanding, (a) the Borrower shall
remain liable under the contracts and agreements included in the Collateral to
the extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed, (b)
the exercise by the Collateral Agent of any of its rights hereunder shall not
release the Borrower from any of its duties or obligations under the contracts
and agreements included in the Collateral, and (c) the Collateral Agent shall
not have any obligation or liability under the contracts and agreements included
in the Collateral by reason of this Agreement, nor shall the Collateral Agent be
obligated to perform any of the obligations or duties of the Borrower
thereunder, to make any payment, to make any inquiry as to the nature or
sufficiency of any payment received by the Borrower or the sufficiency of any
performance by any party under any such contract or agreement or to take any
action to collect or enforce any claim for payment assigned hereunder.
<PAGE>
3. Delivery of Pledged Collateral.
All certificates, notes and other instruments, if any,
representing or evidencing the Pledged Capital Stock or the Pledged Debt and all
other Capital Stock and Instruments at any time owned or acquired by the
Borrower (collectively, the "Pledged Collateral") shall be delivered to and held
by or on behalf of the Collateral Agent pursuant hereto and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignments in blank, all in form and substance
reasonably satisfactory to the Collateral Agent. Subject to section 14(f), upon
the occurrence and during the continuance of an Event of Default, the Collateral
Agent shall have the right, at any time in its discretion and without notice to
the Borrower, to transfer to or to register in the name of the Collateral Agent
or any of its nominees any or all of the Pledged Collateral. In addition, upon
the occurrence and during the continuance of an Event of Default, the Collateral
Agent shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
4. Representations and Warranties.
The Borrower represents and warrants as follows:
(a) Names; Tradenames. Except as set forth on Schedule 4(a),
the Borrower has not during the preceding five years (i) been known by any other
corporate name, or (ii) been the surviving corporation of a merger or
consolidation. As of the date of this Agreement, the Borrower currently conducts
business under its own name and, in certain areas and for certain operations,
the tradenames listed on Schedule 4(a).
(b) Offices. As of the date of this Agreement (i) the chief
executive office and chief place of business of the Borrower are located at the
address set forth in Part A of Schedule 4(b), and (ii) in addition to such chief
executive office and chief place of business, the Borrower maintains only the
offices and places of business set forth in Part B of Schedule 4(b).
(c) Absence of Liens. The Borrower is the legal and beneficial
owner of the Collateral, free and clear of all Liens except Permitted Liens.
(d) Pledged Collateral. To the best of the Borrower's
knowledge, the Pledged Debt has been duly authorized, issued and delivered, and
is the legal, valid, binding and enforceable obligation of the respective
issuers thereof, except as such enforceability may
<PAGE>
be limited by applicable bankruptcy, insolvency, reorganization or other similar
rights affecting the enforcement of creditors' rights generally. The Pledged
Capital Stock (to the extent certificated within the meaning of the UCC) and the
Pledged Debt constitute all of the Pledged Collateral, except for Pledged
Collateral consisting of checks and drafts received in the ordinary course of
business.
(e) Security Interest. This Agreement creates a valid security
interest in the Collateral, securing the payment of the Obligations, and all
filings and other actions necessary or desirable to perfect such security
interests have been or, substantially simultaneously with the execution and
delivery of this Agreement, will be, duly taken, except with respect to Property
as to which security interests are not subject to perfection under the UCC. The
delivery and pledge of the Pledged Collateral pursuant to this Agreement and all
other filings and other actions taken by the Borrower to perfect such security
interests prior to the date hereof, create a valid and perfected first priority
security interest in the Pledged Collateral securing the payment of the
Obligations, except for Pledged Collateral consisting of checks and drafts
received in the ordinary course of business.
5. Further Assurances.
(a) The Borrower agrees that from time to time, at its
expense, the Borrower shall promptly execute and deliver all further instruments
and documents, and take all further action, that the Collateral Agent may
reasonably request, in order to perfect and protect any security interests
granted hereby or to enable the Collateral Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral. Without limiting
the generality of the foregoing, the Borrower shall promptly execute and file
such financing or continuation statements, or amendments thereto, and such other
instruments or notices, and promptly take such other action as the Collateral
Agent may reasonably request, in order to perfect and preserve the security
interests granted hereby.
(b) The Borrower hereby authorizes the Collateral Agent to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of the
Borrower where permitted by law. The Collateral Agent shall provide the Borrower
with a copy of any such statement or amendment, provided that no failure to do
so shall affect the rights of the Collateral Agent hereunder, result in any
liability of the Collateral Agent or any Secured Creditor to the Borrower or in
any way affect the validity of such filing. A photographic or other reproduction
of this Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
<PAGE>
(c) The Borrower shall furnish to the Collateral Agent from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable detail.
6. Principal Place of Business.
The Borrower shall keep its chief place of business and chief
executive office at the location therefor specified in section 4(b) or, upon at
least thirty days prior written notice to the Collateral Agent, at such other
locations in a jurisdiction where all actions required by section 5 shall have
been taken.
7. As to the Pledged Collateral.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) The Borrower shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Collateral or any
part thereof for any purpose not inconsistent with the terms of this Agreement
and the Credit Agreements; provided, however, that the Borrower shall not
exercise or refrain from exercising any such right without the consent of the
Collateral Agent if such action or inaction would have a material adverse effect
on the fair market value of any part of the Pledged Collateral or the valid ity,
priority or perfection of the security interests granted hereby or the remedies
of the Collateral Agent hereunder.
(ii) The Borrower shall be entitled to receive and retain
any and all dividends, principal, interest and other distributions paid in
respect of the Pledged Collateral to the extent not prohibited by this
Agreement; provided, however, that any and all dividends, principal, interest
and other distributions paid or payable other than in cash in respect of, and
instruments and other Property received, receivable or otherwise distributed in
respect of, or in exchange for, Pledged Collateral, shall forthwith be delivered
to the Collateral Agent to hold as Pledged Collateral and shall, if received by
the Borrower, be received in trust for the benefit of the Collateral Agent, be
segregated from the other Property of the Borrower, and be forthwith delivered
to the Collateral Agent, as Pledged Collateral in the same form as so received
(with any necessary indorsement).
(b) Upon the occurrence and during the continuance of an Event
of Default and at the Collateral Agent's option and following written notice by
the Collateral Agent to the Borrower:
(i) Subject to section 14(f), all rights of the Borrower to
exercise the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant to section 7(a)(i) and to receive the dividends,
principal, and interest payments and other distributions which it would
otherwise be authorized to
<PAGE>
receive and retain pursuant to section 7(a)(ii) shall cease, and all such rights
shall thereupon become vested in the Collateral Agent, who shall thereupon have
the sole right to exercise such voting and other consensual rights and to
receive and hold as Pledged Collateral such distributions and principal and
interest payments.
(ii) All dividends, principal and interest payments and
other distributions which are received by the Borrower contrary to the
provisions of section 7(b)(i) shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other funds of the Borrower and shall
be forthwith paid over to the Collateral Agent as Pledged Collateral in the same
form as so received (with any necessary indorsement).
(c) In the event that all or any part of the securities or
instruments constituting the Pledged Collateral are lost, destroyed or
wrongfully taken while such securities or instruments are in the possession of
the Collateral Agent, the Borrower agrees that it will cause the delivery of new
securities or instruments in place of the lost, destroyed or wrongfully taken
securities or instruments upon request therefor by the Collateral Agent without
the necessity of any indemnity bond or other security other than the Collateral
Agent's agreement or indemnity therefor customary for security agreements
similar to this Agreement.
8. Additional Shares.
The Borrower agrees that it will cause each issuer of Capital
Stock not to issue to the Borrower any Stock or other securities in addition to
or in substitution for the Capital Stock issued by such issuer, unless
immediately upon its acquisition (directly or indirectly) thereof, any and all
additional shares of Stock or other securities of each such issuer are pledged
to and delivered by the Borrower to the Collateral Agent hereunder.
9. Other Covenants and Agreements of the Borrower.
The Borrower covenants and agrees that on and after the date
hereof until the indefeasible cash payment in full of the Obligations, unless
the Collateral Agent shall otherwise consent in writing:
(a) Defense of Collateral. The Borrower will defend the
Collateral against all claims and demands of all Persons at any time claiming
the same or any interest therein adverse to the interests of the Collateral
Agent.
<PAGE>
(b) Security Interest. The Borrower covenants that the
security interests granted hereby constitute and shall at all times constitute
continuing perfected first priority security interests in the Collateral, except
for Permitted Liens.
(c) Encumbrances; Filings. The Borrower will not (i) further
hypothecate, pledge, encumber, transfer, sell or otherwise suffer to exist a
security interest in, or a Lien on, the Collateral or any portion thereof in
favor of any Person other than the Collateral Agent as provided herein, except
for Permitted Liens and except for transfers or sales to the extent permitted
under the Credit Agreements or (ii) sign or file or authorize the signing or
filing of any document or instrument perfecting any Lien on the Collateral
except for Permitted Liens. The inclusion of "Proceeds" of the Collateral under
the security interest granted herein shall not be deemed a consent by the
Collateral Agent to any sale or other disposition of any Collateral except as
expressly permitted herein.
10. The Collateral Agent Appointed Attorney-in-Fact.
Effective upon the occurrence and during the continuance of an
Event of Default, subject to section 14(f), the Borrower hereby irrevocably
appoints the Collateral Agent the Borrower's attorney-in-fact, with full
authority in the place and stead of the Borrower and in the name of the Borrower
or otherwise, from time to time in the Collateral Agent's discretion, to take
any action and to execute any instrument which the Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation:
(a) to obtain and adjust insurance required to be paid to the
Collateral Agent pursuant to section 7.5 of the Credit Agreements,
(b) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral,
(c) to receive, indorse, and collect any drafts or other
chattel paper, instruments and documents in connection with clause (a) or (b)
above,
(d) to file any claims or take any action or institute any
proceedings which the Collateral Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of the
Collateral Agent with respect to any of the Collateral, and
<PAGE>
(e) to receive, indorse and collect all instruments made
payable to the Borrower representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same.
11. The Collateral Agent May Perform.
If the Borrower fails to perform any agreement contained
herein, the Collateral Agent may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Collateral Agent incurred in
connection therewith shall be payable by the Borrower under section 15.
12. The Collateral Agent's Duties.
The powers conferred on the Collateral Agent hereunder are
solely to protect its interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Collateral Agent shall have no duty as to any Collateral. The
Collateral Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equal to that which the Collateral Agent
accords its own property, it being understood that the Collateral Agent shall
not be under any obligation to (i) ascertain or take action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relative to
any Pledged Collateral, whether the Collateral Agent or any Secured Creditor has
or is deemed to have knowledge of such matters, or (ii) take any necessary steps
to preserve rights against prior parties or any other rights pertaining to any
Collateral, but may do so at its option, and all reasonable expenses incurred in
connection therewith shall be for the sole account of the Borrower and shall be
added to the Obligations.
13. Events of Default.
The following shall each constitute an "Event of Default"
hereunder:
(a) If any representation or warranty made herein or in any
certificate furnished by the Borrower in connection with this Agreement shall
prove to have been incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or
(b) If the Borrower shall fail to observe or perform any term,
covenant or agreement contained in section 8 or 9(c) of this Agreement; or
<PAGE>
(c) If the Borrower shall fail to perform or observe any other
covenant or agreement on its part to be performed or observed pursuant to this
Agreement and such failure shall have continued unremedied for a period of
thirty days after the Borrower shall become aware of such failure; or
(d) The occurrence of an Event of Default under and as defined
in either of the Credit Agreements; or
(e) If the Borrower shall contest or disavow its obligations
under this Agreement or this Agreement shall not remain in full force and
effect.
14. Remedies.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, the Collateral Agent may, and upon
direction of the Combined Required Lenders shall, exercise any and all remedies
and other rights provided under this Agreement, including, without limitation,
the following:
(a) The Collateral Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party upon
default under the UCC as in effect from time to time (whether or not the UCC
applies to the affected Collateral) and also may (i) require the Borrower to,
and the Borrower hereby agrees that it will at its expense and upon request of
the Collateral Agent forthwith, assemble all or any part of the Collateral as
directed by the Collateral Agent and make it available to the Collateral Agent
at a place designated by the Collateral Agent which is reasonably convenient to
the Collateral Agent and the Borrower, (ii) without notice, except as specified
below, sell, lease, assign, grant an option or options to purchase or otherwise
dispose of the Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange, broker's board or at any of the Collateral
Agent's offices or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as may be commercially reasonable. The Borrower agrees
that, to the extent notice of sale shall be required by law, at least five
Business Days' notice to the Borrower of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. The Collateral Agent shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The
Collateral Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
<PAGE>
(b) Any cash held by the Collateral Agent as Collateral and
all cash proceeds received by the Collateral Agent in respect of any sale of,
collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Collateral Agent, be held by the Collateral Agent
as Collateral and/or then or at any time thereafter applied (after payment of
any amounts payable to the Collateral Agent pursuant to section 15) in whole or
in part by the Collateral Agent to the Administrative Agent under the
$550,000,000 Credit Agreement and the Administrative Agent under the
$350,000,000 Credit Agreement pro rata in accordance with the priorities
contained in section 9.1 of each Credit Agreement. Any surplus of such cash or
cash proceeds held by the Collateral Agent and remaining after payment in full
of all the Obligations shall be promptly paid over to the Borrower or to
whomsoever may be lawfully entitled to receive such surplus.
(c) The Collateral Agent may take any action the Borrower is
required to take or any other necessary action to obtain, preserve and enforce
this Agreement, and maintain and preserve the Collateral, without notice to the
Borrower, and add the costs of the same to the Obligations (but the Collateral
Agent is under no duty to take any such action);
(d) Upon the completion of any sale or other disposition of
all or any part of the Collateral under this Section, full title and right of
possession to such Collateral shall pass to such purchaser or purchasers
forthwith upon the completion of such sale. Nevertheless, if so requested by the
Collateral Agent or by any purchaser of such Collateral, the Borrower shall
confirm any such sale or disposition by executing and delivering to such
purchaser all proper instruments of conveyance and transfer and releases as may
be designated in any such request. To the extent permitted by applicable law,
every such sale or other disposition shall operate to divest all right, title,
interest, claim and demand whatsoever of the Borrower, of, in and to the
Collateral so sold or disposed of and shall be a perpetual bar, both at law and
in equity, against the Borrower, all persons claiming the Collateral sold or
disposed of, or any part thereof, through the Borrower and its successors and
assigns.
(e) At any sale or other disposition hereunder, the Collateral
Agent may bid for and purchase the Collateral offered for sale, and, upon
compliance with the terms of sale or other disposition, may hold, retain and
dispose of such Collateral without further accountability therefor. Any such
purchaser at any sale or other disposition hereunder shall be entitled, for the
purpose of making payment for the Collateral purchased, to apply any part of the
Obligations due and payable to it as a credit against the purchase price of such
Collateral.
<PAGE>
(f) Notwithstanding anything to the contrary contained in this
Agreement, any other Loan Document or in any other agreement, instrument or
document executed by the Borrower and delivered to the Collateral Agent or any
Secured Creditor, neither the Collateral Agent nor any Secured Creditor will
take any action pursuant to this Agreement, any other Loan Document or any other
document referred to above which would constitute or result in any assignment of
any FCC license or any change of control of the Borrower or any Subsidiary of
the Borrower if such assignment of any FCC license or change of control would
require, under then existing law, the prior approval of the FCC without first
obtaining such prior approval of the FCC. The Borrower waives, to the extent
permitted by law, any right it may have to oppose, and agrees to take any action
which the Collateral Agent may reasonably request in order to obtain from the
FCC, such approval as may be necessary to enable the Collateral Agent to
exercise and enjoy the full rights and benefits granted to any Secured Creditor
by this Agreement and the other documents referred to above, including
specifically, at the cost and expense of the Borrower, the use of commercially
reasonable efforts to assist in obtaining approval of the FCC for any action or
transaction contemplated by this Agreement for which such approval is or shall
be required by law, and specifically, without limitation, upon request, to
prepare, sign and file with the FCC the assignor's or transferor's portion of
any application or applications for consent to the assignment of license or
transfer of control necessary or appropriate under the FCC's rules and
regulations for approval of (a) any sale or other disposition of the Collateral
by or on behalf of the Collateral Agent, or (b) any assumption by the Collateral
Agent of voting rights in the Collateral effected in accordance with the terms
of this Agreement. It is understood and agreed that all foreclosure and related
actions will be made in accordance with Section 310 of the Communications Act.
(g) The Borrower hereby expressly waives and covenants, to the
extent permitted by applicable law, not to assert any appraisement, valuation,
stay, extension, redemption or similar laws, now or at any time hereafter in
force, which might delay, prevent or otherwise impede the performance or
enforcement of this Agreement.
(h) The Borrower recognizes that the Collateral Agent may be
compelled to resort to one or more private sales of the Capital Stock to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Capital Stock for their own accounts, for investment, and not
with a view to the distribution or resale thereof. The Borrower agrees that
private sales so made may be at prices and other terms less favorable to the
seller than if the Capital Stock were sold at public sales and that the
Collateral Agent shall have no obligation to delay sale of any such Capital
Stock for the period of time necessary to permit the Borrower, even if the
Borrower would agree, to register such Capital Stock for public sale under the
Securities Act of 1933, as amended. The Borrower agrees that private sales made
under the foregoing circumstances shall be deemed to have been conducted in a
commercially reasonable manner.
<PAGE>
15. Expenses.
The Borrower will upon demand pay to the Collateral Agent any
and all reasonable sums, costs and expenses which the Collateral Agent may pay
or incur pursuant to the provisions of this Agreement or in negotiating,
executing, perfecting, defending, protecting or enforcing this Agreement or the
security interests granted herein or in enforcing payment of the Obligations or
otherwise in connection with the provisions hereof, including, but not limited
to court costs, reasonable collection charges, reasonable travel expenses, and
reasonable attorneys' fees, all of which, together with interest at the highest
rate then payable on any of the Obligations, shall be part of the Obligations.
16. No Segregation of Moneys; No Interest.
No moneys or any other Property received by the Collateral
Agent hereunder need be segregated in any manner except to the extent required
by law, and any such moneys or other Property may be deposited under such
general conditions as may be prescribed by law applicable to the Collateral
Agent, and neither the Collateral Agent nor any Secured Creditor shall be liable
for any interest thereon, except as may otherwise be agreed by the Collateral
Agent or such Secured Creditor.
17. Amendments, Etc.
No provision of this Agreement may be waived, modified or
otherwise changed by any means, including, without limitation, any course of
dealing, course of performance or trade usage, or oral evidence of any nature,
except pursuant to a writing executed by the party against which enforcement of
such waiver, modification or change is sought.
18. Notices.
All notices and other communications provided for hereunder
shall be given in the manner and to the addresses set forth in section 11.2 of
the Credit Agreements.
19. Continuing Security Interest; Transfer of Notes;
Termination; Partial Release.
(a) This Agreement shall create a continuing security interest
in the Collateral and shall (i) remain in full force and effect until the
indefeasible cash payment in
<PAGE>
full of the Obligations and the termination of the Credit Agreements, (ii) be
binding upon the Borrower and its successors and assigns and (iii) inure,
together with the rights and remedies of the Collateral Agent hereunder, to the
benefit of the Collateral Agent, any successor Collateral Agent and the Secured
Creditors. Subject to compliance with the provisions of section 11.7 of the
Credit Agreements, any Lender may assign or otherwise transfer the Note or Notes
held by it to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender herein or
otherwise. Nothing set forth herein or in any other Loan Document is intended or
shall be construed to give any other Person any right, remedy or claim under, to
or in respect of this Agreement, any other Loan Document, or any Collateral. The
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor-in-possession thereof or therefor.
(b) The Collateral Agent may release from the Lien created by
this Agreement any Instrument in connection with the consummation of an
acquisition of a Broadcasting Station permitted by the Credit Agreements to
which such Instrument relates.
20. Other Provisions.
(a) No failure by the Collateral Agent to exercise, and no
delay by the Collateral Agent in exercising, any right or remedy hereunder shall
operate as a waiver thereof.
(b) Section headings have been inserted herein for convenience
only and shall not be construed to be a part of this Agreement. Unless the
context otherwise requires, words in the singular number include the plural, and
words in the plural include the singular.
(c) This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Agreement or of any document required to be executed and delivered in connection
herewith or therewith to produce or account for more than one counterpart signed
by the party to be charged.
(d) Every provision of this Agreement is intended to be
severable, and if any term or provision hereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions hereof or thereof shall not be affected or impaired
thereby, and any invalidity, illegality or unenforceability in any jurisdiction
shall not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.
(e) All Schedules hereto shall be deemed to be a part hereof.
<PAGE>
(f) Each and every right, remedy and power granted to the
Collateral Agent hereunder or allowed at law or by any other agreement shall be
cumulative and not exclusive, and may be exercised by the Collateral Agent from
time to time.
(g) This Agreement is the "Borrower Security Agreement"
referred to in the Credit Agreements. The Borrower and the Collateral Agent
acknowledge that certain provisions of the Credit Agreements, including, without
limitation, sections 11.15 through 11.19 thereof, are made applicable to this
Agreement and all such provisions are incorporated
by reference herein as if fully set forth herein.
(h) Upon the indefeasible cash payment in full of all
Obligations and the termination of the Credit Agreements, the Collateral Agent
will take whatever actions are necessary, at the Borrower's expense, to release
or otherwise terminate the Liens created hereby.
21. Governing Law; Terms.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws rules, except to the extent that the validity or perfection of the security
interest hereunder, or remedies hereunder, in respect of any particular
collateral are governed by the laws of a jurisdiction other than the State of
New York. Unless otherwise defined herein or in the Credit Agreements, terms
used in Articles 8 and 9 of the UCC are used herein as therein defined.
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
AMERICAN RADIO SYSTEMS CORPORATION
By:
Name:
Title:
Accepted and Agreed to:
THE BANK OF NEW YORK, as Collateral Agent
By:
Name:
Title:
<PAGE>
SCHEDULE 1
to
Borrower Security Agreement
PLEDGED COLLATERAL
PART A - Pledged Stock:
Name of Jurisdiction of Class;
Issuer Incorporation Par Value Shares Owned
American Radio Delaware Common Stock 10
Systems License $.01 par value
Corp. per share
[Back Bay Stock]
PART B - Pledged Debt:
Debtor Date Face Amount Balance Due
[Back Bay Debenture
Palm Beach (WPBZ) Note]
<PAGE>
SCHEDULE 4(a)
to
Borrower Security Agreement
LIST OF NAMES; TRADENAMES
<PAGE>
SCHEDULE 4(b)
to
Borrower Security Agreement
PLACES OF BUSINESS
PART A - Chief Executive Office and Chief Place of Business:
American Radio Systems Corporation
116 Huntington Avenue
Boston, MA 02116
PART B - Other Offices and Places of Business:
See list of station locations attached hereto, marked to indicate office
locations.
Exhibit 99.4
AMERICAN RADIO EXHIBIT J
FORM OF SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY (this "Agreement"), dated as of January 24, 1997,
by and among AMERICAN RADIO SYSTEMS LICENSE CORP., a Delaware corporation, ARS
ACQUISITION II, INC., a Delaware corporation, RADIO SYSTEMS OF MIAMI, INC., a
Delaware corporation and RADIO SYSTEMS OF PHILADELPHIA, INC., a Pennsylvania
corporation (collectively, the "Current Guarantors"), such other Persons which
from time to time may become party hereto (the "Additional Guarantors", and
collectively with the Current Guarantors, the "Guarantors") and THE BANK OF NEW
YORK, in its capacity as Collateral Agent (the "Collateral Agent") for the
following Persons (collectively, the "Secured Creditors"): (i) the
Administrative Agent and the Lenders under, and as each term is defined in, the
$550,000,000 Credit Agreement (as hereinafter defined), (ii) the Administrative
Agent and the Lenders under, and as each term is defined in, the $350,000,000
Credit Agreement (as hereinafter defined) and (iii) for such of the Lenders
under the $550,000,000 Credit Agreement, the Lenders under the $350,000,000
Credit Agreement and any of their respective Affiliates which from time to time
enter into Interest Rate Protection Agreements with American Radio Systems
Corporation (the "Borrower").
RECITALS
I. Reference is made to (i) a $550,000,000 Credit Agreement, dated as of
the date hereof, among the Borrower, the lenders party thereto, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents,
the Collateral Agent and the Administrative Agent (as amended,
supplemented or otherwise modified from time to time, the "$550,000,000
Credit Agreement") and (ii) a $350,000,000 Credit Agreement, dated as
of the date hereof, among the Borrower, the lenders party thereto, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co- Agents,
the Collateral Agent and the Administrative Agent (as amended,
supplemented or otherwise modified from time to time, the "$350,000,000
Credit Agreement", and together with the $550,000,000 Credit Agreement,
the "Credit Agreements").
II. The Borrower and the Guarantors have been, and are now, engaged in the
business of radio broadcasting and activities related thereto. Each
Guarantor expects
<PAGE>
to derive substantial benefit from the Credit Agreements and the
transactions contem plated thereby and, in furtherance thereof, and in
order to induce the Lenders to make Loans and any Secured Creditor to
enter into an Interest Rate Protection Agreement, has agreed to execute
and deliver this Agreement. Pursuant to the Credit Agreements, the
Lenders will not make Loans unless and until the Guarantors shall have
executed and delivered this Agreement.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Collateral Agent and
the Guarantors hereby agrees as follows:
1. Defined Terms
(a) Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto in the Credit
Agreements as in effect on the date hereof.
(b) When used in this Agreement, the following capitalized
terms shall have the respective meanings ascribed thereto as follows:
"Bankruptcy Code": Title 11 of the United States Code entitled
"Bankruptcy".
"Borrower Obligations": all of the obligations and liabilities
of the Borrower under the Loan Documents as defined in the $550,000,000 Credit
Agreement, the Loan Documents as defined in the $350,000,000 Credit Agreement
and each Interest Rate Protection Arrangement with one or more of the Lenders
under either of the Credit Agreements or any of their respective Affiliates, in
each case whether fixed, contingent, now existing or hereafter arising, created,
assumed, incurred or acquired, and whether before or after the occurrence of any
Insolvency Event, and including, without limitation (a) any obligation or
liability in respect of any breach of any representation or warranty and in
respect of any rights of redemption or rescission, and (b) all post-petition
interest, funding losses and make-whole premiums, whether or not allowed as a
claim in any proceeding arising in connection with an Insolvency Event.
"Consideration": as of any date of determination and with
respect to each Guarantor, an amount equal to the lesser of (a) the total
"value" (within the meaning of Section 548 of the Bankruptcy Code as in effect
on the date hereof) given, directly or indirectly, to such Guarantor during the
period commencing on the date such Guarantor became a party to this Agreement
and ending on such date of determination, in exchange
-2-
<PAGE>
for its execution and delivery of this Agreement, and (b) the amount of "fair
consideration" (within the meaning of Article 10 of the New York Debtor Creditor
Law as in effect on the date hereof) given, directly or indirectly, to such
Guarantor during the period commencing on the date such Guarantor became a party
to this Agreement and ending on such date of determination in exchange for its
execution and delivery of this Agreement.
"Event of Default": as defined in Section 16.
"Guarantor Obligations": with respect to each Guarantor, all
of the obligations and liabilities of such Guarantor hereunder, whether fixed,
contingent, now existing or hereafter arising, created, assumed, incurred or
acquired.
"Insolvency Event": any Event of Default under Sections 9.1(h)
or 9.1(i) of the Credit Agreements.
"Net Worth": as of any date and with respect to each
Guarantor, the lesser of the following:
(a)(i) all of such Guarantor's "property, at a fair valuation"
(within the meaning of Section 101(32) of the Bankruptcy Code as in
effect on the date hereof) on such date, minus (ii) the sum of such
Guarantor's "debts" (within the meaning of Section 101(12) of the
Bankruptcy Code as in effect on the date hereof) on such date
(exclusive of such "debts" in respect of this Guaranty), or
(b)(i) the "fair salable value of the assets" (within the
meaning of Article 10 of the New York Debtor Creditor Law as in effect
on the date hereof) of such Guarantor on such date, minus (ii) "the
amount that will be required to pay such Guarantor's probable liability
on its existing debts as they become absolute and matured" (as such
phrase would be construed under Article 10 of the New York Debtor
Creditor Law as in effect on the date hereof) on such date (exclusive
of such debts in respect of this Guaranty).
"Supplement": a Supplement to this Agreement, duly completed,
in the form of Annex A hereto.
2. Guaranty
-3-
<PAGE>
(a) Subject to Section 2(b) hereof, each Guarantor hereby
absolutely, ir revocably and unconditionally guarantees the full and prompt
payment when due (whether at stated maturity, by acceleration or otherwise) of
the Borrower Obligations. This Agreement constitutes a guaranty of payment, and
neither the Collateral Agent nor any Secured Creditor shall have any obligation
to enforce any Loan Document or any Interest Rate Protection Arrangement or
exercise any right or remedy with respect to any collateral security thereunder
by any action, including, without limitation, making or perfecting any claim
against any Person or any collateral security for any of the Borrower
Obligations prior to being entitled to the benefits of this Agreement. The
Collateral Agent may, at its option, proceed against the Guarantors, or any one
or more of them, in the first instance, to enforce the Guarantor Obligations
without first proceeding against the Borrower or any other Person, and without
first resorting to any other rights or remedies, as the Collateral Agent may
deem advisable. In furtherance hereof, if the Collateral Agent or any Secured
Creditor is prevented by law from collecting or otherwise hindered from
collecting or otherwise enforcing any Borrower Obligation in accordance with its
terms, the Collateral Agent or such Secured Creditor, as the case may be, shall
be entitled to receive hereunder from the Guarantors after demand therefor, the
sums which would have been otherwise due had such collection or enforcement not
been prevented or hindered.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the maximum liability of each Guarantor under this Agreement shall
not, as of any date of determination, exceed the lesser of (i) the highest
amount that is valid and enforceable against such Guarantor under principles of
New York State contract law, and (ii) the sum of (1) all Consideration received
by such Guarantor as of such date of determination, plus (2) 95% of the Net
Worth of such Guarantor on such date of determination. In calculating the
maximum liability of each Guarantor hereunder, full effect shall be given to any
provision in any other Indebtedness of or guaranteed by such Guarantor which for
purposes of applicable fraudulent transfer or similar laws provides that
indebtedness incurred under the Credit Agreements shall be deemed to have been
incurred prior to such other Indebtedness.
(c) Each Guarantor agrees that the Guarantor Obligations may
at any time and from time to time exceed the maximum liability of such Guarantor
hereunder without impairing this Agreement or affecting the rights and remedies
of the Collateral Agent or any Secured Creditor hereunder.
3. Absolute Obligation
Subject to Section 20, no Guarantor shall be released from
liability hereunder
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unless and until the Maturity Date shall have occurred and either (a) the
Borrower Obligations shall have been paid in full, in cash, or (b) the Guarantor
Obligations of such Guarantor shall have been paid in full, in cash. Each
Guarantor acknowledges and agrees that (1) neither the Collateral Agent nor any
Secured Creditor has made any representation or warranty to such Guarantor with
respect to the Borrower, its Subsidiaries, any Loan Document, any Interest Rate
Protection Arrangement, or any agreement, instrument or document executed or
delivered in connection therewith or any other matter whatsoever, and (2) such
Guarantor shall be liable hereunder, and such liability shall not be affected or
impaired, irrespective of (A) the validity or enforceability of any Loan
Document, any Interest Rate Protection Arrangement, or any agreement, instrument
or document executed or delivered in connection therewith, or the collectability
of any of the Borrower Obligations, (B) the preference or priority ranking with
respect to any of the Borrower Obligations, (C) the existence, validity,
enforceability or perfection of any security interest or collateral security
under any Loan Document, or any Interest Rate Protection Arrangement, or the
release, exchange, substitution or loss or impairment of any such security
interest or collateral security, (D) any failure, delay, neglect or omission by
the Collateral Agent or any Secured Creditor to realize upon or protect any
direct or indirect collateral security, indebtedness, liability or obligation,
any Loan Document, any Interest Rate Protection Arrangement, or any agreement,
instrument or document executed or delivered in connection therewith, or any of
the Borrower Obligations, (E) the existence or exercise of any right of set-off
by the Collateral Agent or any Secured Creditor, (F) the ex istence, validity or
enforceability of any other guaranty with respect to any of the Borrower
Obligations, the liability of any other Person in respect of any of the Borrower
Obligations, or the release of any such Person or any other guarantor of any of
the Borrower Obligations, (G) any act or omission of the Collateral Agent or any
Secured Creditor in connection with the administration of any Loan Document, any
Interest Rate Protection Arrangement, or any of the Borrower Obligations, (H)
the bankruptcy, insolvency, reorganization or receivership of, or any other
proceeding for the relief of debtors com menced by or against, any Person, (I)
the disaffirmance or rejection, or the purported disaffirmance or purported
rejection, of any of the Borrower Obligations, any Loan Docu ment, any Interest
Rate Protection Arrangement, or any agreement, instrument or document executed
or delivered in connection therewith, in any bankruptcy, insolvency,
reorganization or receivership, or any other proceeding for the relief of
debtor, relating to any Person, (J) any law, regulation or decree now or
hereafter in effect which might in any manner affect any of the terms or
provisions of any Loan Document, any Interest Rate Protection Arrangement, or
any agreement, instrument or document executed or delivered in connection
therewith or any of the Borrower Obligations, or which might cause or permit
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to be invoked any alteration in the time, amount, manner or payment or
performance of any of the Borrower's obligations and liabilities (including,
without limitation, the Borrower Obligations), (K) the merger or consolidation
of the Borrower into or with any Person, (L) the sale by the Borrower of all or
any part of its assets, (M) the fact that at any time and from time to time none
of the Borrower Obligations may be outstanding or owing to the Collateral Agent
or any Secured Creditor, (N) any amendment or modification of, or supple ment
to, any Loan Document or any Interest Rate Protection Arrangement or (O) any
other reason or circumstance which might otherwise constitute a defense
available to or a dis charge of the Borrower in respect of its obligations or
liabilities (including, without limitation, the Borrower Obligations) or of such
Guarantor in respect of any of the Guaran tor Obligations (other than by the
performance in full thereof).
4. Grant of Security Interest.
Each Guarantor, in order to secure the payment and performance
of all of its Guarantor Obligations, hereby grants to the Collateral Agent, for
its benefit and for the ratable benefit of the Secured Creditors, a continuing
first priority security interest in and to all of such Guarantor's right, title
and interest in and to the following, in each case whether now owned or existing
or hereafter arising or acquired and wherever located (col lectively, the
"Collateral"):
CAPITAL STOCK: All Capital Stock of each Person which now is
or may hereafter become a Subsidiary of such Guarantor, including, without
limitation, the Stock listed in Part A of Schedule 1 (the "Pledged Capital
Stock"), and all payments thereunder and instruments and other Property (other
than real Property) from time to time delivered in respect thereof or in
exchange therefor), together with all substitutions, exchanges and replacements
therefor, and all Proceeds thereof (collectively, the "Capital Stock");
INSTRUMENTS: All "instruments" as defined in the UCC,
including, without limitation, the notes and debt instruments described in Part
B of Schedule 1 (the "Pledged Debt"), and all payments thereunder and
instruments and other Property (other than real Property) from time to time
delivered in respect thereof or in exchange therefor), together with all
substitutions, exchanges and replacements therefor, and the Proceeds thereof
(collectively, the "Instruments"); and
MATERIAL AGREEMENTS: The License Subsidiary Management
Agreements, the PBB Documents and all other similar documents and agreements,
and all local marketing agreements and time brokerage agreements and all other
similar agreements together with all substitutions, exchanges and replacements
therefor, and the Proceeds
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thereof (collectively, the "Material Agreements").
As used herein, the term "Proceeds" shall have the meaning
assigned to it under Article 9 of the New York Uniform Commercial Code (as the
same is amended from time to time, the "UCC") and, to the extent not otherwise
included, shall include, but not be limited to, (i) any stock dividend or
distribution in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination of shares,
stock split, spin-off or split-off; (ii) any option or other right, whether
received as an addition, in substitution or exchange, or otherwise; (iii)
dividends or distributions on dissolution, or in partial or total liquidation,
or from capital, capital surplus, or paid-in surplus; (iv) any and all proceeds
of any insurance, causes and rights of action or settlements thereof, escrowed
amounts or Property, judicial and arbitration judgments and awards, payable to
such Guarantor from or in respect of any Person from time to time whether with
respect to the Collateral; (v) any and all payments (in any form whatsoever)
made or due and payable to such Guarantor from time to time in connection with
any requi sition, confiscation, condemnation, seizure or forfeiture of all or
any part of the Collateral by any Governmental Authority; (vi) all claims of
such Guarantor for losses or damages arising out of or relating to or for any
breach of any agreements, covenants, representations or warranties or any
default whether or not with respect to or under any of the foregoing Collateral
(without limiting any direct or independent rights of the Collateral Agent or
any Secured Creditor with respect to the Collateral); and (vii) any and all
other amounts from time to time paid or payable under or in connection with the
Collateral.
5. Guarantor Remains Liable.
Anything herein to the contrary notwithstanding, (a) each
Guarantor shall remain liable under the contracts and agreements included in the
Collateral to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by the Collateral Agent of any of its rights
hereunder shall not release any such Guarantor from any of its duties or
obligations under the contracts and agreements included in the Collateral, and
(c) the Collateral Agent shall not have any obligation or liability under the
contracts and agreements included in the Collateral by reason of this Agreement,
nor shall the Collateral Agent be obligated to perform any of the obligations or
duties of any such Guarantor thereunder, to make any payment, to make any
inquiry as to the nature or sufficiency of any payment received by any such
Guarantor or the sufficiency of any performance by any party under any such
contract or agreement or to take any action to collect or enforce any claim for
pay ment assigned hereunder.
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6. Delivery of Pledged Collateral.
All certificates, notes and other instruments, if any,
representing or evidencing the Pledged Capital Stock or the Pledged Debt and all
other Capital Sock and Instruments at any time owned or acquired by any
Guarantor (collectively, the "Pledged Collateral") shall be delivered to and
held by or on behalf of the Collateral Agent pursuant hereto and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignments in blank, all in form and substance
reasonably satisfactory to the Collateral Agent. Subject to Section 17(f), upon
the occurrence and during the continuance of an Event of Default, the Collateral
Agent shall have the right, at any time in its discretion and without notice to
such Guarantor, to transfer to or to register in the name of the Collateral
Agent or any of its nominees any or all of the Pledged Collateral. In addition,
upon the occurrence and during the continuance of an Event of Default, the
Collateral Agent shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
7. Representations and Warranties
Each Guarantor hereby represents and warrants to the
Collateral Agent as follows:
(i) Binding Agreement. This Agreement constitutes the valid
and binding obligation of such Guarantor, enforceable in accordance with its
terms, except as such en forceability may be limited by applicable bankruptcy,
insolvency, reorganization, morato rium or similar laws related to or affecting
the enforcement of creditors' rights generally.
(ii) Solvency; Ability to Pay Debts. Such Guarantor (if a
Current Guarantor, both immediately before and after giving effect to this
Agreement and to all Indebtedness incurred by the Borrower in connection
therewith or, if an Additional Guarantor, immediately before and after giving
effect to this Agreement) (1) is not insolvent, (2) is not engaged, and is not
about to engage, in business or a transaction, for which it has unreasonably
small capital, and (3) does not intend to incur, and does not believe that it
would incur, debts that would be beyond its ability to pay such debts as they
mature, in each case referred to above within the meaning of both the Bankruptcy
Code and Article 10 of the New York Debtor Creditor Law, each as in effect on
the date hereof.
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<PAGE>
(iii) Corporate Authority. Such Guarantor has full power and
authority to enter into, execute, deliver and perform the terms of this
Agreement and to incur the obligations provided for herein, all of which have
been duly authorized by all proper and necessary corporate action and are in
full compliance with its certificate of incorporation and by-laws.
(iv) No Misrepresentation. No representation or warranty
contained herein and no certificate or report furnished or to be furnished by
such Guarantor in connection with the transactions contemplated hereby, contains
or will contain a misstatement of material fact, or, to the best knowledge of
such Guarantor, omits or will omit to state a material fact required to be
stated in order to make the statements herein or therein con tained not
misleading in the light of the circumstances under which made.
(v) Names; Tradenames. As of the date of this Agreement, such
Guarantor currently conducts business under its own name and, in certain areas
and for certain operations, the tradenames listed on Schedule 7(b)(i).
(vi) Offices. As of the date of this Agreement (i) the chief
executive office and chief place of business of such Guarantor are located at
the address set forth in Part A of Schedule 7(b)(ii), and (ii) in addition to
such chief executive office and chief place of business, such Guarantor
maintains only the offices and places of business set forth in Part B of
Schedule 7(b)(ii).
(vii) Absence of Liens. Such Guarantor is the legal and
beneficial owner of the Collateral, free and clear of all Liens, except
Permitted Liens.
(viii) Pledged Collateral. To the best of such Guarantor's
knowledge, the Pledged Debt has been duly authorized, issued and delivered, and
is the legal, valid, binding and enforceable obligation of the respective
issuers thereof, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar rights affecting the
enforcement of creditors' rights generally. The Pledged Capital Stock (to the
extent certificated within the meaning of the UCC) and the Pledged Debt
constitute all of the Pledged Collateral, except for Pledged Collateral
consisting of checks and drafts received in the ordinary course of business.
(ix) Security Interest. This Agreement creates a valid
security interest in the Collateral, securing the payment of the obligations of
such Guarantor hereunder, and all
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filings and other actions necessary or desirable to perfect such security
interests have been or, substantially simultaneously with the execution and
delivery of this Agreement, will be, duly taken, except with respect to Property
as to which security interests are not subject to perfection under the UCC. The
delivery and pledge of the Pledged Collateral pursuant to this Agreement and all
other filings and other actions taken by such Guarantor to perfect such security
interests prior to the date hereof, create a valid and perfected first priority
security interest in the Pledged Collateral securing the payment of the
obligations of such Guarantor hereunder, except for Pledged Collateral
consisting of checks and drafts received in the ordinary course of business.
8. Further Assurances.
(a) Each Guarantor agrees that from time to time, at its
expense, such Guarantor shall promptly execute and deliver all further
instruments and documents, and take all further action, that the Collateral
Agent may reasonably request, in order to perfect and protect any security
interests granted hereby or to enable the Collateral Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, each Guarantor shall promptly
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, and promptly take such other
action as the Collateral Agent may reasonably request, in order to perfect and
preserve the security interests granted hereby.
(b) Each Guarantor hereby authorizes the Collateral Agent to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of such
Guarantor where permitted by law. The Collateral Agent shall provide such
Guarantor with a copy of any such statement or amendment, provided that no
failure to do so shall affect the rights of the Collateral Agent hereunder,
result in any liability of the Collateral Agent or any Secured Creditor to such
Guarantor or in any way affect the validity of such filing. A photographic or
other reproduction of this Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.
(c) Each Guarantor shall furnish to the Collateral Agent from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable detail.
9. Principal Place of Business.
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Each Guarantor shall keep its chief place of business and
chief executive office at the locations therefor specified in Section 7(b)(ii)
or, upon at least thirty days prior written notice to the Collateral Agent, at
such other locations in a jurisdiction where all ac tions required by Section 8
shall have been taken.
10. As to the Pledged Collateral.
So long as no Event of Default shall have occurred and be
continuing:
(i) Each Guarantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Collateral or any
part thereof for any purpose not inconsistent with the terms of this Agreement
and the Credit Agreements; provided, however, that such Guarantor shall not
exercise or refrain from exercising any such right without the consent of the
Collateral Agent if such action or inaction would have a material adverse effect
on the fair market value of any part of the Pledged Collateral or the validity,
priority or perfection of the security interests granted hereby or the remedies
of the Collateral Agent hereunder.
(ii) Each Guarantor shall be entitled to receive and retain
any and all dividends, principal, interest and other distributions paid in
respect of the Pledged Collateral to the extent not prohibited by this
Agreement; provided, however, that any and all dividends, principal, interest
and other distributions paid or payable other than in cash in respect of, and
instruments and other Property received, receivable or otherwise distributed in
respect of, or in exchange for, Pledged Collateral, shall forthwith be delivered
to the Collateral Agent to hold as Pledged Collateral and shall, if received by
such Guarantor, be received in trust for the benefit of the Collateral Agent, be
segregated from the other Property of such Guarantor, and be forthwith delivered
to the Collateral Agent, as Pledged Collateral in the same form as so received
(with any necessary indorsement).
(iii) The Collateral Agent shall execute and deliver (or cause
to be executed and delivered) to each Guarantor all such proxies and other
instruments as such Guarantor may reasonably request for the purpose of enabling
such Guarantor to exercise the voting and other rights which it is entitled to
exercise pursuant to clause (i) above and to receive the distributions,
principal or interest payments which it is authorized to receive and retain
pursuant to clause (ii) above.
(a) Upon the occurrence and during the continuance of an Event
of
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Default and at the Collateral Agent's option and following written notice by the
Collateral Agent to such Guarantor:
(i) Subject to Section 17(f), all rights of such Guarantor to
exercise the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant to Section 10(a)(i) and to receive the dividends,
principal, and interest payments and other distributions which it would
otherwise be authorized to receive and retain pursuant to Section 10(a)(ii)
shall cease, and all such rights shall thereupon become vested in the Collateral
Agent, who shall thereupon have the sole right to exercise such vot ing and
other consensual rights and to receive and hold as Pledged Collateral such dis
tributions and principal and interest payments.
(ii) All dividends, principal and interest payments and other
distributions which are received by such Guarantor contrary to the provisions of
Section 10(b)(i) shall be received in trust for the benefit of the Collateral
Agent, shall be segregated from other funds of such Guarantor and shall be
forthwith paid over to the Collateral Agent as Pledged Collateral in the same
form as so received (with any necessary indorsement).
(b) In the event that all or any part of the securities or
instruments constituting the Pledged Collateral are lost, destroyed or
wrongfully taken while such securities or instruments are in the possession of
the Collateral Agent, such Guarantor agrees that it will cause the delivery of
new securities or instruments in place of the lost, destroyed or wrongfully
taken securities or instruments upon request therefor by the Collateral Agent
without the necessity of any indemnity bond or other security other than the
Collateral Agent's agreement or indemnity therefor customary for security
agreements similar to this Agreement.
11. Additional Shares.
Each Guarantor agrees that it will cause each issuer of the
Capital Stock not to issue to such Guarantor any Stock or other securities in
addition to or in substitution for the Pledged Stock issued by such issuer,
unless immediately upon its acquisition (directly or indirectly) thereof, any
and all additional shares of Stock or other securities of each such issuer are
pledged to and delivered by such Guarantor to the Collateral Agent hereunder.
12. Other Covenants and Agreements of each Guarantor.
Each Guarantor covenants and agrees that on and after the date
hereof until the indefeasible cash payment in full of the Obligations, unless
the Collateral Agent shall
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otherwise consent in writing:
(a) Defense of Collateral. Such Guarantor will defend the
Collateral against all claims and demands of all Persons at any time claiming
the same or any interest therein adverse to the interests of the Collateral
Agent.
(b) Security Interest. Such Guarantor covenants that the
security interests granted hereby constitute and shall at all times constitute
continuing perfected first priority security interests in the Collateral, except
for Permitted Liens.
(c) Encumbrances; Filings. Such Guarantor will not (i) further
hypothecate, pledge, encumber, transfer, sell or otherwise suffer to exist a
security interest in, or a Lien on, the Collateral or any portion thereof in
favor of any Person other than the Collateral Agent as provided herein, except
for Permitted Liens or (ii) sign or file or authorize the signing or filing of
any document or instrument perfecting any Lien on the Collateral except for
Permitted Liens. The inclusion of "Proceeds" of the Collateral under the
security interest granted herein shall not be deemed a consent by the Collateral
Agent to any sale or other disposition of any Collateral except as expressly
permitted herein.
13. The Collateral Agent Appointed Attorney-in-Fact.
Effective upon the occurrence and during the continuance of an
Event of Default, subject to Section 17(f), each Guarantor hereby irrevocably
appoints the Collateral Agent such Guarantor's attorney-in-fact, with full
authority in the place and stead of such Guarantor and in the name of such
Guarantor or otherwise, from time to time in the Collateral Agent's discretion,
to take any action and to execute any instrument which the Collateral Agent may
deem necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation:
(a) to obtain and adjust insurance required to be paid to the
Collateral Agent pursuant to section 7.5 of the Credit Agreements,
(b) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral,
(c) to receive, indorse, and collect any drafts or other
chattel paper,
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instruments and documents in connection with clause (a) or (b) above,
(d) to file any claims or take any action or institute any
proceedings which the Collateral Agent may deem necessary or desirable for the
collection of any of the Col lateral or otherwise to enforce the rights of the
Collateral Agent with respect to any of the Collateral, and
(e) to receive, indorse and collect all instruments made
payable to such Guarantor representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same.
14. The Collateral Agent May Perform.
If any Guarantor fails to perform any agreement contained
herein, the Collateral Agent may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Collateral Agent incurred in
connection therewith shall be payable by such Guarantor under Section 19.
15. The Collateral Agent's Duties.
The powers conferred on the Collateral Agent hereunder are
solely to protect its interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Collateral Agent shall have no duty as to any Collateral. The
Collateral Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equal to that which the Collateral Agent
accords its own property, it being understood that the Collateral Agent shall
not be under any obligation to (i) ascertain or take action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relative to
any Pledged Collateral, whether the Collateral Agent or any Secured Creditor has
or is deemed to have knowledge of such matters, or (ii) take any necessary steps
to preserve rights against prior parties or any other rights pertaining to any
Collateral, but may do so at its option, and all reasonable expenses incurred in
connection therewith shall be for the sole account of the Guarantors and shall
be added to the Obliga tions.
16. Events of Default
Each of the following shall constitute an "Event of Default":
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(a) The occurrence and continuance of an "Event of Default"
under and as defined in either of the Credit Agreements; or
(b) If any representation or warranty made herein or in any
certificate furnished by any Guarantor in connection with this Agreement shall
prove to have been incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or
(c) If any Guarantor shall fail to observe or perform any
term, covenant or agreement contained in Section 2, 11 or 12(c) of this
Agreement; or
(e) If any Guarantor shall fail to perform or observe any
other covenant or agreement on its part to be performed or observed pursuant to
this Agreement and such failure shall have continued unremedied for a period of
30 days after such Guarantor shall become aware of such failure; or
(f) If any Guarantor shall contest or disavow its obligations
under this Agreement or this Agreement shall not remain in full force and
effect.
17. Remedies.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, the Collateral Agent may, and upon
direction of the Combined Required Lenders shall, exercise any and all remedies
and other rights provided under this Agreement, including, without limitation,
the following:
(a) The Collateral Agent may take any action any Guarantor is
required to take or any other necessary action to obtain, preserve and enforce
this Agreement, and maintain and preserve the Collateral, without notice to such
Guarantor, and add the costs of the same to the Obligations (but the Collateral
Agent is under no duty to take any such action);
(b) The Collateral Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party upon
default under the UCC as in effect from time to time (whether or not the UCC
applies to the affected Collateral) and also may (i) require each Guarantor to,
and each Guarantor hereby agrees that it will at its expense and upon
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request of the Collateral Agent forthwith, assemble all or any part of the
Collateral as directed by the Collateral Agent and make it available to the
Collateral Agent at a place designated by the Collateral Agent which is
reasonably convenient to the Collateral Agent and such Guarantor, (ii) without
notice, except as specified below, sell, lease, assign, grant an option or
options to purchase or otherwise dispose of the Collateral or any part thereof
in one or more parcels at public or private sale, at any exchange, broker's
board or at any of the Collateral Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as may be commercially
reasonable. Each Guarantor agrees that, to the extent notice of sale shall be
required by law, at least five Business Days' notice to such Guarantor of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The Collateral Agent shall not
be obligated to make any sale of Collateral regardless of notice of sale having
been given. The Collateral Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned.
(c) Any cash held by the Collateral Agent as Collateral and
all cash proceeds received by the Collateral Agent in respect of any sale of,
collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Collateral Agent, be held by the Collateral Agent
as Collateral, and/or then or at any time thereafter applied (after payment of
any amounts payable to the Collateral Agent pursuant to Section 19) in whole or
in part by the Collateral Agent to the Administrative Agent under the
$550,000,000 Credit Agreement and the Administrative Agent under the
$350,000,000 Credit Agreement pro rata in accordance with the priorities
contained in section 9.1 of the Credit Agreements. Any surplus of such cash or
cash proceeds held by the Collateral Agent and remaining after payment in full
of all the Obligations shall be promptly paid over to the applicable Guarantor
or to whomsoever may be lawfully entitled to receive such surplus.
(d) Upon the completion of any sale or other disposition of
all or any part of the Collateral under this Section, full title and right of
possession to such Collateral shall pass to such purchaser or purchasers
forthwith upon the completion of such sale. Neverthe less, if so requested by
the Collateral Agent or by any purchaser of such Collateral, each Guarantor
shall confirm any such sale or disposition by executing and delivering to such
purchaser all proper instruments of conveyance and transfer and releases as may
be designated in any such request. To the extent permitted by applicable law,
every such sale or other disposition shall operate to divest all right, title,
interest, claim and demand whatsoever of such Guarantor of, in and to the
Collateral so sold or disposed of and shall be a perpetual bar, both at law and
in equity, against such Guarantor, all persons claiming the Collateral sold or
disposed of, or any part thereof, through such Guarantor, and its
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successors and assigns.
(e) At any sale or other disposition hereunder, the Collateral
Agent may bid for and purchase the Collateral offered for sale, and, upon
compliance with the terms of sale or other disposition, may hold, retain and
dispose of such Collateral without further accountability therefor. Any such
purchaser at any sale or other disposition hereunder shall be entitled, for the
purpose of making payment for the Collateral purchased, to apply any part of the
Obligations due and payable to it as a credit against the purchase price of such
Collateral.
(f) Notwithstanding anything to the contrary contained in this
Agreement, any other Loan Document or in any other agreement, instrument or
document executed by any Guarantor and delivered to the Collateral Agent or any
Secured Creditor, neither the Collateral Agent nor any Secured Creditor will
take any action pursuant to this Agreement, any other Loan Document or any other
document referred to above which would constitute or result in any assignment of
any FCC license or any change of control of any such Guarantor or any Subsidiary
of any such Guarantor if such assignment of any FCC license or change of control
would require, under then existing law, the prior approval of the FCC without
first obtaining such prior approval of the FCC. Each Guarantor waives any right
it may have to oppose, and agrees to take any action which the Collateral Agent
may reasonably request in order to obtain from the FCC, such approval as may be
necessary to enable the Collateral Agent to exercise and enjoy the full rights
and benefits granted to the Secured Creditors by this Agreement and the other
documents referred to above, including specifically, at the cost and expense of
such Guarantor, the use of commercially reasonable efforts to assist in
obtaining approval of the FCC for any action or transaction contemplated by this
Agreement for which such approval is or shall be required by law, and
specifically, without limitation, upon request, to prepare, sign and file with
the FCC the assignor's or transferor's portion of any application or
applications for consent to the assignment of license or transfer of control
necessary or appropriate under the FCC's rules and regulations for approval of
(a) any sale or other disposition of the Collateral by or on behalf of the
Collateral Agent, or (b) any assumption by the Collateral Agent of voting rights
in the Col lateral effected in accordance with the terms of this Agreement. It
is understood and agreed that all foreclosure and related actions will be made
in accordance with Section 310 of the Communications Act.
(g) Each Guarantor hereby expressly waives and covenants, to
the extent permitted by applicable law, not to assert any appraisement,
valuation, stay, extension,
-17-
<PAGE>
redemption or similar laws, now or at any time hereafter in force, which might
delay, prevent or otherwise impede the performance or enforcement of this
Agreement.
(h) Each Guarantor recognizes that the Collateral Agent may be
compelled to resort to one or more private sales of the Capital Stock to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Capital Stock for their own accounts, for investment, and not
with a view to the distribution or resale thereof. Each Guarantor agrees that
private sales so made may be at prices and other terms less favorable to the
seller than if the Capital Stock were sold at public sales and that the
Collateral Agent shall have no obligation to delay sale of any such Capital
Stock for the pe riod of time necessary to permit such Guarantor, even if such
Guarantor would agree, to register such Capital Stock for public sale under the
Securities Act of 1933, as amended. Each Guarantor agrees that private sales
made under the foregoing circumstances shall be deemed to have been conducted in
a commercially reasonable manner.
18. Notices
Except as otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made (i) when delivered by hand, or (ii) one
Business Day after having been sent by overnight courier service, (iii) five
Business Days after having been deposited in the mail, first-class postage
prepaid, or (iv) in the case of telecopier notice, when sent, addressed as
follows, or to such other addresses as to which the Collateral Agent may be
hereafter notified by a party hereto:
The Current Guarantors:
c/o American Radio Systems Corporation
116 Huntington Avenue
Boston, MA 02116
Attention: Joseph L. Winn
Chief Financial Officer
Telephone: (617) 375-7500
Telecopy: (617) 375-7575
The Collateral Agent:
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<PAGE>
The Bank of New York, as Collateral Agent
Communications, Publishing & Entertainment Division
One Wall Street, 16th Floor
New York, New York 10286
Attention: Geoffrey C. Brooks
Vice President
Telephone: (212) 635-8475
Telecopy: (212) 635-8593
19. Expenses
Each Guarantor will upon demand pay to the Collateral Agent
any and all reasonable sums, costs and expenses which the Collateral Agent may
pay or incur pursuant to the provisions of this Agreement or in negotiating,
executing, perfecting, defending, protecting or enforcing this Agreement or the
security interests granted herein or in enforcing payment of the Borrower
Obligations or the Guarantor Obligations or otherwise in connection with the
provisions hereof, including, but not limited to court costs, reasonable
collection charges, reasonable travel expenses, and reasonable attorneys' fees,
all of which, together with interest at the highest rate then payable on any of
the Borrower Obligations, shall be part of the Borrower Obligations.
20. Repayment in Bankruptcy, etc.
If, at any time or times subsequent to the payment of all or
any part of the Borrower Obligations or the Guarantor Obligations, the
Collateral Agent or any Secured Creditor shall be required to repay any amounts
previously paid by or on behalf of the Bor rower or any Guarantor in reduction
thereof by virtue of an order of any court having jurisdiction in the premises,
including, without limitation, as a result of an adjudication that such amounts
constituted preferential payments or fraudulent conveyances, the Guarantors
unconditionally agree to pay to the Collateral Agent within five days after
demand a sum in cash equal to the amount of such repayment, together with
interest on such amount from the date of such repayment by the Collateral Agent
or such Secured Creditor, as the case may be, to the date of payment to the
Collateral Agent at the applicable after-maturity rate set forth in the Credit
Agreements.
-19-
<PAGE>
21. No Segregation of Moneys; No Interest.
No moneys or any other Property received by the Collateral
Agent hereunder need be segregated in any manner except to the extent required
by law, and any such moneys or other Property may be deposited under such
general conditions as may be pre scribed by law applicable to the Collateral
Agent and the Collateral Agent shall not be liable for any interest thereon,
except as may otherwise be agreed by the Collateral Agent.
22. Guarantors
Upon the execution and delivery to the Collateral Agent of a
Supplement by any Person, appropriately acknowledged, such Person shall be a
Guarantor.
23. Subrogation
Each Guarantor hereby irrevocably and forever waives any right
to succeed to any of the rights of the Collateral Agent and the Secured
Creditors against the Borrower under this Agreement, whether by way of
subrogation or otherwise, until all Borrower Obligations have been indefeasibly
paid in full, in cash.
24. Continuing Security Interest; Termination; Partial Release.
(a) This Agreement shall create a continuing security interest
in the Collateral and shall (i) remain in full force and effect until the
indefeasible cash payment in full of the Borrower Obligations and the
termination of the Credit Agreements, (ii) be binding upon each Guarantor and
its successors and assigns and (iii) inure, together with the rights and
remedies of the Collateral Agent hereunder, to the benefit of the Collateral
Agent, any successor Collateral Agent and the Secured Creditors. A Guarantor's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor-in-possession thereof or therefor.
(b) The Collateral Agent may release from the Lien created by
this Agreement any Instrument in connection with the consummation of an
acquisition of a Broadcasting Station permitted by the Credit Agreements to
which such Instrument relates.
25. Miscellaneous
(a) No failure by the Collateral Agent to exercise, and no
delay by the Collateral Agent in exercising, any right or remedy hereunder shall
operate as a waiver thereof.
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<PAGE>
(b) Except as otherwise expressly provided in this Agreement,
to the maximum extent permitted by applicable law, each Guarantor hereby waives
presentment, demand for payment, notice of default, nonperformance and dishonor,
protest and notice of protest of or in respect of this Agreement, the other Loan
Documents, each Interest Protection Arrangement, and the Borrower Obligations,
notice of acceptance of this Agreement and reliance hereupon by the Collateral
Agent and each Secured Creditor, and the incurrence of any of the Borrower
Obligations, notice of any sale of collateral security or any default of any
sort.
(c) No Guarantor is relying upon the Collateral Agent or any
Secured Creditor to provide to such Guarantor any information concerning the
Borrower or any Subsidiary, and each Guarantor has made arrangements
satisfactory to such Guarantor to obtain from the Borrower on a continuing basis
such information concerning the Borrower and its Subsidiaries as such Guarantor
may desire.
(d) Each Guarantor agrees that any statement of account with
respect to the Borrower Obligations from the Collateral Agent or any Secured
Creditor to the Borrower which binds the Borrower shall also be binding upon
such Guarantor, and that copies of said statements of account maintained in the
regular course of the Collateral Agent's or such Secured Creditor's business, as
the case may be, may be used in evidence against such Guarantor in order to
establish its Guarantor Obligations.
(e) Each Guarantor acknowledges that it has received a copy of
the Loan Documents and each Interest Rate Protection Arrangement and has
approved of the same. In addition, such Guarantor acknowledges having read each
Loan Document and each such Interest Rate Protection Arrangement and having had
the advice of counsel in connection with all matters concerning its execution
and delivery of this Agreement.
(f) No Guarantor may assign any right, or delegate any duty,
it may have under this Agreement.
(g) Subject to the limitations set forth in Section 2(b), the
Guarantor Obligations shall be joint and several.
(h) This Agreement is the "Subsidiary Guaranty" referred to in
the Credit Agreements. Each of the Collateral Agent and the Guarantors
acknowledges that certain provisions of the Credit Agreements, including,
without limitation, Sections 1.2 (Principles
-21-
<PAGE>
of Construction), 11.1 (Amendments and Waivers), 11.3 (No Waiver; Cumulative
Remedies), 11.4 (Survival of Representations and Warranties), 11.7 (Successors
and Assigns), 11.8 (Counterparts), 11.13 (Headings), 11.14 (Severability), 11.15
(Integration), 11.16 (Consent to Jurisdiction), 11.17 (Service of Process),
11.18 (No Limitation on Service or Suit) and 11.19 (WAIVER OF TRIAL BY JURY)
thereof, are made applicable to this Agreement and all such provisions are
incorporated by reference herein as if fully set forth herein.
26. Governing Law; Terms.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws rules, except to the extent that the validity or perfection of the security
interest hereunder, or remedies hereunder, in respect of any particular
collateral are governed by the laws of a jurisdiction other than the State of
New York. Unless otherwise defined herein or in the Credit Agreements, terms
used in Articles 8 and 9 of the UCC are used herein as therein defined.
-22-
<PAGE>
IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Agreement to be
duly executed on its behalf.
THE BANK OF NEW YORK, as Collateral
Agent
By:
Name:
Title:
AMERICAN RADIO SYSTEMS LICENSE
CORP.
By:
Name:
Title:
ARS ACQUISITION II, INC.
By:
Name:
Title:
RADIO SYSTEMS OF MIAMI, INC.
By:
Name:
-23-
<PAGE>
Title:
RADIO SYSTEMS OF PHILADELPHIA,
INC.
By:
Name:
Title:
-24-
<PAGE>
ANNEX A TO SUBSIDIARY GUARANTY
FORM OF SUPPLEMENT
to
SUBSIDIARY GUARANTY, dated as of _______________, 1997, by and among the Guar
antors party thereto, and The Bank of New York, as Collateral Agent (as the same
may have been amended, supplemented or otherwise modified from time to time, the
"Guaranty").
[Date]
Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Guaranty. Pursuant to
Section 22 of the Guaranty, by execution and delivery of this Supplement and,
upon acceptance hereof by the Collateral Agent, the undersigned (a) shall be,
and shall be deemed to be, a "Guarantor" under, and as such term is defined in
the Guaranty, (b) shall have made, and shall be deemed to have made, the
representations and warranties contained in Section 7 of the Guaranty on and as
of the date hereof, and (c) shall have made, and shall be deemed to have made,
all of the covenants and agreements of a Guarantor set forth in the Guaranty.
Address for notices: [NAME OF GUARANTOR]
____________________ By:
____________________ Name:
____________________ Title:
Accepted and agreed to as
of the date first above
written:
THE BANK OF NEW YORK, as Collateral Agent
By:
Name:
Title:
<PAGE>
Schedule 1
to
SUBSIDIARY GUARANTY
PART A - Pledged Capital Stock:
Name of Jurisdiction of Class;
Issuer Incorporation Par Value Shares Owned
PART B - Pledged Debt:
Debtor Date Face Amount Balance Due
- 2 -
<PAGE>
Schedule 7(b)(i)
to
SUBSIDIARY GUARANTY
LIST OF NAMES; TRADENAMES
-3-
<PAGE>
Schedule 7(b)(ii)
to
SUBSIDIARY GUARANTY
PART A - Chief Executive Office and Chief Place of Business:
PART B - Other Offices and Places of Business:
- 4 -
Exhibit 99.5
[AMERICAN RADIO SYSTEMS LOGO]
FOR IMMEDIATE RELEASE Contact: Joe Winn, Chief Financial
Officer or Bruce Danziger, Director
of Investor Relations
(617) 375-7500
AMERICAN RADIO SYSTEMS COMPLETES
PRIVATE PLACEMENT AND CREDIT FACILITY
Boston, Massachusetts - January 30, 1997 - American Radio Systems
Corporation (NASDAQ:AMRD) announced today that it has completed a private
placement of 2,000,000 shares of its 11 3/8 Exchangeable Preferred Stock to
qualified institutional buyers. The Company will use the net proceeds from the
offering, which equal more than $192 million, to repay outstanding debt.
Thereafter, the Company expects to utilize borrowings to finance, among other
things, acquisitions of radio stations.
The Exchangeable Preferred Stock has not been registered under the
Securities Act of 1933 and may not be offered or sold in the United States
absent registration or an applicable exemption from registration requirements.
American Radio also announced that it has completed a $750 million
revolving credit facility with a consortium of lenders led by the Bank of New
York. The financing can be expanded to $900 million in the event it becomes
necessary to repurchase $150 million of 9.75% EZ Communications notes pursuant
to a "put" option held by the noteholders.
American Radio Systems Corporation began trading shares publicly in
June, 1995. The Company owns and/or manages 46 FM and 22 AM stations in Boston,
Baltimore, Portland, Sacramento, Hartford, Las Vegas, Austin, Buffalo, San Jose,
West Palm Beach, Rochester, Dayton, and Fresno. The Company also has options
and/or agreements to buy additional radio stations in Boston, Cincinnati,
Baltimore, Sacramento, San Jose, West Palm Beach, Rochester, Dayton and Fresno.
In addition, on August 5, 1996 the company announced that it had reached an
agreement to merge with EZ Communications, Inc. EZ Communications owns and/or
operates 23 radio stations in seven markets nationwide.
##
----------------------------------------------------------------------
116 Huntington Avenue, Boston, Massachusetts 02116
(617) 375-7500 FAX (617) 375-7575
Exhibit 99.6
REGISTRATION RIGHTS AGREEMENT
Dated as of January 30, 1997
Among
AMERICAN RADIO SYSTEMS CORPORATION
as Issuer
and
CREDIT SUISSE FIRST BOSTON CORPORATION
ALEX. BROWN & SONS INCORPORATED
BT SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SMITH BARNEY INC.
as Initial Purchasers
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
January 30, 1997, among American Radio Systems Corporation, a Delaware
corporation (the "Company"), and Credit Suisse First Boston Corporation, Alex.
Brown & Sons Incorporated, BT Securities Corporation, Morgan Stanley & Co.
Incorporated and Smith Barney Inc. (individually, an "Initial Purchaser";
together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of January 27, 1997, among the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the issuance and sale
by the Company to the Initial Purchasers of the Company's 11 3/8% Cumulative
Exchangeable Preferred Stock, par value $.01 per share (the "Exchangeable
Preferred Stock"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation to purchase the
Exchangeable Preferred Stock under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
Additional Dividends: See Section 4 hereof.
Advice: See Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Certificate of Designation: The Certificate of Designation governing
the Exchangeable Preferred Stock as filed with the Secretary of State of the
State of Delaware, as amended from time to time.
Certificate Shares: See Section 10 hereof.
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<PAGE>
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Company: See the first introductory paragraph hereto.
Depositary: The Depository Trust Company until a successor
is appointed by the Company and the Transfer Agent.
Effectiveness Date: The 180th day after the Issue Date or, in the case
of a Shelf Registration Statement that is filed after the 90th day after the
Issue Date in accordance with the terms hereof, the 90th day after a Shelf
Registration Trigger.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Debentures: The Company's 11 3/8% Subordinated Exchange
Debentures due 2009 issuable in exchange for the Exchangeable Preferred Stock or
Exchange Preferred Stock.
Exchange Preferred Stock: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Registration Statement: See Section 2(a) hereof.
Filing Date: The 90th day after the Issue Date or, in the case of a
Shelf Registration Statement, if later, the 30th day after a Shelf Registration
Trigger.
Global Certificate: See Section 10 hereof.
Holder: Any holder of shares of Registrable Preferred Stock.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Initial Purchaser: See the first introductory paragraph hereto.
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<PAGE>
Initial Purchasers: See the first introductory paragraph hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(n) hereof.
Issue Date: The date on which the original Exchangeable Preferred Stock
was issued and sold to the Initial Purchasers pursuant to the Purchase
Agreement.
NASD: See Section 5(r) hereof.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Records: See Section 5(n) hereof.
Registrable Preferred Stock: Each share of Exchangeable Preferred Stock
upon original issuance thereof and at all times subsequent thereto and each
share of Exchange Preferred Stock as to which Section 2(c)(iv) hereof is
applicable upon original issuance and at all times subsequent thereto until the
earliest to occur of (i) a Registration Statement (other than, with respect to
any Exchange Preferred Stock as to which Section 2(c)(iv) hereof is applicable,
the Exchange Registration Statement) covering such shares of Exchangeable
Preferred Stock
-3-
<PAGE>
or Exchange Preferred Stock, as the case may be, has been declared effective by
the SEC and such shares of Exchangeable Preferred Stock or Exchange Preferred
Stock, as the case may be, have been disposed of in accordance with such
effective Registration Statement, (ii) such shares of Exchangeable Preferred
Stock or Exchange Preferred Stock, as the case may be, are sold in compliance
with Rule 144 or could (except with respect to affiliates of the Company within
the meaning of the Securities Act) be sold in compliance with paragraph (k) of
such Rule 144, (iii) in the case of Exchangeable Preferred Stock, such shares of
Exchangeable Preferred Stock have been exchanged pursuant to an Exchange Offer
for shares of Exchange Preferred Stock that may be resold without restriction
under state and federal securities laws, or (iv) such shares of Exchangeable
Preferred Stock or Exchange Preferred Stock, as the case may be, cease to be
outstanding. For purposes of this Agreement and the registration requirements
contained herein, Registrable Preferred Stock shall be deemed to include, and
all Registration Statements required to be filed in accordance with the terms of
this Agreement shall cover, the Exchange Debentures into which the Exchange
Preferred Stock that is Registrable Preferred Stock is exchangeable.
Registration Statement: Any registration statement of the Company,
including, but not limited to, the Exchange Registration Statement, filed with
the SEC pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
-4-
<PAGE>
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Trigger: See Section 2(c) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
Transfer Agent: The Transfer Agent for the Exchangeable Preferred Stock
and/or the Exchange Preferred Stock as the context may require.
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer.
(a) The Company shall file with the SEC no later than the Filing Date,
an offer to exchange (the "Exchange Offer") any and all shares of the
Exchangeable Preferred Stock for a like number of shares (with a liquidation
preference equal to that of the surrendered shares) of another series of
exchangeable preferred stock of the Company that will have terms identical in
all material respects to the Exchangeable Preferred Stock (the "Exchange
Preferred Stock"), except that (i) the Exchange Preferred Stock shall have been
registered pursuant to an effective Registration Statement under the Securities
Act and the certificates therefor shall not contain terms with respect to
transfer restrictions and shall contain no restrictive legend thereon and (ii)
the certificate of designation governing such Exchange Preferred Stock does not
need to contain the provisions set forth in the Certificate of Designation
concerning Additional Dividends including, without limitation, Section 3(c)
thereof. The Exchange Offer shall be registered under the Securities Act on the
appropriate form (the "Exchange Registration Statement") and shall comply in all
material respects with all applicable tender offer rules and regulations under
the Exchange Act. The
-5-
<PAGE>
Company agrees to use its best efforts to (x) cause the Exchange Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 20 business
days (or longer if required by applicable law) after the date that notice of the
Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or
prior to the 225th day following the Issue Date. If after such Exchange
Registration Statement is initially declared effective by the SEC, the Exchange
Offer or the issuance of the Exchange Preferred Stock thereunder is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Exchange Registration Statement
shall be deemed not to have become effective for purposes of this Agreement.
Each Holder who participates in the Exchange Offer will be required to represent
that any Exchange Preferred Stock received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange Preferred Stock in
violation of the provisions of the Securities Act, and that such Holder is not
an affiliate of the Company within the meaning of the Securities Act. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely
with respect to Exchange Preferred Stock held by Participating Broker-Dealers,
and the Company shall have no further obligation to register Registrable
Preferred Stock (other than in respect of any Exchange Preferred Stock as to
which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No
securities other than the Exchange Preferred Stock (and the Exchange Debentures)
shall be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, that shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Preferred Stock received by such broker-dealer (a "Participating Broker-Dealer")
in the Exchange Offer (other than with respect to any shares of Exchangeable
Preferred Stock acquired by them and having, or that is reasonably likely to be
determined to have, the status of an unsold allotment in the initial
distribution), whether such positions or policies have been publicly
disseminated by the
-6-
<PAGE>
Staff of the SEC or such positions or policies, in the judgment of the Initial
Purchasers, represent the prevailing views of the Staff of the SEC. Such "Plan
of Distribution" section shall also expressly permit the use of the Prospectus
by all Persons subject to the prospectus delivery requirements of the Securities
Act, including all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker- Dealers may resell the
Exchange Preferred Stock.
The Company shall use its reasonable best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Preferred Stock; provided, however,
that such period shall not exceed 180 days after the Exchange Registration
Statement is declared effective (or such longer period if extended pursuant to
the penultimate paragraph of Section 5 hereof) (the "Applicable Period").
Dividends on the Exchange Preferred Stock will accumulate from the last
dividend payment date on which dividends were paid (or deemed paid through the
issuance of additional shares) on the Exchangeable Preferred Stock surrendered
in exchange therefor or, if no dividends have been paid (or deemed to have been
paid through the issuance of additional shares) on the Exchangeable Preferred
Stock, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of
Manhattan, The City of New York;
(3) permit Holders to withdraw tendered shares of Exchangeable
Preferred Stock at any time prior to the close of business, New York
time, on the last business day on which the Exchange Offer shall remain
open; and
(4) otherwise comply in all material respects
with all applicable laws, rules and regulations.
-7-
<PAGE>
As soon as practicable after the close of the Exchange Offer the
Company shall:
(1) accept for exchange all shares of
Exchangeable Preferred Stock tendered and not validly
withdrawn pursuant to the Exchange Offer;
(2) deliver to the Transfer Agent for
cancellation and retirement certificates representing
all shares of Exchangeable Preferred Stock so accepted
for exchange; and
(3) cause the Transfer Agent to countersign and deliver
promptly to each Holder of shares of Exchangeable Preferred Stock,
certificates for the shares of Exchange Preferred Stock equal in
liquidation preference to the shares of Exchangeable Preferred Stock of
such Holder so accepted for exchange.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Company is not permitted to effect
an Exchange Offer, (ii) the Exchange Offer is not consummated within 225 days of
the Issue Date, (iii) the Holders of not less than a majority of shares of the
Registrable Preferred Stock determine that the interests of the Holders would be
adversely affected by consummation of the Exchange Offer (in which event the
Company shall not proceed with or consummate the Exchange Offer), or (iv) upon
determination by the Corporation, or in the absence of such determination, upon
notification by the relevant Holder, that any Holder is unable to participate in
the Exchange Offer or that, after the Exchange Offer, a Holder would not receive
Exchange Preferred Stock on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company within the meaning of
the Securities Act), then in the case of each of clauses (i) to and including
(iv) of this sentence (each event described in such clauses, a "Shelf
Registration Trigger"), the Company shall promptly deliver to the Holders
written notice thereof (the "Shelf Notice") and shall file a Shelf Registration
pursuant to Section 3 hereof.
(d) Anything in this Section to the contrary notwithstanding, the
Company shall not be required to (i) file or have declared effective any
Exchange Registration Statement (ii) proceed with or consummate any Exchange
Offer or (iii) otherwise comply with the provisions of this Section 2, if a
Shelf
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Registration Trigger of the nature described in Section 2(c)(iii) shall have
occurred.
3. Shelf Registration
Upon the occurrence of a Shelf Registration Trigger:
(a) Shelf Registration. The Company shall as promptly as reasonably
practicable file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Preferred Stock or, in the case of a Shelf Registration Trigger pursuant to
clause (iv), such shares as are the subject of the Company's determination or
held by such Holder as described therein (the "Initial Shelf Registration"). The
Company shall use its best efforts to file with the SEC the Initial Shelf
Registration on or prior to the Filing Date. The Initial Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of such
Registrable Preferred Stock for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Company shall not permit any securities other than the
Registrable Preferred Stock to be included in the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below).
The Company shall use its best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date that is 36 months from the
Effectiveness Date, subject to extension pursuant to the last paragraph of
Section 5 hereof, or such shorter period ending when (i) all the shares of
Registrable Preferred Stock covered by the Initial Shelf Registration have been
sold in the manner set forth and as con templated in the Initial Shelf
Registration, (ii) the date on which all the Exchangeable Preferred Stock held
by persons who are not affiliates of the Company may be resold pursuant to Rule
144(k) under the Securities Act, or (iii) a Subsequent Shelf Registration
covering all of the Registrable Preferred Stock has been declared effective
under the Securities Act (the "Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Company shall use its reasonable
best
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efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Preferred Stock (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
under the Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective or, if less, the number of days until
there are no shares of Registrable Preferred Stock outstanding. As used herein
the term "Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority of shares of the Registrable Preferred Stock covered
by such Registration Statement or by any underwriter of such Registrable
Preferred Stock.
4. Additional Dividends
The Company and the Initial Purchasers agree that the Holders of
Exchangeable Preferred Stock will suffer damages if the Company fails to fulfill
its obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay, as liquidated damages, additional dividends on the
Exchangeable Preferred Stock ("Additional Dividends") under the circumstances
and to the extent set forth in the Certificate of Designation. The Company shall
notify the Transfer Agent within one business day after each and every date on
which an event occurs in respect of which Additional Dividends are required to
be paid (an "Event Date"). Any Additional Dividends will be payable in
accordance with the Certificate of Designation on the next following dividend
payment date.
5. Registration Procedures
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In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Company hereunder the Company
shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in an Exchange Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Preferred Stock covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each case
where possible at least five business days prior to such filing and where not
possible as promptly as possible). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the Holders
of a majority in aggregate principal amount of the shares of Registrable
Preferred Stock covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) promulgated
under the Securities Act; and comply with the provisions of the Securities Act
and the Exchange Act applicable to it with respect to the disposition of
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all securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus. The Company shall be deemed not to have used its reasonable best
efforts to keep a Registration Statement effective during the Applicable Period
if it voluntarily takes any action that would result in selling Holders of the
Registrable Preferred Stock covered thereby or Participating Broker-Dealers
seeking to sell Exchange Preferred Stock not being able to sell such Registrable
Preferred Stock or such Exchange Preferred Stock during that period unless such
action is required by applicable law or unless the Company complies with this
Agreement, including without limitation, the provisions of paragraph 5(k) hereof
and the penultimate paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, notify the selling Holders of shares of
Registrable Preferred Stock, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any, promptly (but
in any event within two business days), and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) (A) of the receipt of any written comments by the
SEC or its staff, (B) of the request by the SEC or its staff for amendments or
supplements to a Registration Statement of a Prospectus, or (C) of the issuance
by the SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (iii) if at
any time when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Preferred Stock or resales of Exchange
Preferred Stock by Participating Broker-Dealers the representations and
warranties of the Company contained in any agreement (including any
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underwriting agreement), contemplated by Section 5(m) hereof cease to be true
and correct in all material respects, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualifi cation of a Registration Statement or any of the Registrable
Preferred Stock to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, use its reasonable best efforts to prevent
the issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Registrable Preferred Stock to be sold by any Participating Broker-Dealer, for
sale in any jurisdiction and, if any such order is issued, to use its reasonable
best efforts to obtain the withdrawal of any such order at the earliest possible
moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriter or underwriters (if any), or the Holders
of a majority of shares of the Registrable Preferred Stock being sold in
connection with an underwritten offering or any Participating Broker-Dealer, (i)
promptly incorporate in a prospectus supplement or post-effective
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amendment such information as the managing underwriter or underwriters (if any),
such Holders, any Participating Broker- Dealer or counsel for any of them
determine is reasonably necessary to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment and (iii)
supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, furnish to each selling Holder of
Registrable Preferred Stock and to each such Partici pating Broker-Dealer who so
requests and to counsel and each managing underwriter, if any, at the sole
expense of the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Par ticipating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, deliver to each selling Holder of
Registrable Preferred Stock, or each such Participating Broker-Dealer, as the
case may be, their respective counsel, and the underwriters, if any, at the sole
expense of the Company, as many copies of the Prospectus (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the penultimate paragraph of this Section 5, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Preferred Stock
or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Preferred Stock covered by, or the sale by
Participating Broker- Dealers of the Exchange Preferred Stock pursuant to, such
Prospectus and any amendment or supplement thereto.
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<PAGE>
(h) Prior to any public offering of Registrable Preferred Stock or any
delivery of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable Period, to use its reasonable best efforts to register or
qualify, to the extent required by applicable law, and to cooperate with the
selling Holders of a Registrable Preferred Stock or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Preferred Stock or offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriter or underwriters
reasonably request; provided, however, that where Exchange Preferred Stock held
by Participating Broker-Dealers or Registrable Preferred Stock is offered other
than through an underwritten offering, the Company agrees to cause the Company's
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Preferred Stock held by
Participating Broker-Dealers or the Registrable Preferred Stock covered by the
applicable Registration Statement; provided, however, that the Company shall not
be required to qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction or subject itself to taxation
generally in any jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Preferred Stock and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing shares of Registrable
Preferred Stock to be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such shares of Registrable Preferred Stock to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable Preferred
Stock covered by the Shelf Registration
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<PAGE>
Statement or Exchange Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Preferred Stock, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(ii)(C), 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) hereof) file with the SEC,
at the sole expense of the Company, a Supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Preferred Stock being sold thereunder or to the purchasers of
the Exchange Preferred Stock to whom such Prospectus will be deliv ered by a
Participating Broker-Dealer, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Preferred Stock, (i) provide the Transfer Agent with
certificates for the Registrable Preferred Stock in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Preferred Stock.
(m) In connection with any underwritten offering of Registrable
Preferred Stock pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of preferred stock similar
to the Exchangeable Preferred Stock and take all such other actions as are
reasonably requested by the managing underwriter or underwriters; in order to
expedite or facilitate the registration or the disposition of such Registrable
Preferred Stock and, in
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such connection, (i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Company and its
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings of
preferred stock similar to the Exchangeable Preferred Stock, and confirm the
same in writing if and when requested; (ii) obtain the written opinion of
counsel to the Company and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters, addressed
to the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings of preferred stock similar to the
Exchangeable Preferred Stock and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) obtain "cold
comfort" letters and updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary the Company or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included or incorporated by reference in the
Registration Statement), addressed to each of the underwriters, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings of preferred
stock similar to the Exchangeable Preferred Stock and such other matters as
reasonably requested by the managing underwriter or underwriters; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of shares of Registrable Preferred Stock
covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
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Stock during the Applicable Period, make available for inspection by any selling
Holder of such Registrable Preferred Stock being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter participating
in any such disposition of Registrable Preferred Stock, if any, and any
attorney, accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours at such time or times as shall be mutually convenient
for the Company and the Inspectors as a group, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its subsidiaries to
supply all information reasonably requested by any such Inspector in connection
with such Registration Statement. Records that the Company determines, in good
faith, to be confidential and any Records that it notifies the Inspectors are
confidential shall not be disclosed by any Inspector unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
such Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction,
(iii) disclosure of such information is, in the opinion of counsel for any
Inspector, necessary or advisable in connection with any action, claim, suit or
proceeding, directly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the information in
such Records has been made generally available to the public other than through
the acts of such Inspector. Each selling Holder of such Registrable Securities
and each such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is generally available to the public. Each selling Holder of such Registrable
Preferred Stock and each such Participating Broker- Dealer will be required to
further agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Company's sole expense.
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(o) Provide (A) the Holders of the Registrable Preferred Stock to be
included in such registration statement and not more than one counsel for all
the Holders of such Registrable Preferred Stock, (B) the underwriters (which
term, for purposes of this Exchange and Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning of Section 2(11)
of the Securities Act), if any, thereof, (C) the sales or placement agent, if
any, thereof, (D) each Participating Broker-Dealer, and (E) one counsel for such
underwriters or agents and Participating Broker-Dealers, if any, reasonable
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment or supplement thereto;
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Preferred Stock is sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(q) Upon consummation of an Exchange Offer, obtain an opinion of
counsel to the Company, in a form customary for underwritten transactions,
addressed to the Transfer Agent for the benefit of all Holders of Registrable
Preferred Stock participating in the Exchange Offer that the Exchange Preferred
Stock is duly authorized, validly issued, fully paid and non-assessable.
(r) If an Exchange Offer is to be consummated, upon delivery of shares
of Registrable Preferred Stock by Holders to the Company (or to such other
Person as directed by the Company) in exchange for shares of Exchange Preferred
Stock, the Company shall mark, or cause to be marked, on the certificates
representing such shares of Registrable Preferred Stock that such shares of
Registrable Preferred Stock are being cancelled in exchange for the Exchange
Preferred Stock.
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(s) Cooperate with each seller of Registrable Preferred Stock covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Preferred Stock and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD"), including if the Rules of Fair Practice
and the By-Laws of the NASD or any successor thereto, as amended from time to
time (including Schedule E thereto) so require, engaging a "qualified
independent underwriter" ("QIU") as contemplated therein and making Records
available to such QIU as though it were a participating underwriter for the
purposes of Section 5(n) and otherwise applying the provisions of this Agreement
to such QIU (including indemnification) as though it were a participating
underwriter.
(t) Provide an indenture trustee for the Exchange Indenture (as defined
in the Purchase Agreement) and cause the Exchange Indenture to be qualified
under the TIA not later than the effective date of the Exchange Offer or the
first Registration Statement relating to the Registrable Preferred Stock; and in
connection therewith, cooperate with the trustee under the Exchange Indenture
and the Holders of the Registrable Preferred Stock to effect such changes to
such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best efforts to
cause such trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable the Exchange Indenture to be so qualified in a timely manner.
(u) Use its reasonable best efforts to cause the Registrable Preferred
Stock covered by a Registration Statement or the Exchange Preferred Stock, as
the case may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority of shares of Registrable Preferred Stock
covered by such Registration Statement or the Exchange Preferred Stock, as the
case may be, or the managing underwriter or underwriters, if any.
(v) Use its best efforts to take all other steps necessary or advisable
to effect the registration of the Exchange Preferred Stock and/or Registrable
Preferred Stock covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Preferred Stock as
to which any registration is being effected to furnish to the Company such
information regarding such seller and the
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distribution of such Registrable Preferred Stock as the Company may, from time
to time, reasonably request to the extent necessary to comply with the
Securities Act. The Company may exclude from such registration the Registrable
Preferred Stock of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request. Each seller as to which
any Shelf Registration is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading or to omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
Each Holder of Registrable Preferred Stock and each Participating
Broker-Dealer agrees by acquisition of such Registrable Preferred Stock or
Exchange Preferred Stock to be sold by such Participating Broker-Dealer, as the
case may be, that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii)(C), 5(c)(iv),
5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition
of such Registrable Preferred Stock covered by such Registration Statement or
Prospectus or Exchange Preferred Stock to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Company shall give any such notice, each
of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Registrable Preferred
Stock covered by such Registration Statement or Exchange Preferred Stock to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without
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<PAGE>
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Preferred Stock and determination of the eligibility of the
Registrable Preferred Stock for investment under the laws of such jurisdictions
as provided in Section 5(h) hereof, in the case of Registrable Preferred Stock
or Exchange Preferred Stock to be sold by a Participating Broker-Dealer during
the Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Preferred Stock in a form
eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, by the Holders of a majority of shares of
the Registrable Preferred Stock included in any Registration Statement or sold
by any Participating Broker-Dealer as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and fees and disbursements of special counsel for the sellers of
Registrable Preferred Stock (subject to the provisions of Section 6(b) hereof),
(v) fees and disbursements of all independent certified public accountants
referred to in Section 5(m)(iii) hereof (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance), (vi) rating agency fees, (vii) Securities Act liability
insurance, if the Company desires such insurance, (viii) fees and expenses of
all other Persons retained by the Company, (ix) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (x) the expense
of any annual audit, (xi) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange, if
applicable, and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) The Company shall reimburse the Holders of the Registrable
Preferred Stock being registered in a Shelf Regis tration for the reasonable
fees and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority of shares of the Registrable
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<PAGE>
Preferred Stock to be included in such Registration Statement and other
reasonable out-of-pocket expenses of such Holders of Registrable Preferred Stock
incurred in connection with the registration and sale of the Registrable
Preferred Stock pursuant to the Exchange Offer.
7. Indemnification
(a) The Company will indemnify and hold harmless each Holder of
Registrable Preferred Stock, each Person that participates as an underwriter or
sales agent in any sale of such Registered Preferred Stock and each
Participating Broker-Dealer selling Exchange Preferred Stock during the
Applicable Period (each a "Participant") against any losses, claims, damages or
liabilities, joint or several, to which such Participant may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser specifically for use
therein; provided, further, that the Company will not be liable if such untrue
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto and the Prospectus does not contain any other
untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and any such
loss, liability, claim, damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any Person who purchased
Registrable Preferred Stock or Exchange Preferred Stock that is the subject
thereof from such Participant and it is
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<PAGE>
established in the related proceeding that such Participant failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to such Person
with or prior to the confirmation of the sale of such Registrable Preferred
Stock or Exchange Preferred Stock sold to such Person if required by applicable
law, unless such failure to deliver or provide a copy of the Prospectus (as
amended or supplemented) was a result of noncompliance by the Company with
Section 5 of this Agreement.
(b) The Company may require, as a condition to including Registrable
Preferred Stock in any Registration Statement, that the related Participant
agree severally and not jointly to indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the any Registration Statement or
Prospectus, or any amendment or supplement thereto, or any related prospectus,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Participant speci fically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred. The liability of any Participant under this paragraph shall in no
event exceed the net proceeds received by such Participant from sales of
Registrable Preferred Stock or Exchange Preferred Stock giving rise to such
obligations.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement
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<PAGE>
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Participants on the other from the offering
of the Registrable Preferred Stock or Exchange Preferred Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Participants on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considera tions. The relative benefits
received by the Company on the one hand and any Participant on the other shall
be deemed to be in the same proportion as the total net proceeds from the
initial offering of the Exchangeable Preferred Stock (before deducting expenses)
received by the Company bear to the total net proceeds received by such
Participant from sales of Registerable Preferred Stock or Exchange Preferred
Stock giving rise to such obligations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
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<PAGE>
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such Participant
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Participant shall be required to
contribute any amount in excess of the amount by which the net proceeds received
by such Participant from sales of Registrable Preferred Stock or Exchange
Preferred Stock exceeds the amount of any damages which such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participants' obligations in this subsection (d) to
contribute are several in proportion to their respective liquidation preferences
of Registrable Preferred Stock or Exchange Preferred Stock registered pursuant
to this Agreement, and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each Participant and to each Person, if any, who controls any
Participant within the meaning of the Securities Act or the Exchange Act; and
the obligations of the Participant under this Section shall be in addition to
any liability which the respective Participant otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each Person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
8. Rules 144 and 144A.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and such rules and
regulations and, if at any time the Company is not required to
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<PAGE>
file such reports, it will, upon the request of any Holder of Registrable
Preferred Stock, make publicly available annual reports and such information,
documents and other reports of the type specified in Sections 13 and 15(d) of
the Exchange Act. The Company further covenants for so long as any Registrable
Preferred Stock remains outstanding, to make available to any Holder or
beneficial owner of Registrable Preferred Stock in connection with any sale
thereof and any prospective purchaser of such Registrable Preferred Stock from
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Registrable
Preferred Stock pursuant to Rule 144A.
9. Underwritten Registrations.
If any of the Registrable Preferred Stock covered by any Shelf
Registration is to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority of shares of such Registrable Preferred
Stock included in such offering and reasonably acceptable to the Company.
No Holder of Registrable Preferred Stock may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Preferred Stock on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the Holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Preferred Stock
and each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to this Agreement and any further amendments or
supplements to any such registration statement or prospectus, when it becomes
effective or is filed with the Commission, as the case may be, and, in the case
of an underwritten offering of Registrable Preferred Stock, at the time of the
closing under the underwriting agreement relating thereto, will conform in all
material respects to the requirements of the Act and the Trust
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<PAGE>
Indenture Act and the rules and regulations of the Commission and any such
registration statement and any amendment thereto will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
any such prospectus or any amendment or supplement thereto will not include any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and at all times subsequent to the
Effective Time of any such registration statement when a prospectus would be
required to be delivered under the Act, other than from (i) such time as a
notice has been given to holders of Registrable Preferred Stock pursuant to the
penultimate paragraph of Section 5 or Section 5(k) hereof until (ii) such time
as the Company furnishes an amended or supplemented prospectus pursuant to
Section 5(k) hereof or otherwise gives an Advice, each such registration
statement, and each prospectus (including any summary prospectus) contained
therein or furnished pursuant to Section 5(k) or Section 5(g) hereof, as then
amended or supple mented, will conform in all material respects to the
requirements of the Act and the Trust Indenture Act and the rules and
regulations of the Commission and will not include any untrue statement of any
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing; provided, however, that this representation and
warranty does not apply to any statements or omissions from a registration
statement or prospectus (including any preliminary or summary prospectus) based
upon written information furnished to the Company by any underwriter, sales
agent, Holder or Participating Broker-Dealer specifically for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will include or included an untrue
statement of any material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty does not
apply to any statements or omissions from a registration statement or the
prospectus (including any preliminary or summary prospectus) based upon written
information
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<PAGE>
furnished to the Company by any underwriter, sales agent, Holder or
Participating Broker-Dealer specifically for use therein.
(c) The issuance and sale of the Registrable Preferred Stock did not
and will not, and the execution, delivery and performance of this Agreement and
the consummation of the trans actions herein contemplated will not, result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation, order or policy of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, the Credit Agreements as defined in the Purchase Agreement or any
other agreement or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or to which the
Company or any such subsidiary has agreed to become bound, or to which any of
the properties of the Company or any such subsidiary is subject, or the charter
or by-laws (or other constituent document) of the Company or any such
subsidiary.
11. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Preferred Stock in this
Agreement or otherwise conflicts with the provisions hereof. The Company has not
entered and will not enter into any agreement with respect to any of its
securities that will grant to any Person piggyback registration rights with
respect to a Registration Statement.
(b) Adjustments Affecting Registrable Preferred Stock. The Company
shall not, directly or indirectly, take any action with respect to the
Registrable Preferred Stock as a class that would adversely affect the ability
of the Holders of Registrable Preferred Stock to include such Registrable
Preferred Stock in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and (A) the Holders of not less than a majority of shares
of the then outstanding Registrable Preferred Stock and (B) in circumstances
that would adversely affect the
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<PAGE>
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority of shares of the Exchange Preferred Stock held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
11(c) may not be amended, modified or supplemented without the prior written
consent of the Company and each Holder and each Participating Broker-Dealer
(including any person who was a Holder or Participating Broker-Dealer of
Registrable Preferred Stock or Exchange Preferred Stock, as the case may be,
disposed of pursuant to any Registration Statement). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Preferred Stock whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Registrable Preferred Stock may be
given by Holders of at least a majority of shares of the Registrable Preferred
Stock being sold by such Holders pursuant to such Registration Statement;
provided, however, that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand- delivery, registered
first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Preferred Stock or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, on the stock books of the
Company with a copy in like manner to the Initial Purchasers as follows:
CREDIT SUISSE FIRST BOSTON CORPORATION,
BT SECURITIES CORPORATION,
ALEX. BROWN & SONS INCORPORATED,
MORGAN STANLEY & CO. INCORPORATED
SMITH BARNEY INC.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Facsimile No: (212) 325-8278
Attention: Investment Banking Department
Transactions Advisory Group
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<PAGE>
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Facsimile No: (212) 558-3588
Attention: John T. Bostelman, Esq.
(2) if to the Initial Purchasers, at the addresses specified in Section
11(d)(1);
(3) if to the Company, at the addresses as follows:
American Radio Systems Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
Facsimile No: (617) 375-7575
Attention: Steven B. Dodge
with copies to:
Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109
Facsimile No: (617) 338-2800
Attention: Norman Bikales, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Preferred Stock.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate
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<PAGE>
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of shares of
Registrable Preferred Stock is required hereunder, shares of Registrable
Preferred Stock held by the Company or its affiliates (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(k) Third Party Beneficiaries. Holders of Registrable Preferred Stock
and Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Certificate of Designation, is
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<PAGE>
intended by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Initial Purchasers on the one hand and
the Company on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN RADIO SYSTEMS CORPORATION
By: ____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: ____________________________
Name:
Title:
BT SECURITIES CORPORATION
By: ____________________________
Name:
Title:
ALEX. BROWN & SONS INCORPORATED
By: ____________________________
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By: ____________________________
Name:
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<PAGE>
Title:
SMITH BARNEY INC.
By: ____________________________
Name:
Title:
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<PAGE>
TABLE OF CONTENTS
Page
1. Definitions....................................................... 1
2. Exchange Offer.................................................... 5
3. Shelf Registration................................................ 8
4. Additional Dividends.............................................. 9
5. Registration Procedures........................................... 10
6. Registration Expenses............................................. 20
7. Indemnification................................................... 21
8. Rules 144 and 144A................................................ 24
9. Underwritten Registrations........................................ 25
10. Representations and Warranties.................................... 25
11. Miscellaneous..................................................... 27
(a) No Inconsistent Agreements............................... 27
(b) Adjustments Affecting Registrable Preferred Stock........ 27
(c) Amendments and Waivers................................... 27
(d) Notices.................................................. 28
(e) Successors and Assigns................................... 29
(f) Counterparts............................................. 29
(g) Headings................................................. 29
(h) Governing Law............................................ 29
(i) Severability............................................. 29
(j) Securities Held by the Company or Its Affiliates......... 30
(k) Third Party Beneficiaries................................ 30
(l) Entire Agreement......................................... 30
-i-
Exhibit 99.7
AMERICAN RADIO SYSTEMS CORPORATION
Issuer
FLEET NATIONAL BANK
Trustee
----------------
Indenture
Dated as of January 30, 1997
----------------
$200,000,000
11 3/8% Subordinated Exchange Debentures due 2009
<PAGE>
American Radio Systems Corporation
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of January 30, 1997
Trust Indenture Indenture
Act Section Section
ss. 310(a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
ss. 311(a) ............................... 613
(b) ............................... 613
ss. 312(a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
ss. 313(a) ............................... 703(a)
(b) ............................... 703(a)
(c) ............................... 703(a)
703(b)
(d) ............................... 703(b)
ss. 314(a) ............................... 704
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
ss. 315(a) ............................... 601
603
(b) ............................... 602
(c) ............................... 601
(d) ............................... 601
(d)(1) ............................... 601
(d)(2) ............................... 601
-i-
<PAGE>
Trust Indenture Indenture
Act Section Section
ss. 316(a)(1)(A)............................... 512
(a)(1)(B)............................... 513
(a)(2) ............................... Not
Applicable
(b) ............................... 508
ss. 317(a)(1) ............................... 503
(a)(2) ............................... 504
(b) ............................... 1003
ss. 318(a) ............................... 107
- --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
-ii-
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY................................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application....... .............. 1
SECTION 101. Definitions.................................................. 1
Acquired Debt............................................ 2
Act ................................................ 2
Affiliate................................................ 2
American 9% Notes..........................................3
Asset Sale............................................... 3
Asset Swap............................................... 3
Authenticating Agent..................................... 3
Bankruptcy Code.......................................... 3
blockage period.......................................... 3
Board of Directors....................................... 3
Board Resolution......................................... 3
Broadcast Assets......................................... 4
Broadcast License........................................ 4
Business Day............................................. 4
Capital Lease Obligation................................. 4
Capital Stock............................................ 4
Cash Equivalents......................................... 4
Change of Control........................................ 5
Commission............................................... 5
Common Stock............................................. 5
Company ................................................ 6
Company Request; Company Order........................... 6
Consolidated Interest Expense............................ 6
Continuing Director...................................... 6
Convertible Exchange Debentures............................6
Corporate Trust Office................................... 6
corporation.............................................. 7
Credit Agreements........................................ 7
Debt to EBITDA Ratio..................................... 7
Default ................................................ 8
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Page
Defaulted Interest....................................... 8
Designated Senior Debt................................... 8
Disposition.............................................. 8
Disqualified Stock....................................... 8
EBITDA ................................................ 8
Equity Interests......................................... 10
Event of Default......................................... 10
Excess Proceeds.......................................... 10
Exchange Act............................................. 10
Exchangeable Preferred Stock..............................10
Existing Indebtedness.................................... 10
Existing Investments......................................10
Expiration Date.......................................... 10
EZ Notes..................................................10
Fair Market Value........................................ 10
FCC ................................................ 11
GAAP ................................................ 11
guarantee................................................ 11
Hedging Obligations...................................... 11
Holder ................................................ 11
Immediate Family Member.................................. 11
incur ................................................ 12
Indebtedness............................................. 12
Indenture................................................ 12
Interest Payment Date.................................... 12
Investments.............................................. 12
Issue Date............................................... 12
Lien ................................................ 12
Maturity ................................................ 13
Maximum Aggregate Principal Amount........................13
Net Excess Proceeds...................................... 13
Net Proceeds............................................. 13
Obligations.............................................. 14
Offer ................................................ 14
Offer to Purchase........................................ 14
Officers' Certificate.................................... 16
Opinion of Counsel....................................... 17
Outstanding.............................................. 17
pari passu............................................... 18
Paying Agent............................................. 18
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Page
Permitted Investment..................................... 18
Permitted Liens.......................................... 19
Permitted Sponsored Investee Indebtedness................ 21
Person ................................................ 21
Predecessor Security..................................... 21
Preferred Stock Issue Date................................21
Principal Shareholders................................... 21
Proceeding............................................... 22
Public or 144A Equity Offering........................... 22
Purchase Amount.......................................... 22
Purchase Date............................................ 22
Purchase Money Indebtedness.............................. 22
Purchase Price........................................... 22
Radio Data................................................22
Redemption Date.......................................... 22
Redemption Price......................................... 22
Refinancing Indebtedness................................. 22
Regular Record Date...................................... 23
Related Party............................................ 23
Responsible Officer...................................... 23
Restricted Payments...................................... 23
Restricted Subsidiary.................................... 23
Secondary Securities......................................23
Securities............................................... 23
Securities Payment....................................... 23
Security Register; Security Registrar.................... 23
Senior Bank Debt......................................... 23
Senior Debt.............................................. 24
Senior Nonmonetary Default............................... 25
Senior Payment Default................................... 25
Significant Subsidiary................................... 25
Special Record Date...................................... 25
Sponsored Investee....................................... 25
Stated Maturity.......................................... 27
Subsidiary............................................... 27
Surviving Person......................................... 27
Tower ................................................ 27
Tower Parent..............................................27
Trustee ................................................ 27
Trust Indenture Act...................................... 27
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Page
Unrestricted Subsidiary.................................. 28
Unrestricted Subsidiary Indebtedness..................... 28
U.S. Government Obligations.............................. 29
Vice President........................................... 29
Weighted Average Life to Maturity........................ 29
Wholly Owned Restricted Subsidiary....................... 29
SECTION 102. Compliance Certificates and Opinions......................... 29
SECTION 103. Form of Documents Delivered to Trustee....................... 30
SECTION 104. Acts of Holders; Record Date................................. 31
SECTION 105. Notices, Etc., to Trustee and Company........................ 32
SECTION 106. Notice to Holders; Waiver.................................... 33
SECTION 107. Conflict with Trust Indenture Act............................ 33
SECTION 108. Effect of Headings and Table of Contents..................... 34
SECTION 109. Successors and Assigns....................................... 34
SECTION 110. Separability Clause.......................................... 34
SECTION 111. Benefits of Indenture........................................ 34
SECTION 112. Governing Law................................................ 34
SECTION 113. Legal Holidays............................................... 34
SECTION 114. Counterparts and Duplicate Originals......................... 35
ARTICLE TWO
Security Forms........................... 35
SECTION 201. Forms Generally.............................................. 35
SECTION 202. Form of Face of Security..................................... 36
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Page
SECTION 203. Form of Reverse of Security.................................. 38
SECTION 204. Form of Trustee's Certificate of
Authentication................................................ 42
ARTICLE THREE
The Securities.................................. 42
SECTION 301. Title and Terms.............................................. 42
SECTION 302. Denominations................................................ 44
SECTION 303. Execution, Authentication, Delivery
and Dating.................................................... 44
SECTION 304. Temporary Securities......................................... 45
SECTION 305. Registration, Registration of Transfer
and Exchange......................................... 46
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities............................................. 47
SECTION 307. Payment of Interest; Interest
Rights Preserved.............................................. 48
SECTION 308. Persons Deemed Owners........................................ 50
SECTION 309. Cancellation................................................. 50
SECTION 310. Computation of Interest...................................... 50
ARTICLE FOUR
Satisfaction and Discharge..................... 51
SECTION 401. Satisfaction and Discharge of Indenture...................... 51
SECTION 402. Application of Trust Money................................... 52
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Page
ARTICLE FIVE
Remedies............................... 53
SECTION 501. Events of Default............................................ 53
SECTION 502. Acceleration of Maturity; Rescission
and Annulment................................................. 56
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.................................... 57
SECTION 504. Trustee May File Proofs of Claim............................. 58
SECTION 505. Trustee May Enforce Claims
Without Possession of Securities.............................. 59
SECTION 506. Application of Money Collected............................... 59
SECTION 507. Limitation on Suits.......................................... 60
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest...................................................... 61
SECTION 509. Restoration of Rights and Remedies........................... 61
SECTION 510. Rights and Remedies Cumulative............................... 61
SECTION 511. Delay or Omission Not Waiver................................. 62
SECTION 512. Control by Holders........................................... 62
SECTION 513. Waiver of Past Defaults...................................... 62
SECTION 514. Undertaking for Costs........................................ 63
SECTION 515. Waiver of Stay or Extension Laws............................. 63
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Page
ARTICLE SIX
The Trustee........................... 64
SECTION 601. Certain Duties and Responsibilities.......................... 64
SECTION 602. Notice of Defaults........................................... 64
SECTION 603. Certain Rights of Trustee.................................... 64
SECTION 604. Not Responsible for Recitals
or Issuance of Securities..................................... 66
SECTION 605. May Hold Securities.......................................... 66
SECTION 606. Money Held in Trust.......................................... 66
SECTION 607. Compensation and Reimbursement............................... 66
SECTION 608. Disqualification; Conflicting Interests...................... 67
SECTION 609. Corporate Trustee Required; Eligibility...................... 67
SECTION 610. Resignation and Removal;
Appointment of Successor...................................... 68
SECTION 611. Acceptance of Appointment by Successor....................... 69
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business..................................... 70
SECTION 613. Preferential Collection
of Claims Against Company..................................... 70
SECTION 614. Appointment of Authenticating Agent.......................... 70
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company.............. 73
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Page
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders................................ 73
SECTION 702. Preservation of Information;
Communications to Holders..................................... 73
SECTION 703. Reports by Trustee........................................... 74
SECTION 704. Reports by Company........................................... 74
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease................ 74
SECTION 801. Limitation on Merger, Consolidation
and Sale of Assets............................................ 74
SECTION 802. Successor Substituted........................................ 75
ARTICLE NINE
Supplemental Indentures....................... 75
SECTION 901. Supplemental Indentures
Without Consent of Holders.................................... 75
SECTION 902. Supplemental Indentures
with Consent of Holders....................................... 76
SECTION 903. Execution of Supplemental Indentures......................... 78
SECTION 904. Effect of Supplemental Indentures............................ 78
SECTION 905. Conformity with Trust Indenture Act.......................... 78
SECTION 906. Reference in Securities
to Supplemental Indentures.................................... 78
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Page
ARTICLE TEN
Covenants............................... 79
SECTION 1001. Payment of Principal, Premium and
Interest................................................. 79
SECTION 1002. Maintenance of Office or Agency............................. 79
SECTION 1003. Money for Security
Payments to be Held in Trust............................. 80
SECTION 1004. Existence................................................... 81
SECTION 1005. Maintenance of Properties................................... 82
SECTION 1006. Payment of Taxes and Other Claims........................... 82
SECTION 1007. Maintenance of Insurance.................................... 82
SECTION 1008. Limitation on Certain Asset Sales........................... 83
SECTION 1009. Limitation on Asset Swaps................................... 84
SECTION 1010. Limitation on Restricted Payments........................... 85
SECTION 1011. Limitation on Incurrence of Indebtedness
and Issuance of Preferred Stock................. 88
SECTION 1012. Limitation on Liens......................................... 90
SECTION 1013. Limitation on Restricted Subsidiary
Equity Interests................................ 90
SECTION 1014. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries.................................... 90
SECTION 1015. Transactions with Affiliates................................ 92
SECTION 1016. Provision of Financial Information.......................... 93
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Page
SECTION 1017. Change of Control........................................... 94
SECTION 1018. Statement by Officers as to Default;
Compliance Certificates.................................. 94
SECTION 1019. Waiver of Certain Covenants................................. 95
ARTICLE ELEVEN
Redemption of Securities........................ 95
SECTION 1101. Right of Redemption......................................... 95
SECTION 1102. Applicability of Article.................................... 96
SECTION 1103. Election to Redeem; Notice to Trustee....................... 96
SECTION 1104. Selection by Trustee of Securities to Be
Redeemed................................................. 96
SECTION 1105. Notice of Redemption........................................ 97
SECTION 1106. Deposit of Redemption Price................................. 97
SECTION 1107. Securities Payable on Redemption Date....................... 98
SECTION 1108. Securities Redeemed in Part................................. 98
ARTICLE TWELVE
Subordination of Securities...................... 99
SECTION 1201. Securities Subordinate to Senior Debt....................... 99
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc........................................... 99
SECTION 1203. No Payment When Senior Debt in
Default..................................................101
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Page
SECTION 1204. Payment Permitted If No Default............................. 103
SECTION 1205. Subrogation to Rights of Holders of
Senior Debt................................................. 103
SECTION 1206. Provisions Solely to Define Relative
Rights...................................................... 103
SECTION 1207. Trustee to Effectuate Subordination......................... 104
SECTION 1208. No Waiver of Subordination Provisions....................... 104
SECTION 1209. Notice to Trustee........................................... 105
SECTION 1210. Reliance on Judicial Order or
Certificate of Liquidating Agent............................ 106
SECTION 1211. Trustee Not Fiduciary for Holders of
Senior Debt................................................. 106
SECTION 1212. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights................... 106
SECTION 1213. Article Applicable to Paying Agents......................... 107
SECTION 1214. Defeasance of this Article Twelve........................... 107
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance................. 107
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance...................................... 107
SECTION 1302. Defeasance and Discharge.................................... 108
SECTION 1303. Covenant Defeasance......................................... 108
SECTION 1304. Conditions to Defeasance or
Covenant Defeasance............................. 109
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions............................ 111
SECTION 1306. Reinstatement............................................... 112
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<PAGE>
INDENTURE, dated as of January 30, 1997 between AMERICAN RADIO SYSTEMS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company") and having its principal office
at 116 Huntington Avenue, Boston, Massachusetts 02116, and Fleet National Bank,
a national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 11 3/8%
Subordinated Exchange Debentures due 2009 of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obliga tions of the Company, and to make this Indenture a
valid agreement of the Company in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and propor tionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE>
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (whether or not such
is indicated herein), and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" or "GAAP"
with respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted as
consistently applied by the Company at the Preferred Stock Issue Date;
(4) unless otherwise specifically set forth herein, all
calculations or determina tions of a Person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Acquired Debt" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person merges
with or into, or becomes a Subsidiary of, such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such
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<PAGE>
other Person merging with or into, or becoming a Subsidiary of, such specified
Person.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control of" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") any Person means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"American 9% Notes" means the 9% Senior Subordinated Notes due 2006
issued pursuant to the Indenture, dated as of February 1, 1996, among the
Company, the subsidiary guarantor named therein and Fleet National Bank, as
Trustee, as such Indenture has been and may be amended or supplemented.
"Asset Sale" has the meaning specified in Section 1008.
"Asset Swap" means the execution of a definitive agreement, subject
only to FCC approval, expiration or earlier termination of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 waiting period to the extent applicable and
other customary closing conditions, that the Company in good faith believes will
be satisfied, for a substantially concurrent purchase and sale, or exchange, of
Broadcast Assets between the Company or any of its Restricted Subsidiaries and
another Person or group of Affiliated Persons; provided that any amendment to or
waiver of any closing condition which individually or in the aggregate is
material to the Asset Swap shall be deemed to be a new Asset Swap.
-3-
<PAGE>
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Bankruptcy Code" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"blockage period" has the meaning specified in Section 1203.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Broadcast Assets" means assets used or useful in the ownership or
operation of an AM or FM radio station.
"Broadcast License" means an authorization issued by the FCC for the
operation of an AM or FM radio station.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means, at any time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on the balance sheet in
accordance with GAAP.
-4-
<PAGE>
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of any association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) or
capital stock and (iii) in the case of a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of less
than one year from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of less than one year from the date of
acquisition, bankers' acceptances with maturities of less than one year and
overnight bank deposits, in each case with any lender party to either of the
Credit Agreements or with any domestic commercial bank having capital and
surplus in excess of $500,000,000 and a Keefe Bank Watch Rating of "B" or
better, (iv) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iii) entered
into with any financial institution meeting the qualifications specified in
clause (iii) above and (v) commercial paper having the highest rating obtainable
from Moody's Investors Service, Inc. or Standard & Poor's Ratings Services, a
division of the McGraw-Hill Companies, Inc., and in each case maturing within
nine months after the date of acquisition.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the Company's assets to
any Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) (other than the Principal Shareholders or their Related
Parties),
-5-
<PAGE>
(ii) the adoption of a plan relating to the liquidation or dissolution
of the Company,
(iii) the acquisition, directly or indirectly, by any Person or group
(as such term is used in Section 13(d)(3) of the Exchange Act) (other
than one or more of the Principal Shareholders and their Related
Parties) of 40% or more of the voting power of the voting stock of the
Company by way of merger or consolidation or otherwise, provided that
such acquisition will not constitute a "Change of Control" unless or
until such Person or group owns, directly or indirectly, more of the
voting power of the voting stock of the Company than the Principal
Shareholders and their Related Parties, or
(iv) the Continuing Directors cease for any reason to constitute a
majority of the directors of the Company then in office.
For purposes of this definition, any transfer of an Equity Interest of
an entity that was formed for the purpose of acquiring voting stock of the
Company shall be deemed to be a transfer of such portion of such voting stock as
corresponds to the portion of the equity of such entity that has been so
transferred.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
-6-
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, a Chief Operating Officer, a Vice President,
or its Chief Financial Officer, and, without duplication, by its Treasurer, an
Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Interest Expense" means, without duplication, with
respect to any period, the sum of (i) the interest expense and all capitalized
interest of the Company and its Restricted Subsidiaries for such period, on a
consolidated basis, including, without limitation, (a) amortization of debt
discount, (b) the net cost under interest rate contracts (including amortization
of debt discount), (c) the interest portion of any deferred payment obligation
and (d) accrued interest, plus (ii) the interest component of any Capital Lease
Obligation paid or accrued or scheduled to be paid or accrued by the Company
during such period, determined on a consolidated basis in accordance with GAAP.
"Continuing Director" means any member of the Board of Directors of the
Company who (i) is a member of that Board of Directors on the Preferred Stock
Issue Date or (ii) was nominated for election by either (a) one or more of the
Principal Shareholders (or a Related Party thereof) or (b) the Board of
Directors a majority of whom were directors at the Preferred Stock Issue Date or
whose election or nomination for election was previously approved by one or more
of the Principal Shareholders or such directors.
"Convertible Exchange Debentures" means the 7% Convertible Subordinated
Debentures Due 2011 issued pursuant to the Indenture, dated as of June 25, 1996,
between the
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<PAGE>
Company and Bank of Montreal Trust Company, as such Indenture may be amended or
supplemented.
"Corporate Trust Office" means the principal office of the Trustee
located at 777 Main Street, CT/MO/0238, Hartford, CT 06115 and its office
located at 14 Wall Street, New York, N.Y. 10005 in the Borough of Manhattan, The
City of New York at which at any particular time its corporate trust business
shall be administered.
"corporation" means a corporation, association, company, limited
liability company, joint-stock company, partnership or business trust.
"Credit Agreements" means both the $550,000,000 Credit Agreement and
the $350,000,000 Credit Agreement, each dated as of January 24, 1997, among the
Company, The Bank of New York, as collateral agent and administrative agent, the
co- syndication agents, managing agents, the agent and the co- agents parties
thereto and the lenders named therein, including in each case (i) any related
notes, guarantees (including guarantees by the Company's Subsidiaries),
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time, and (ii) any notes, guarantees (including
guarantees by the Company's Subsidiaries), collateral documents, instruments and
agreements executed in connection with any such amendment, modification,
renewal, refunding, replacement or refinancing.
"Debt to EBITDA Ratio" means, with respect to any date, the ratio of
(a) the aggregate principal amount of all outstanding Indebtedness (excluding
Hedging Obligations, including interest rate swap obligations, that are incurred
in the ordinary course of business for the purpose of fixing or hedging interest
rate risk with respect to any floating rate Indebtedness that is permitted by
the terms of this Indenture to be outstanding) of the Company and its Restricted
Subsidiaries as of such date on a consolidated basis, plus the aggregate
liquidation preference or redemption amount of all outstanding Disqualified
Stock of
-8-
<PAGE>
the Company and its Restricted Subsidiaries as of such date (excluding any such
Disqualified Stock held by the Company or a Wholly Owned Restricted Subsidiary),
to (b) EBITDA of the Company and its Restricted Subsidiaries on a consolidated
basis for the four most recent full fiscal quarters ending immediately prior to
such date, determined on a pro forma basis after giving effect to each
acquisition or disposition of assets made by the Company and its Restricted
Subsidiaries from the beginning of such four-quarter period through such date as
if such acquisition or disposition had occurred at the beginning of such
four-quarter period.
"Default" means any event that is, or after the giving of notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Designated Senior Debt" means (i) the Senior Bank Debt, and (ii) any
other Senior Debt of the Company permitted under this Indenture, the principal
amount of which is $25,000,000 or more at the time of designation by the Company
in a written instrument delivered to the Trustee.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than upon a Change of Control of the
Company in circumstances where the holders of the Securities would
-9-
<PAGE>
have similar rights), in whole or in part on or prior to one year after the
Stated Maturity of the Securities. The amount of Disqualified Stock shall be the
greater of the liquidation preference or mandatory or optional redemption price
thereof.
"EBITDA" of a specified Person means, for any period, the consolidated
net income of such specified Person and its Restricted Subsidiaries for such
period:
(i) plus (without duplication and to the extent involved in computing
such consolidated net income) (a) interest expense, (b) provision for
income taxes, (c) depreciation and amortization and other non-cash
charges (including amortization of goodwill and other intangibles and
barter expenses), (d) EBITDA of Sponsored Investees (where such Person
is the Company), and (e) local marketing agreement expenses; and
(ii) minus (without duplication and to the extent involved in computing
such consolidated net income) (a) any gains (or plus losses), together
with any related provision for taxes on such gains or losses, realized
in connection with any sale of assets (including, without limitation,
dispositions pursuant to sale and leaseback transactions), (b) any
non-cash or extraordinary gains (or plus losses), together with any
related provision for taxes on such extraordinary gains or losses, (c)
the amount of any cash payments related to non-cash charges that were
added back in determining EBITDA in any prior period, (d) barter
revenues, and (e) interest attributable to Indebtedness of Sponsored
Investees (where such Person is the Company) that is owed to the
Company or a Restricted Subsidiary, together with any taxes
attributable thereto;
provided that:
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<PAGE>
(i) the net income of any other Person (other than a Sponsored
Investee) that is accounted for by the equity method of accounting
shall be included only to the extent of the amount of dividends or
distributions paid in cash to such specified Person whose EBITDA is
being determined or a Wholly Owned Restricted Subsidiary thereof;
(ii) the net income of any other Person that is a Restricted Subsidiary
(other than a Wholly Owned Restricted Subsidiary) or is an Unrestricted
Subsidiary shall be included only to the extent of the amount of
dividends or distributions paid in cash to such specified Person whose
EBITDA is being determined or a Wholly Owned Restricted Subsidiary
thereof;
(iii) the net income (loss) of any other Person acquired after the
Preferred Stock Issue Date in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded (to
the extent otherwise included); and
(iv) gains or losses from sales of assets other than sales of assets
acquired and held for resale in the ordinary course of business shall
be excluded (to the extent otherwise included).
All of the foregoing will be determined in accordance with GAAP.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (including any Indebtedness or
Disqualified Stock that is convertible into, or exchangeable for, Capital
Stock).
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1008.
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"Exchange Act" means the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Exchangeable Preferred Stock" means the Company's 11 3/8% Cumulative
Exchangeable Preferred Stock, par value $.01 per share, or shares of the
Company's preferred stock of any other class or series issued in exchange
therefor.
"Existing Indebtedness" means any outstanding Indebtedness of the
Company and its Restricted Subsidiaries as of the Issue Date or which thereafter
becomes Indebtedness of the Company or any of its Restricted Subsidiaries as a
result of the merger of EZ Communications, Inc. into the Company and which was
outstanding Indebtedness of EZ Communications, Inc. or its Subsidiaries on the
Issue Date.
"Existing Investments" means any Investments of the Company and its
Restricted Subsidiaries (other than Investments in Unrestricted Subsidiaries) as
of the Preferred Stock Issue Date or which thereafter becomes an Investment of
the Company or any of its Restricted Subsidiaries as a result of the merger of
EZ Communications, Inc. into the Company, and was an Investment of EZ
Communications, Inc. or its Subsidiaries on the Preferred Stock Issue Date.
"Expiration Date" has the meaning specified in the definition of Offer
to Purchase.
"EZ Notes" means the 9 3/4% Senior Subordinated Notes Due 2005 issued
pursuant to the Indenture, dated as of November 21, 1995, between State Street
Bank and Trust Company, as Trustee, and EZ Communications, Inc., as such
Indenture has been and may be amended or supplemented, and as assumed by the
Company in connection with the merger of EZ Communications, Inc. into the
Company.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's- length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing
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buyer under no compulsion to buy. All determinations of Fair Market Value shall
be made by the Board of Directors of the Company and shall be evidenced by a
resolution of such Board set forth in an Officers' Certificate delivered to the
Trustee, upon which the Trustee may conclusively rely.
"FCC" means the Federal Communications Commission, as from time to time
constituted, created under the Federal Communications Act of 1934, or, if at any
time after the execution of this Indenture, the FCC is not existing and
performing the duties now assigned to it under such act, then the body
performing such duties at such time.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Preferred Stock Issue Date.
"guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection or deposit in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Immediate Family Member" means, with respect to any individual, such
individual's spouse (past or current),
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descendants (natural or adoptive, of the whole or half blood) of the parents of
such individual, such individual's grandparents and parents (natural or
adoptive), and the grandparents, parents and descendants of parents (natural or
adoptive, of the whole or half blood) of such individual's spouse (past or
current).
"incur" means, with respect to any obligation of any Person, to create,
issue, incur, assume or directly or indirectly guarantee or in any other manner
become directly or indirectly liable for any Indebtedness (and "incurrence",
"incurred", "incurrable" and "incurring" shall have meanings correlative to the
foregoing).
"Indebtedness" means, with respect to any Person, whether or not
contingent, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices) or which is evidenced by a note, bond,
debenture or similar instrument, (ii) all Capital Lease Obligations of such
Person, (iii) all obligations of such Person in respect of letters of credit or
bankers' acceptances issued or created for the account of such Person, (iv) all
Hedging Obligations of such Person, (v) all liabilities secured by any Lien on
any property owned by such Person even if such Person has not assumed or
otherwise become liable for the payment thereof to the extent of the value of
the property subject to such Lien, and (vi) to the extent not otherwise
included, any guarantee by such person of any other Person's indebtedness or
other obligations described in clauses (i) through (v) above.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the Securities.
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"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates of such Person) in the form
of loans, guarantees, advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities of any other Person and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Issue Date" means the date of initial issuance of the Securities in
exchange for Exchangeable Preferred Stock pursuant to this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in any asset and any filing of, or agreement to give, any financing
statement under the "Uniform Commercial Code" (or equivalent statutes) of any
jurisdiction).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of accel
eration, call for redemption or otherwise.
"Maximum Aggregate Principal Amount" has the meaning set forth in
Section 301.
"Net Excess Proceeds" has the meaning set forth in Section 1008.
"Net Proceeds" means, with respect to any Asset Sale by any Person, the
aggregate cash proceeds received by such Person in respect of such Asset Sale,
which amount is equal to the excess, if any, of:
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(i) the cash received by such Person (including any cash payments
received by way of deferred payment pursuant to, or monetization of, a
note or installment receivable or otherwise, but only as and when
received) in connection with such Asset Sale, over
(ii) the sum of
(a) the amount of any Indebtedness including any premium
thereon and fees and expenses associated therewith which is
required to be repaid by such Person in connection with such
Asset Sale, plus (b) the out-of-pocket expenses (1) incurred
by such Person in connection with such Asset Sale, and (2) if
such Person is a Restricted Subsidiary, incurred in connection
with the transfer of such amount to the parent company or
entity of such Person, plus
(c) provision for taxes, including income taxes, attributable
to the Asset Sale or attributable to required prepayments or
repayments of Indebtedness with the proceeds of such Asset
Sale, plus
(d) a reasonable reserve for the after-tax cost of any
indemnification payments (fixed or contingent) attributable to
the seller's indemnities to the purchaser in respect of such
Asset Sale undertaken by the Company or any of its Restricted
Subsidiaries in connection with such Asset Sale.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
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"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer to Purchase" means a written offer ("Offer") to each Holder at
such holder's address appearing in the Security Register on the date of the
Offer, offering to purchase in cash up to the principal amount of Securities
specified in such Offer at a purchase price equal to 101% of the principal
amount of the Securities plus accrued and unpaid interest, if any. Unless
otherwise required by applicable law, the Offer shall specify an expiration date
("Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date ("Purchase Date") for
purchase of Securities within five Business Days after the Expiration Date. The
Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be sent
by first class mail by the Company or, at the Company's request and expense, by
the Trustee in the name and at the expense of the Company. The Offer shall
contain information concerning the business of the Company and its Subsidiaries
which the Company in good faith believes will enable such Holders to make an
informed decision with respect to the Offer to Purchase (which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to Section 1016 (which requirements may be satisfied by delivery of
such documents together with the Offer), (ii) a description of material
developments in the Company's business subsequent to the date of the latest of
such financial statements referred to in Clause (i) (including a description of
the events requiring the Company to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information concerning the Offer to
Purchase and the events requiring the Company to make the Offer to Purchase and
(iv) any other information required by applicable law to be
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included therein. The Offer shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Offer to
Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Company (the "Purchase
Amount") pursuant to the Offer to Purchase (including, if less than
100%, the manner by which such has been determined pursuant to the
Section hereof requiring the Offer to Purchase);
(4) the purchase price to be paid by the Company (the
"Purchase Price") for each $1,000 aggregate principal amount of
Securities accepted for payment (as specified pursuant to this
Indenture);
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of Securities tendered must be tendered in an integral multiple of
$1,000 principal amount;
(6) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or
tendered but not purchased by the Company pursuant to
the Offer to Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment pursuant
to the Offer to Purchase and that interest thereon shall cease to
accrue on and after the Purchase Date;
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(9) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(10) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or the Paying Agent)
receives, not later than the close of business on the Expiration Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security that the
Holder tendered, the certificate number of the Security that the Holder
tendered and a statement that such Holder is withdraw ing all or a
portion of his tender;
(11) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (b) if Securities in an aggregate principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase
Securities having an aggregate principal amount equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
appropriate so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Security is
purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in an
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aggregate principal amount equal to and in exchange for the unpurchased
portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, President, a Chief Operating Officer, a
Vice President, or the Chief Financial Officer and, without duplication, by the
Treasurer, an Assistant Treasurer, Controller, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion, in form and substance
reasonably satisfactory to the Trustee, of counsel, who may be counsel for the
Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee pursuant
to a Company request or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Inden ture or provision therefor
satisfactory to the Trustee has been made; and
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(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstand ing, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"pari passu", or parity with, when used with respect to the ranking of
any Indebtedness of any Person in relation to other Indebtedness of such Person,
means that each such Indebtedness (a) either (i) is not subordinated in right of
payment to any other Indebtedness of such Person or (ii) is subordinate in right
of payment to the same Indebtedness of such Person as is the other and is so
subordinate to the same extent and (b) is not subordinate in right of payment to
the other or to any Indebtedness of such Person as to which the other is not so
subordinate.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Investment" means:
(i) any Investment in the Company or any Wholly Owned Restricted
Subsidiary;
(ii) any Investment in Cash Equivalents;
(iii) any Investment in a Person if, as a result of such Investment,
(a) such Person becomes a Wholly Owned Restricted Subsidiary of the
Company, or (b) such Person either (1) is merged, consolidated or
amalgamated with or into the Company or one of its Wholly Owned
Restricted Subsidiaries and the Company or such Wholly Owned Restricted
Subsidiary is the Surviving Person or the Surviving Person becomes a
Wholly Owned Restricted Subsidiary, or (2) transfers or conveys all or
substantially all of its assets to, or is liquidated into, the Company
or one of its Wholly Owned Restricted Subsidiaries;
(iv) any Investment in a Sponsored Investee as contemplated by clause
(ii) of the definition of "Sponsored Investee";
(v) any Investment in accounts and notes receivable acquired in the
ordinary course of business;
(vi) notes from employees issued to the Company representing payment of
the exercise price of options to purchase capital stock of the Company;
(vii) investments in Tower Parent and Tower (excluding Existing
Investments) aggregating up to $25,000,000 in cash and/or property made
within two years from the Preferred Stock Issue Date, provided that at
the time of and immediately after
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giving effect to each proposed Investment, (a) each of Tower Parent and
Tower is an Unrestricted Subsidiary, (b) no Default or Event of Default
shall have occurred and be continuing or would occur as a consequence
thereof and (c) the Debt to EBITDA Ratio of the Company and its
Restricted Subsidiaries is 7.0:1 or less;
(viii) Investments in Unrestricted Subsidiaries represented by shares
of Capital Stock (other than Disqualified Stock) of the Company or
assets and property acquired in exchange for Capital Stock (other than
Disqualified Stock) of the Company; and
(ix) any Existing Investment.
Any Investment in an Unrestricted Subsidiary shall not be a Permitted Investment
unless included in clauses (i) through (ix) above.
"Permitted Liens" means (i) Liens securing Senior Debt; (ii) Liens in
favor of the Company or any Restricted Subsidiary; (iii) Liens on property of a
Person existing at the time such Person is merged with or into or consolidated
with the Company or any Restricted Subsidiary, provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged with or into or
consolidated with the Company or any Restricted Subsidiary; (iv) Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary, provided that such Liens were in existence prior to the
contemplation of such acquisition; (v) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds, bids, tenders,
contracts (other than contracts for the payment of money) escrow deposits in
connection with permitted acquisitions, leases or other obligations of a like
nature incurred in the ordinary course of business; (vi) Liens existing on the
Issue Date; (vii) Liens for taxes, workers compensation, unemployment insurance,
social security obligations, assessments or governmental charges or claims that
are not yet delinquent
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or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (viii) Liens imposed by law, such as mechanics', carriers',
warehousemen's, materialmen's, and vendors' Liens, incurred in good faith in the
ordinary course of business with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings if a reserve or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made therefor; (ix) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property or minor irregularities
of title incident thereto that do not, in the aggregate, materially detract from
the value of the property or the assets of the Company or materially impair the
use of such property in the operation of the Company's business; (x) judgment
Liens to the extent that such judgments do not cause or constitute a Default or
an Event of Default; (xi) Liens to secure the payment of all or a part of the
purchase price of property or assets acquired or the construction costs of
property or assets constructed in the ordinary course of business on or after
the date of this Indenture, provided that (a) such property or assets are used
in the same or similar line of business as the Company was engaged in on the
date of this Indenture, (b) at the time of incurrence of any such Lien, the
aggregate principal amount of the obligations secured by such Lien does not
exceed the lesser of the cost or Fair Market Value of the assets or property (or
portions thereof) so acquired or constructed, (c) each such Lien encumbers only
the assets or property (or portions thereof) so acquired or constructed and
attaches to such assets or property within 120 days of the purchase or
construction thereof and (d) any Indebtedness secured by such Lien is permitted
to be incurred under Section 1011; (xii) to the extent deemed to create a Lien,
any negative pledge covenants contained in any Senior Debt; (xiii) Liens arising
in connection with any agreement or option to sell or otherwise dispose of any
assets of the Company or any Restricted Subsidiary not prohibited by the
provisions of this Indenture; and (xiv) Liens incurred in the ordinary
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course of business of the Company or any Restricted Subsidiary with respect to
obligations that do not exceed $500,000 at any one time outstanding and that (a)
are not incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of business)
and (b) do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of business by
the Company or such Restricted Subsidiary.
"Permitted Sponsored Investee Indebtedness" means Indebtedness of a
Sponsored Investee to a Person other than the Company or a Wholly Owned
Restricted Subsidiary, provided that:
(a) such Indebtedness ranks junior in right of payment to the
Investments of the Company and any Wholly Owned Restricted Subsidiary
in the Sponsored Investee;
(b) the net proceeds of such Indebtedness are utilized to reduce the
amount outstanding on the Company's or a Wholly Owned Restricted
Subsidiary's Investments in the Sponsored
Investee;
(c) the terms of such Indebtedness do not restrict the ability of the
Sponsored Investee to make any payments to the Company or a Wholly
Owned Restricted Subsidiary; and
(d) if such Sponsored Investee becomes a Restricted Subsidiary, such
Indebtedness is refinanced by the Company (and no longer outstanding to
such other Person) prior to or simultaneously with the Sponsored
Investee becoming a Restricted Subsidiary.
"Person" means any individual, corporation, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock Issue Date" means the date of original issuance of the
Exchangeable Preferred Stock.
"Principal Shareholders" means Steven B. Dodge and Thomas H. Stoner.
"Proceeding" has the meaning specified in Section 1202.
"Public or 144A Equity Offering" means an underwritten public offering,
or an exempt offering made on a firm commitment basis by initial purchasers the
substantial majority of which is contemplated to be resold by the initial
purchasers pursuant to Rule 144A under the Securities Act of 1933, as amended,
of Equity Interests (other than Indebtedness or Disqualified Stock) of a Person,
the net proceeds from which (after deducting any underwriting discounts and
commissions) exceeds $10,000,000.
"Purchase Amount" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Date" has the meaning specified in the definition of Offer to
Purchase.
"Purchase Money Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries incurred in connection with the purchase of property or
assets for the business of the Company and its Restricted Subsidiaries.
"Purchase Price" has the meaning specified in the definition of Offer
to Purchase.
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"Radio Data" means Radio Data Group, Inc. a Virginia corporation.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Refinancing Indebtedness" means (i) Indebtedness of the Company or any
Restricted Subsidiary incurred or given in exchange for, or the proceeds of
which are used to, extend, refinance, renew, replace, substitute, defease or
refund any other Indebtedness or Disqualified Stock incurred by the Company in
accordance with the terms of this Indenture, and (ii) Indebtedness of any
Restricted Subsidiary incurred or given in exchange for, or the proceeds of
which are used to, extend, refinance, renew, replace, substitute, defease or
refund any other Indebtedness or Disqualified Stock of the Company or any
Restricted Subsidiary in accordance with the terms of this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the January 1 or July 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Related Party" with respect to any Principal Shareholder means (i) any
80% (or more) owned Subsidiary or Immediate Family Member (in the case of an
individual) of such Principal Shareholder or (ii) any Person, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal Shareholder or an
Immediate Family Member, or (iii) any Person employed by the Company in a
management capacity as of the Preferred Stock Issue Date.
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"Responsible Officer", when used with respect to the Trustee, means the
president, any vice president, assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer or any other officer or employee of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Payments" has the meaning specified in Section 1010.
"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary.
"Secondary Securities" has the meaning specified in the form of
Security set forth in Section 202.
"Securities" means the securities designated in the first paragraph of
the RECITALS OF THE COMPANY.
"Securities Payment" has the meaning specified in Section 1202.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Bank Debt" means (i) the Indebtedness outstanding under either
of the Credit Agreements, provided that Senior Bank Debt under this clause (i)
shall not exceed the difference between (a) the sum of $750,000,000 plus the
aggregate principal amount (up to $150,000,000) of borrowings incurred under the
applicable Credit Agreement to finance the repurchase by the Company of EZ Notes
(the "EZ Note Amount") plus any borrowings and letters of credit under the
either of the Credit Agreements after the Preferred Stock Issue Date to the
extent that such borrowings or letters of credit at the time of incurrence or
issuance, as the case may be, resulted in combined
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Indebtedness under the Credit Agreements exceeding $750,000,000 plus the EZ Note
Amount and to the extent that such borrowings or letters of credit at the time
of incurrence or issuance, as the case may be, were permitted under Section 1011
and (b) the aggregate amount of Net Proceeds from Asset Sales applied to
permanently reduce borrowings under the Credit Agreements pursuant to Section
1008 and (ii) all Obligations incurred by or owing to the holders or their agent
or representatives of such Indebtedness outstanding under either of the Credit
Agreements (including, but not limited to, all fees and expenses of counsel and
all other interest, charges, fees and expenses).
"Senior Debt" means the principal of and interest (including
post-petition interest whether or not allowed as a claim) on, and all other
amounts owing in respect of, (a) Senior Bank Debt, (b) the American 9% Notes,
(c) the EZ Notes at such time as they become Indebtedness of the Company, (d)
the Convertible Exchange Debentures, unless otherwise designated by the Company
pursuant to the indenture under which they are issued, and (e) any other
Indebtedness permitted to be incurred by the Company under the terms of this
Indenture (including, but not limited to, reasonable fees and expenses of
counsel and all other charges, fees and expenses incurred in connection with
such Indebtedness), unless (i) the instrument creating or evidencing such
Indebtedness or pursuant to which such Indebtedness is outstanding expressly
provides that such Indebtedness is pari passu with or subordinated in right of
payment to the Securities or (ii) such Indebtedness is Acquired Debt that, after
taking into account the third paragraph of Section 1201 and this clause (ii), is
pari passu with the Securities.
Notwithstanding the foregoing, Senior Debt shall not include (v) any
Indebtedness that is represented by Disqualified Stock, (w) any liability for
federal, state, local, or other taxes, (x) any Indebtedness among or between the
Company, any Restricted Subsidiary or any of their Affiliates, (y) any trade
payables and any Indebtedness to trade creditors (other than amounts accrued
thereon)
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incurred for the purchase of goods or materials, or for services obtained, in
the ordinary course of business or any Obligations to trade creditors in respect
of any such Indebtedness, or (z) any Indebtedness (other than Senior Bank Debt)
that is incurred in violation of this Indenture.
"Senior Nonmonetary Default" has the meaning specified in Section 1203.
"Senior Payment Default" has the meaning specified in Section 1203.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as amended, as such
Regulation is in effect on the Preferred Stock Issue Date.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Sponsored Investee" means a Person:
(i) which owns or acquires Broadcast Assets (including a Broadcast
License);
(ii) which either (A) obtains substantially all of the funds required
for such acquisition (other than capital contributions from the
stockholders of such Person) and for the physical improvement of such
Broadcast Assets approved by the Company at the time of such
acquisition, from the proceeds of Investments by the Company in such
Person or (B) receives all or a portion of the purchase price for such
assets, in either case, in the form of Indebtedness bearing interest at
a rate of not less than the lesser of 10% per annum or the prime rate
plus 1% per annum;
(iii) in respect of which the Company has a right to acquire either (A)
all of such Person's Equity
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Interests outstanding on the acquisition date or (B) such Broadcast
Assets (including such Broadcast License), subject, in either case to
no conditions other than customary closing conditions, including
without limitation compliance with the rules and regulations of the FCC
relating to acquisitions of Broadcast Licenses and any Federal laws
restricting the number of Broadcast Licenses or share of a market which
any Person may own or control;
(iv) in which the Company has the right to share in not less than 75%
of the appreciation in value of the Broadcast Assets, subject to the
right of the stockholders of the Sponsored Investee to receive a return
on their capital contribution which is not greater than the annual
interest rate on the Indebtedness owed to the Company;
(v) which has agreed that it will not --
(a) incur or be liable for any Indebtedness, except for
Investments owned by the Company and Permitted Sponsored
Investee Indebtedness,
(b) make any Investments, except Investments of the type
mentioned in clauses (ii), (iv) and (v) of the definition of
Permitted Investments,
(c) declare or pay any dividend or other distribution on any
of its Equity Interests or purchase, redeem or otherwise
acquire or retire for value any of its Equity Interests, other
than Equity Interests owned by the Company or any Restricted
Subsidiary,
(d) sell, lease, convey or otherwise dispose of any assets
(including by way of a sale-and-leaseback) other than in
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the ordinary course of business or to the Company or any
Restricted Subsidiary, or
(e) permit to exist any Liens, except Permitted Liens or Liens
in favor of the Company or any Restricted Subsidiary;
(v) which has employed a general manager of each radio station owned by
such Person who has, in the reasonable opinion of the Company's Board
of Directors, experience commensurate with that which the Company would
expect of its radio station general managers; and
(vi) which has agreed that not less than 90% of the excess of its
cumulative cash flow from operations that exceeds $500,000 will be used
to meet its obligations on the Investments in it held by the Company or
to prepay such Investments, except such portion of its cash flow which
is used to purchase property, plant and equipment (a) in the ordinary
course of business and approved by the Company (to the extent permitted
by FCC regulations) or (b) pursuant to plans approved in writing by the
Company at the time the Person became a Sponsored Investee.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
inter est is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or
other business entity of which more than 50% of the total voting power of shares
of Equity Interests entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees or other
governing body thereof is at the time owned or controlled by such Person
(regardless of whether such Equity Interests are owned directly or through one
or
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more other Subsidiaries of such Person or a combination thereof).
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Tower" means American Tower Systems Inc., a Delaware corporation.
"Tower Parent" means American Tower Systems Holding Corporation, a
Delaware corporation.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means (i) Tower, (ii) Tower Parent, (iii)
Radio Data, (iv) American Merger Corporation, a Delaware company, (v) any
Subsidiary of the Company that at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors of the Company,
as provided below) and (vi) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary if all of the following conditions apply: (a) neither the Company nor
any of its Restricted Subsidiaries provides credit support for any Indebtedness
of such Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness), (b)
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such Subsidiary is not liable, directly or indirectly, with respect to any
Indebtedness other than Unrestricted Subsidiary Indebtedness, (c) such
Unrestricted Subsidiary is not a party to any agreement, contract, arrangement
or understanding at such time with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company (the "Third Party Value") or, in the event such
condition is not satisfied, an amount equal to the value of the portion of such
agreement, contract, arrangement or understanding to such Subsidiary in excess
of the Third Party Value shall be deemed a Restricted Payment, and (d) such
Unrestricted Subsidiary does not own any Capital Stock of any Subsidiary of the
Company that has not theretofore been or is not simultaneously being designated
an Unrestricted Subsidiary. Any such designation by the Board of Directors of
the Company shall be evidenced to the Trustee by filing with the Trustee a board
resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing conditions. The
Board of Directors of the Company may designate any Unrestricted Subsidiary as a
Restricted Subsidiary; provided that (i) immediately after giving effect to such
designation, the Company could incur $1.00 of additional Indebtedness pursuant
to the restrictions under Section 1011 and (ii) all Indebtedness of such
Unrestricted Subsidiary shall be deemed to be incurred on the date such
Subsidiary is designated a Restricted Subsidiary.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted Subsidiary
means Indebtedness of such Unrestricted Subsidiary (i) as to which neither the
Company nor any Restricted Subsidiary is directly or indirectly liable (by
virtue of the Company or any such Restricted Subsidiary being the primary
obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness) and (ii) which, upon the occurrence of a default with respect
thereto, does not result in, or permit any holder of any Indebtedness of the
Company or any Restricted Subsidiary to
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declare, a default on such Indebtedness of the Company or any Restricted
Subsidiary or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, with (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
all of the outstanding Equity Interests (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Company or a
Surviving Person of any Disposition involving the Company, as the case may be.
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act or as may be reasonably requested by the Trustee, upon which the
Trustee may conclusively rely without any obligation on its part to make any
further investigation. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the defini tions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condi tion has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be cer tified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representa tions with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially
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similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With
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regard to any record date, only the Holders on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the relevant
action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the registra
tion of transfer thereof or in exchange therefor or in lieu thereof in respect
of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company, at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Company and the
Trustee and at the Company's expense shall constitute a sufficient notification
for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt (subject to Article Twelve hereof) and the
Holders of Securities, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
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SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Purchase
Date or Stated Maturity, as the case may be.
SECTION 114. Counterparts and Duplicate Originals.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. In proving the existence of this Indenture it shall not be necessary
to produce more than one copy.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to
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comply with the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities as evidenced
by their execution of the Securities.
If so specified in a Company Order, Securities issued upon the initial
exchange of Exchangeable Preferred Stock for Securities shall be stamped or
otherwise imprinted with legends containing transfer restrictions comparable to
those on the shares of Exchangeable Preferred Stock so exchanged. The text of
any such legend shall be specified in such Company Order. Any Secondary
Securities issued in respect of Securities so legended shall be similarly
legended. Any such legend may be removed upon Company Order.
The definitive Securities shall be printed, litho graphed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
AMERICAN RADIO SYSTEMS CORPORATION
11 3/8% SUBORDINATED EXCHANGE DEBENTURE DUE 2009
Cusip No.
No. __________ $________
American Radio Systems Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of _____________________ Dollars on January 15, 2009
and to pay interest thereon from the date (the "Exchange Date") on which the
Securities are initially issued in exchange for
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shares of the Company's 11 3/8% Cumulative Exchangeable Preferred Stock, par
value $.01 per share (the "Exchangeable Preferred Stock"), or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on January 15 and July 15 in each year, commencing on the
first Interest Payment Date succeeding the Exchange Date, at the rate of 11 3/8%
per annum, until the principal hereof is paid or made available for payment,
and, to the extent permitted by law, at such rate plus 2% per annum on any
overdue principal and premium, if any, and on any overdue installment of
interest until paid. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the January 1 or July 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Notwithstanding anything herein to the contrary, on each Interest
Payment Date through and including January 15, 2002, the entire amount of the
interest payment on the Securities shall be paid, in the absence of an
instruction by the Company to pay such interest in cash, in additional
Securities ("Secondary Securities") (valued at 100% of the principal amount
thereof). The Company may, at its option, pay cash in lieu of issuing any
Secondary Security to the extent the principal amount such Secondary Security is
not
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an integral multiple of $1,000. On each such Interest Payment Date, the Trustee
shall authenticate Secondary Securities for original issuance to each Holder of
Securities on the preceding Regular Record Date, as shown on the Security
Register, in the amount required to pay such interest. For purposes of
determining the principal amount of Secondary Securities to be issued in payment
of interest, the Company shall be entitled to aggregate as to each Holder the
principal amount of all Securities and Secondary Securities held of record by
such Holder.
Payment of the principal of, and premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register and provided further, that such payments may be made, in the
case of a registered owner of greater than $1,000,000 aggregate principal amount
of Securities, by wire transfer to an account maintained by the payee with a
bank if such registered owner so elects by giving notice to the Trustee, not
less than 15 days (or such fewer days as the Trustee may accept at its
discretion) prior to the date of the payments to be obtained, of such election
and of the account to which payment is to be made.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instru ment to be duly
executed under its corporate seal.
Dated:
AMERICAN RADIO SYSTEMS
CORPORATION
[Seal]
By_______________________
Title:
Attest:
- ------------------------------
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 11 3/8% Subordinated Exchange Debentures Due 2009
(herein called the "Securities"), limited in aggregate principal amount to the
Maximum Aggregate Principal Amount (as defined in the Indenture) issued and to
be issued under an Indenture, dated as of January 15, 1997 (herein called the
"Indenture"), between the Company, and Fleet National Bank as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the holders of
Senior Debt and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption, at the option of the Company,
in whole or in part, at any time on or after January 15, 2002 and prior to
Maturity, upon not less than
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30 nor more than 60 days' notice mailed to each Holder of Securities to be
redeemed at such Holder's address appearing in the Security Register, in amounts
of $1,000 or an integral multiple of $1,000, at the following Redemption Prices
(expressed as percentages of principal amount) plus accrued interest, if any, to
but excluding the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date), if redeemed during the
12-month period beginning January 15 of the years indicated:
Redemption
Year Price
2002 105.688%
2003 104.550
2004 103.413
2005 102.275
2006 101.138
2007 and thereafter 100.000
Notwithstanding the foregoing, at any time prior to January 15, 2000,
the Company may redeem up to 35% of the outstanding Securities from the net
proceeds received from a Public or 144A Equity Offering by it, in cash, within
75 days of any such sale upon not less than 30 nor more than 60 days' notice
mailed to each Holder of Securities to be redeemed at such Holder's address
appearing in the Security Register, in amounts of $1,000, or any integral
multiple of $1,000 at a Redemption Price equal to 111.375% of the principal
amount thereof, plus, in each case, accrued and unpaid interest, if any, to the
Redemption Date; provided that at least $130,000,000 principal amount of
Securities remain outstanding immediately after the occurrence of any such
redemption.
The Securities do not have the benefit of any sinking fund obligations.
The Indenture provides that, subject to certain conditions, if (i)
certain Excess Proceeds are available to
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the Company as a result of an Asset Sale or (ii) a Change of Control occurs, the
Company shall be required to make an Offer to Purchase for Outstanding
Securities.
In the event of the redemption of or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the extent set forth
in the Indenture, subordinate and subject in right of payment to the prior
payment in full in cash or Cash Equivalents of all Senior Debt, and this
Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security, and (ii) certain restrictive covenants and
Events of Default, with respect to this Security in each case upon compliance
with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified
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percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registra tion of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security, for registration of transfer, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof; provided,
however, that Secondary Securities and Securities issued in exchange for the
Exchangeable Preferred Stock may be issued in denominations of less than $1,000
(but not less than $1.00). As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for a like aggregate
principal amount of Securities of a different authorized denomination, as
requested by the Holder surrendering the same.
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No service charge shall be made for any such registra tion of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registra tion of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
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OPTION OF HOLDER TO ELECT PURCHASE
PURSUANT TO OFFER TO PURCHASE
If you want to elect to have this Security purchased in its entirety by
the Company pursuant to Section 1008 or 1017 of the Indenture, check the box:
| |
If you want to elect to have only a part of this
Security purchased by the Company pursuant to Section 1008
or 1017 of the Indenture, state the amount: $
Dated: Your Signature:____________________
(Sign exactly as name appears
on the face of this Security)
Signature Guarantee:___________________________________ (Signature must
be guaranteed by a member firm of the New York Stock Exchange
or a commercial bank or trust company)
SECTION 204. Form of Trustee's Certificate of
Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
FLEET NATIONAL BANK
as Trustee
By ____________________
Authorized Officer
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ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to the Maximum Aggregate Principal
Amount (as defined below) except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 304, 305, 306, 906 or 1108 or in connection with an Offer to
Purchase pursuant to Section 1008 or 1017. As used herein, "Maximum Aggregate
Principal Amount" means the aggregate liquidation preference of all shares of
Exchangeable Preferred Stock at the time they are exchanged plus the aggregate
principal amount of Secondary Securities issued pursuant to the terms hereof.
The Securities shall be known and designated as the "11 3/8%
Subordinated Exchange Debentures Due 2009" of the Company. Their Stated Maturity
shall be January 15, 2009 and they shall bear interest at the rate of 11 3/8%
per annum, from the Issue Date or from the most recent Interest Payment Date to
which interest has been paid or provided for, payable semi-annually on January
15 and July 15 of each year, commencing on the first Interest Payment Date
succeeding the Issue Date, until the principal thereof is paid or made available
for payment and, to the extent permitted by law, at such rate plus 2% per annum
on any overdue principal, and premium, if any, and on any overdue installment of
interest until paid.
On each Interest Payment Date through and including January 15, 2002,
the entire amount of the interest payment on the Securities may be paid, at the
option of the Company, in Secondary Securities (valued at 100% of the principal
amount thereof) as set forth in the form of Security set forth in Section 202.
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The principal of, and premium, if any, and interest on the Securities
shall be payable at the office or agency of the Company in The Borough of
Manhattan, The City of New York, maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Section 1008 and 1017.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subordinated in right of payment to Senior Debt
of the Company as provided in Article Twelve.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities will be issued only in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof; provided,
however, that Securities may be issued in denominations of less than $1,000 (but
not less than $1.00) upon the initial exchange of the Exchangeable Preferred
Stock for the Securities such that each Holder of Exchangeable Preferred Stock
shall receive Securities in a principal amount equal to the full liquidation
preference of the Exchangeable Preferred Stock on the Issue Date (as specified
to the Trustee in the Company Order delivered pursuant to Section 303);
provided, further, however, that Secondary Securities may be issued in
denominations of less than $1,000 (but not less than $1.00).
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SECTION 303. Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, a Chief Operating Officer, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authen ticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, sub stantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and pursuant to a Company Order the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register main tained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee upon receipt of a Company
Order shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denominations and
of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomina tions and of a like aggregate principal
amount, upon surren der of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and upon receipt of a Company Order the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form and
substance satisfactory to the Company, the Trustee and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge will be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith, other than exchanges pursuant to Section 304, 906 or 1108
or in accordance with any Offer to Purchase pursuant to Section 1008 or 1017 not
involving any transfer.
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The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruc tion, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not con temporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, including without limitation through its issuance of
Secondary Securities, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, including without limitation through its issuance of
Secondary Securities on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
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(1) The Company may elect to make pay ment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are regis tered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the follow ing manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall irrevocably deposit
with the Trustee an amount of money and/or, if with respect to any
Interest Payment Date on or prior to January 15, 1997, Secondary
Securities in a principal amount equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money and/or Secondary Securities
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such De faulted Interest
(and, if applicable the extent to which it is payable in Secondary
Securities) and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less
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than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed prac ticable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registra tion of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Offer to Purchase pursuant to
Section 1008 or 1017 shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and, at the written direction of the Company, shall
be promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and, at the
written direction of the Company, all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
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(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been irrevocably deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not there
tofore delivered to the Trustee for
cancellation
(i) have become due and payable,
or
(ii) will become due and payable
at their Stated Maturity within one
year, or
(iii) are to be called for redemp tion within one
year under arrange ments satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
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cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (i) all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with and (ii) the
deposit in clause (1) above was not made with the intent of defeating,
hindering, delaying or defrauding any of the creditors of the Company.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been irrevocably deposited
with the Truste.e
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) failure to pay (whether or not prohibited by Article
Twelve) the principal of (or premium, if any, on) any Security when
due; or
(2) failure to pay (whether or not prohibited by Article
Twelve) any interest on any Security when due, continued for a period
of 30 days; or
(3) default in payment (whether or not prohibited by Article
Twelve), of principal and interest on Securities required to be
purchased by the Company pursuant to an Offer to Purchase as to which
an Offer has been mailed to Holders when due and payable; or
(4) failure to perform or comply with the provisions of
Section 801; or
(5) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a cove nant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) a default or defaults under any bond(s), debenture(s),
note(s) or any other evidence(s) of Indebtedness for money borrowed by
the Company or any Restricted Subsidiary of the Company or under any
mortgage(s), indenture(s) or any other instrument(s) under which there
may be issued or by which there may be secured or evidenced any
Indebtedness of such type by the Company or any such Restricted
Subsidiary with a principal amount then outstanding, individually or in
the aggregate, in excess of $5,000,000, whether such Indebtedness now
exists or shall hereafter be created, which default or defaults shall
constitute a failure to pay any portion of the principal of such
Indebtedness when due and payable at final maturity or shall have
resulted in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable and such failure to pay such Indebtedness (whether at
maturity or upon becoming due or being declared due and payable) shall
have continued for 30 days; or
(7) the rendering of a final judgment or final judgments (not
subject to appeal)
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for the payment of money are entered against the Company or any
Restricted Subsidiary in an aggregate amount in excess of $5,000,000 by
a court or courts of competent jurisdiction, which judgments remain
undischarged or unstayed for a period (during which execution shall not
be effectively stayed) of 60 days after the right to appeal all such
judgments has expired; or
(8) the entry by a court having juris diction in the premises
of (A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or any such Restricted Subsidiary a
bankrupt or insolvent, or approving as prop erly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any such Restricted Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any such Restricted Subsidiary or of any substantial
part of the property of the Company or any such Restricted Subsidiary,
or ordering the winding up or liquidation of the affairs of the Company
or any such Restricted Subsi diary, and the continuance of any such
decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(9) the commencement by the Company or any Restricted
Subsidiary in a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization
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or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or
any such Restricted Subsidiary to the entry of a decree or order for
relief in respect of the Company or any Restricted Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company or any Restricted Subsidiary, or the filing by the Company
or any such Restricted Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the con sent by the Company or any such Restricted Subsidiary
to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Restricted
Subsidiary or of any substantial part of the property of the Company or
any Restricted Subsidiary, or the making by the Company or any
Restricted Subsidiary of an assignment for the benefit of creditors, or
the admission by the Company or any such Restricted Subsidiary in
writing of its inability to pay its debts generally as they become due,
or the taking of corpo rate action by the Company or any such
Restricted Subsidiary in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(8) or (9)) shall occur and be continuing, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount
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of the Outstanding Securities may declare the principal of all the Securities to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
shall become immediately due and payable. If an Event of Default specified in
Section 501(8) or (9) occurs, the principal of and any accrued interest on the
Securities then Outstanding shall ipso facto become immediately due and payable
without any declaration or other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all
Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration (including any Securities required
to have been purchased on the Purchase Date pursuant to an
Offer to Purchase made by the Company) and, to the extent that
payment of such interest is lawful, interest thereon at the
rate provided by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the Securities, and
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(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
The Trustee shall not be required to act upon an Event of Default unless it has
actual knowledge of such Event of Default.
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole
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amount then due and payable on such Securities for principal (and premium, if
any) and interest, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) and
on any overdue interest, at the rate provided by the Secu rities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of col lection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
including, without limitation, for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In the case of any judicial proceeding relative to the Company, any
other obligor upon the Securities or any of their individual or joint property
or creditors, the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such
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proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any proceeding relating to any of
the foregoing.
SECTION 505. Trustee May Enforce Claims
Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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SECTION 506. Application of Money Collected.
Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the extent provided in Arti cle Twelve, to the
holders of Senior Debt of the Company in accordance with Article
Twelve; and
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Secu rities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstand ing Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of the Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, but subject to
Article Twelve, the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 307) interest on such Security on the respective
Stated Maturities stated in such Security (or, in the case of redemption, on the
Redemption Date or, in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Security, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Inden ture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition
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to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) no such direction or exercise that the Trustee reasonably
believes would subject it to liability not contemplated hereunder shall
be made.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to
have been purchased pursuant to an Offer to Purchase which has been
made by the Company), or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Inden ture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit insti tuted by the Company.
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SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waive all benefit or advantage of any such law
and covenant that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwith standing the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Notwithstanding anything
else to the contrary contained herein, and whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
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SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any Default hereunder
known to it as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any Default of the character specified in Section
501(5), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely upon and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
suffi ciently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or estab lished prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically pre scribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
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(d) the Trustee may consult with coun sel and the written advice of
such counsel or any Opinion of Counsel shall be full and com plete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certifi cate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication on the Securities, shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company in its individual or any other
capacity, may become the, owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any pro vision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, bad faith, willful
misconduct or a legitimate removal action by the Company or any Holder of a
Security pursuant to Section 610; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, lia bility or expense incurred without negligence, willful misconduct or
bad faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and a Corporate Trust
Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of
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such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolu tion may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent juris diction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board
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Resolution, shall promptly appoint a successor Trustee. If, within one year
after such resignation, removal or incapa bility, or the occurrence of such
vacancy, the Company has not appointed a successive Trustee, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the suc
cessor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of
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any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the cor porate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company,
or any other obligor upon the Securities, the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company or any such other obligor.
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SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, or partial
redemption or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent,
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shall continue to be an Authenticating Agent, provided that such corporation
shall be otherwise eligible under this Section, without the execution or filing
of any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a suc cessor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
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This is one of the Securities described in the within-mentioned
Indenture.
FLEET NATIONAL BANK,
As Trustee
By___________________________,
As Authenticating Agent
By____________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with
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each stock exchange upon which the Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when the Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, docu ments and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Limitation on Merger, Consolidation and Sale of Assets.
The Company may not consolidate or merge with or into (whether or not
the Company is the Surviving Person), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another Person, unless:
(i) the Surviving Person is a corporation organized or existing under
the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Surviving Person (if other than the Company) assumes all the
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obligations of the Company under the Securities and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee;
(iii) at the time of and immediately after such Disposition, no Default
or Event of Default shall have occurred and be continuing; and
(iv) the Surviving Person shall at the time of such Disposition and
after giving pro forma effect thereto, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Debt to EBITDA Ratio
test described under Section 1011.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any transfer, con veyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the successor Person
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture and the Securities, with the same effect as
if such successor Person had been named as the Company herein and in the
Securities, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form and substance
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities; or
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsis tent
with the provisions of this Indenture, provided such action pursuant to
this Clause (5) shall not adversely affect the interests of the Holders
in any material respect.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Security, or reduce the principal amount
of (or the premium), interest thereon, or change the place of payment
where, or the coin or currency in which, any Security or any premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or with respect to any
Security, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
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(3) modify any of the provisions of this Section, Section 513
or Section 1019, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) modify any of the provisions of this Indenture relating to
the subordination of the Securities in a manner materially adverse to
the Holders, or
(5) modify any provision of this Indenture relating to the
guarantee by the Company of the Indebtedness of any Unrestricted
Subsidiaries, or
(6) following the mailing of an Offer with respect to an Offer
to Purchase pursuant to Section 1008 or 1017, modify the provisions of
this Indenture with respect to such Offer to Purchase in a manner
materially adverse to the Holders.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture
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which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency which may be an office or agency of the Trustee,
Registrar or co-Registrar where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of
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New York, for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or, except to the extent to be paid in the form of Secondary Securities,
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or, except to the extent to be paid in the form
of Secondary Securities, interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto
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until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English
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language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date speci fied therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight and Sections 1008 and 1009, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect the existence, rights (charter and statutory) and franchises of the
Company; provided, however, that the Company shall not be required to preserve
any such right or franchise if the Board of Directors in good faith shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in good condition, repair and working order (reasonable wear and tear
excepted) and supplied with all necessary equipment and will cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company or any such Restricted Subsidiary from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, as
determined by the Board of Directors of the Company or such Restricted
Subsidiary, as the case may be, in good faith, desirable in the conduct of its
business or the business of any such Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.
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SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Restricted
Subsidiaries or upon the income, profits or property of the Company or any of
its Restricted Subsidiaries, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any of its Restricted Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Restricted Subsidiaries to, keep
at all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Company to be responsible
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in accordance with
good business practice. The Company shall, and shall cause its Restricted
Subsidiaries to, use the proceeds from any such insurance policy to repair,
replace or otherwise restore the property to which such proceeds relate.
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SECTION 1008. Limitation on Certain Asset Sales.
The Company will not, and will not permit any of its Restricted
Subsidiaries to:
(i) sell, lease, convey or otherwise dispose of any assets (including
by way of a sale-and-leaseback) other than in the ordinary course of
business, or
(ii) issue or sell Equity Interests of any of its Restricted
Subsidiaries,
in each case, whether in a single transaction or a series of related
transactions, to any Person (other than an issuance, sale, lease, conveyance or
disposal by a Restricted Subsidiary to the Company or one of its Restricted
Subsidiaries or an Asset Swap permitted by Section 1009), for Net Proceeds in
excess of $1,000,000 (each of the foregoing, an "Asset Sale"), unless:
(x) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to
the Fair Market Value of the assets or Equity Interests sold or
otherwise disposed of;
(y) at least 80% of such consideration is in the form of cash, provided
that the following will be deemed to be cash for purposes of this
Section:
(A) the amount of any Senior Debt that is assumed by the
transferee of any such assets, and
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(B) any notes or other obligations received by the Company or
any such Restricted Subsidiary from a transferee that are
immediately converted by the Company or such Restricted
Subsidiary into cash, and
(z) if such Asset Sale includes Equity Interests of any Restricted
Subsidiary, 100% of the Equity Interests of such Restricted Subsidiary
owned by the Company or any other Restricted Subsidiary is sold or
otherwise disposed of in such Asset Sale.
Following any Asset Sale, the Company may elect to apply the Net
Proceeds from such Asset Sale, within 360 days of the Asset Sale, (a) to reduce
permanently Senior Bank Debt (or, in the event that Senior Bank Debt is extended
under a revolving credit or similar facility, to reduce permanently the
aggregate commitments thereunder and to make any principal payments on the
Senior Bank Debt required or permitted thereby) as then in effect or (b) to
acquire Broadcast Assets. Pending the final application of any such Net
Proceeds, the Company may temporarily reduce Senior Bank Debt of the Company or
temporarily invest such Net Proceeds in any manner permitted by this Indenture.
Any Net Proceeds from an Asset Sale not applied to the payment of or reduction
of commitments under the Senior Bank Debt or to the acquisition of Broadcast
Assets or invested as provided in the first sentence of this paragraph, upon
expiration of such 360-day period or such earlier date as the Company decides
not to so apply or invest such Net Proceeds, will be deemed to constitute
"Excess Proceeds". Whenever Excess Proceeds minus the aggregate purchase price
of the Securities which have been the subject of any previous Offer to Purchase
("Net Excess Proceeds") exceeds $5,000,000, the
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Company will commence an Offer to Purchase within 30 days after the date on
which the Net Excess Proceeds exceeded $5,000,000. Such Offer to Purchase shall
be for a principal amount of Outstanding Securities having an aggregate purchase
price equal to such Net Excess Proceeds.
SECTION 1009. Limitation on Asset Swaps.
The Company will not, and will not permit any Restricted Subsidiary to,
engage in any Asset Swaps, unless:
(i) at the time of entering into the agreement to swap assets and
immediately after giving effect to the proposed Asset Swap, no Default
or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof;
(ii) the Company would, at the time of entering into the agreement to
swap assets and after giving pro forma effect to the proposed Asset
Swap, as if such Asset Swap had occurred at the beginning of the
applicable four-quarter period, have been permitted to incur at least
$1.00 of additional Indebtedness under the Debt to EBITDA Ratio test
described below in Section 1011;
(iii) the respective Fair Market Values of the assets being purchased
and sold by the Company or any of its Restricted Subsidiaries are
substantially the same at the time of entering into the agreement to
swap assets; and
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(iv) at the time of the consummation of the proposed Asset Swap, the
percentage of any decline in the Fair Market Value of the asset or
assets being acquired by the Company and its Restricted Subsidiaries
shall not be significantly greater than the percentage of any decline
in the Fair Market Value of the assets being disposed of by the
Company, calculated from the time the agreement to swap assets was
entered into.
SECTION 1010. Limitation on Restricted Payments.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend, or make any other distribution or
payment, on any Equity Interests of the Company or any of its
Restricted Subsidiaries (other than dividends or distributions payable
in Equity Interests (other than Indebtedness or Disqualified Stock) of
the Company or such Restricted Subsidiary or dividends or distributions
payable to the Company or any Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any Restricted Subsidiary or other
Affiliate of the Company (other than any Equity Interests owned by the
Company or any Restricted Subsidiary);
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(iii) purchase, redeem, defease, or otherwise acquire or retire for
value any Indebtedness that is subordinated in right of payment to, or
pari passu with, the Securities (other than with the proceeds of
Refinancing Indebtedness permitted under clause (d) of the last
paragraph of Section 1011); or
(iv) make an Investment other than (a) a Permitted Investment or (b)
Investments of the Company or any Restricted Subsidiary in the Company
or any Restricted Subsidiary;
(any payment made for any of the foregoing purposes being herein referred to as
a "Restricted Payment"), unless:
(I) at the time of and immediately after giving effect to the proposed
Restricted Payment, no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof,
(II) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have
been permitted to incur at least $1.00 of additional Indebtedness under
the Debt to EBITDA Ratio test contained in Section 1011, and
(III) at the time of and immediately after giving effect to the
proposed Restricted Payment (valued at its Fair Market Value, if other
than cash), the aggregate amount of all
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Restricted Payments (excluding all payments, investments, redemptions,
repurchases, retirements and other acquisitions described in clauses
(2), (3) and (4) of the following paragraph) declared or made after
December 31, 1995 shall not exceed the sum of
(A) an amount equal to the Company's EBITDA cumulated from
December 31, 1995 to the end of the Company's most recently
ended full fiscal quarter, taken as a single accounting
period, less 1.4 times the sum of (i) the Company's
Consolidated Interest Expense from December 31, 1995 to the
end of the Company's most recently ended full fiscal quarter,
taken as a single accounting period, plus (ii) all dividends
or other distributions paid or made by the Company or any
Restricted Subsidiary on any Disqualified Stock of the Company
or any of its Subsidiaries during such period, plus
(B) an amount equal to the aggregate sum of all net cash
proceeds received after December 31, 1995 by the Company from
the issuance and sale of Equity Interests (other than any
Indebtedness or
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Disqualified Stock and other than to Restricted Subsidiaries)
to the extent that such proceeds are not used to redeem,
repurchase, retire or otherwise acquire Equity Interests of
the Company pursuant to clause (2) in the next paragraph, plus
(C) the aggregate net proceeds received after December 31,
1995 by the Company and its Restricted Subsidiaries from the
sale or disposition of any Investment other than a Permitted
Investment.
The foregoing provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment would
have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement or other acquisition for
value of any Equity Interests of the Company in exchange for, or out of
the proceeds of, the substantially concurrent sale (other than to the
Company or a Restricted Subsidiary) of Equity Interests of the Company
(other than any Indebtedness or Disqualified Stock);
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(3) Payments pursuant to any guarantee by any Restricted Subsidiary of
Senior Debt; or
(4) Restricted Payments made or paid since December 31, 1995 in an
aggregate amount not exceeding $10,000,000.
Payments made pursuant to clause (1) above shall nevertheless be considered
Restricted Payments for purposes of computing the aggregate amount of Restricted
Payments under clause (III) of the preceding paragraph. For purposes of clause
(B) of the preceding paragraph, the conversion or exchange of Indebtedness or
Disqualified Stock of the Company into Equity Interests of the Company (other
than into Equity Interests constituting Indebtedness or Disqualified Stock)
shall be deemed to be the issuance and sale by the Company of such Equity
Interests at the time of such conversion or exchange for net cash proceeds equal
to the net cash proceeds originally received by the Company for the Indebtedness
or Disqualified Stock so converted or exchanged (or received by the Company for
any other Indebtedness or Disqualified Stock previously converted into or
exchanged for such Indebtedness or Disqualified Stock), plus any additional net
cash proceeds received by the Company upon such conversion or exchange (or such
previous conversion or exchange) and less any cash paid by the Company in
connection therewith.
SECTION 1011. Limitation on Incurrence of Indebtedness and
Issuance of Preferred Stock.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or directly or indirectly guarantee or in
any other manner become directly or indirectly liable for ("incur") any
Indebtedness (including Acquired Debt) or issue any preferred stock, except that
the Company may:
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(i) issue preferred stock that is not Disqualified Stock at any time,
and
(ii) incur Indebtedness or issue Disqualified Stock, if the Debt to
EBITDA Ratio of the Company and its Restricted Subsidiaries at the time
of incurrence of such Indebtedness or issuance of such Disqualified
Stock, after giving pro forma effect thereto, is 7.0:1 or less;
provided that any such Indebtedness (other than Senior Debt) incurred
by the Company shall, at the time of incurrence, have a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of the Securities.
The foregoing limitations shall not apply to the incurrence of any of
the following:
(a) Senior Bank Debt (including guarantees thereof by the Company's
Subsidiaries) pursuant to the Credit Agreements;
(b) Existing Indebtedness;
(c) Indebtedness represented by (1) the Securities and (2) guarantees
by Restricted Subsidiaries of (x) Senior Bank Debt and (y) any other
Senior Debt permitted to be incurred by the Company under the terms of
this Indenture;
(d) Refinancing Indebtedness, provided that
(1) the principal amount of such Refinancing
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Indebtedness shall not exceed the principal amount of
Indebtedness or amount of Disqualified Stock so extended,
refinanced, renewed, replaced, substituted, defeased or
refunded (plus the amount of expenses incurred and premiums
paid in connection therewith),
(2) with respect to Refinancing Indebtedness of any
Indebtedness other than Senior Debt or Disqualified Stock, the
Refinancing Indebtedness shall have a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being extended, refinanced,
renewed, replaced, substituted, defeased or refunded, and
(3) with respect to Refinancing Indebtedness of Indebtedness
other than Senior Debt or any Disqualified Stock incurred by
the Company, such Refinancing Indebtedness shall rank no more
senior, and shall be at least as subordinated, in right of
payment to the Securities as the Indebtedness being extended,
refinanced, replaced, renewed, substituted, defeased or
refunded;
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(e) intercompany Indebtedness between the Company and any of its
Restricted Subsidiaries or among its Restricted Subsidiaries, or Equity
Interests issued by a Restricted Subsidiary in conformity with Section
1013;
(f) Hedging Obligations, including interest rate swap obligations, that
are incurred in the ordinary course of business for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding; and
(g) additional Indebtedness of the Company, which may be guaranteed by
any of its Restricted Subsidiaries, in an aggregate outstanding
principal amount not to exceed $20,000,000 at any time.
SECTION 1012. Limitation on Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom to secure any Indebtedness.
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SECTION 1013. Limitation on Restricted Subsidiary Equity Interests.
The Company will not permit any Restricted Subsidiary to issue any
Equity Interests, except for (i) Equity Interests issued to and held by the
Company or a Restricted Subsidiary, and (ii) Equity Interests issued by a Person
prior to the time that (A) such Person becomes a Restricted Subsidiary, (B) such
Person merges with or into a Restricted Subsidiary or (C) a Restricted
Subsidiary merges with or into such Person; provided that such Equity Interests
were not issued or incurred by such Person in anticipation of the type of
transaction contemplated by subclause (A), (B) or (C).
SECTION 1014. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(i) (a) pay dividends or make any other distributions to the Company or
any other Restricted Subsidiary (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or measured by, its
profits, or (b) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary,
(ii) make loans or advances to the Company or any other Restricted
Subsidiary, or
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(iii) transfer any of its properties or assets to the Company or any
other Restricted Subsidiary,
except for such encumbrances or restrictions existing under
or by reason of:
(t) any Existing Indebtedness;
(u) the Credit Agreements as in effect on the Preferred Stock Issue
Date, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive in the aggregate with respect to
such dividend and other payment restrictions than those contained in
the Credit Agreements (or, if more restrictive, this Indenture)
immediately prior to any such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing;
(v) applicable law;
(w) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of
such acquisition), provided that
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(1) such restriction is not applicable to any other Person (other than
any Subsidiary of such Person) or the properties or assets of any other
Person (other than any Subsidiary of such Person), and (2) the
consolidated net income (loss) of such acquired Person (or any such
Subsidiary) for any period prior to such acquisition shall not be taken
into account in determining whether such acquisition was permitted by
the terms of this Indenture;
(x) by reason of customary non- assignment provisions in leases entered
into in the ordinary course of business and consistent with past
practices;
(y) Purchase Money Indebtedness for property acquired in the ordinary
course of business that only impose restrictions on the property so
acquired; or
(z) Refinancing Indebtedness permitted under this Indenture, provided
that the restrictions contained in the agreements governing such
Refinancing Indebtedness are no more restrictive in the aggregate than
those contained in the agreements governing the Indebtedness being
refinanced immediately prior to such refinancing.
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SECTION 1015. Transactions with Affiliates.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into any contract, agreement, understanding, loan, advance
or guarantee with, or for the benefit of, any Affiliate of the Company or any
Restricted Subsidiary (each of the foregoing, an "Affiliate Transaction"),
unless:
(i) such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with a non-Affiliated Person;
(ii) such Affiliate Transaction is approved by a majority of
disinterested members of the Company's Board of Directors; and
(iii) the Company delivers to the Trustee --
(a) with respect to any Affiliate Transaction involving
aggregate payments in excess of $1,000,000, an Officers'
Certificate certifying that such Affiliate Transaction
complies with clause (i) above and such Affiliate Transaction
has been approved by a majority of the disinterested members
of the Company's Board of Directors; and
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(b) with respect to any Affiliate Transaction (or series of
related transactions) with an aggregate value in excess of
$5,000,000 an opinion from a nationally recognized investment
bank to the effect that the transaction is fair to the Company
or the Restricted Subsidiary, as the case may be, from a
financial point of view;
provided that none of the following shall constitute an Affiliate Transaction:
(x) employment arrangements (including customary benefits thereunder)
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business and consistent with the past practice
of the Company or such Restricted Subsidiary,
(y) transactions solely between or among the Company and its Restricted
Subsidiaries or solely between or among Restricted Subsidiaries, and
(z) transactions permitted by the provisions of Section 1010.
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SECTION 1016. Provision of Financial Information.
Whether or not required by the rules and regulations of the Commission,
so long as any Securities are outstanding, the Company will furnish to the
Trustee and to the Holders of Securities:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual information
only, a report thereon by the Company's independent certified public
accountants, and
(ii) all reports that would be required to be filed with the Commission
on Form 8-K if the Company were required to file such reports.
In addition, whether or not required by the rules and regulations of the
Commission, the Company will file a copy of all such information with the
Commission for public availability (unless the Commission will not accept such
filing) and make such information available to investors who request it in
writing.
SECTION 1017. Change of Control.
The Company will commence an Offer to Purchase all of the Outstanding
Securities within 15 days after the occurrence of a Change of Control.
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SECTION 1018. Statement by Officers as to Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within 90 days after the
end of each fiscal year, and within 60 days after the end of each fiscal quarter
(other than the fourth fiscal quarter), of the Company ending after the date
hereof an Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of Section 801 or Sections 1004
to 1017, inclusive, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or a Default, or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such Event of
Default or Default, and the action which the Company proposes to take with
respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year a written statement by the Company's independent public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any event
which, with notice or the lapse of time or both, would constitute an Event of
Default has come to their attention and, if such a default has come to their
attention, specifying the nature and period of the existence thereof.
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SECTION 1019. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801 and Sections 1004 to 1018, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer to Purchase as to
which an Offer has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Securities pursuant to such Offer, and the Company
may not omit to comply with the terms of such Offer as to such Holder except
with the written consent or waiver of such Holder.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the option of the Company, in whole
or in part, at any time on or after January 15, 2002 and prior to Maturity, at
the Redemption Prices specified in the form of Security hereinbefore set forth
plus accrued interest to but excluding the Redemption Date.
Notwithstanding the foregoing, at any time prior to January 15, 2000,
the Company may redeem Securities from the net proceeds of a Public or 144A
Equity Offering by it, in cash, within 75 days of such Public or 144A Equity
Offering at the Redemption Price and in the manner specified in the
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form of Security hereinbefore set forth plus accrued interest to but excluding
the Redemption Date; provided that at least $75,000,000 principal amount of
Securities remain outstanding immediately after the occurrence of any such
redemption.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Reso lution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities to
be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for
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redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at such Holders' address appearing
in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identi fication (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and
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(6) the CUSIP number, if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal
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(and premium, if any) shall, until paid, bear interest from the Redemption Date
at the rate provided by the Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and pursuant to a Company Order the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article Four and Article Thirteen), the payment of the principal of (and
premium, if any) and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Debt.
The Convertible Exchange Debentures shall constitute Senior Debt unless
otherwise designated by the Company pursuant to the indenture under which they
are issued.
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[The Securities shall be on a parity with and not senior or subordinate
in right of payment to any Acquired Debt if (i) such Acquired Debt is
subordinate in right of payment to any Indebtedness of the Company, (ii) such
Acquired Debt would be subordinate in right of payment to the Securities in the
absence of this sentence, (iii) giving effect to this sentence would, under the
terms of such Acquired Debt, result in such Acquired Debt not being subordinate
in right of payment to the Securities and would result in its being pari passu
with the Securities, and (iv) giving effect to this sentence would not result in
any breach of or default under the terms of such Acquired Debt or the instrument
pursuant to which it is issued.]
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reor ganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bank ruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets or liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt will be
first entitled to receive payment in full of all amounts due or to become due on
or in respect of all Senior Debt, or provision shall be made for such payment,
in cash or Cash Equivalents or otherwise in a manner satisfactory to the holders
of Senior Debt, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, on account of principal of (or
premium, if any) or interest on or other obligations in respect of the
Securities or on account of any purchase or other acquisition of Securities by
the Company or any Subsidiary of the Company (all such payments, distributions,
purchases and acquisitions herein referred to, individually and collectively, as
a "Securities
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Payment"), and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof, any Securities Payment which
may be payable or deliverable in respect of the Securities in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee receives payment or distribution of assets of the Company
of any kind or character, before all the Senior Debt is paid in full in cash or
Cash Equivalents, then and in such event such Securities Payment shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay the Senior Debt in
full in cash or Cash Equivalents.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or read justment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated in right of payment to all then outstanding
Senior Debt to at least the same extent as the Securities are so subordinated as
provided in this Article; provided that (1) if a new corporation results from
such reorganization or readjustment, such corporation assumes any Senior Debt
not paid in full in cash or Cash Equivalents in connection with such
reorganization or readjustment and (2) the rights of the holders of such Senior
Debt are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another Person or the liqui dation or dissolution of
the Company following the convey ance or transfer of all or substantially all of
its
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properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
SECTION 1203. No Payment When Senior Debt in Default.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made unless
and until such Senior Payment Default shall have been cured or waived or shall
have ceased to exist or all amounts then due and pay able in respect of Senior
Debt shall have been paid in full, or provision shall have been made for such
payment, in cash or Cash Equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt. "Senior Payment Default" means any default in the
payment of principal of (or premium, if any) or interest on any Senior Debt when
due, whether at the Maturity thereof or by declaration of acceleration, call for
redemption or otherwise.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company and
the Trustee of written notice of such Senior Nonmonetary Default from the
representatives of holders of the Designated Senior Debt to which such default
relates, the Company may not make any payments (other than payments previously
made pursuant to Article Thirteen) on account of the Securities or on account of
the purchase or redemption or other acquisition of Securities for a period (the
"blockage period") commencing on the date the Company and Trustee receive such
written notice and ending on the earlier of (i) the 179th day after the date of
such receipt of such written notice and (ii) the date, if any, on which the
Designated Senior Debt to which
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such default relates is discharged or such default is waived or otherwise cured.
In any event, not more than one blockage period may be commenced during any
period of 360 consecutive days and there shall be a period of at least 181
consecutive days in each period of 360 consecutive days when no blockage period
is in effect. For all purposes of this paragraph, no Senior Nonmonetary Default
that existed or was continuing on the date of commencement of any blockage
period with respect to the Designated Senior Debt initiating such blockage
period will be, or can be, made the basis for the commencement of a subsequent
blockage period unless such default has been cured or waived for a period of not
less than 180 consecutive days. "Senior Nonmonetary Default" means the
occurrence or existence and continuance of any event of default, or of any event
which, after notice or lapse of time (or both), would become an event of
default, under the terms of any instrument pursuant to which any Designated
Senior Debt is outstanding, permitting (after notice or lapse of time or both)
one or more holders of such Senior Debt (or a trustee or agent on behalf of the
holders thereof) to declare such Senior Debt due and payable prior to the date
on which it would otherwise become due and payable, other than a Senior Payment
Default.
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt beyond any
applicable grace period with respect thereto, or in the event that any event of
default with respect to any Senior Debt shall have occurred and be continuing
permitting the holders of such Senior Debt (or a trustee on behalf of the
holders thereof) to declare such Senior Debt, and shall have resulted in such
Senior Debt becoming or being declared, due and payable prior to the date on
which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist,
or in the event any judicial proceeding shall be pending with respect to any
such default in payment or event of default, then no Securities Payment shall be
made.
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or
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any Holder prohibited by the foregoing provisions of this Section, then and in
such event, subject to Section 1204, such Securities Payment shall be paid over
and delivered forthwith to the holders of the Senior Debt remaining unpaid, to
the extent necessary to pay in full all the Senior Debt.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1202 would be applicable.
SECTION 1204. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1202 or under the
conditions described in Section 1203, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the Holders,
if, at the time of such application by the Trustee, it did not have knowledge
that such Securities Payment would have been prohibited by the provisions of
this Article.
SECTION 1205. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt, or the provision for such payment, in cash or Cash
Equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
the Holders of the Securities shall be subrogated (equally and ratably with the
holders of all Indebtedness of the Company which by its express terms is
subordinated to Indebtedness of the Company to substantially the same extent as
the Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Debt) to the rights of the holders of such Senior Debt to
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receive payments and distributions of cash, property and securities applicable
to the Senior Debt until the principal of (and premium, if any) and interest on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of the
Senior Debt.
SECTION 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Debt; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Debt to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
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SECTION 1207. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew, increase or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the payment or collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
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SECTION 1209. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the exis tence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee therefor).
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment
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or distribution and any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1210. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Secu rities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1211. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
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<PAGE>
SECTION 1212. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1213. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1212 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1214. Defeasance of this Article Twelve.
The subordination of the Securities provided by this Article is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article Thirteen hereof and, anything herein to the contrary notwithstanding,
upon the effectiveness of any such defeasance or covenant defeasance, the
Securities then outstanding shall thereupon cease to be subordinated pursuant to
this Article Twelve.
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<PAGE>
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 1302 or Section 1303 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
condi tions set forth below are satisfied (hereinafter, "defea sance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securi ties
and to have satisfied all its other obligations under such Securities and this
Indenture (including under Article Twelve) insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option under this Section 1302 notwithstanding the prior exercise of its option
under Section 1303.
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<PAGE>
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations under Article Twelve, Sections 1005 through 1017, inclusive, and
Clause (iv) of Section 801, (ii) the occurrence of an event specified in Section
501(4) (with respect to Clause (iv) of Section 801), 501(5) (with respect to any
of Sections 1005 through 1017, inclusive), 501(6) and 501(7) shall not be deemed
to be an Event of Default and (iii) the provisions of Article Twelve hereof
shall cease to be effective on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section, Clause or Article, whether directly or indirectly by reason of
any reference elsewhere herein to any such Section, Clause or Article or by
reason of any reference in any such Section, Clause or Article to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of
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<PAGE>
the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combi nation thereof, sufficient, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (premium, if any) and each installment of interest, if
any, on the Securities on the Stated Maturity of such principal or
instalment of interest in accor dance with the terms of this Indenture
and of such Securities.
(2) In the case of an election under Section 1302, the Company
shall have deliv ered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge
had not occurred.
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<PAGE>
(3) In the case of an election under Section 1303, the Company
shall have deliv ered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstand ing Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit and covenant defeasance had
not occurred.
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed
on any securities exchange, will not be delisted as a result of such
deposit.
(5) Such defeasance or covenant defea sance shall not cause
the Trustee to have a conflicting interest as defined in Section 608
and for purposes of the Trust Indenture Act with respect to any
securities of the Company.
(6) At the time of such deposit: (A) no default in the payment
of all or a portion of principal of (or premium, if any) or interest on
any Senior Debt shall have occurred and be continuing, and no event of
default with respect to any Senior Debt shall have occurred and be
continuing and shall have resulted in such Senior Debt becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable and (B) no other event of default
with respect to any Senior Debt shall have occurred and be continuing
permitting (after notice or the lapse of time, or both) the holders of
such Senior Debt (or a trustee on behalf of the holders thereof) to
declare
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<PAGE>
such Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable, or, in the case of either Clause
(A) or Clause (B) above, each such default or event of default shall
have been cured or waived or shall have ceased to exist.
(7) No Event of Default or Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections
501(8) and (9) are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(8) Such defeasance or covenant defeas ance shall not result
in a breach or viola tion of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
(10) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940, as amended,
or such trust shall be qualified under such act or exempt from
regulation thereunder.
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<PAGE>
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may deter mine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law. Money so held in trust shall not be
subject to the provi sions of Article Twelve.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Out standing Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in Sec
tion 1304 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or cove nant defeasance.
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<PAGE>
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Thirteen until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1302 or 1303;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or inter est on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
--------------------
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
AMERICAN RADIO SYSTEMS
CORPORATION
By___________________________
Name:
Title:
Attest:
- --------------------------
FLEET NATIONAL BANK
as Trustee
By____________________________
Name:
Title:
Attest:
- ---------------------------
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<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 30th day of January, 1997, before me personally came Joseph L.
Winn, to me known, who, being by me duly sworn, did depose and say that he is
Chief Financial Officer of AMERICAN RADIO SYSTEMS CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of Direc
tors of said corporation, and that he signed his name thereto by like authority.
------------------------------
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 30th day of January, 1997, before me personally came Frank
McDonald, to me known, who, being by me duly sworn, did depose and say that he
is a Vice President of Fleet National Bank, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
------------------------------
-141-
Exhibit 99.8
2,000,000 Shares
AMERICAN RADIO SYSTEMS CORPORATION
11 3/8% Cumulative Exchangeable Preferred Stock
PURCHASE AGREEMENT
January 27, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
ALEX. BROWN & SONS INCORPORATED
BT SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SMITH BARNEY INC.,
c/o Credit Suisse First Boston Corporation,
11 Madison Avenue
New York, N.Y. 10010
Dear Sirs:
1. Introductory. American Radio Systems Corporation, a Delaware
corporation (the "Company") proposes, subject to the terms and conditions stated
herein, to issue and sell to the several initial purchasers named in Schedule A
hereto (the "Purchasers") 2,000,000 shares of its 11 3/8% Cumulative
Exchangeable Preferred Stock, initial liquidation preference $100 per share (the
"Shares"). The Shares are exchangeable, in whole but not in part on any dividend
payment date, at the option of the Company, for its 11 3/8% Subordinated
Exchange Debentures Due 2009 (the "Exchange Debentures") to be issued under an
indenture (the "Indenture") between the Company and Fleet National Bank, as
Trustee.
The Company has entered into a $550,000,000 Credit Agreement and a
$350,000,000 Credit Agreement each, dated as of January 24, 1997, with The Bank
of New York as Collateral Agent and Administrative Agent, and the Co-Syndication
Agents, the Managing Agents, the Agent and the Co-Agents named therein and the
lenders parties thereto (together, the "Credit Agreements"). The Purchasers and
their direct and indirect transferees of the Offered Securities will be entitled
to the benefits of the Registration Rights Agreement, to be dated as of January
30, 1997 (the "Registration Rights Agreement"), pursuant to which the Company
has agreed, among other things, to file a registration statement (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") registering the Shares or the Exchange Preferred Stock (as defined
in the Registration Rights Agreement) under the Securities Act.
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Shares to be offered by the Purchasers have been
prepared by the Company. Such preliminary offering circular and
offering circular, as supplemented as of the date of this Agreement and
including the Appendices thereto, and any other document approved by
the Company for use in connection with the contemplated resale of the
Offered Securities are hereinafter collectively referred to as the
<PAGE>
"Offering Document". On the date of this Agreement, the Offering
Document does not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon
written information furnished to the Company by any Purchaser through
Credit Suisse First Boston Corporation ("CSFBC") specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(b). Except as disclosed in the
Offering Document, on the date of this Agreement, the Company's Annual
Report on Form 10-K most recently filed with the Commission and all
subsequent reports (collectively, the "Exchange Act Reports") which
have been filed by the Company with the Commission or sent to
stockholders pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") do not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
documents, when they were filed with the Commis sion, conformed in all
material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(c) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Offering Document; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification; all of the
issued and outstanding capital stock of each subsidiary of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable; and, except for the pledge pursuant to the Credit
Agreements, the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(d) The Shares and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares
of capital stock of the Company are, and, when the Shares have been
delivered and paid for in accordance with this Agreement on the Closing
Date (as hereinafter defined), such Shares will have been, validly
issued, fully paid and nonassessable and will conform to the respective
descriptions thereof contained in the Offering Document; and the
stockholders of the Company have no preemptive rights with respect to
the Shares; and there are no restrictions on transfers of the Shares or
the Exchange Debentures except as required by (A) Rule 144A under the
Securities Act or otherwise described under "Transfer Restrictions" in
the Offering Document, (B) the restrictions on transfer contained in
the Purchaser's Letter (as hereinafter defined) with respect to
Securities (as defined therein) purchased by Institutional Accredited
Investors (as hereinafter defined) and (C) the Indenture, all as
described in the Offering Document under "The Offering", "Risk
Factors--Factors Relating to the Securities--Lack of Trading Market for
the Exchangeable Preferred Stock; Transfer Restrictions", "Description
of the
2
<PAGE>
Exchangeable Preferred Stock--Book--Entry Only--Issuance--The
Depository Trust Company", "Plan of Distribution" and "Transfer
Restrictions".
(e) The Indenture has been duly authorized by the Company and
meets the requirements for qualification under the Trust Indenture Act
of 1939 (the "Trust Indenture Act"); the Exchange Debentures have been
duly authorized; when the Exchange Debentures are delivered in exchange
for the Shares pursuant to the terms of the Shares, the Exchange
Debentures will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in the
Offering Document, and the Indenture constitutes, and the Exchange
Debentures upon delivery will constitute, valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(f) The Registration Rights Agreement has been duly authorized
and, when executed and delivered by the Company and the other parties
thereto, will constitute a valid and legally binding obligation of the
Company enforceable in accordance with its terms, subject to
bankruptcy, insol vency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Registration Rights Agreement will conform in all material respects
with the description thereof contained in the Offering Document; the
Exchange Preferred Stock (as defined in the Registration Rights
Agreement) has been duly authorized and reserved for issuance in
exchange for the Shares and when delivered in accordance with the terms
of the Shares and the Registration Rights Agreement, the Exchange
Preferred Stock will be validly issued, fully paid and nonassessable,
and the stockholders of the Company will have no preemptive rights with
respect to it.
(g) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Purchaser for a brokerage commission, finder's fee or other like
payment in connection with the offering of the Shares.
(h) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this
Agreement, the Indenture or the Registration Rights Agreement in
connection with the issu ance and sale of the Shares by the Company or
the issuance and delivery of the Exchange Debentures or the Exchange
Preferred Stock, except in the case of the Registration Rights
Agreements for filing and effectiveness of the Exchange Registration
Statement and/or Shelf Registration Statement (as defined therein) with
the Commission.
(i) The execution, delivery and performance of each of the
Indenture the Registration Rights Agreement, this Agreement and the
Credit Agreements by the Company, the issuance and sale of the Shares
and compliance with the respective terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, the Credit Agreements, or any other
agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or has
agreed to be bound or to which of the properties of the Company or any
such subsidiary is subject, or the charter or by-laws of the Company or
any such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Shares as contemplated by this Agreement
3
<PAGE>
and to authorize, issue and deliver the Exchange Preferred Stock and
the Exchange Debentures as contemplated by the terms of the Shares.
(j) Each of the radio stations owned, operated, programmed,
marketed or for which advertising time is sold by the Company, its
subsidiaries and, to the Company's knowledge, each of EZ
Communications, Inc. and CBC of Baltimore, Inc. and their subsidiaries
(collectively, the "Acquisition Businesses") is validly licensed by the
Federal Communications Commission (the "FCC") and no administrative or
judicial proceedings are pending before or, to the Company's knowledge
threatened by the FCC with respect to such licenses; the Company, its
subsidiaries and, to the Company's knowledge, the Acquisition
Businesses possess adequate certificates, authorizations or permits
which are in full force and effect issued by other appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company, any
of its subsidiaries or the Acquisition Businesses, would individually
or in the aggregate have a material adverse effect on the Company and
its subsidiaries taken as a whole (including after the acquisition of
the Acquisition Businesses).
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) Except as disclosed in the Offering Document, the Company,
its subsidiaries and, to the Company's knowledge, the Acquisition
Businesses have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Offering Document, the Company,
its subsidiaries and, to the Company's knowledge, the Acquisition
Businesses hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(m) No labor dispute with the employees of the Company, any
subsidiary or, to the Company's knowledge, any Acquisition Businesses
exists or, to the knowledge of the Company, is imminent that might have
a material adverse effect on the Company and its subsidiaries taken as
a whole (including after the acquisition of the Acquisition
Businesses).
(n) The Company, its subsidiaries and, to the Company's
knowledge, the Acquisition Businesses own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to
the Company, any of its subsidiaries or any Acquisition Business, would
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole (including after the
acquisition of the Acquisition Businesses).
(o) Except as disclosed in the Offering Document, none of the
Company, any of its subsidiaries or, to the Company's knowledge, any
Acquisition Business is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site
4
<PAGE>
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole (including after the acquisition of the
Acquisition Businesses); and the Company is not aware of any pending
investigation which might lead to such a claim.
(p) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries, or any of their respective properties or, to
the Company's knowledge, the Acquisition Businesses or any of their
respective properties that, if determined adversely to the Company, any
of its subsidiaries or any of the Acquisition Businesses, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries (including after the
acquisition of the Acquisition Businesses) taken as a whole, or would
materially and adversely affect the ability of the Company to perform
its obligations under the Registration Rights Agreement, the Indenture
or this Agreement, or which are otherwise material in the context of
the sale of the Shares (including after the acquisition of the
Acquisition Businesses); and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(q) The financial statements included in the Offering Document
present fairly the finan cial position of the Company and its
consolidated subsidiaries and the other entities named therein as of
the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; the pro forma condensed
consolidated financial statements and other pro forma financial
information (including the notes thereto) included in the Offering
Document (A) comply as to form in all material respects with the
applicable requirements of Regulation S-X promulgated under the
Securities Act and (B) have been computed on the bases described
therein; and the assumptions used in preparing such pro forma financial
information provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(r) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidi aries taken as a whole,
and, except as disclosed in or contemplated by the Offering Document,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(s) The Company is not, and will not be after giving effect to
the American Probable Transactions (as defined in the Offering
Document), an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered
under Section 8 of the United States Investment Company Act of 1940
(the "Investment Company Act"), nor is it a closed-end investment
company required to be registered, but not registered, thereunder; and
the Company is not and, after giving effect to the American Probable
Transactions (as so defined) and the offering and sale of the Shares
and the application of the proceeds thereof as described in the
Offering Document, will not be an "investment company" as defined in
the Investment Company Act.
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(t) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Shares or Exchange
Debentures are listed on any national securities exchange registered
under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.
(u) The offer and sale of the Shares in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof
and Regulation S thereunder; and it is not necessary to qualify an
indenture prior to the registration of the Exchange Debentures as
contemplated in the Registration Rights Agreement in respect of the
Exchange Debentures under the Trust Indenture Act.
(v) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act ("Regulation S")) any Shares, any Exchange Preferred
Stock, any Exchange Debentures or any security of the same class or
series as any of the foregoing, any instruments representing interests
therein or any depositary shares representing the right to receive any
such securities, or (ii) has offered or will offer or sell the Shares
or Exchange Debentures (A) in the United States by means of any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S, by means of
any directed selling efforts within the meaning of Rule 902(b) of
Regulation S. The Company, its affiliates and any person acting on its
or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. The Company has not entered
and will not enter into any contractual arrangement with respect to the
distribution of the Shares or Exchange Debentures except for this
Agreement and the Registration Rights Agreement.
(w) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
3. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of $96.50 per share plus accumulated
dividends, if any, from January 30, 1997, the respective numbers of Shares set
forth opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Shares in the form of one or more permanent global securities in definitive form
(the "Global Securities") and registered in the name of Cede & Co., as nominee
for The Depository Trust Company ("DTC"). Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Offering Document. Payment for the Shares
shall be made by the Purchasers in Federal (same day) funds by official check or
checks or wire transfer to an account previously designated to CSFBC by the
Company at a bank acceptable to CSFBC drawn to the order of the Company at the
office of Sullivan & Cromwell, 125 Broad Street, New York, New York at 9:30 A.M.
(New York time), on January 30, 1997, or at such other time not later than seven
full business days thereafter as CSFBC and the Company determine, such time
being herein referred to as the "Closing Date", against delivery to Harris Trust
Company ("Harris") as custodian for DTC of the Global Securities representing
all of the Shares. The Global Securities will be made available for checking at
the New York office of Harris at least 24 hours prior to the Closing Date.
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Notwithstanding the foregoing, any Shares sold in reliance on
Regulation S or sold to Institutional Accredited Investors pursuant to Section
4(c) shall be issued in definitive, fully registered form and shall bear the
legend relating thereto set forth under "Transfer Restrictions" in the Offering
Document, but shall be paid for in the same manner as any Shares to be purchased
by the Purchasers hereunder and to be offered and sold by them in reliance on
Rule 144A under the Securities Act.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that neither the
Shares nor the Exchange Debentures (collectively, the "Restricted
Securities") have been registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that it
has offered and sold the Restricted Securities, and will offer and sell
the Restricted Securities (i) as part of its distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date, only in accordance with Rule 903 or
Rule 144A under the Securities Act ("Rule 144A") or in the case of
CSFBC or any other Purchaser authorized by CSFBC to a limited number of
Institutional Accredited Investors in accordance with subsection (c).
Accordingly, neither such Purchaser nor its affiliates, nor any persons
acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Restricted Securities, and
such Purchaser, its affiliates and all persons acting on its or their
behalf have complied and will comply with the offering restrictions
requirement of Regulation S. Each Purchaser severally agrees that, at
or prior to confirmation of sale of the Restricted Securities, other
than a sale pursuant to Rule 144A or a sale to an Institutional
Accredited Investor in accordance with subsection (c), such Purchaser
will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the Shares
from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securi ties Act of 1933 (the "Securities Act") and
may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of
their distribution at any time or (ii) otherwise until 40 days
after the date of the commencement of the offering and the
closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) CSFBC and any other Purchaser authorized by CSFBC may
offer and sell Shares in definitive, fully registered form to a limited
number of institutions, each of which is reasonably believed by the
applicable Purchaser to be an "accredited investor" within the meaning
of Rule 501(a)(1), (2) or (3) under the Securities Act or an entity in
which all of the equity owners are accredited investors within the
meaning of Rule 501(a)(1), (2) or (3) under the Securities Act (each,
an "Institutional Accredited Investor"); provided that each such
Institutional Accredited Investor executes and delivers to such
Purchaser and the Company, prior to the consummation of any sale of
Shares to such Institutional Accredited Investor, a Purchaser's Letter
in substantially the form attached hereto as Schedule E (a "Purchaser's
Letter").
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(d) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Restricted
Securities except for any such arrangements with the other Purchasers
or affiliates of the other Purchasers, or with the prior written
consent of the Company.
(e) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Restricted Securities in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation
or general advertising. Each Purchaser severally agrees, with respect
to resales by it of Shares purchased from the Company made in reliance
on Rule 144A, other than through the National Association of Securities
Dealers ("NASD"), the Private Offerings, Resale and Trading through
Automated Linkages ("PORTAL") market, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Shares has been
made in reliance upon the exemption from the registration requirements
of the Securities Act provided by Rule 144A.
(f) Each of the Purchasers severally represents and agrees
that (i) it has not offered or sold, and prior to the date six months
after the date of issue of the Restricted Securities will not offer or
sell, any Restricted Securities to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public
in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Restricted Securities
in, from or otherwise involving the United Kingdom, and (iii) it has
only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the
Restricted Securities to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent. If, at any time
prior to the completion of the resale of the Shares by the Purchasers,
any event occurs as a result of which the Offering Document as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, the Company promptly will notify CSFBC of
such event and promptly will prepare, at its own expense, an amendment
or supplement which will correct such statement or omission. Neither
CSFBC's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any
preliminary offering circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as CSFBC requests, and the Company will furnish
to CSFBC on the date hereof five copies of the Offering Document signed
by a duly authorized officer of the
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<PAGE>
Company, one of which will include the independent accountants' reports
therein manually signed by such independent accountants. At any time
when the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company will promptly furnish or cause to be furnished to
CSFBC (and, upon request, to each of the other Purchasers) and, upon
request of holders and prospective purchasers of the Shares and the
Exchange Debentures to such holders and purchasers, copies of the
information required to be delivered to holders and prospective
purchasers of such securities pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of
such securities. The Company will pay the expenses of printing and
distributing to the Purchasers (and such holders and prospective
purchasers) all such documents.
(c) The Company will arrange for the qualification of the
Shares for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States
and Canada as CSFBC designates and will continue such qualifications in
effect so long as required for the resale of the Shares by the
Purchasers, provided that the Company will not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any such state or subject itself to taxation generally in
any jurisdiction.
(d) During the period of five years hereafter, the Company
will furnish to CSFBC and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the
Company will furnish to CSFBC and, upon request, to each of the other
Purchasers (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders; and (ii) from time to
time, such other information concerning the Company as CSFBC may
reasonably request.
(e) During the period (the "Restriction Period") from the date
hereof until the earlier of three years after the Closing Date or the
date on which all the Restricted Securities held by persons that are
not affiliates of the Company may be sold without registration pursuant
to Rule 144(k), the Company will, upon request, furnish to CSFBC, each
of the other Purchasers and any holder of Restricted Securities a copy
of the restrictions on transfer applicable to the Restricted
Securities.
(f) During the Restriction Period, the Company will not, and
will not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Restricted Securities that have
been reacquired by any of them except pursuant to an effective
Registration Statement under the Securities Act.
(g) During the Restriction Period, the Company will not be or
become, an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act, and is not, and will not
be or become, a closed-end investment company required to be
registered, but not registered, under the Investment Company Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights Agreement, including (i) the fees and expenses
of the Trustee, the registrar, transfer agent of the Shares, any
custodian and their professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Shares, the Exchange Debentures and the
Exchange Preferred Stock, the preparation and printing of this
Agreement, the Shares, the Indenture, the Registration Rights
Agreement, the Offering Document and amendments and supplements
thereto, and any
9
<PAGE>
other document relating to the issuance, offer, sale and delivery of
the Shares, the Exchange Preferred Stock and the Exchange Debentures;
(iii) the cost of qualifying the Shares for trading in the PORTAL
market and any expenses incidental thereto; and (iv) the cost of any
advertising approved by the Company in connection with the issue of the
Shares. The Company will also pay or reimburse the Purchasers (to the
extent incurred by them) for any expenses (including fees and
disbursements of counsel) incurred in connection with qualification of
the Shares, the Exchange Debentures and the Exchange Preferred Stock
for sale under the laws of such jurisdictions in the United States and
Canada as CSFBC designates and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Restricted Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Shares and for expenses incurred in distributing
preliminary offering circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Shares, neither the Company nor any of its affiliates has
or will, either alone or with one or more other persons, bid for or
purchase for any account in which it or any of its affiliates has a
beneficial interest any, Shares or Exchange Debentures or any
securities of the same class as any of the foregoing (collectively,
"Subject Securities") or attempt to induce any person to purchase any
Subject Securities; and neither it nor any of its affiliates will make
bids or purchases for the purpose of creating actual, or apparent,
active trading in, or of raising the price of, any Subject Securities.
(j) For a period of 90 days after the date of the initial
offering of the Shares by the Purchasers, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Securities Act (other than as contemplated by the Registration
Rights Agreement) relating to (a) any exchangeable nonconvertible
preferred stock or any other securities of the Company which are
substantially similar to any of the Restricted Securities, or (b) any
other securities convertible into or exchange able or exercisable for
exchangeable nonconvertible preferred stock or substantially similar
securities of the Company, or publicly disclose the intention to make
any such offer, sale, pledge or disposal, without the prior written
consent of CSFBC, except for any such offer, sale, contract to sell,
pledge or other disposition of (i) any of the Restricted Securities,
(ii) securities issued or delivered upon conversion, exchange or
exercise of any other securities of the Company outstanding on the date
hereof, (iii) securities issued in connection with mergers,
acquisitions or similar transactions or (iv) the Exchange Preferred
Stock. The Company will not at any time offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any securities
under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act or the safe harbor of Regulation S there under to cease
to be applicable to the offer and sale of the Restricted Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Shares on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of Deloitte & Touche LLP confirming that they
are independent public accountants under rule 101 of the American
Institute of Certified Public Accountants Code of Professional Conduct,
and its interpretation and rulings and to the effect set forth in
Schedule B-1 hereto.
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(b) The Purchasers shall have received letters, dated the date
of delivery thereof (which shall be on or prior to the date of this
Agreement), of Ernst & Young LLP, Miller, Kaplan, Arase & Co. and Price
Waterhouse LLP, confirming that they are independent public accountants
under rule 101 of the American Institute of Certified Public
Accountants Code of Professional Conduct and its interpretation and
rulings and to the effect set forth in Schedule B-2 hereto.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company or its subsidiaries which, in the judgment of a majority in
interest of the Purchasers including CSFBC, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Shares; (ii) any
downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of
the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange or on the Nasdaq National
Market, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Purchasers including CSFBC,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Shares.
(d) The Purchasers shall have received an opinion, dated the
Closing Date, of Sullivan & Worcester, counsel for the Company, to the
effect set forth in Schedule C hereto.
(e) The Purchasers shall have received an opinion, dated the
Closing Date, of Dow, Lohnes & Albertson, FCC counsel for the Company,
to the effect set forth in Schedule D hereto.
(f) The Purchasers shall have received from Sullivan &
Cromwell, counsel for the Purchasers, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Shares, the Offering Document, the exemption from
registra tion for the offer and sale of the Shares by the Company to
the several Purchasers and the resales by the several Purchasers as
contemplated hereby and other related matters as CSFBC may require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(g) The Purchasers shall have received a certificate, dated
the Closing Date, of the Chief Executive Officer of the Company and the
Chief Financial Officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state
that the represen tations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, and that,
subsequent to the date of the most recent financial statements in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its
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<PAGE>
subsidiaries taken as a whole except as set forth in or contemplated by
the Offering Document or as described in such certificate.
(h) The Purchasers shall have received a letter, dated the
Closing Date, of each of Deloitte & Touche LLP and Ernst and Young LLP
which meets the requirements of subsections (a) and (b), respectively
of this Section, except that the specified date referred to in such
subsection will be a date not more than five days prior to such Closing
Date for the purposes of this subsection.
(i) On the Closing Date, the Registration Rights Agreement, in
form and substance reasonably satisfactory to the Purchasers, shall
have been duly executed and delivered by the Company and in full force
and effect.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, or any amendment or supplement thereto, or
any related preliminary offering circular or the Exchange Act Reports, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC specifically
for use therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless the Company against any losses, claims, damages or liabilities
to which the Company may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or lia
bilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through CSFBC specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists of
the following information in the Offering Document furnished on behalf of each
Purchaser: the last paragraph at the bottom of the cover page concerning the
terms of the offering by the Purchasers, the legends concerning (x)
over-allotments and stabilizing and (y)
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and transactions by affiliated persons on the bottom of page (ii) and the
material relationship disclosure appearing in the eighth paragraph under the
caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemni fied party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Purchasers on the other from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
purchased by it were resold exceeds the amount of any damages which such
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers' obligations in
this subsection (d) to contribute are several in proportion to their respective
purchase obligations and not joint.
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(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Purchaser within the meaning of the Securities Act or the Exchange Act; and
the obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Shares hereunder on the Closing Date and the
aggregate number of Shares that such defaulting Purchaser or Purchasers agreed
but failed to purchase does not exceed 10% of the total number of Shares that
the Purchasers are obligated to purchase on the Closing Date, CSFBC may make
arrangements satisfactory to the Company for the purchase of such Shares by
other persons, including any of the Purchasers, but if no such arrangements are
made by the Closing Date, the non-defaulting Purchasers shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Shares that such defaulting Purchasers agreed but failed to purchase on the
Closing Date. If any Purchaser or Purchasers so default and the aggregate number
of Shares with respect to which such default or defaults occur exceeds 10% of
the total number of Shares that the Purchasers are obligated to purchase on the
Closing Date and arrangements satisfactory to CSFBC and the Company for the
purchase of such Shares by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 9. As
used in this Agreement, the term "Purchaser" includes any person substituted for
a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Shares. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Shares by the Purchasers is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Purchasers pursuant to Section 7 shall remain in effect. If the
purchase of the Shares by the Purchasers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(b), the Company will reimburse the Purchasers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Shares.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, 11 Madison Avenue,
New York, N.Y. 10010, Attention: Investment Banking Department--Transactions
Advisory Group, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 116 Huntington Avenue, Boston, MA 02116,
Attention: Steven B. Dodge; provided, however, that any notice to a Purchaser
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders and prospective purchasers of
Shares and Exchange Debentures shall be entitled to enforce the agreements for
their benefit contained in the
14
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second and third sentences of Section 5(b) hereof against the Company as if such
holders were parties hereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
AMERICAN RADIO SYSTEMS CORPORATION
By
Name:
Title:
The foregoing Purchase Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
ALEX. BROWN & SONS INCORPORATED
BT SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SMITH BARNEY INC.,
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
Name:
Title:
15
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SCHEDULE A
Number of
Purchaser Shares
- --------- ------
Credit Suisse First Boston Corporation.............. 1,200,000
Alex. Brown & Sons Incorporated..................... 200,000
BT Securities Corporation........................... 200,000
Morgan Stanley & Co. Incorporated................... 200,000
Smith Barney Inc.................................... 200,000
Total.................... 2,000,000
=========
16
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SCHEDULE B-1
Letter of Independent Public Accountants
Referred to in Section 6(a)
(i) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Offering Document;
(ii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe
that:
(A) the summary combined financial information
included in the Offering Document for each of the five years
ended December 31, 1995 do not agree with, or were not
properly derived from, the amounts set forth in each of the
constituent companies' selected financial data included in the
Offering Document for those same periods;
(B) the selected financial data included in the
Offering Document for each of the five years ended December
31, 1995 do not agree with, or were not properly derived from,
the amounts set forth in the audited financial statements of
the Company; Atlantic Radio, L.P.; Multi Market
Communications, Inc.; SBS Holding, Inc.; and Boston AM Radio
Corporation for those same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited financial statements included in the
Offering Document;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than five days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term debt or long-term debt of the Company and its
consoli dated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was
any decrease in consolidated net current assets or net assets,
as compared with amounts shown on the latest balance sheet
included in the Offering Document;
(D) for the period from the closing date of the
latest statement of operations included in the Offering
Document to the closing date of the latest available statement
of operations read by such accountants there were any
decreases, as compared with the corresponding period of the
previous year and with the period of corresponding length
ended the date of the latest statement of operations included
in the Offering Document, in consolidated net revenues,
station operating income (defined as net revenues less
operating expenses, excluding depreciation, amortization and
corporate expenses) or in other income and expense, net, or in
the total amounts of consolidated income in the ratio of
earnings to fixed charges and preferred stock dividend; or
17
<PAGE>
(E) the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of the
pro forma financial data set forth in the Offering Document;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in
such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Document (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company, its subsidiaries and certain other entities whose financial
statements are included in the Offering Document subject to the
internal controls of the Company's or such entity's accounting system
or are derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
18
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SCHEDULE B-2
Letter of Independent Public Accountants
Referred to in Section 6(b)
(i) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included or incorporated by reference in the
Offering Document; and
(ii) if applicable, they have compared specified dollar
amounts (or percentages derived from such dollar amounts) and other
financial information contained or incorporated by reference in the
Offering Document (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the entity whose financial statements
they have audited subject to the internal controls of such entity's
accounting system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
19
<PAGE>
SCHEDULE C
Opinion of Counsel for the Company
Referred to in Section 6(d)
(i) Each of the Company and its Organized Subsidiaries has
been duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct its business as
described in the Offering Document; and is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not individually have a material
adverse effect on the Company or such Organized Subsidiary;
(ii) The Shares, the Exchange Preferred Stock (when issued in
accordance with the terms of the Registration Rights Agreement) and all
other outstanding shares of capital stock of the Company have been duly
authorized and are, or in the case of the Exchange Preferred Stock,
will be, validly issued, are fully paid and nonassessable and conform
and will, in the case of the Exchange Preferred Stock, conform to the
respective descriptions thereof contained in the Offering Document; the
Exchange Preferred Stock has been reserved for issuance; and the
stockholders of the Company have no preemptive or other rights with
respect to the any of such shares;
(iii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles and conforms in all material respects to the
description thereof in the Offering Document; except that such counsel
need not express any opinion concerning the validity or enforceability
of Section 7 thereof;
(iv) Each of the Credit Agreements has been duly authorized,
executed and delivered by the Company, has become effective and
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(v) The Indenture has been duly authorized, executed and
delivered by the Company; the Exchange Debentures have been duly
authorized by the Company; the Indenture constitutes and, when the
Exchange Debentures have been duly executed, authenticated, issued and
delivered in exchange for the Shares or the Exchange Preferred Stock
pursuant to the terms of the Certificate of Designation of either the
Shares or the Exchangeable Preferred Stock, the Exchange Debentures
will constitute, valid and legally binding obligations of the Company
enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Indenture
conforms and the Exchange Debentures will conform to the descriptions
thereof contained in the Offering Document;
20
<PAGE>
(vi) No consent, approval, authorization or order of, or
filing with, any govern mental agency or body or any court is required
for the consummation of the transactions contemplated by this
Agreement, the Indenture or the Registration Rights Agreement (except
with respect to the filing with the Commission and the effectiveness of
the registration statements contemplated therein and with respect to
any applicable Blue Sky or State securities law filings) in connection
with the issuance or sale of the Shares by the Company or the issuance
and delivery of the Exchange Preferred Stock or the Exchange
Debentures, except that such counsel need not express any opinion as to
such as may be required by the Communications Act of 1934, as amended
(the "Communications Act") and the rules, and regulations and orders of
the FCC promulgated thereunder;
(vii) The execution, delivery and performance by the Company
of the Indenture, the Registration Rights Agreement and, this
Agreement, the issuance and sale of the Shares and compliance with the
respective terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties,
or, to such counsel's knowledge, any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound including, but not limited to, the
Credit Agreements, or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, except that such counsel need not
express any opinion with respect to the Communications Act, or the
rules, regulations and orders of the FCC promulgated thereunder, and
the Company has full power and authority to authorize, issue and sell
the Shares and the Exchange Preferred Stock as contemplated by this
Agreement and the Registration Rights Agreement and to authorize issue
and deliver the Exchange Debentures as contemplated by the terms of the
Shares and the Exchange Preferred Stock;
(viii) Such counsel have no reason to believe that the
Offering Document, or any amendment or supplement thereto, as of the
date hereof and as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein in the light
of the circumstances under which they were made not misleading; the
descriptions in the Offering Document of statutes, legal and
governmental proceedings and contracts and other documents are accurate
in all material respects and fairly present the information required to
be shown; it being understood that such counsel need express no opinion
as to the financial statements or other financial data contained in the
Offering Document;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company; and
(x) It is not necessary in connection with (i) the offer, sale
and delivery of the Shares by the Company to the several Purchasers
pursuant to this Agreement or (ii) the resales of the Shares by the
several Purchasers in the manner contemplated by this Agreement, to
register the Shares or Exchange Debentures under the Securities Act or
to qualify an indenture in respect of the Exchange Debentures under the
Trust Indenture Act.
21
<PAGE>
SCHEDULE D
Opinion of FCC Counsel for the Company
Referred to in Section 6(e)
(i) No consent, approval, authorization, order or waiver of filing
(other than information filings) with the FCC is required under the
Communications Act of 1934, as amended, and the published rules, regulations and
policies of the FCC (the "Communications Act") to be obtained or made by the
Company or any subsidiary of the Company for the issuance and sale of the Shares
by the Company or the issuance and delivery of the Exchange Preferred Stock or
the Exchange Debentures, and the compliance with the terms and provisions
thereof, the offering thereof by the Purchasers, and the execution, delivery and
performance of the Indenture, the Registration Rights Agreement and this
Agreement;
(ii) The execution, delivery and performance by the Company of the
Indenture, the Registration Rights Agreement, and this Agreement and the
issuance and sale of the Shares and the issuance and delivery of the Exchange
Debentures and the Exchange Preferred Stock, and the compliance with the
respective terms and provisions thereof, and the offering thereof by the
Purchasers, do not violate any of the terms or provisions of (i) the
Communications Act or (ii) those radio broadcast licenses that are held by the
Company or any subsidiary of the Company;
(iii) The Offering Document as of the date of the Offering Document and
as of the Closing Date, with respect to statements of federal broadcast
communications law or legal conclusions solely with respect to federal broadcast
communications law did not contain any untrue statement of a material fact or
omitted to state any material fact necessary in order to make such statements or
conclusions, in light of the circumstances under which they were made, not
misleading;
(iv) The statements set forth under "Risk Factors - Factors Relating to
American and its Business - Regulatory Matters" and "Business - Federal
Regulation of Radio Broadcasting" in the Offering Document, insofar as they are,
or refer to, statements of federal broadcast communications law, or legal
conclusions with respect to federal broadcast communications law, have been
reviewed by us and, taken together, present the information required to make
such statements of federal law or legal conclusions, in light of the
circumstances in which they were made, accurate in all material respects;
(v) The licensee for each of the radio broadcast stations identified in
the Offering Document as (a) radio broadcast stations either (i) owned or (ii)
operated, programmed and marketed by the Company or a subsidiary of the Company,
or (b) radio broadcast stations for which advertising time is sold by the
Company or a subsidiary of the Company, holds a currently effective radio
broadcast license issued by the FCC for such radio broadcast station; and
(vi) Except as may be described in the Offering Document, to our
knowledge (a) there is no administrative proceeding pending before the FCC
against the radio broadcast stations described in the Offering Document as being
licensed to the Company or a subsidiary of the Company or any of the Acquisition
Businesses which, if determined adversely, could reasonably be expected to have
a material adverse effect upon any of the Company's or any of the Acquisition
Businesses' radio broadcast stations, and (b) the radio broadcast licenses
issued by the FCC for such radio broadcast stations are in full force and effect
in that, except as may be described in the Offering Document, they are held by a
subsidiary of the Company or of one of the Acquisition Businesses, as the case
may be, are currently effective and are not subject to any special conditions
(other than those conditions of a type customarily imposed under the general
rules, regulations and policies of the FCC) that would materially and adversely
affect the operation of such radio broadcast stations as currently operated.
22
<PAGE>
SCHEDULE E
Form of Letter to be Delivered
for Institutional Accredited Investors
American Radio Systems Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
Credit Suisse First Boston Corporation
Alex. Brown & Sons Incorporated
BT Securities Corporation
Morgan Stanley & Co. Incorporated
Smith Barney Inc.,
c/o Credit Suisse First Boston Corporation
11 Madison Avenue
New York, N.Y. 10010
Dear Sirs,
We are delivering this letter in connection with an offering of %
Exchangeable Preferred Stock (such securities, together with the related
securities exchangeable therefor, the "Securities"), of American Radio Systems
Corporation, a Delaware corporation (the "Company") all as described in the
Confidential Offering Circular (the "Offering Circular") relating to the
offering.
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the
"Securities Act"), or any entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(l), (2) or (3)
under the Securities Act (an "Institutional Accredited Investor");
(ii) (A) any purchase of the Securities by us will be for our
own account or for the account of one or more other Institutional
Accredited Investors or a fiduciary for the account of one or more
trusts, each of which is an "accredited investor" within the meaning of
Rule 501(a)(7) under the Securities Act and for each of which we
exercise sole investment discretion or (B) we are a "bank", within the
meaning of Section 3(a)(2) of the Securities Act, or a "savings and
loan association" or other institution described in Section 3(a)(5)(A)
of the Securities Act, that is acquiring the Securities as a fiduciary
for the account of one or more institutions for which we exercise sole
investment discretion;
(iii) in the event that we purchase any of the Securities, we
will acquire Securities having a minimum purchase price of not less
than $100,000 for our own account or for any separate account described
above for which we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing the Securities;
(v) we are not acquiring the Securities with a view of
distribution thereof or with any present intention of offering or
selling any of the Securities, except inside the United States in
accordance with Rule 144A under the Securities Act or outside the
United States in accordance with Regulation S under the Securities Act,
as provided below; provided that the disposition or
23
<PAGE>
our property and the property of any accounts for which we are acting
as fiduciary shall remain at all times within our control; and
(vi) we have received a copy of the Offering Circular relating
to the offering of the Securities and acknowledge that we have had
access to such financial and other information, and have been afforded
the opportunity to ask such questions of representatives of the Issuer
and receive answers thereto, as we deem necessary in connection with
our decision to purchase the Securities.
We understand that the Securities are being offered in a transaction
not involving any public offering within the Untied States within the meaning of
the Securities Act and that the Securities have not been and will not be
registered under the Securities Act, and we agree, on our own behalf and on
behalf of each account for which we acquire any Securities, that if in the
future we decide to resell, pledge or otherwise transfer such Securities, such
Securities may be offered, resold, pledged or otherwise transferred only (i)
inside the United States to a person who we reasonably believe is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of Rule 144A, or (ii) outside the United
States in a transaction in accordance with Rule 904 under the Securities Act,
(iii) pursuant to an exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available), (iv) pursuant to an effective
registration statement under the Securities Act, in each of cases (i) through
(iv) in accordance with any applicable securities laws of any State of the
United States or other applicable jurisdiction. We agree to notify any
purchaser, pledgee or transferee of such Securities of the restrictions referred
to in (i) through (iv) above. We understand that the registrar and transfer
agent for the Securities will not be required to accept for registration of
transfer any Securities acquired by us, except upon presentation of evidence
satisfactory to the Company and the transfer agent that the foregoing
restrictions on transfer have been complied with. We further understand that any
Securities acquired by us (other than pursuant to Rule 144A) will be in the form
of definitive physical certificates and that such certificates will bear a
legend reflecting the substance of this paragraph.
We acknowledge that you, the Company and others will rely upon our
confirmations, acknowledgements and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein cease to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Date: ____________________ ____________________________________
(Name of Purchaser)
By: ________________________________
Name:
Title:
Address:
24
Exhibit 99.9
CERTIFICATE OF DESIGNATION OF
PREFERENCES AND RIGHTS OF
AMERICAN RADIO SYSTEMS CORPORATION
11 3/8% CUMULATIVE EXCHANGEABLE PREFERRED STOCK
American Radio Systems Corporation, a Delaware corporation (hereinafter
called, the "Corporation"), pursuant to Section 151 of the General Corporation
Law of the State of Delaware, does hereby make this Certificate of Designation
and does hereby state and certify that pursuant to the authority expressly
vested in the Board of Directors of the Corporation by the Restated Certificate
of Incorporation of the Corporation (the "Restated Certificate"), the Board of
Directors of the Corporation duly adopted the following resolution:
RESOLVED, that pursuant to Article Four of the Restated Certificate
(which authorizes 10,000,000 shares of preferred stock, $.01 par value), the
Board of Directors of the Corporation hereby fixes the voting powers,
designations and preferences, and the relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions
thereof, of a series of Cumulative Exchangeable Preferred Stock.
RESOLVED, that each share of the Cumulative Exchangeable Preferred
Stock shall rank equally in all respects and shall be subject to the following
provisions:
SECTION 1. Designation; Rank. This series of Preferred Stock shall be
designated "11 3/8% Cumulative Exchangeable Preferred Stock", par value $.01 per
share (the "Exchangeable Preferred Stock"). The liquidation preference of the
Exchangeable Preferred Stock shall be $100.00 per share. The Preferred Stock
will rank, with respect to dividend rights and rights on liquidation, winding-up
and dissolution, (i) senior to all classes of Common Stock of the Corporation,
each other class of capital stock or series of preferred stock established after
the date hereof by the
<PAGE>
Board of Directors of the Corporation (or, to the extent permitted by the
General Corporation Law of the State of Delaware, the Executive Committee
thereof) (the "Board") which does not expressly provide that it ranks senior to
or on a parity with the Exchangeable Preferred Stock as to dividend rights and
rights on liquidation, winding-up and dissolution (collectively referred to with
the Common Stock of the Corporation as "Junior Securities"); (ii) on a parity
with each other class of capital stock or series of preferred stock issued by
the Corporation established after the date hereof by the Board, which expressly
provides that such series will rank on a parity with the Exchangeable Preferred
Stock as to dividend rights and rights on liquidation, winding-up and
dissolution and with the Corporation's 7% Convertible Exchangeable Preferred
Stock (the "7% Preferred"), par value $.01 (collectively referred to as "Parity
Securities"); and (iii) junior to each other class of capital stock or series of
preferred stock established after the date hereof by the Board the terms of
which specifically provide that such series will rank senior to the Exchangeable
Preferred Stock as to dividend rights and rights on liquidation, winding-up and
dissolution (collectively referred to as "Senior Securities").
SECTION 2. Authorized Number. The number of shares constituting the
Exchangeable Preferred Stock shall be 3,700,000 shares.
SECTION 3. Dividends. (a) Holders of shares of the Exchangeable
Preferred Stock will be entitled to receive, when, as and if declared by the
Board out of funds of the Corporation legally available for payment, cash
dividends at an annual rate of 11 3/8% of the liquidation preference per share
of the Exchangeable Preferred Stock; provided, however, that such rate per annum
is subject to increase as provided for in paragraph (c) below. Dividends will be
payable quarterly in arrears on April 15, July 15, August 15 and January 15 of
each year, commencing April 15, 1997 (each, a "Dividend Payment Date"), provided
that if any dividend, including Additional Dividends (as defined in paragraph
(c) below), if any, payable on any Dividend Payment Date on or before January
15, 2002 is not declared and paid in full in cash on such Dividend Payment Date,
the
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<PAGE>
amount payable as dividends on such Dividend Payment Date that is not paid in
cash on such Dividend Payment Date shall, subject to the terms of any Parity
Securities or any Senior Securities and unless otherwise resolved by the Board
with respect to such Dividend Payment Date, be paid in additional shares of
Exchangeable Preferred Stock on such Dividend Payment Date and shall, unless
such shares are not issued, be deemed paid in full and shall not accumulate,
provided, further that the Corporation may, at its option, pay cash in lieu of
fractional shares (valued for such purpose at the liquidation preference of the
Exchangeable Preferred Stock) that may otherwise be issued pursuant to the
foregoing clause. Each dividend will be payable or issuable, as the case may be,
to Holders of record as they appear on the stock transfer books of the
Corporation on a record date, not more than 60 nor less than 10 days before the
payment date, fixed by the Board. Dividends will be cumulative from the date of
original issuance of the Exchangeable Preferred Stock. Dividends payable on the
Exchangeable Preferred Stock for any period less than a year shall be computed
on the basis of a 360-day year of twelve 30-day months and the actual number of
days elapsed in the period for which payable. The amount of Additional
Dividends, if any, will be determined consistent with the preceding sentence and
by multiplying the applicable Additional Dividends by a fraction, the numerator
of which is the number of days such rate was applicable during any Interest
Period and the denominator of which is 360. The Exchangeable Preferred Stock
will not be entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends. Dividends shall cease to
accumulate in respect of the Exchangeable Preferred Stock on the Debenture
Exchange Date or on the date of their earlier redemption unless the Corporation
shall have failed to issue the appropriate aggregate principal amount of
Exchange Debentures in respect of the Exchangeable Preferred Stock on such
Debenture Exchange Date or shall have failed to pay the relevant redemption
price on the date fixed for redemption. No interest, or sum of money in lieu of
interest, will be payable in respect of any accrued and unpaid dividends.
Dividends on account of arrears and dividends in connection with any optional
redemption pursuant to Section 6(a) may be declared and paid at any
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time, without reference to any regular Dividend Payment Date, to Holders of
record on such date, not more than forty-five (45) days prior to the payment
thereof, as may be fixed by the Board of Directors of the Corporation.
(b) No full dividends may be declared or paid or funds set apart for
the payment of dividends on any Parity Securities for any period unless full
cumulative dividends shall have been paid (or are deemed paid) or, if payable in
cash, set apart for such payment on the Exchangeable Preferred Stock. If full
dividends are not so paid, the Exchangeable Preferred Stock shall share
dividends pro rata with the Parity Securities. No dividends may be paid or set
apart for such payment on Junior Securities (except dividends on Junior
Securities in additional shares of Junior Securities) and no Junior Securities
may be repurchased, redeemed or otherwise retired nor may funds be set apart for
payment with respect thereto, if full dividends have not been paid on the
Exchangeable Preferred Stock.
(c) (i) If the Corporation fails to file an Exchange Offer Registration
Statement or a Shelf Registration Statement (in the circumstances described
below) within 90 days of the Issue Date (or, in the case of the Shelf
Registration Statement, if later, within 30 days of the Shelf Event), or such
Exchange Offer Registration Statement or Shelf Registration Statement fails to
become effective within 180 days of the Issue Date (or, in the case of the Shelf
Registration Statement, if later, within 90 days of the Shelf Event) or the
Exchange Offer is not consummated within 225 days of the Issue Date, then, as
liquidated damages, additional dividends (the "Additional Dividends") shall
become payable with respect to the Exchangeable Preferred Stock as set forth in
paragraphs (ii), (iii) and (iv) below, respectively.
(ii) If (1) the Exchange Offer Registration Statement is not
filed within 90 days of the Issue Date, or (2)(a) the Company determines, or, in
the absence of such determination is notified by the relevant Holder, that a
Holder would be unable to participate in the Exchange Offer or that, after the
Exchange Offer, a Holder would not
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receive freely transferable shares of preferred stock in the Exchange Offer, or
(b) Holders of not less than a majority of Exchangeable Preferred Stock who have
determined that their interests would be adversely affected by consummation of
the Exchange Offer, in which event the Company shall not proceed with or
consummate the Exchangeable Offer and clause (1) shall not apply (each of the
events in clause 2(a) and 2(b) being a "Shelf Event"), and, in the case of
clause 2(a) or 2(b), the Shelf Registration Statement is not filed within the
later of 90 days following the Issue Date or 30 days following the Shelf Event,
then Additional Dividends shall be payable on the Exchangeable Preferred Stock
by increasing the dividend rate set forth in Section 3(a) hereof by 0.5% per
annum on the liquidation preference for the first 90 days commencing on the 91st
day after the Issue Date (or, in the case of the Shelf Registration Statement,
if later, on the 31st day after the Shelf Event), such Additional Dividends
increasing by an additional 0.5% per annum on the liquidation preference at the
beginning of each subsequent 90-day period.
(iii) If the Exchange Offer Registration Statement is not
effective within 180 days of the Issue Date, unless a Shelf Event of the nature
described in paragraph (c)(ii)(2)(b) above has occurred, or, if a Shelf Event
occurs, the Shelf Registration Statement is not declared effective within the
later of 180 days following the Issue Date or 90 days following the Shelf Event,
Additional Dividends shall be payable on the Exchangeable Preferred Stock by
increasing the dividend rate set forth in Section 3(a) hereof by 0.5% per annum
on the liquidation preference for the first 90 days commencing on the 181st day
after the Issue Date (or, in the case of the Shelf Registration Statement, if
later, on the 91st day after the Shelf Event), such Additional Dividends
increasing by an additional 0.5% per annum on the liquidation preference at the
beginning of each subsequent 90-day period.
(iv) If (A) the Corporation has not exchanged all of the
shares of Exchangeable Preferred Stock validly tendered in accordance with the
terms of the Exchange Offer on or prior to 225 days after the Issue Date or (B)
the Exchange Offer Registration Statement ceases to be effective
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at any time prior to the time that the Exchange Offer is consummated, unless a
Shelf Event of the nature described in paragraph (c)(ii)(2)(b) above has
occurred, or (C) the Shelf Registration Statement has been declared effective,
if a Shelf Event has occurred, and the Shelf Registration Statement subsequently
ceases to be effective at any time prior to the date on which all the
Exchangeable Preferred Stock held by persons that are not affiliates of the
Corporation may be resold without registration pursuant to Rule 144(k) under the
Securities Act (unless all of the Exchangeable Preferred Stock registered
thereunder has been sold thereunder), then Additional Dividends shall be payable
on the Exchangeable Preferred Stock by increasing the dividend rate set forth in
Section 3(a) hereof by 0.5% per annum on the liquidation preference for the
first 90 days commencing on (I) the 226th day after the Issue Date with respect
to the Exchangeable Preferred Stock validly tendered and not exchanged by the
Corporation, in the case of (A) above, or (ii) the day the Exchange Offer
Registration Statement ceases to be effective or usable for its intended purpose
in the case of (B) above, or (III) the day such Shelf Registration Statement
ceases to be effective in the case of (C) above, such Additional Dividends
increasing by an additional 0.5% per annum on the liquidation preference at the
beginning of each subsequent 90-day period.
(v) Notwithstanding paragraphs (i)-(iv) of this paragraph (c),
the aggregate amount of all Additional Dividends payable hereunder shall not
exceed in the aggregate 1.0% per annum on the liquidation preference. In
addition (A) upon the filing of the Exchange Offer Registration Statement or
Shelf Registration Statement (in the case of paragraph (c)(ii) above), (B) upon
the effectiveness of the Exchange Offer Registration Statement or Shelf
Registration Statement (in the case of paragraph (c)(iii) above), or (C) upon
the exchange of Exchange Preferred for the Exchangeable Preferred Stock tendered
(in the case of paragraph (c)(iv)(A) above), or upon the effectiveness of the
Exchange Offer Registration Statement that had ceased to remain effective (in
the case of paragraph (c)(iv)(B) above), or upon the effectiveness of the Shelf
Registration Statement that had ceased to remain effective (in the case of
paragraph (c)(iv)(C) above), the
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dividend rate on the Exchangeable Preferred Stock shall revert to the dividend
rate set forth in Section 3(a) hereof and Additional Dividends on the
Exchangeable Preferred Stock
shall cease to be payable.
SECTION 4. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, before
any payment or distribution of assets is made on any Junior Securities,
including, without limitation, Common Stock of the Corporation, the Holders of
Exchangeable Preferred Stock shall receive the liquidation preference per share
and shall be entitled to receive, without duplication, an amount equal to all
accumulated and unpaid dividends through the date of distribution, and the
Holders of any Parity Securities shall be entitled to receive an amount equal to
the full respective liquidation preferences (including any premium) to which
they are entitled and shall receive an amount equal to all accumulated and
unpaid dividends with respect to their respective shares through and including
the date of distribution. If, upon such a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation are
insufficient to pay in full the amounts described above as payable with respect
to the Exchangeable Preferred Stock and any Parity Securities, the Holders of
the Exchangeable Preferred Stock and such Parity Securities will share ratably
in any such distribution of assets of the Corporation first in proportion to
their respective liquidation preferences until such preferences are paid in
full, and then in proportion to their respective amounts of accumulated and
unpaid dividends. After payment of any such liquidation preference and
accumulated and unpaid dividends, the shares of Exchangeable Preferred Stock
will not be entitled to any further participation in any distribution of assets
by the Corporation. For purposes hereof, accumulated dividends shall include a
pro rated dividend for the period from the last Dividend Payment Date to the
date fixed for liquidation, dissolution or winding up. Neither the sale or
transfer of all or substantially all the assets of the Corporation, nor the
merger or consolidation of the Corporation into or with any other corporation or
other entity or a merger of any other corporation or other entity
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with or into the Corporation, will be deemed to be a liquidation, dissolution or
winding up of the Corporation.
SECTION 5. Voting Rights. (a) In addition to such other vote, if any,
as may be required by Delaware law or provided by the resolution creating any
other series of preferred stock to the extent such resolution refers to the
Exchangeable Preferred Stock, so long as any shares of Exchangeable Preferred
Stock are outstanding, the vote or consent of the Holders of a majority of the
outstanding shares of Exchangeable Preferred Stock and any Parity Securities,
voting together as a single class (with each share being entitled to the number
of votes otherwise specified, if so specified, for such securities) without
regard to series, shall be necessary to (i) issue, authorize or increase the
authorized amount of any obligation or security convertible into or evidencing a
right to purchase, any class or series of Senior Securities, (ii) increase or
decrease the par value of the shares of Exchangeable Preferred Stock or (iii)
alter or change the powers, preferences, or special rights of the shares of
Exchangeable Preferred Stock so as to affect them adversely. Except as provided
above, the creation, authorization or issuance of any shares of any Junior
Securities or Parity Securities (or any security or obligation (other than
Senior Securities) convertible into or evidencing the right to purchase Junior
Securities or Parity Securities) or the increase or decrease in the amount of
authorized Junior Securities or Parity Securities (or any security or obligation
(other than Senior Securities) convertible into or evidencing the right to
purchase Junior or Parity Securities), shall not require the consent of Holders
of Exchangeable Preferred Stock and shall not be deemed to affect adversely the
rights, preferences, privileges or voting rights of Holders of Exchangeable
Preferred Stock.
(b) Prior to the Debenture Exchange Date (as defined in Section 8(a)
below), the Corporation shall not amend or modify the Indenture (as defined in
Section 8(a) below), without the affirmative vote or consent of Holders of at
least a majority of the outstanding shares of Exchangeable Preferred Stock,
voting together as a single class; provided, however, that the Corporation and
the Trustee (as
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defined in Section 8(a) below) shall be permitted, without any vote or consent
of such Holders, to effect any amendments to the Indenture that could have been
effected under the Indenture without the consent of Holders of Exchange
Debentures (as defined in Section 8(a) below) if any Exchange Debentures were
then outstanding.
(c) Without the affirmative vote or consent of Holders of at least a
majority of the outstanding shares of Exchangeable Preferred Stock, voting as a
single class, the Corporation shall not consolidate or merge with or into
(whether or not the Corporation is the Surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person,
unless:
(i) the Surviving Person is a corporation organized or existing under
the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Surviving Person (if other than the Corporation) assumes all
the obligations of the Corporation under this Certificate of
Designation; (iii) at the time of and immediately after such
Disposition, no Voting Rights Triggering Event shall have occurred and
be continuing; and
(iv) the Surviving Person shall at the time of such Disposition and
after giving pro forma effect thereto, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Debt to EBITDA Ratio
test described under Section 10(a).
(d) (i) In the event that (1) dividends (either in cash or, on or
before January 15, 2002, through the issuance of additional shares of
Exchangeable Preferred Stock) on the Exchangeable Preferred Stock are in arrears
and unpaid for six or more Dividend Periods (whether or not consecutive) (a
"Dividend Default"); (2) the Corporation fails to redeem all of the then
outstanding shares of Exchangeable Preferred Stock on January 15, 2009 or
otherwise fails to discharge any redemption obligation with respect to the
Exchangeable
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Preferred Stock; (3) the Corporation fails to make an Offer to Purchase (whether
pursuant to the terms of Section 7(e) or otherwise) following a Change of
Control if such Offer to Purchase is required by Section 7 hereof or fails to
purchase shares of Exchangeable Preferred Stock from Holders who elect to have
such shares purchased pursuant to the Offer to Purchase; (4) the Corporation
breaches or violates one of the provisions set forth in any of Sections 8(a),
8(b), 8(c) or 8(d) hereof and the breach or violation continues for a period of
30 days or more after the Corporation receives notice thereof specifying the
default from the Holders of at least 25% of the shares of Exchangeable Preferred
Stock than outstanding or (5) the Corporation fails to pay at the final stated
maturity (giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Corporation or any Restricted Subsidiary of the Corporation,
or the final stated maturity of any such Indebtedness is accelerated, if the
aggregate principal amount of such Indebtedness, together with the aggregate
principal amount of any other such Indebtedness in default for failure to pay
principal at the final stated maturity (giving effect to any extensions thereof)
or that has been accelerated, aggregates $5,000,000 or more at one time, in each
case, after a 30-day period during which such default shall not have been cured
or such acceleration rescinded, then in the case of any of clauses (1)-(5) the
maximum authorized number of directors of the Corporation will be increased by
two and Holders of Exchangeable Preferred Stock shall be entitled to vote their
shares of Exchangeable Preferred Stock, together with the Holders of any Parity
Securities upon which like voting rights have been conferred and are
exercisable, in accordance with the procedures set forth below, to elect, as a
class, an additional two directors; provided, however, that (x) Holders of
Exchangeable Preferred Stock and such Parity Securities shall not elect as
director any individual who if so elected would cause the Corporation to be in
violation of the Communications Act of 1934, as amended, or the rules and
regulations of the FCC, and (y) if the exercise of such right by the Holders of
the Exchangeable Preferred Stock and such Parity Securities would cause the
Corporation or any of its subsidiaries not to qualify for a license granted by
the FCC that is necessary for the
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continued operation of the Corporation or such subsidiaries, the Board shall be
increased, and such Holders shall be entitled to vote their shares to elect only
such lesser number, including zero, of directors as would not result in the
Corporation or such subsidiaries not qualifying for such license. Each such
event described in clauses (1), (2), (3), (4) and (5) is a "Voting Rights
Triggering Event". So long as shares of Exchangeable Preferred Stock shall be
outstanding, the Holders of Exchangeable Preferred Stock shall retain the right
to vote and elect, with the Holders of any such Parity Securities, voting
together as a single class (with each share being entitled to the number of
votes otherwise specified for such securities) without regard to series, such
number of directors until such time as (x) in the event such right arises due to
a Dividend Default, all accumulated dividends that are in arrears on the
Exchangeable Preferred Stock are paid in full in cash or, with respect to any
Dividend Period ending on or before January 15, 2002, through the issuance of
additional shares of Exchangeable Preferred Stock; and (y) in all other cases,
the failure, breach or default giving rise to such Voting Rights Triggering
Event is remedied or waived by the Holders of at least a majority of the shares
of Exchangeable Preferred Stock then outstanding and entitled to vote thereon.
Such period is hereinafter referred to as a "Default Period". The voting rights
provided herein shall be the exclusive remedy at law or in equity of the Holders
of the Exchangeable Preferred Stock for any Voting Rights Triggering Event.
(ii) So long as any shares of Exchangeable Preferred Stock
shall be outstanding, during any Default Period, such voting right of the
Holders of Exchangeable Preferred Stock may be exercised initially at a special
meeting called pursuant to paragraph (iii) below or at any annual meeting of
stockholders. The absence of a quorum of Holders of Common Stock or any class
thereof shall not affect the exercise of such voting rights by the Holders of
Exchangeable Preferred Stock and Parity Securities.
(iii) Unless the Holders of Exchangeable Preferred Stock and
Parity Securities so entitled, if any are then outstanding, have, during an
existing Default Period,
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previously exercised their right to elect directors, the Board may order, or any
stockholder or stockholders owning shares having in the aggregate not less than
5% of the votes of Exchangeable Preferred Stock and such Parity Securities,
taken together as a single class, may request, the calling of a special meeting
of Holders of Exchangeable Preferred Stock and such Parity Securities, if any
are then outstanding, which meeting shall thereupon be called by the Chairman of
the Board, the President, a Vice President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which Holders of
Exchangeable Preferred Stock and such Parity Securities are entitled to vote
pursuant to this paragraph shall be given to each Holder of record of
Exchangeable Preferred Stock by mailing a copy of such notice to such Holder at
such Holder's last address as the same appears on the stock transfer books of
the Corporation. Such meeting shall be called for a time not later than twenty
(20) days after such order or request, or, in default of the calling of such
meeting may be called on similar notice by any stockholder or stockholders
owning shares having in the aggregate not less than 5% of the votes of
Exchangeable Preferred Stock and such Parity Securities, taken together as a
single class (who shall have, and to whom the Corporation shall provide, access
to the lists of stockholders to be called pursuant to the provisions hereof). At
any meeting held for the purpose of electing directors at which the Holders of
Exchangeable Preferred Stock and any Parity Securities shall have the right to
elect directors as aforesaid, the presence in person or by proxy of the Holders
owning shares having at least a majority of the votes of Exchangeable Preferred
Stock and such Parity Securities shall be required to constitute a quorum of
such Exchangeable Preferred Stock and such Parity Securities. Notwithstanding
the provisions of this paragraph, no such special meeting shall be called during
the period within ninety (90) days immediately preceding the date fixed for the
next annual meeting of stockholders.
(iv) During any Default Period, the Holders of Common Stock
of the Corporation, and other classes of stock of the Corporation, if
applicable, shall continue to be entitled to elect all of the directors unless
and until the Holders of Exchangeable Preferred Stock and Parity
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Securities so entitled shall have exercised their right to elect two directors
voting as a class, after the exercise of which right (x) the directors so
elected by the Holders of Exchangeable Preferred Stock and such Parity
Securities shall continue in office until the earlier of (A) such time as their
successors shall have been elected by such Holders or (B) the expiration of the
Default Period, and (y) any vacancy in the Board may be filled by vote of the
remaining director or directors, if any, theretofore elected by the Holders of
the class or classes of stock which elected the director whose office shall have
become vacant. References in this paragraph to directors elected by the Holders
of a particular class or classes of stock shall include directors elected by
such director or directors to fill vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of a Default
Period (x) the right of the Holders of Exchangeable Preferred Stock to elect
directors shall cease, (y) the term of office of any directors elected by the
Holders of Exchangeable Preferred Stock and such Parity Securities as a class
shall terminate, and (z) the number of directors shall be such number as may be
provided for in the Restated Certificate or bylaws of the Corporation
irrespective of any increase made pursuant to the provisions of paragraph (i) of
this paragraph (c) (such number being subject, however, to change thereafter in
any manner provided by law or in the Restated Certificate or by-laws of the
Corporation).
(e)In any case in which the Holders of Exchangeable Preferred
Stock shall be entitled to vote pursuant to this Section 5 or pursuant to
Delaware law, each Holder of Exchangeable Preferred Stock entitled to vote with
respect to such matter shall be entitled to one vote for each share of
Exchangeable Preferred Stock held.
SECTION 6. Redemption.
(a) (Optional Redemption). (i) After January 15, 2002, the Corporation
may, at its option, redeem all or from time to time any part of the shares of
Exchangeable Preferred Stock, out of funds legally available therefor, in the
manner provided for in Section 6(c) at the following
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redemption prices per share (expressed as a percentage of the liquidation
preference thereof), plus an amount equal to accrued and unpaid dividends, if
any, up to but excluding the date fixed for redemption ("Optional Redemption
Price"), if redeemed during the twelve-month period commencing immediately after
January 15 of the years indicated below:
Redemption
Year Price
2002..................................................... 105.688%
2003..................................................... 104.550
2004..................................................... 103.413
2005..................................................... 102.275
2006 .................................................... 101.138
2007 and thereafter ..................................... 100.000
; provided that no redemption pursuant to this Section 6(a)(i) shall be
authorized or made unless prior thereto full accumulated and unpaid dividends,
without duplication, are declared and paid in full, or declared and a sum in
cash set apart sufficient for such payment, on the Exchangeable Preferred Stock
for all Dividend Periods terminating on or prior to the Redemption Date.
(ii) In addition to the foregoing paragraph (i), prior to
January 15, 2000, the Corporation may, at its option, use the net cash proceeds
of one or more of its Public or Rule 144A Equity Offerings to redeem, from any
source of funds legally available therefor, in the manner provided for in
Section 6(c) hereof, up to 35% of the outstanding shares of Exchangeable
Preferred Stock at a redemption price of 11.375% of the liquidation preference
thereof plus, without duplication, an amount in cash equal to all accumulated
and unpaid dividends to the redemption date (including an amount in cash equal
to a prorated dividend for the period from the Dividend Payment Date immediately
prior to the redemption date to the redemption date) (the "Cash Proceeds
Redemption Price"); provided, however, that after any such redemption, the
aggregate liquidation preference of Exchangeable Preferred Stock outstanding
must equal at least $130 million. Any such redemption pursuant to this Section
6(a)(ii) must occur on
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or prior to 60 days after the receipt by the Corporation of the proceeds of each
Public Equity Offing.
(iii) In the event of a redemption pursuant to Section
6(a)(i) or 6(a)(ii) hereof of only a portion of the then outstanding shares of
the Exchangeable Preferred Stock, the Corporation shall effect such redemption
on a pro rata basis according to the number of shares held by each Holder of the
Exchangeable Preferred Stock, except that the Corporation may redeem such shares
held by Holders of fewer than 100 shares (or shares held by Holders who would
hold less than 100 shares as a result of such redemption), as may be determined
by the Corporation.
(b) (Mandatory Redemption). On January 15, 2009, the Corporation shall
redeem, to the extent of funds legally available therefor, in the manner
provided for in Section 6(c) hereof, all of the shares of the Exchangeable
Preferred Stock then outstanding at a redemption price equal to 100% of the
liquidation preference per share, plus, without duplication, an amount in cash
equal to all accumulated and unpaid dividends per share (including an amount
equal to a prorated dividend for the period from the Dividend Payment Date
immediately prior to the Redemption Date to the Redemption Date) (the "Mandatory
Redemption Price").
(c) (Procedures for Redemption). (i) At least thirty (30) days and not
more than sixty (60) days prior to the date fixed for any redemption of the
Exchangeable Preferred Stock, written notice (the "Redemption Notice") shall be
given by first class mail, postage prepaid, to each Holder of record on the
record date fixed for such redemption of the Exchangeable Preferred Stock at
such Holder's address as it appears on the stock register of the Corporation,
provided that no failure to give such notice nor any deficiency thereon shall
affect the validity of the procedure for the redemption of any shares of
Exchangeable Preferred Stock to be redeemed except as to the Holder or Holders
to whom the Corporation has failed to give said notice or except as to the
Holder or Holders whose Notice was defective. The Redemption Notice shall state:
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(1) whether the redemption is pursuant to
Section 6(a)(i), 6(a)(ii) or 6(b) hereof;
(2) the Optional Redemption Price, the Mandatory
Redemption Price or the Cash Proceeds Redemption
Price, as the case may be;
(3) whether all or less than all the outstanding shares of
the Exchangeable Preferred Stock are to be redeemed and the
total number of shares of the Exchangeable Preferred Stock
being redeemed;
(4) the date fixed for redemption;
(5) that the Holder is to surrender to the Corporation, in
the manner, at the place or places and at the price
designated, his certificate or certificates representing the
shares of Exchangeable Preferred Stock to be redeemed; and
(6) that dividends on the shares of the Exchangeable
Preferred Stock to be redeemed shall cease to accumulate on
such Redemption Date unless the Corporation defaults in the
payment of the Optional Redemption Price, the Mandatory
Redemption Price or the Cash Proceeds Redemption Price, as the
case may be.
(ii) Each Holder of Redeemable Preferred Stock shall
surrender the certificate or certificates representing such shares of
Exchangeable Preferred Stock to the Corporation, duly endorsed (or otherwise in
proper form for transfer, as determined by the Corporation), in the manner and
at the place designated in the Redemption Notice, and on the Redemption Date the
full Optional Redemption Price, Mandatory Redemption Price or Cash Proceeds
Redemption Price, as the case may be, for such shares shall be payable in cash
to the Person whose name appears on such certificate or certificates as the
owner thereof, and each surrendered certificate shall be canceled and retired.
In the event that less than all of the shares represented by any such
certificate are redeemed a new certificate shall be issued representing the
unredeemed shares.
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(iii) On and after the Redemption Date, unless the
Corporation defaults in the payment in full of the applicable redemption price,
dividends on the Exchangeable Preferred Stock called for redemption shall cease
to accumulate on the Redemption Date, and all rights of the Holders of redeemed
shares shall terminate with respect thereto on the Redemption Date, other than
the right to receive the Optional Redemption Price, the Mandatory Redemption
Price or the Cash Proceeds Redemption Price, as the case may be, without
interest; provided, however, that if a notice of redemption shall have been
given as provided in paragraph (c)(i) above and the funds necessary for
redemption (including an amount in respect of all dividends that will accrue to
the Redemption Date) shall have been irrevocably deposited in trust for the
equal and ratable benefit for the Holders of the shares to be redeemed, then, at
the close of business on the day on which such funds are segregated and set
aside, the Holders of the shares to be redeemed shall cease to be stockholders
of the Corporation and shall be entitled only to receive the Optional Redemption
Price, the Mandatory Redemption Price or the Cash Redemption Price, as the case
may be, without interest.
SECTION 7. Change of Control.
(a) The Corporation will commence an Offer to Purchase (as defined in
paragraph (b)) all of the outstanding shares of Exchangeable Preferred Stock
within 15 days after the occurrence of a Change of Control (as defined in
paragraph (f)(i)).
(b) "Offer to Purchase" means a written offer ("Offer") to each Holder
at such holder's address appearing in the stock books of the Corporation on the
date of the Offer, offering to purchase in cash all outstanding shares of
Exchangeable Preferred Stock at a purchase price equal to 101% of the
liquidation preference of the Exchangeable Preferred Stock plus, without
duplication, accrued and unpaid dividends, if any. Unless otherwise required by
applicable law, the Offer shall specify an expiration date ("Expiration Date")
of the Offer to Purchase which shall be, subject to any contrary requirements of
applicable law, not less than 30 days or more than 60 days after the date of
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such Offer and a settlement date ("Purchase Date") for purchase of Exchangeable
Preferred Stock within five Business Days after the Expiration Date. The Offer
shall be sent by first class mail by the Corporation. The Offer shall contain
information concerning the business of the Corporation and its Subsidiaries
which the Corporation in good faith believes will enable such Holders to make an
informed decision with respect to the Offer to Purchase (which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be furnished to Holders
pursuant to Section 10(e) (which requirements may be satisfied by delivery of
such documents together with the Offer), (ii) a description of material
developments in the Corporation's business subsequent to the date of the latest
of such financial statements referred to in Clause (i) (including a description
of the events requiring the Corporation to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information concerning the Offer to
Purchase and the events requiring the Corporation to make the Offer to Purchase
and (iv) any other information required by applicable law to be included
therein. The Offer shall contain all instructions and materials necessary to
enable such Holders to tender Exchangeable Preferred Stock pursuant to the Offer
to Purchase. The Offer shall also state:
(1) the Expiration Date and the Purchase Date;
(2) the aggregate liquidation preference of the outstanding
shares of Exchangeable Preferred Stock offered to be purchased by the
Corporation (the "Purchase Amount") pursuant to the Offer to Purchase;
(3) the liquidation preference per share of Exchangeable
Preferred Stock and the purchase price to be paid by the Corporation
(the "Purchase Price") for each share accepted for payment;
(4) that the Holder may tender all or any portion of the
shares of Exchangeable Preferred Stock registered in the name of such
Holder and that any
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portion of Exchangeable Preferred Stock tendered must be tendered in
whole shares;
(5) the place or places where shares of Exchangeable
Preferred Stock are to be surrendered for tender pursuant to the Offer
to Purchase;
(6) that dividends on any shares of Exchangeable Preferred
Stock not tendered or tendered but not purchased by the Corporation
pursuant to the Offer to Purchase will continue to accumulate;
(7) that on the Purchase Date the Purchase Price will become
due and payable upon each share of Exchangeable Preferred Stock being
accepted for payment pursuant to the Offer to Purchase and that
dividends thereon shall cease to accrue on and after the Purchase Date;
(8) that each Holder electing to tender a share of
Exchangeable Preferred Stock pursuant to the Offer to Purchase will be
required to surrender such share at the place or places specified in
the Offer prior to the close of business on the Expiration Date (such
share being, if the Corporation so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Corporation duly executed by, the Holder thereof or his attorney
duly authorized in writing);
(9) that Holders will be entitled to withdraw all or any
portion of Exchangeable Preferred Stock tendered if the Corporation
receives, not later than the close of business on the Expiration Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the number of shares of Exchangeable Preferred
Stock that the Holder tendered, the certificate number representing the
shares of Exchangeable Preferred Stock that the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his
tender;
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(10) that the Corporation shall purchase all shares of
Exchangeable Preferred Stock duly tendered and not withdrawn pursuant
to the Offer to Purchase; and
(11) that in the case of any Holder whose shares of
Exchangeable Preferred Stock are purchased only in part, the
Corporation will issue to the Holder of such shares without service
charge a new certificate representing the unpurchased shares of
Exchangeable Preferred Stock.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
(c) The Corporation will comply with any securities laws and
regulations, to the extent such laws and regulations are applicable to the
repurchase of the Exchangeable Preferred Stock in connection with an Offer to
Purchase.
(d) On the Purchase Date the Corporation shall (1) accept for payment
the shares of Exchangeable Preferred Stock validly tendered pursuant to the
Offer to Purchase, (3) pay to the Holders of shares so accepted the purchase
price therefor in cash and (C) cancel and retire each surrendered certificate.
Unless the Corporation defaults in the payment for the shares of Exchangeable
Preferred Stock tendered pursuant to the Offer to Purchase, dividends will cease
to accrue with respect to the shares of Exchangeable Preferred Stock tendered
and all rights of Holders of such tendered shares will terminate, except for the
right to receive payment therefor, on the Purchase Date.
(e) If the purchase of the Exchangeable Preferred Stock would violate
or constitute a default under any Indebtedness of the Corporation, then,
notwithstanding anything to the contrary contained above, prior to complying
with the foregoing provisions, but in any event within 30 days following the
Change of Control, the Corporation shall either (1) repay in full all such
Indebtedness and terminate all commitments outstanding under any credit
agreements or (2) obtain the requisite consents, if any, under such
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Indebtedness required to permit the repurchase of Exchangeable Preferred Stock
required by this Section 7. Until the requirements of the immediately preceding
sentence are satisfied, the Corporation shall not make, and shall not be
obligated to make, any Offer to Purchase; provided that the Corporation's
failure to comply with the provisions of this Section 7(e) shall constitute a
Voting Rights Triggering Event; which shall provide the exclusive remedy at law
or in equity of the Holders of Exchangeable Preferred Stock for any such
failure.
(f) (i) A "Change of Control" means the occurrence of any of the
following:
(a) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the Corporation's assets
to any Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) (other than the Principal Shareholders or their Related
Parties),
(b) the adoption of a plan relating to the liquidation or dissolution
of the Corporation,
(c) the acquisition, directly or indirectly, by any Person or group (as
such term is used in Section 13(d)(3) of the Exchange Act) (other than
one or more of the Principal Shareholders and their Related Parties) of
40% or more of the voting power of the voting stock of the Corporation
by way of merger or consolidation or otherwise, provided that such
acquisition will not constitute a "Change of Control" unless or until
such Person or group owns, directly or indirectly, more of the voting
power of the voting stock of the Corporation than the Principal
Shareholders and their Related Parties, or
(d) the Continuing Directors cease for any reason to constitute a
majority of the directors of the Corporation then in office.
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For purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Corporation
shall be deemed to be a transfer of such portion of such voting stock as
corresponds to the portion of the equity of such entity that has been so
transferred.
(ii) "Continuing Director" means any member of the Board of
Directors of the Corporation who (i) is a member of that Board of Directors on
the Issue Date or (ii) was nominated for election by either (a) one or more of
the Principal Shareholders (or a Related Party thereof) or (b) the Board of
Directors a majority of whom were directors at the Issue Date or whose election
or nomination for election was previously approved by one or more of the
Principal Shareholders or such directors.
(iii) "Immediate Family Member" means, with respect to any
individual, such individual's spouse (past or current), descendants (natural or
adoptive, of the whole or half blood) of the parents of such individual, such
individual's grandparents and parents (natural or adoptive), and the
grandparents, parents and descendants of parents (natural or adoptive, of the
whole or half blood) of such individual's spouse (past or current).
(iv) "Principal Shareholders" means Steven B. Dodge and Thomas H.
Stoner.
(v) "Related Party" with respect to any Principal Shareholder means (i)
any 80% (or more) owned Subsidiary or Immediate Family Member (in the case of an
individual) of such Principal Shareholder or (ii) any Person, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal Shareholder or an
Immediate Family Member, or (iii) any Person employed by the Corporation in a
management capacity as of the Issue Date.
SECTION 8. Exchange Provisions. (a) Shares of Exchangeable Preferred
Stock will be exchangeable at the option of the Corporation, out of funds
legally available
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therefor, in whole but not in part, on any Dividend Payment Date (any such
Dividend Payment Date on which such exchange is or is to be made, the "Debenture
Exchange Date"), through the issuance of the Corporation's 11 3/8% Subordinated
Exchange Debentures due 2009 (the "Exchange Debentures") to be substantially in
the form set forth in the Indenture (as defined below) in redemption of and in
exchange for shares of Exchangeable Preferred Stock, in the manner provided in
this Section 8. The Exchange Debentures will be subject to the terms and
conditions of the indenture dated as of January 30, 1997 (the "Indenture")
between the Corporation and the Trustee, a copy of which is on file with the
secretary of the Corporation at the principal executive offices of the
Corporation, as amended in accordance with the provisions of Section 5(b). The
"Trustee" is Fleet National Bank or any successor Trustee appointed in
accordance with the terms of the Indenture.
(b) Holders of the Exchangeable Preferred Stock will be entitled to
receive Exchange Debentures at the rate of $1.00 principal amount of Exchange
Debentures for each $1.00 of liquidation preference of Exchangeable Preferred
Stock, including, to the extent necessary, Exchange Debentures in principal
amounts less than $1,000, provided that the Corporation shall have the right, at
its option, to pay cash in an amount equal to the principal amount of that
portion of any Exchange Debenture that is not an integral multiple of $1,000
instead of delivering an Exchange Debenture in a denomination of less than
$1,000. Such exchange may be made only if, at the time of the exchange, (i) the
Corporation shall be in compliance with Section 8(d), (ii) there shall be funds
legally available sufficient therefor; and (iii) immediately after giving effect
to such exchange, no Default or Event of Default (as defined in the Indenture)
would exist under the Indenture and no default or event of default would exist
under the terms of any other of the Corporation's Indebtedness.
(c) The Corporation will mail notice of its intention to exchange
through such an exchange to each Holder of record of the Exchangeable Preferred
Stock not less than thirty (30) nor more than sixty (60) days before the
Debenture Exchange Date. Such notice shall be given by
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first class mail, postage prepaid, to the Holders of record of shares of
Exchangeable Preferred Stock at their respective addresses as the same shall
appear on the stock transfer books of the Corporation, specifying the Debenture
Exchange Date and the place where certificates for shares of Exchangeable
Preferred Stock are to be surrendered for Exchange Debentures and stating that
dividends on shares of the Exchangeable Preferred Stock will cease to accrue on
the Debenture Exchange Date, but neither failure to mail such notice, nor any
defect therein or in the mailing thereof, to any particular Holder shall affect
the sufficiency of the notice or the validity of the proceedings for exchange
with respect to the other Holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the Holder receives the notice. If notice of exchange has been given
pursuant to this subsection then (unless the Corporation defaults in issuing
Exchange Debentures in exchange for the Exchangeable Preferred Stock or fails to
pay or set aside for payment accumulated and unpaid dividends on the
Exchangeable Preferred Stock as set forth in subsection (d) below and
notwithstanding that any certificates for shares of Exchangeable Preferred Stock
have not been surrendered for exchange) on the Debenture Exchange Date the
Holders of Exchangeable Preferred Stock will cease to be stockholders with
respect to such shares and will have no interests in or claims against the
Corporation by virtue thereof (except the right to receive Exchange Debentures
in exchange therefor and accumulated and unpaid dividends on the Exchangeable
Preferred Stock to the Debenture Exchange Date and, if the Company so elects,
cash in lieu of any Exchange Debenture that is in a principal amount that is not
an integral multiple of $1,000) and will have no voting, conversion or other
rights with respect to such shares, and all shares of Exchangeable Preferred
Stock will no longer be outstanding.
Upon the surrender (and endorsement, if required by the Corporation) in
accordance with such notice of the certificate for shares of Exchangeable
Preferred Stock, such certificates shall be exchanged for Exchange Debentures
and such accumulated and unpaid dividends in accordance with this paragraph (c).
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(d) No shares of Exchangeable Preferred Stock may be exchanged for
Exchange Debentures unless the Corporation has paid (or is deemed to have paid)
or, if payable in cash, set aside for the benefit of the Holders of the
Exchangeable Preferred Stock all accumulated and unpaid dividends on the
Exchangeable Preferred Stock to the Debenture Exchange Date (including an amount
equal to a prorated dividend for the period from the Dividend Payment Date to
the Debenture Exchange Date).
SECTION 9. No Exchange in Certain Cases. Notwithstanding the foregoing
provisions of Section 8, the Corporation shall not be entitled to exchange the
Exchangeable Preferred Stock for Exchange Debentures if such exchange, or any
term or provision of the Indenture or the Exchange Debentures, or the
performance of the Corporation's obligations under the Indenture or the Exchange
Debentures, shall materially violate or conflict with any applicable law or
agreement or instrument then binding on the Corporation or if, at the time of
such exchange, the Corporation is insolvent or if it would be rendered insolvent
by such exchange.
SECTION 10. Certain Additional Provisions.
(a) (Limitation on Incurrence of Indebtedness and Issuance of Preferred
Stock.) The Corporation will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or directly or indirectly guarantee or in
any other manner become directly or indirectly liable for ("incur") any
Indebtedness (including Acquired Debt) or issue any preferred stock, except that
the Corporation may:
(x) issue (i) preferred stock that is not Disqualified Stock at any
time (subject to Section 5(a)(i)), and (ii) additional shares of
Exchangeable Preferred Stock in lieu of cash dividends as provided in
Section 3(a) hereof, and
(y) incur Indebtedness or issue Disqualified Stock (subject to Section
5(a)(i), if the Debt to EBITDA Ratio of the Corporation and its
Restricted Subsidiaries at the time of incurrence of such Indebtedness
or issuance of such Disqualified
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Stock, after giving pro forma effect thereto, is 7.0:1 or less.
The foregoing limitations shall not apply to the incurrence of any of
the following:
(i) Senior Bank Debt (including guarantees thereof by the Corporation's
Subsidiaries) pursuant to either of the Credit Agreements;
(ii) Existing Indebtedness;
(iii)Indebtedness represented by (1) the Exchange Debentures, and (2)
guarantees by Restricted Subsidiaries of (A) Senior Bank Debt and (B)
any other Indebtedness of the Corporation permitted to be incurred
under this Certificate of Designation;
(iv) Refinancing Indebtedness, provided that the principal amount of
such Refinancing Indebtedness shall not exceed the principal amount of
Indebtedness or amount of Disqualified Stock so extended, refinanced,
renewed, replaced, substituted, defeased or refunded (plus the amount
of expenses incurred and premiums paid in connection therewith);
(v) intercompany Indebtedness between the Corporation and any of its
Restricted Subsidiaries or among its Restricted Subsidiaries, or Equity
Interests issued by a Restricted Subsidiary in conformity with Section
10(c);
(vi) Hedging Obligations, including interest rate swap obligations,
that are incurred in the ordinary course of business for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Certificate of
Designation to be outstanding; and
(vii) additional Indebtedness of the Corporation, which may be
guaranteed by any of its Restricted Subsidiaries, in an aggregate
outstanding
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principal amount not to exceed $20,000,000 at any
time.
(b) (Limitation on Restricted Payments). The Corporation will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend, or make any other distribution or
payment, on any Junior Securities of the Corporation or on any Equity
Interests of any Restricted Subsidiary (other than dividends or
distributions payable by the Corporation in Junior Securities (other
than Disqualified Stock) of the Corporation or by a Restricted
Subsidiary in Equity Interests (other than Disqualified Stock) of such
Restricted Subsidiary or dividends or distributions payable to the
Corporation or any Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value any
Junior Securities of the Corporation or any Equity Interests of any
Restricted Subsidiary or other Affiliate of the Corporation (other than
any Equity Interests owned by the Corporation or any Restricted
Subsidiary); or
(iii) make an Investment other than (a) a Permitted Investment or (b)
Investments of the Corporation or any Restricted Subsidiary in the
Corporation or any Restricted Subsidiary;
(any payment made for any of the foregoing purposes being herein referred to as
a "Restricted Payment"), unless:
(I) at the time of and immediately after giving effect to the proposed
Restricted Payment, no Voting Rights Triggering Event shall have
occurred and be continuing or would occur as a consequence thereof,
(II) the Corporation would, at the time of such Restricted Payment and
after giving pro forma
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effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to
incur at least $1.00 of additional Indebtedness under the Debt to
EBITDA Ratio test contained in Section 10(a), and
(III) at the time of and immediately after giving effect to the
proposed Restricted Payment (valued at its Fair Market Value, if other
than cash), the aggregate amount of all Restricted Payments (excluding
all payments, investments, redemptions, repurchases, retirements and
other acquisitions described in clauses (2) and (3) of the following
paragraph) declared or made after December 31, 1995 shall not exceed
the sum of
(A) an amount equal to the Corporation's EBITDA cumulated from
December 31, 1995 to the end of the Corporation's most
recently ended full fiscal quarter, taken as a single
accounting period, less 1.4 times the sum of (i) the
Corporation's Consolidated Interest Expense from December 31,
1995 to the end of the Corporation's most recently ended full
fiscal quarter, taken as a single accounting period, plus (ii)
all dividends or other distributions paid or made by the
Corporation or any Restricted Subsidiary on any Disqualified
Stock of the Corporation or any of its Subsidiaries during
such period, plus
(B) an amount equal to the aggregate sum of all net cash
proceeds received after December 31, 1995 by the Corporation
from the issuance and sale of Junior Securities (other than
any Disqualified Stock and other than to Restricted
Subsidiaries) to the extent that such proceeds are not used to
redeem,
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repurchase, retire or otherwise acquire Junior Securities of
the Corporation pursuant to clause (2) in the next
paragraph, plus
(C) the aggregate net proceeds received after December 31,
1995 by the Corporation and its Restricted Subsidiaries from
the sale or disposition of any Investment other than a
Permitted Investment.
The foregoing provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment would
have been permitted by the provisions of this Certificate of
Designation;
(2) the redemption, repurchase, retirement or other acquisition for
value of any Junior Securities of the Corporation in exchange for, or
out of the proceeds of, the substantially concurrent sale (other than
to the Corporation or a Restricted Subsidiary) of Junior Securities of
the Corporation (other than Disqualified Stock); or
(3) Restricted Payments made or paid since December 31, 1995 in an
aggregate amount not exceeding $10,000,000.
Payments made pursuant to clause (1) above shall nevertheless be considered
Restricted Payments for purposes of computing the aggregate amount of Restricted
Payments under clause (III) of the preceding paragraph. For purposes of clause
(B) of the preceding paragraph, the conversion or exchange of Indebtedness or
Disqualified Stock of the Corporation into Junior Securities of the Corporation
(other than into Equity Interests constituting Indebtedness or Disqualified
Stock) shall be deemed to be the issuance and sale by the Corporation of such
Junior Securities at the
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time of such conversion or exchange for net cash proceeds equal to the net cash
proceeds originally received by the Corporation for the Indebtedness or
Disqualified Stock so converted or exchanged (or received by the Corporation for
any other Indebtedness or Disqualified Stock previously converted into or
exchanged for such Indebtedness or Disqualified Stock), plus any additional net
cash proceeds received by the Corporation upon such conversion or exchange (or
such previous conversion or exchange) and less any cash paid by the Corporation
in connection therewith.
(c) (Limitation on Restricted Subsidiary Equity Interests). The
Corporation will not permit any Restricted Subsidiary to issue any Equity
Interests, except for (i) Equity Interests issued to and held by the Corporation
or a Restricted Subsidiary, and (ii) Equity Interests issued by a Person prior
to the time that (A) such Person becomes a Restricted Subsidiary, (B) such
Person merges with or into a Restricted Subsidiary or (C) a Restricted
Subsidiary merges with or into such Person; provided that such Equity Interests
were not issued or incurred by such Person in anticipation of the type of
transaction contemplated by subclause (A), (B) or (C).
(d) (Provision of Financial Information). Whether or not required by
the rules and regulations of the SEC, so long as any shares of Exchangeable
Preferred Stock are outstanding, the Corporation will furnish to the Holders of
Exchangeable Preferred Stock:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Corporation were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual information
only, a report thereon by the Corporation's independent certified
public accountants, and
(ii) all reports that would be required to be filed with the SEC on
Form 8-K if the Corporation were required to file such reports.
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In addition, whether or not required by the rules and regulations of the SEC,
the Corporation will file a copy of all such information with the SEC for public
availability (unless the SEC will not accept such filing) and make such
information available to investors who request it in writing.
SECTION 11. Status of Reacquired Shares. If shares of the Exchangeable
Preferred Stock are redeemed pursuant to Section 6 or Section 7 hereof or
exchanged pursuant to Section 8 hereof, the shares so redeemed or exchanged
shall, upon compliance with any statutory requirements, assume the status of
authorized but unissued shares of preferred stock of the Corporation.
SECTION 12. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand or by first class mail, postage prepaid, or when
sent by telex or telecopier (with receipt confirmed), provided a copy is also
sent by first class mail, postage prepaid, or express (overnight, if possible)
courier, addressed (i) in the case of a Holder of the Exchangeable Preferred
Stock, to such Holder's address of record, and (ii) in the case of the
Corporation, to the Corporation's principal executive offices to the attention
of the Corporation's Chief Executive Officer and Chief Financial Officer.
SECTION 13. Amendments and Waivers. Any right, preference, privilege or
power of, or restriction provided for the benefit of, the Exchangeable Preferred
Stock set forth herein may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Corporation and the vote or
consent of the Holders of a majority of the shares of Exchangeable Preferred
Stock then outstanding, and any amendment or waiver so effected shall be binding
upon the Corporation and all Holders of the Exchangeable Preferred Stock.
SECTION 14. Definitions. As used in this Certificate of Designation,
the following terms shall have the following meanings (with terms defined in the
singular having
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comparable meanings when used in the plural and vice versa), unless the context
otherwise requires:
"Acquired Debt" means with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person
merges with or into, or becomes a Subsidiary of, such specified Person,
including Indebtedness incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a Subsidiary
of, such specified Person.
"Additional Dividends" has the meaning assigned
thereto in Section 3(c)(i).
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For
purposes of this definition, "control of" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common
control with") any Person means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the voting securities of a Person shall be
deemed to be control.
"Board of Directors" means the board of directors of the
Corporation or any duly authorized committee of that board.
"Broadcast Assets" means assets used or useful in the
ownership or operation of an AM or FM radio station.
"Broadcast License" means an authorization issued by the FCC
for the operation of an AM or FM radio station.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City
of New York are authorized or obligated by law or executive order to
close.
"Capital Lease Obligation" means, at any time any
determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be required to be
capitalized on the balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of any association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) or capital stock and (iii) in the case
of a partnership, partnership interests (whether general or limited)
and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions
of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof
having maturities of less than one year from the date of acquisition,
(iii) certificates of deposit and eurodollar time deposits with
maturities of less than one year from the date of acquisition, bankers'
acceptances with maturities of less than one year and overnight bank
deposits, in each case with any lender party to either of the Credit
Agreements or with any domestic commercial bank having capital and
surplus in excess of $500,000,000 and a Keefe Bank Watch Rating of "B"
or better, (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses
(ii) and (iii) entered into with any financial institution meeting the
qualifications specified in clause (iii) above and (v) commercial paper
having the highest rating obtainable from Moody's Investors Service,
Inc. or
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Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., and in each case maturing within nine months after the
date of acquisition.
"Cash Proceeds Redemption Price" has the meaning
assigned thereto in Section 6(a)(ii).
"Change of Control" has the meaning assigned
thereto in Section 7(f).
"Consolidated Interest Expense" means, without duplication,
with respect to any period, the sum of (i) the interest expense and all
capitalized interest of the Corporation and its Restricted Subsidiaries
for such period, on a consolidated basis, including, without
limitation, (a) amortization of debt discount, (b) the net cost under
interest rate contracts (including amortization of debt discount), (c)
the interest portion of any deferred payment obligation and (d) accrued
interest, plus (ii) the interest component of any Capital Lease
Obligation paid or accrued or scheduled to be paid or accrued by the
Corporation during such period, determined on a consolidated basis in
accordance with GAAP.
"Credit Agreements" means the $550,000,000 Credit Agreement
and the $350,000,000 Credit Agreement, each dated as of January 24,
1997 among the Corporation, The Bank of New York, as Collateral Agent
and Administrative Agent, and the Co-Syndication Agents, the Managing
Agents, the Agent and the Co-Agents named therein and the lenders
parties thereto, including (i) any related notes, guarantees (including
guarantees by the Corporation's Subsidiaries), collateral documents,
instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time, and (ii) any notes, guarantees (including
guarantees by the Corporation's Subsidiaries), collateral documents,
instruments and agreements executed in connection with any such
amendment, modification, renewal, refunding, replacement or
refinancing.
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"Debenture Exchange Date" has the meaning assigned
thereto in Section 8(a).
"Debt to EBITDA Ratio" means, with respect to any date, the
ratio of (a) the aggregate principal amount of all outstanding
Indebtedness (excluding Hedging Obligations, including interest rate
swap obligations, that are incurred in the ordinary course of business
for the purpose of fixing or hedging interest rate risk with respect to
any floating rate Indebtedness that is permitted by the terms of this
Certificate of Designation to be outstanding) of the Corporation and
its Restricted Subsidiaries as of such date on a consolidated basis,
plus the aggregate liquidation preference or redemption amount of all
outstanding Disqualified Stock of the Corporation and its Restricted
Subsidiaries as of such date (excluding any such Disqualified Stock
held by the Corporation or a Wholly Owned Restricted Subsidiary), to
(b) EBITDA of the Corporation and its Restricted Subsidiaries on a
consolidated basis for the four most recent full fiscal quarters ending
immediately prior to such date, determined on a pro forma basis after
giving effect to each acquisition or disposition of assets made by the
Corporation and its Restricted Subsidiaries from the beginning of such
four-quarter period through such date as if such acquisition or
disposition had occurred at the beginning of such four-quarter period.
"Default Period" means has the meaning assigned
thereto in Section 5(c)(i).
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person
(whether or not such Person is the Surviving Person) or the sale,
assignment, transfer, lease conveyance or other disposition of all or
substantially all of such Person's assets.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event,
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matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the Holder
thereof (other than upon a Change of Control of the Corporation in
circumstances where the Holders of the Securities would have similar
rights), in whole or in part on or prior to one year after January 15,
2009. The amount of Disqualified Stock shall be the greater of the
liquidation preference or mandatory or optional redemption price
thereof.
"Dividend Default" has the meaning assigned
thereto in Section 5(e)(i).
"Dividend Payment Date" has the meaning assigned
thereto in Section 3(a).
"Dividend Period" means the period from the Issue Date to and
including the first Dividend Payment Date and thereafter each quarterly
period commencing on each April 16, July 16, October 16, and January 16
and ending on the next succeeding Dividend Payment Date.
"EBITDA" of a specified person means, for any period, the
consolidated net income of such specified Person and its Restricted
Subsidiaries for such period:
(i) plus (without duplication and to the extent involved in
computing such consolidated net income) (a) interest expense,
(b) provision for income taxes, (c) depreciation and
amortization and other non-cash charges (including
amortization of goodwill and other intangibles and barter
expenses), (d) EBITDA of Sponsored Investees (where such
Person is the Corporation), and (e) local marketing agreement
expenses; and
(ii) minus (without duplication and to the extent involved in
computing such consolidated net income) (a) any gains (or plus
losses), together with any related provision for taxes on such
gains or losses,
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realized in connection with any sale of assets (including,
without limitation, dispositions pursuant to sale and
leaseback transactions), (b) any non-cash or extraordinary
gains (or plus losses), together with any related provision
for taxes on such extraordinary gains or losses, (c) the
amount of any cash payments related to non-cash charges that
were added back in determining EBITDA in any prior period, (d)
barter revenues, and (e) interest attributable to Indebtedness
of Sponsored Investees (where such Person is the Corporation)
that is owed to the Corporation or a Restricted Subsidiary,
together with any taxes attributable thereto;
provided that:
(i) the net income of any other Person (other than a Sponsored
Investee) that is accounted for by the equity method of
accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to such specified
Person whose EBITDA is being determined or a Wholly Owned
Restricted Subsidiary thereof;
(ii) the net income of any other Person that is a Restricted
Subsidiary (other than a Wholly Owned Restricted Subsidiary)
or is an Unrestricted Subsidiary shall be included only to the
extent of the amount of dividends or distributions paid in
cash to such specified Person whose EBITDA is being determined
or a Wholly Owned Restricted Subsidiary thereof;
(iii) the net income (loss) of any other Person acquired after
the Issue Date in a pooling of interests transaction for any
period prior to the date of such acquisition
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shall be excluded (to the extent otherwise included); and
(iv) gains or losses from sales of assets other than sales of
assets acquired and held for resale in the ordinary course of
business shall be excluded (to the extent otherwise included).
All of the foregoing will be determined in accordance with GAAP.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (including any
Indebtedness or Disqualified Stock that is convertible into, or
exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934 as it
may be amended and any successor act thereto.
"Exchange Debentures" has the meaning assigned
thereto in Section 8(a).
"Exchange Offer" means a registered offer to exchange any and
all shares of the Exchangeable Preferred Stock for a like number of
shares (with a liquidation preference equal to that of the surrendered
shares) of another series of the Corporation's senior exchangeable
preferred stock that has terms identical in all material respects to
the Exchangeable Preferred Stock except that (i) such other series of
exchangeable preferred stock shall have been registered pursuant to an
effective registration statement under the Securities Act and the
certificates therefor shall contain no restrictive legends thereon and
(ii) the certificate of designation governing such other series of
exchangeable preferred stock does not need to contain provisions with
respect to Additional Dividends, including, without limitation, those
contained in Section 3 hereof.
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"Exchange Offer Registration Statement" means the registration
statement filed by the Corporation with the SEC with respect to an
Exchange Offer.
"Existing Indebtedness" means any outstanding Indebtedness of
the Corporation and its Restricted Subsidiaries as of the Issue Date or
which thereafter becomes Indebtedness of the Corporation or any of its
Restricted Subsidiaries as a result of the merger of EZ Communications,
Inc. into the Corporation and which was outstanding Indebtedness of EZ
Communications, Inc. or its Subsidiaries on the Issue Date.
"Existing Investments" means any Investments of the
Corporation and its Restricted Subsidiaries (other than Investments in
Unrestricted Subsidiaries) as of the Issue Date or which thereafter
becomes an Investment of the Corporation or any of its Restricted
Subsidiaries as a result of the merger of EZ Communications, Inc. into
the Corporation, and was an Investment of EZ Communications, Inc. or
its Subsidiaries on the Issue Date.
"Expiration Date" has the meaning assigned thereto
in Section 7(b).
"EZ Notes" means the 9 3/4% Senior Subordinated Notes Due 2005
issued pursuant to the Indenture, dated as of November 21, 1995,
between State Street Bank and Trust Company, as Trustee, and EZ
Communications, Inc. as such Indenture has been and may be amended or
supplemented, and as assumed by the Corporation in connection with the
merger of EZ Communications, Inc.
into the Corporation.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length
transaction between an informed and willing seller under no compulsion
to sell and an informed and willing buyer under no compulsion to buy.
All determinations of Fair Market Value shall be made by the Board of
Directors of the Corporation
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and shall be evidenced by a resolution of such Board set forth in an
Officers' Certificate.
"FCC" means the Federal Communications Commission, as from
time to time constituted, created under the Federal Communications Act
of 1934, or, if at any time after the filing of this Certificate of
Designation, the FCC is not existing and performing the duties now
assigned to it under such act, then the body performing such duties at
such time.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which
are in effect on the Issue Date.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection or deposit in the ordinary course
of business), direct or indirect, in any manner (including, without
limitation, letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and
(ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Holders" means a Holder of shares of Exchangeable Preferred
Stock as reflected in the stock books of the Corporation.
"incur" means, with respect to any obligation of
any Person, to create, issue, incur, assume or directly
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or indirectly guarantee or in any other manner become directly or
indirectly liable for any Indebtedness (and "incurrence", "incurred",
"incurrable" and "incurring" shall have meanings correlative to the
foregoing).
"Indenture" has the meaning assigned thereto in
Section 8(a).
"Indebtedness" means, with respect to any Person, whether or
not contingent, (i) all indebtedness of such Person for borrowed money
or for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business
and payable in accordance with customary practices) or which is
evidenced by a note, bond, debenture or similar instrument, (ii) all
Capital Lease Obligations of such Person, (iii) all obligations of such
Person in respect of letters of credit or bankers' acceptances issued
or created for the account of such Person, (iv) all Hedging Obligations
of such Person, (v) all liabilities secured by any Lien on any property
owned by such Person even if such Person has not assumed or otherwise
become liable for the payment thereof to the extent of the value of the
property subject to such Lien, and (vi) to the extent not otherwise
included, any guarantee by such person of any other Person's
indebtedness or other obligations described in clauses (i) through (v)
above.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates of
such Person) in the form of loans, guarantees, advances or capital
contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities of any other Person and all other
items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Issue Date" means the date of original issuance
of the Exchangeable Preferred Stock.
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"Junior Securities" has the meaning assigned
thereto in Section 1.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in any asset and
any filing of, or agreement to give, any financing statement under the
"Uniform Commercial Code" (or equivalent statutes) of any
jurisdiction).
"Mandatory Redemption Price" has the meaning
assigned thereto in Section 6(b).
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Offer to Purchase" has the meaning assigned
thereto in Section 7(b).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, President, a Chief
Operating Officer, a Vice President, or the Chief Financial Officer
and, without duplication, by the Treasurer, an Assistant Treasurer,
Controller, the Secretary or an Assistant Secretary, of the
Corporation.
"Optional Redemption Price" has the meaning assigned thereto
in Section 6(a).
"Parity Securities" has the meaning assigned thereto in
Section 1.
"Permitted Investment" means:
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(i) any Investment in the Corporation or any
Wholly Owned Restricted Subsidiary;
(ii) any Investment in Cash Equivalents;
(iii) any Investment in a Person if, as a result of such Investment,
(a) such Person becomes a Wholly Owned Restricted Subsidiary of the
Corporation, or (b) such Person either (1) is merged, consolidated or
amalgamated with or into the Corporation or one of its Wholly Owned
Restricted Subsidiaries and the Corporation or such Wholly Owned
Restricted Subsidiary is the Surviving Person or the Surviving Person
becomes a Wholly Owned Restricted Subsidiary, or (2) transfers or
conveys all or substantially all of its assets to, or is liquidated
into, the Corporation or one of its Wholly Owned Restricted
Subsidiaries;
(iv) any Investment in a Sponsored Investee as contemplated by clause
(ii) of the definition of "Sponsored Investee";
(v) any Investment in accounts and notes receivable acquired in the
ordinary course of business;
(vi) notes from employees issued to the Corporation representing
payment of the exercise price of options to purchase capital stock of
the Corporation;
(vii) investments in Tower Parent and Tower (excluding Existing
Investments) aggregating up to $25,000,000 in cash and/or property made
within two years from the Issue Date, provided that at the time of and
immediately after giving effect to each proposed Investment, (a) each
of Tower Parent and Tower is an Unrestricted Subsidiary, (b) no Voting
Rights Triggering Event shall have occurred and be continuing or would
occur as a consequence thereof and (c) the Debt to EBITDA Ratio of the
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Corporation and its Restricted Subsidiaries is 7.0:1 or less;
(viii) Investments in Unrestricted Subsidiaries represented by shares
of Capital Stock (other than Disqualified Stock) of the Corporation or
assets and property acquired in exchange for Capital Stock (other than
Disqualified Stock) of the Corporation; and
(ix) any Existing Investment.
Any Investment in an Unrestricted Subsidiary shall not be a Permitted Investment
unless included in clauses (i) through (ix) above.
"Permitted Sponsored Investee Indebtedness" means
Indebtedness of a Sponsored Investee to a Person other
than the Corporation or a Wholly Owned Restricted
Subsidiary, provided that:
(a) such Indebtedness ranks junior in right of
payment to the Investments of the Corporation and
any Wholly Owned Restricted Subsidiary in the
Sponsored Investee:
(b) the net proceeds of such Indebtedness (other than
indebtedness of The Ten Eighty Corporation in an aggregate
principal amount not exceeding $2,000,000 (exclusive of
accrued and unpaid interest) owed to an Affiliate of such
corporation and outstanding on the Issue Date) are utilized to
reduce the amount outstanding on the Corporation's or a Wholly
Owned Restricted Subsidiary's Investments in the Sponsored
Investee;
(c) the terms of such Indebtedness do not restrict the ability
of the Sponsored Investee to make any payments to the
Corporation or a Wholly Owned Restricted Subsidiary; and
(d) if such Sponsored Investee becomes a Restricted
Subsidiary, such Indebtedness is refinanced by the Corporation
(and no longer
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<PAGE>
outstanding to such other Person) prior to or simultaneously
with the Sponsored Investee becoming a Restricted Subsidiary.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Public or 144A Equity Offering" means an underwritten public
offering, or an exempt offering made on a firm commitment basis by
initial purchasers the substantial majority of which is contemplated to
be resold by the initial purchasers pursuant to Rule 144A under the
Securities Act, of Equity Interests (other than Indebtedness or
Disqualified Stock) of a Person, the net proceeds from which (after
deducting any underwriting discounts and commissions) exceeds
$10,000,000.
"Purchase Date" has the meaning assigned thereto in Section
7(b).
"Redemption Date" , with respect to any shares of Senior
Exchangeable Preferred Stock, means the date on which such shares of
Senior Exchangeable Preferred Stock are redeemed by the Corporation.
"Redemption Notice" has the meaning assigned thereto in
Section 6(c).
"Refinancing Indebtedness" means (i) Indebtedness of the
Corporation or any Restricted Subsidiary incurred or given in exchange
for, or the proceeds of which are used to, extend, refinance, renew,
replace, substitute, defease or refund any other Indebtedness or
Disqualified Stock incurred by the Corporation in accordance with the
terms of this Certificate of Designation, and (ii) Indebtedness of any
Restricted Subsidiary incurred or given in exchange for, or the
proceeds of which are used to, extend, refinance, renew, replace,
substitute, defease or refund any other
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<PAGE>
Indebtedness or Disqualified Stock of the Corporation or any Restricted
Subsidiary in accordance with the terms of this Certificate of
Designation.
"Restricted Payment" has the meaning assigned thereto in
Section 10(b).
"Restricted Subsidiary" means a Subsidiary of the
Corporation other than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act.
"Securities Act" means the Securities Act of 1933,
as it may be amended and any successor act thereto.
"Senior Bank Debt" means (i) the Indebtedness outstanding
under either of the Credit Agreements, provided that Senior Bank Debt
under this clause (i) shall not exceed the difference between (a) the
sum of $750,000,000 plus the aggregate principal amount (up to
$150,000,000) of borrowings incurred under the applicable Credit
Agreement to finance the repurchase by the Corporation of EZ Notes (the
"EZ Note Amount") plus any borrowings and letters of credit under
either of the Credit Agreements after the Issue Date to the extent that
such borrowings or letters of credit at the time of incurrence or
issuance, as the case may be, resulted in combined Indebtedness under
the Credit Agreements exceeding the sum of $750,000,000 plus the EZ
Note Amount and to the extent that such borrowings or letters of credit
at the time of incurrence or issuance, as the case may be, were
permitted under Section 10(a) and (b) the aggregate amount of net
proceeds from asset sales applied to permanently reduce the level of
permitted borrowings under either of the Credit Agreements pursuant to
the terms of any of the Corporation's outstanding Indebtedness and (ii)
all Obligations incurred by or owing to the holders or their agent or
representatives of such Indebtedness outstanding under either of the
Credit Agreements (including, but not limited to, all fees and expenses
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of counsel and all other interest, charges, fees and expenses).
"Senior Securities" has the meaning assigned thereto in
Section 1.
"Shelf Registration Statement" means a registration statement
filed by the Corporation with the SEC for an offering to be made on a
continuous basis pursuant to Rule 415 promulgated under the Securities
Act covering all of the securities to be registered pursuant to an
Exchange Offer.
"Sponsored Investee" means a Person:
(i) which owns or acquires Broadcast Assets
(including a Broadcast License);
(ii) which either (A) obtains substantially all of the funds
required for such acquisition (other than capital
contributions from the stockholders of such Person) and for
the physical improvement of such Broadcast Assets approved by
the Corporation at the time of such acquisition, from the
proceeds of Investments by the Corporation in such Person or
(B) receives all or a portion of the purchase price for such
assets, in either case, in the form of Indebtedness bearing
interest at a rate of not less than the lesser of 10% per
annum or the prime rate plus 1% per annum;
(iii) in respect of which the Corporation has a right to
acquire either (A) all of such Person's Equity Interests
outstanding on the acquisition date or (B) such Broadcast
Assets (including such Broadcast License), subject, in either
case to no conditions other than customary closing conditions,
including without limitation compliance with the rules and
regulations of the FCC relating to acquisitions of Broadcast
Licenses and any
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Federal laws restricting the number of Broadcast Licenses or
share of a market which any Person may own or control;
(iv) in which the Corporation has the right to share in not
less than 75% of the appreciation in value of the Broadcast
Assets, subject to the right of the stockholders of the
Sponsored Investee to receive a return on their capital
contribution which is not greater than the annual interest
rate on the Indebtedness owed to the Corporation;
(v) which has agreed that it will not --
(a) incur or be liable for any Indebtedness, except for
Investments owned by the Corporation and Permitted
Sponsored Investee Indebtedness,
(b) make any Investments, except Investments of the type
mentioned in clauses (ii), (iv) and (v) of the
definition of Permitted Investments,
(c) declare or pay any dividend or other distribution on
any of its Equity Interests or purchase, redeem or
otherwise acquire or retire for value any of its Equity
Interests, other than Equity Interests owned by the
Corporation or any Restricted Subsidiary,
(d) sell, lease, convey or otherwise dispose of any
assets (including by way of a sale-and-leaseback) other
than in the ordinary course of business or to the
Corporation or any Restricted Subsidiary, or
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(e) permit to exist any Liens, except Permitted Liens or
Liens in favor of the Corporation or any Restricted
Subsidiary;
(v) which has employed a general manager of each radio station
owned by such Person who has, in the reasonable opinion of the
Corporation's Board of Directors, experience commensurate with
that which the Corporation would expect of its radio station
general managers; and
(vi) which has agreed that not less than 90% of the excess of
its cumulative cash flow from operations that exceeds $500,000
will be used to meet its obligations on the Investments in it
held by the Corporation or to prepay such Investments, except
such portion of its cash flow which is used to purchase
property, plant and equipment (a) in the ordinary course of
business and approved by the Corporation (to the extent
permitted by FCC regulations) or (b) pursuant to plans
approved in writing by the Corporation at the time the Person
became a Sponsored Investee.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than
50% of the total voting power of shares of Equity Interests entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees or other governing body
thereof is at the time owned or controlled by such Person (regardless
of whether such Equity Interests are owned directly or through one or
more other Subsidiaries of such Person or a combination thereof).
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving
such Disposition or the Person to which such Disposition is made.
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"Tower" means American Tower Systems Inc., a Delaware
corporation.
"Tower Parent" means American Tower Systems Holding
Corporation, a Delaware corporation.
"Unrestricted Subsidiary" means (i) Tower, (ii) Tower Parent,
(iii) Radio Data Group, Inc., a Virginia corporation, (iv) American
Merger Corporation, a Delaware corporation, (v) any Subsidiary of the
Corporation that at the time of determination shall be an Unrestricted
Subsidiary (as designated by the Board of Directors of the Corporation,
as provided below) and (vi) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors of the Corporation may designate any
Subsidiary of the Corporation (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary if all of the
following conditions apply: (a) neither the Corporation nor any of its
Restricted Subsidiaries provides credit support for any Indebtedness of
such Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness), (b) such Subsidiary is not liable,
directly or indirectly, with respect to any Indebtedness other than
Unrestricted Subsidiary Indebtedness, (c) such Unrestricted Subsidiary
is not a party to any agreement, contract, arrangement or understanding
at such time with the Corporation or any Restricted Subsidiary of the
Corporation unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Corporation
or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Corporation (the "Third
Party Value") or, in the event such condition is not satisfied, an
amount equal to the value of the portion of such agreement, contract,
arrangement or understanding to such Subsidiary in excess of the Third
Party Value shall be deemed a Restricted Payment, and (d) such
Unrestricted Subsidiary does not own any Capital Stock of any
Subsidiary of the Corporation that has not theretofore been or is not
simultaneously being designated an Unrestricted Subsidiary. Any such
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designation by the Board of Directors of the Corporation shall be
evidenced by a board resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complies with
the foregoing conditions. The Board of Directors of the Corporation may
designate any Unrestricted Subsidiary as a Restricted Subsidiary;
provided that (i) immediately after giving effect to such designation,
the Corporation could incur $1.00 of additional Indebtedness pursuant
to the restrictions under Section 10(a) and (ii) all Indebtedness of
such Unrestricted Subsidiary shall be deemed to be incurred on the date
such Subsidiary is designated a Restricted Subsidiary.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary (i) as to
which neither the Corporation nor any Restricted Subsidiary is directly
or indirectly liable (by virtue of the Corporation or any such
Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness) and (ii) which,
upon the occurrence of a default with respect thereto, does not result
in, or permit any Holder of any Indebtedness of the Corporation or any
Restricted Subsidiary to declare, a default on such Indebtedness of the
Corporation or any Restricted Subsidiary or cause the payment thereof
to be accelerated or payable prior to its stated maturity.
"Voting Rights Triggering Event" has the meaning
assigned thereto in Section 5(c).
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary all of the outstanding Equity Interests (other than
directors' qualifying shares) of which are owned, directly or
indirectly, by the Corporation or a Surviving Person of any Disposition
involving the Corporation, as the case may be.
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IN WITNESS WHEREOF, American Radio Systems Corporation has caused this
Certificate of Designation to be duly executed by its duly authorized officer
and attested by its secretary this 29th day of January, 1997.
AMERICAN RADIO SYSTEMS CORPORATION
By:
----------------------------------------
Name:
Title:
ATTEST:
- ------------------------------
Name:
Title: Secretary
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Exhibit 99.10
CERTIFICATE OF DESIGNATION OF
PREFERENCES AND RIGHTS OF
AMERICAN RADIO SYSTEMS CORPORATION
11 3/8% SERIES B CUMULATIVE EXCHANGEABLE PREFERRED STOCK
American Radio Systems Corporation, a Delaware corporation (hereinafter
called, the "Corporation"), pursuant to Section 151 of the General Corporation
Law of the State of Delaware, does hereby make this Certificate of Designation
and does hereby state and certify that pursuant to the authority expressly
vested in the Board of Directors of the Corporation by the Restated Certificate
of Incorporation of the Corporation (the "Restated Certificate"), the Board of
Directors of the Corporation duly adopted the following resolution:
RESOLVED, that pursuant to Article Four of the Restated Certificate
(which authorizes 10,000,000 shares of preferred stock, $.01 par value), the
Board of Directors of the Corporation hereby fixes the voting powers,
designations and preferences, and the relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions
thereof, of a series of Cumulative Exchangeable Preferred Stock.
RESOLVED, that each share of the Series B Cumulative Exchangeable
Preferred Stock shall rank equally in all respects and shall be subject to the
following provisions:
SECTION 1. Designation; Rank. This series of Preferred Stock shall be
designated "11 3/8% Series B Cumulative Exchangeable Preferred Stock", par value
$.01 per share (the "Exchangeable Preferred Stock"). The liquidation preference
of the Exchangeable Preferred Stock shall be $100.00 per share. The Preferred
Stock will rank, with respect to dividend rights and rights on liquidation,
winding-up and dissolution, (i) senior to all classes of Common Stock of the
Corporation, each other class of capital stock or series of preferred stock
established after the
<PAGE>
date hereof by the Board of Directors of the Corporation (or, to the extent
permitted by the General Corporation Law of the State of Delaware, the Executive
Committee thereof) (the "Board") which does not expressly provide that it ranks
senior to or on a parity with the Exchangeable Preferred Stock as to dividend
rights and rights on liquidation, winding-up and dissolution (collectively
referred to with the Common Stock of the Corporation as "Junior Securities");
(ii) on a parity with each other class of capital stock or series of preferred
stock issued by the Corporation established after the date hereof by the Board,
which expressly provides that such series will rank on a parity with the
Exchangeable Preferred Stock as to dividend rights and rights on liquidation,
winding-up and dissolution and with the Corporation's 7% Convertible
Exchangeable Preferred Stock (the "7% Preferred"), par value $.01 (collectively
referred to as "Parity Securities"); and (iii) junior to each other class of
capital stock or series of preferred stock established after the date hereof by
the Board the terms of which specifically provide that such series will rank
senior to the Exchangeable Preferred Stock as to dividend rights and rights on
liquidation, winding-up and dissolution (collectively referred to as "Senior
Securities").
SECTION 2. Authorized Number. The number of shares constituting the
Exchangeable Preferred Stock shall be 3,700,000 shares.
SECTION 3. Dividends. (a) Holders of shares of the Exchangeable
Preferred Stock will be entitled to receive, when, as and if declared by the
Board out of funds of the Corporation legally available for payment, cash
dividends at an annual rate of 11 3/8% of the liquidation preference per share
of the Exchangeable Preferred Stock. Dividends will be payable quarterly in
arrears on April 15, July 15, August 15 and January 15 of each year, commencing
April 15, 1997 (each, a "Dividend Payment Date"), provided that if any dividend
payable on any Dividend Payment Date on or before January 15, 2002 is not
declared and paid in full in cash on such Dividend Payment Date, the amount
payable as dividends on such Dividend Payment Date that is not paid in cash on
such Dividend Payment Date shall, subject to the terms of
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any Parity Securities or any Senior Securities and unless otherwise resolved by
the Board with respect to such Dividend Payment Date, be paid in additional
shares of Exchangeable Preferred Stock on such Dividend Payment Date and shall,
unless such shares are not issued, be deemed paid in full and shall not
accumulate, provided, further that the Corporation may, at its option, pay cash
in lieu of fractional shares (valued for such purpose at the liquidation
preference of the Exchangeable Preferred Stock) that may otherwise be issued
pursuant to the foregoing clause. Each dividend will be payable or issuable, as
the case may be, to Holders of record as they appear on the stock transfer books
of the Corporation on a record date, not more than 60 nor less than 10 days
before the payment date, fixed by the Board. Dividends will be cumulative from
the date of original issuance of the Exchangeable Preferred Stock. Dividends
payable on the Exchangeable Preferred Stock for any period less than a year
shall be computed on the basis of a 360-day year of twelve 30-day months and the
actual number of days elapsed in the period for which payable. The Exchangeable
Preferred Stock will not be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends. Dividends shall cease
to accumulate in respect of the Exchangeable Preferred Stock on the Debenture
Exchange Date or on the date of their earlier redemption unless the Corporation
shall have failed to issue the appropriate aggregate principal amount of
Exchange Debentures in respect of the Exchangeable Preferred Stock on such
Debenture Exchange Date or shall have failed to pay the relevant redemption
price on the date fixed for redemption. No interest, or sum of money in lieu of
interest, will be payable in respect of any accrued and unpaid dividends.
Dividends on account of arrears and dividends in connection with any optional
redemption pursuant to Section 6(a) may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to Holders of record on
such date, not more than forty-five (45) days prior to the payment thereof, as
may be fixed by the Board of Directors of the Corporation.
(b) No full dividends may be declared or paid or funds set apart for
the payment of dividends on any Parity Securities for any period unless full
cumulative dividends
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shall have been paid (or are deemed paid) or, if payable in cash, set apart for
such payment on the Exchangeable Preferred Stock. If full dividends are not so
paid, the Exchangeable Preferred Stock shall share dividends pro rata with the
Parity Securities. No dividends may be paid or set apart for such payment on
Junior Securities (except dividends on Junior Securities in additional shares of
Junior Securities) and no Junior Securities may be repurchased, redeemed or
otherwise retired nor may funds be set apart for payment with respect thereto,
if full dividends have not been paid on the Exchangeable Preferred Stock.
SECTION 4. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, before
any payment or distribution of assets is made on any Junior Securities,
including, without limitation, Common Stock of the Corporation, the Holders of
Exchangeable Preferred Stock shall receive the liquidation preference per share
and shall be entitled to receive, without duplication, an amount equal to all
accumulated and unpaid dividends through the date of distribution, and the
Holders of any Parity Securities shall be entitled to receive an amount equal to
the full respective liquidation preferences (including any premium) to which
they are entitled and shall receive an amount equal to all accumulated and
unpaid dividends with respect to their respective shares through and including
the date of distribution. If, upon such a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation are
insufficient to pay in full the amounts described above as payable with respect
to the Exchangeable Preferred Stock and any Parity Securities, the Holders of
the Exchangeable Preferred Stock and such Parity Securities will share ratably
in any such distribution of assets of the Corporation first in proportion to
their respective liquidation preferences until such preferences are paid in
full, and then in proportion to their respective amounts of accumulated and
unpaid dividends. After payment of any such liquidation preference and
accumulated and unpaid dividends, the shares of Exchangeable Preferred Stock
will not be entitled to any further participation in any distribution of assets
by the
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Corporation. For purposes hereof, accumulated dividends shall include a pro
rated dividend for the period from the last Dividend Payment Date to the date
fixed for liquidation, dissolution or winding up. Neither the sale or transfer
of all or substantially all the assets of the Corporation, nor the merger or
consolidation of the Corporation into or with any other corporation or other
entity or a merger of any other corporation or other entity with or into the
Corporation, will be deemed to be a liquidation, dissolution or winding up of
the Corporation.
SECTION 5. Voting Rights. (a) In addition to such other vote, if any,
as may be required by Delaware law or provided by the resolution creating any
other series of preferred stock to the extent such resolution refers to the
Exchangeable Preferred Stock, so long as any shares of Exchangeable Preferred
Stock are outstanding, the vote or consent of the Holders of a majority of the
outstanding shares of Exchangeable Preferred Stock and any Parity Securities,
voting together as a single class (with each share being entitled to the number
of votes otherwise specified, if so specified, for such securities) without
regard to series, shall be necessary to (i) issue, authorize or increase the
authorized amount of any obligation or security convertible into or evidencing a
right to purchase, any class or series of Senior Securities, (ii) increase or
decrease the par value of the shares of Exchangeable Preferred Stock or (iii)
alter or change the powers, preferences, or special rights of the shares of
Exchangeable Preferred Stock so as to affect them adversely. Except as provided
above, the creation, authorization or issuance of any shares of any Junior
Securities or Parity Securities (or any security or obligation (other than
Senior Securities) convertible into or evidencing the right to purchase Junior
Securities or Parity Securities) or the increase or decrease in the amount of
authorized Junior Securities or Parity Securities (or any security or obligation
(other than Senior Securities) convertible into or evidencing the right to
purchase Junior or Parity Securities), shall not require the consent of Holders
of Exchangeable Preferred Stock and shall not be deemed to affect adversely the
rights, preferences, privileges or voting rights of Holders of Exchangeable
Preferred Stock.
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(b) Prior to the Debenture Exchange Date (as defined in Section 8(a)
below), the Corporation shall not amend or modify the Indenture (as defined in
Section 8(a) below), without the affirmative vote or consent of Holders of at
least a majority of the outstanding shares of Exchangeable Preferred Stock,
voting together as a single class; provided, however, that the Corporation and
the Trustee (as defined in Section 8(a) below) shall be permitted, without any
vote or consent of such Holders, to effect any amendments to the Indenture that
could have been effected under the Indenture without the consent of Holders of
Exchange Debentures (as defined in Section 8(a) below) if any Exchange
Debentures were then outstanding.
(c) Without the affirmative vote or consent of Holders of at least a
majority of the outstanding shares of Exchangeable Preferred Stock, voting as a
single class, the Corporation shall not consolidate or merge with or into
(whether or not the Corporation is the Surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person,
unless:
(i) the Surviving Person is a corporation organized or existing under
the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Surviving Person (if other than the Corporation) assumes all
the obligations of the Corporation under this Certificate of
Designation; (iii) at the time of and immediately after such
Disposition, no Voting Rights Triggering Event shall have occurred and
be continuing; and
(iv) the Surviving Person shall at the time of such Disposition and
after giving pro forma effect thereto, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Debt to EBITDA Ratio
test described under Section 10(a).
(d) (i) In the event that (1) dividends (either in cash or, on or
before January 15, 2002, through the issuance
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of additional shares of Exchangeable Preferred Stock) on the Exchangeable
Preferred Stock are in arrears and unpaid for six or more Dividend Periods
(whether or not consecutive) (a "Dividend Default"); (2) the Corporation fails
to redeem all of the then outstanding shares of Exchangeable Preferred Stock on
January 15, 2009 or otherwise fails to discharge any redemption obligation with
respect to the Exchangeable Preferred Stock; (3) the Corporation fails to make
an Offer to Purchase (whether pursuant to the terms of Section 7(e) or
otherwise) following a Change of Control if such Offer to Purchase is required
by Section 7 hereof or fails to purchase shares of Exchangeable Preferred Stock
from Holders who elect to have such shares purchased pursuant to the Offer to
Purchase; (4) the Corporation breaches or violates one of the provisions set
forth in any of Sections 8(a), 8(b), 8(c) or 8(d) hereof and the breach or
violation continues for a period of 30 days or more after the Corporation
receives notice thereof specifying the default from the Holders of at least 25%
of the shares of Exchangeable Preferred Stock than outstanding or (5) the
Corporation fails to pay at the final stated maturity (giving effect to any
extensions thereof) the principal amount of any Indebtedness of the Corporation
or any Restricted Subsidiary of the Corporation, or the final stated maturity of
any such Indebtedness is accelerated, if the aggregate principal amount of such
Indebtedness, together with the aggregate principal amount of any other such
Indebtedness in default for failure to pay principal at the final stated
maturity (giving effect to any extensions thereof) or that has been accelerated,
aggregates $5,000,000 or more at one time, in each case, after a 30-day period
during which such default shall not have been cured or such acceleration
rescinded, then in the case of any of clauses (1)-(5) the maximum authorized
number of directors of the Corporation will be increased by two and Holders of
Exchangeable Preferred Stock shall be entitled to vote their shares of
Exchangeable Preferred Stock, together with the Holders of any Parity Securities
upon which like voting rights have been conferred and are exercisable, in
accordance with the procedures set forth below, to elect, as a class, an
additional two directors; provided, however, that (x) Holders of Exchangeable
Preferred Stock and such Parity Securities shall not elect as director any
individual
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who if so elected would cause the Corporation to be in violation of the
Communications Act of 1934, as amended, or the rules and regulations of the FCC,
and (y) if the exercise of such right by the Holders of the Exchangeable
Preferred Stock and such Parity Securities would cause the Corporation or any of
its subsidiaries not to qualify for a license granted by the FCC that is
necessary for the continued operation of the Corporation or such subsidiaries,
the Board shall be increased, and such Holders shall be entitled to vote their
shares to elect only such lesser number, including zero, of directors as would
not result in the Corporation or such subsidiaries not qualifying for such
license. Each such event described in clauses (1), (2), (3), (4) and (5) is a
"Voting Rights Triggering Event". So long as shares of Exchangeable Preferred
Stock shall be outstanding, the Holders of Exchangeable Preferred Stock shall
retain the right to vote and elect, with the Holders of any such Parity
Securities, voting together as a single class (with each share being entitled to
the number of votes otherwise specified for such securities) without regard to
series, such number of directors until such time as (x) in the event such right
arises due to a Dividend Default, all accumulated dividends that are in arrears
on the Exchangeable Preferred Stock are paid in full in cash or, with respect to
any Dividend Period ending on or before January 15, 2002, through the issuance
of additional shares of Exchangeable Preferred Stock; and (y) in all other
cases, the failure, breach or default giving rise to such Voting Rights
Triggering Event is remedied or waived by the Holders of at least a majority of
the shares of Exchangeable Preferred Stock then outstanding and entitled to vote
thereon. Such period is hereinafter referred to as a "Default Period". The
voting rights provided herein shall be the exclusive remedy at law or in equity
of the Holders of the Exchangeable Preferred Stock for any Voting Rights
Triggering Event.
(ii) So long as any shares of Exchangeable Preferred Stock
shall be outstanding, during any Default Period, such voting right of the
Holders of Exchangeable Preferred Stock may be exercised initially at a special
meeting called pursuant to paragraph (iii) below or at any annual meeting of
stockholders. The absence of a quorum of
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Holders of Common Stock or any class thereof shall not affect the exercise of
such voting rights by the Holders of Exchangeable Preferred Stock and Parity
Securities.
(iii) Unless the Holders of Exchangeable Preferred Stock and
Parity Securities so entitled, if any are then outstanding, have, during an
existing Default Period, previously exercised their right to elect directors,
the Board may order, or any stockholder or stockholders owning shares having in
the aggregate not less than 5% of the votes of Exchangeable Preferred Stock and
such Parity Securities, taken together as a single class, may request, the
calling of a special meeting of Holders of Exchangeable Preferred Stock and such
Parity Securities, if any are then outstanding, which meeting shall thereupon be
called by the Chairman of the Board, the President, a Vice President or the
Secretary of the Corporation. Notice of such meeting and of any annual meeting
at which Holders of Exchangeable Preferred Stock and such Parity Securities are
entitled to vote pursuant to this paragraph shall be given to each Holder of
record of Exchangeable Preferred Stock by mailing a copy of such notice to such
Holder at such Holder's last address as the same appears on the stock transfer
books of the Corporation. Such meeting shall be called for a time not later than
twenty (20) days after such order or request, or, in default of the calling of
such meeting may be called on similar notice by any stockholder or stockholders
owning shares having in the aggregate not less than 5% of the votes of
Exchangeable Preferred Stock and such Parity Securities, taken together as a
single class (who shall have, and to whom the Corporation shall provide, access
to the lists of stockholders to be called pursuant to the provisions hereof). At
any meeting held for the purpose of electing directors at which the Holders of
Exchangeable Preferred Stock and any Parity Securities shall have the right to
elect directors as aforesaid, the presence in person or by proxy of the Holders
owning shares having at least a majority of the votes of Exchangeable Preferred
Stock and such Parity Securities shall be required to constitute a quorum of
such Exchangeable Preferred Stock and such Parity Securities. Notwithstanding
the provisions of this paragraph, no such special meeting shall be called during
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the period within ninety (90) days immediately preceding the date fixed for the
next annual meeting of stockholders.
(iv) During any Default Period, the Holders of Common Stock
of the Corporation, and other classes of stock of the Corporation, if
applicable, shall continue to be entitled to elect all of the directors unless
and until the Holders of Exchangeable Preferred Stock and Parity Securities so
entitled shall have exercised their right to elect two directors voting as a
class, after the exercise of which right (x) the directors so elected by the
Holders of Exchangeable Preferred Stock and such Parity Securities shall
continue in office until the earlier of (A) such time as their successors shall
have been elected by such Holders or (B) the expiration of the Default Period,
and (y) any vacancy in the Board may be filled by vote of the remaining director
or directors, if any, theretofore elected by the Holders of the class or classes
of stock which elected the director whose office shall have become vacant.
References in this paragraph to directors elected by the Holders of a particular
class or classes of stock shall include directors elected by such director or
directors to fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a Default
Period (x) the right of the Holders of Exchangeable Preferred Stock to elect
directors shall cease, (y) the term of office of any directors elected by the
Holders of Exchangeable Preferred Stock and such Parity Securities as a class
shall terminate, and (z) the number of directors shall be such number as may be
provided for in the Restated Certificate or bylaws of the Corporation
irrespective of any increase made pursuant to the provisions of paragraph (i) of
this paragraph (c) (such number being subject, however, to change thereafter in
any manner provided by law or in the Restated Certificate or by-laws of the
Corporation).
(e)In any case in which the Holders of Exchangeable Preferred Stock
shall be entitled to vote pursuant to this Section 5 or pursuant to Delaware
law, each Holder of Exchangeable Preferred Stock entitled to vote with respect
to such matter shall be entitled to one vote for each share of Exchangeable
Preferred Stock held.
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SECTION 6. Redemption.
(a) (Optional Redemption). (i) After January 15, 2002, the Corporation
may, at its option, redeem all or from time to time any part of the shares of
Exchangeable Preferred Stock, out of funds legally available therefor, in the
manner provided for in Section 6(c) at the following redemption prices per share
(expressed as a percentage of the liquidation preference thereof), plus an
amount equal to accrued and unpaid dividends, if any, up to but excluding the
date fixed for redemption ("Optional Redemption Price"), if redeemed during the
twelve-month period commencing immediately after January 15 of the years
indicated below:
Redemption
Year Price
2002............................................ 105.688%
2003............................................ 104.550
2004............................................ 103.413
2005............................................ 102.275
2006 ........................................... 101.138
2007 and thereafter ............................ 100.000
; provided that no redemption pursuant to this Section 6(a)(i) shall be
authorized or made unless prior thereto full accumulated and unpaid dividends,
without duplication, are declared and paid in full, or declared and a sum in
cash set apart sufficient for such payment, on the Exchangeable Preferred Stock
for all Dividend Periods terminating on or prior to the Redemption Date.
(ii) In addition to the foregoing paragraph (i), prior to
January 15, 2000, the Corporation may, at its option, use the net cash proceeds
of one or more of its Public or Rule 144A Equity Offerings to redeem, from any
source of funds legally available therefor, in the manner provided for in
Section 6(c) hereof, up to 35% of the outstanding shares of Exchangeable
Preferred Stock at a redemption price of 11.375% of the liquidation preference
thereof plus, without duplication, an amount in cash equal to all accumulated
and unpaid dividends to the redemption date (including an amount in cash equal
to a prorated
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dividend for the period from the Dividend Payment Date immediately prior to the
redemption date to the redemption date) (the "Cash Proceeds Redemption Price");
provided, however, that after any such redemption, the aggregate liquidation
preference of Exchangeable Preferred Stock outstanding must equal at least $130
million. Any such redemption pursuant to this Section 6(a)(ii) must occur on or
prior to 60 days after the receipt by the Corporation of the proceeds of each
Public Equity Offing.
(iii) In the event of a redemption pursuant to Section
6(a)(i) or 6(a)(ii) hereof of only a portion of the then outstanding shares of
the Exchangeable Preferred Stock, the Corporation shall effect such redemption
on a pro rata basis according to the number of shares held by each Holder of the
Exchangeable Preferred Stock, except that the Corporation may redeem such shares
held by Holders of fewer than 100 shares (or shares held by Holders who would
hold less than 100 shares as a result of such redemption), as may be determined
by the Corporation.
(b) (Mandatory Redemption). On January 15, 2009, the Corporation shall
redeem, to the extent of funds legally available therefor, in the manner
provided for in Section 6(c) hereof, all of the shares of the Exchangeable
Preferred Stock then outstanding at a redemption price equal to 100% of the
liquidation preference per share, plus, without duplication, an amount in cash
equal to all accumulated and unpaid dividends per share (including an amount
equal to a prorated dividend for the period from the Dividend Payment Date
immediately prior to the Redemption Date to the Redemption Date) (the "Mandatory
Redemption Price").
(c) (Procedures for Redemption). (i) At least thirty (30) days and not
more than sixty (60) days prior to the date fixed for any redemption of the
Exchangeable Preferred Stock, written notice (the "Redemption Notice") shall be
given by first class mail, postage prepaid, to each Holder of record on the
record date fixed for such redemption of the Exchangeable Preferred Stock at
such Holder's address as it appears on the stock register of the Corporation,
provided that no failure to give such notice nor any deficiency thereon shall
affect the validity of the
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procedure for the redemption of any shares of Exchangeable Preferred Stock to be
redeemed except as to the Holder or Holders to whom the Corporation has failed
to give said notice or except as to the Holder or Holders whose Notice was
defective. The Redemption Notice shall state:
(1) whether the redemption is pursuant to
Section 6(a)(i), 6(a)(ii) or 6(b) hereof;
(2) the Optional Redemption Price, the Mandatory
Redemption Price or the Cash Proceeds Redemption
Price, as the case may be;
(3) whether all or less than all the outstanding shares of
the Exchangeable Preferred Stock are to be redeemed and the
total number of shares of the Exchangeable Preferred Stock
being redeemed;
(4) the date fixed for redemption;
(5) that the Holder is to surrender to the Corporation, in
the manner, at the place or places and at the price
designated, his certificate or certificates representing the
shares of Exchangeable Preferred Stock to be redeemed; and
(6) that dividends on the shares of the Exchangeable
Preferred Stock to be redeemed shall cease to accumulate on
such Redemption Date unless the Corporation defaults in the
payment of the Optional Redemption Price, the Mandatory
Redemption Price or the Cash Proceeds Redemption Price, as the
case may be.
(ii) Each Holder of Redeemable Preferred Stock shall
surrender the certificate or certificates representing such shares of
Exchangeable Preferred Stock to the Corporation, duly endorsed (or otherwise in
proper form for transfer, as determined by the Corporation), in the manner and
at the place designated in the Redemption Notice, and on the Redemption Date the
full Optional Redemption Price, Mandatory Redemption Price or Cash Proceeds
Redemption Price, as the case may be, for such shares shall be payable
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in cash to the Person whose name appears on such certificate or certificates as
the owner thereof, and each surrendered certificate shall be canceled and
retired. In the event that less than all of the shares represented by any such
certificate are redeemed a new certificate shall be issued representing the
unredeemed shares.
(iii) On and after the Redemption Date, unless the
Corporation defaults in the payment in full of the applicable redemption price,
dividends on the Exchangeable Preferred Stock called for redemption shall cease
to accumulate on the Redemption Date, and all rights of the Holders of redeemed
shares shall terminate with respect thereto on the Redemption Date, other than
the right to receive the Optional Redemption Price, the Mandatory Redemption
Price or the Cash Proceeds Redemption Price, as the case may be, without
interest; provided, however, that if a notice of redemption shall have been
given as provided in paragraph (c)(i) above and the funds necessary for
redemption (including an amount in respect of all dividends that will accrue to
the Redemption Date) shall have been irrevocably deposited in trust for the
equal and ratable benefit for the Holders of the shares to be redeemed, then, at
the close of business on the day on which such funds are segregated and set
aside, the Holders of the shares to be redeemed shall cease to be stockholders
of the Corporation and shall be entitled only to receive the Optional Redemption
Price, the Mandatory Redemption Price or the Cash Redemption Price, as the case
may be, without interest.
SECTION 7. Change of Control.
(a) The Corporation will commence an Offer to Purchase (as defined in
paragraph (b)) all of the outstanding shares of Exchangeable Preferred Stock
within 15 days after the occurrence of a Change of Control (as defined in
paragraph (f)(i)).
(b) "Offer to Purchase" means a written offer ("Offer") to each Holder
at such holder's address appearing in the stock books of the Corporation on the
date of the Offer, offering to purchase in cash all outstanding shares of
Exchangeable Preferred Stock at a purchase price equal to
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101% of the liquidation preference of the Exchangeable Preferred Stock plus,
without duplication, accrued and unpaid dividends, if any. Unless otherwise
required by applicable law, the Offer shall specify an expiration date
("Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date ("Purchase Date") for
purchase of Exchangeable Preferred Stock within five Business Days after the
Expiration Date. The Offer shall be sent by first class mail by the Corporation.
The Offer shall contain information concerning the business of the Corporation
and its Subsidiaries which the Corporation in good faith believes will enable
such Holders to make an informed decision with respect to the Offer to Purchase
(which at a minimum will include (i) the most recent annual and quarterly
financial statements and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" contained in the documents required to be
furnished to Holders pursuant to Section 10(e) (which requirements may be
satisfied by delivery of such documents together with the Offer), (ii) a
description of material developments in the Corporation's business subsequent to
the date of the latest of such financial statements referred to in Clause (i)
(including a description of the events requiring the Corporation to make the
Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the
Corporation to make the Offer to Purchase and (iv) any other information
required by applicable law to be included therein. The Offer shall contain all
instructions and materials necessary to enable such Holders to tender
Exchangeable Preferred Stock pursuant to the Offer to Purchase. The Offer shall
also state:
(1) the Expiration Date and the Purchase Date;
(2) the aggregate liquidation preference of the outstanding
shares of Exchangeable Preferred Stock offered to be purchased by the
Corporation (the "Purchase Amount") pursuant to the Offer to Purchase;
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(3) the liquidation preference per share of Exchangeable
Preferred Stock and the purchase price to be paid by the Corporation
(the "Purchase Price") for each share accepted for payment;
(4) that the Holder may tender all or any portion of the
shares of Exchangeable Preferred Stock registered in the name of such
Holder and that any portion of Exchangeable Preferred Stock tendered
must be tendered in whole shares;
(5) the place or places where shares of
Exchangeable Preferred Stock are to be surrendered for
tender pursuant to the Offer to Purchase;
(6) that dividends on any shares of Exchangeable Preferred
Stock not tendered or tendered but not purchased by the Corporation
pursuant to the Offer to Purchase will continue to accumulate;
(7) that on the Purchase Date the Purchase Price will become
due and payable upon each share of Exchangeable Preferred Stock being
accepted for payment pursuant to the Offer to Purchase and that
dividends thereon shall cease to accrue on and after the Purchase Date;
(8) that each Holder electing to tender a share of
Exchangeable Preferred Stock pursuant to the Offer to Purchase will be
required to surrender such share at the place or places specified in
the Offer prior to the close of business on the Expiration Date (such
share being, if the Corporation so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Corporation duly executed by, the Holder thereof or his attorney
duly authorized in writing);
(9) that Holders will be entitled to withdraw all or any
portion of Exchangeable Preferred Stock tendered if the Corporation
receives, not later than the close of business on the Expiration Date,
a telegram, telex, facsimile transmission or letter setting forth the
name
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of the Holder, the number of shares of Exchangeable Preferred Stock
that the Holder tendered, the certificate number representing the
shares of Exchangeable Preferred Stock that the Holder tendered and a
statement that such Holder is withdrawing all or
a portion of his tender;
(10) that the Corporation shall purchase all shares of
Exchangeable Preferred Stock duly tendered and not withdrawn pursuant
to the Offer to Purchase; and
(11) that in the case of any Holder whose shares of
Exchangeable Preferred Stock are purchased only in part, the
Corporation will issue to the Holder of such shares without service
charge a new certificate representing the unpurchased shares of
Exchangeable Preferred Stock.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
(c) The Corporation will comply with any securities laws and
regulations, to the extent such laws and regulations are applicable to the
repurchase of the Exchangeable Preferred Stock in connection with an Offer to
Purchase.
(d) On the Purchase Date the Corporation shall (1) accept for payment
the shares of Exchangeable Preferred Stock validly tendered pursuant to the
Offer to Purchase, (3) pay to the Holders of shares so accepted the purchase
price therefor in cash and (C) cancel and retire each surrendered certificate.
Unless the Corporation defaults in the payment for the shares of Exchangeable
Preferred Stock tendered pursuant to the Offer to Purchase, dividends will cease
to accrue with respect to the shares of Exchangeable Preferred Stock tendered
and all rights of Holders of such tendered shares will terminate, except for the
right to receive payment therefor, on the Purchase Date.
(e) If the purchase of the Exchangeable Preferred Stock would violate
or constitute a default under any
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Indebtedness of the Corporation, then, notwithstanding anything to the contrary
contained above, prior to complying with the foregoing provisions, but in any
event within 30 days following the Change of Control, the Corporation shall
either (1) repay in full all such Indebtedness and terminate all commitments
outstanding under any credit agreements or (2) obtain the requisite consents, if
any, under such Indebtedness required to permit the repurchase of Exchangeable
Preferred Stock required by this Section 7. Until the requirements of the
immediately preceding sentence are satisfied, the Corporation shall not make,
and shall not be obligated to make, any Offer to Purchase; provided that the
Corporation's failure to comply with the provisions of this Section 7(e) shall
constitute a Voting Rights Triggering Event; which shall provide the exclusive
remedy at law or in equity of the Holders of Exchangeable Preferred Stock for
any such failure.
(f) (i) A "Change of Control" means the occurrence of any of the
following:
(a) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the Corporation's assets
to any Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) (other than the Principal Shareholders or their Related
Parties),
(b) the adoption of a plan relating to the liquidation or dissolution
of the Corporation,
(c) the acquisition, directly or indirectly, by any Person or group (as
such term is used in Section 13(d)(3) of the Exchange Act) (other than
one or more of the Principal Shareholders and their Related Parties) of
40% or more of the voting power of the voting stock of the Corporation
by way of merger or consolidation or otherwise, provided that such
acquisition will not constitute a "Change of Control" unless or until
such Person or group owns, directly or indirectly, more of the voting
power of the voting stock of
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the Corporation than the Principal Shareholders and their Related
Parties, or
(d) the Continuing Directors cease for any reason to constitute a
majority of the directors of the Corporation then in office.
For purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Corporation
shall be deemed to be a transfer of such portion of such voting stock as
corresponds to the portion of the equity of such entity that has been so
transferred.
(ii) "Continuing Director" means any member of the Board of
Directors of the Corporation who (i) is a member of that Board of Directors on
the Issue Date or (ii) was nominated for election by either (a) one or more of
the Principal Shareholders (or a Related Party thereof) or (b) the Board of
Directors a majority of whom were directors at the Issue Date or whose election
or nomination for election was previously approved by one or more of the
Principal Shareholders or such directors.
(iii) "Immediate Family Member" means, with respect to any
individual, such individual's spouse (past or current), descendants (natural or
adoptive, of the whole or half blood) of the parents of such individual, such
individual's grandparents and parents (natural or adoptive), and the
grandparents, parents and descendants of parents (natural or adoptive, of the
whole or half blood) of such individual's spouse (past or current).
(iv) "Principal Shareholders" means Steven B. Dodge and Thomas
H. Stoner.
(v) "Related Party" with respect to any Principal Shareholder
means (i) any 80% (or more) owned Subsidiary or Immediate Family Member (in the
case of an individual) of such Principal Shareholder or (ii) any Person, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of such Principal Shareholder
or an Immediate
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Family Member, or (iii) any Person employed by the Corporation in a management
capacity as of the Issue Date.
SECTION 8. Exchange Provisions. (a) Shares of Exchangeable Preferred
Stock will be exchangeable at the option of the Corporation, out of funds
legally available therefor, in whole but not in part, on any Dividend Payment
Date (any such Dividend Payment Date on which such exchange is or is to be made,
the "Debenture Exchange Date"), through the issuance of the Corporation's 11
3/8% Subordinated Exchange Debentures due 2009 (the "Exchange Debentures") to be
substantially in the form set forth in the Indenture (as defined below) in
redemption of and in exchange for shares of Exchangeable Preferred Stock, in the
manner provided in this Section 8. The Exchange Debentures will be subject to
the terms and conditions of the indenture dated as of January 30, 1997 (the
"Indenture") between the Corporation and the Trustee, a copy of which is on file
with the secretary of the Corporation at the principal executive offices of the
Corporation, as amended in accordance with the provisions of Section 5(b). The
"Trustee" is Fleet National Bank or any successor Trustee appointed in
accordance with the terms of the Indenture.
(b) Holders of the Exchangeable Preferred Stock will be entitled to
receive Exchange Debentures at the rate of $1.00 principal amount of Exchange
Debentures for each $1.00 of liquidation preference of Exchangeable Preferred
Stock, including, to the extent necessary, Exchange Debentures in principal
amounts less than $1,000, provided that the Corporation shall have the right, at
its option, to pay cash in an amount equal to the principal amount of that
portion of any Exchange Debenture that is not an integral multiple of $1,000
instead of delivering an Exchange Debenture in a denomination of less than
$1,000. Such exchange may be made only if, at the time of the exchange, (i) the
Corporation shall be in compliance with Section 8(d), (ii) there shall be funds
legally available sufficient therefor; and (iii) immediately after giving effect
to such exchange, no Default or Event of Default (as defined in the Indenture)
would exist under the Indenture and no default or event of default would exist
under the terms of any other of the Corporation's Indebtedness.
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(c) The Corporation will mail notice of its intention to exchange
through such an exchange to each Holder of record of the Exchangeable Preferred
Stock not less than thirty (30) nor more than sixty (60) days before the
Debenture Exchange Date. Such notice shall be given by first class mail, postage
prepaid, to the Holders of record of shares of Exchangeable Preferred Stock at
their respective addresses as the same shall appear on the stock transfer books
of the Corporation, specifying the Debenture Exchange Date and the place where
certificates for shares of Exchangeable Preferred Stock are to be surrendered
for Exchange Debentures and stating that dividends on shares of the Exchangeable
Preferred Stock will cease to accrue on the Debenture Exchange Date, but neither
failure to mail such notice, nor any defect therein or in the mailing thereof,
to any particular Holder shall affect the sufficiency of the notice or the
validity of the proceedings for exchange with respect to the other Holders. Any
notice which was mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the Holder receives the notice.
If notice of exchange has been given pursuant to this subsection then (unless
the Corporation defaults in issuing Exchange Debentures in exchange for the
Exchangeable Preferred Stock or fails to pay or set aside for payment
accumulated and unpaid dividends on the Exchangeable Preferred Stock as set
forth in subsection (d) below and notwithstanding that any certificates for
shares of Exchangeable Preferred Stock have not been surrendered for exchange)
on the Debenture Exchange Date the Holders of Exchangeable Preferred Stock will
cease to be stockholders with respect to such shares and will have no interests
in or claims against the Corporation by virtue thereof (except the right to
receive Exchange Debentures in exchange therefor and accumulated and unpaid
dividends on the Exchangeable Preferred Stock to the Debenture Exchange Date
and, if the Company so elects, cash in lieu of any Exchange Debenture that is in
a principal amount that is not an integral multiple of $1,000) and will have no
voting, conversion or other rights with respect to such shares, and all shares
of Exchangeable Preferred Stock will no longer be outstanding.
Upon the surrender (and endorsement, if required by the Corporation) in
accordance with such notice of the
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certificate for shares of Exchangeable Preferred Stock, such certificates shall
be exchanged for Exchange Debentures and such accumulated and unpaid dividends
in accordance with this paragraph (c).
(d) No shares of Exchangeable Preferred Stock may be exchanged for
Exchange Debentures unless the Corporation has paid (or is deemed to have paid)
or, if payable in cash, set aside for the benefit of the Holders of the
Exchangeable Preferred Stock all accumulated and unpaid dividends on the
Exchangeable Preferred Stock to the Debenture Exchange Date (including an amount
equal to a prorated dividend for the period from the Dividend Payment Date to
the Debenture Exchange Date).
SECTION 9. No Exchange in Certain Cases. Notwithstanding the foregoing
provisions of Section 8, the Corporation shall not be entitled to exchange the
Exchangeable Preferred Stock for Exchange Debentures if such exchange, or any
term or provision of the Indenture or the Exchange Debentures, or the
performance of the Corporation's obligations under the Indenture or the Exchange
Debentures, shall materially violate or conflict with any applicable law or
agreement or instrument then binding on the Corporation or if, at the time of
such exchange, the Corporation is insolvent or if it would be rendered insolvent
by such exchange.
SECTION 10. Certain Additional Provisions.
(a) (Limitation on Incurrence of Indebtedness and Issuance of Preferred
Stock.) The Corporation will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or directly or indirectly guarantee or in
any other manner become directly or indirectly liable for ("incur") any
Indebtedness (including Acquired Debt) or issue any preferred stock, except that
the Corporation may:
(x) issue (i) preferred stock that is not Disqualified Stock at any
time (subject to Section 5(a)(i)), and (ii) additional shares of
Exchangeable Preferred Stock in lieu of cash dividends as provided in
Section 3(a) hereof, and
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(y) incur Indebtedness or issue Disqualified Stock (subject to Section
5(a)(i), if the Debt to EBITDA Ratio of the Corporation and its
Restricted Subsidiaries at the time of incurrence of such Indebtedness
or issuance of such Disqualified Stock, after giving pro forma effect
thereto, is 7.0:1 or less.
The foregoing limitations shall not apply to the incurrence of any of
the following:
(i) Senior Bank Debt (including guarantees thereof by the Corporation's
Subsidiaries) pursuant to either of the Credit Agreements;
(ii) Existing Indebtedness;
(iii)Indebtedness represented by (1) the Exchange Debentures, and (2)
guarantees by Restricted Subsidiaries of (A) Senior Bank Debt and (B)
any other Indebtedness of the Corporation permitted to be incurred
under this Certificate of Designation;
(iv) Refinancing Indebtedness, provided that the principal amount of
such Refinancing Indebtedness shall not exceed the principal amount of
Indebtedness or amount of Disqualified Stock so extended, refinanced,
renewed, replaced, substituted, defeased or refunded (plus the amount
of expenses incurred and premiums paid in connection therewith);
(v) intercompany Indebtedness between the Corporation and any of its
Restricted Subsidiaries or among its Restricted Subsidiaries, or Equity
Interests issued by a Restricted Subsidiary in conformity with Section
10(c);
(vi) Hedging Obligations, including interest rate swap obligations,
that are incurred in the ordinary course of business for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is
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permitted by the terms of this Certificate of Designation to be
outstanding; and
(vii) additional Indebtedness of the Corporation, which may be
guaranteed by any of its Restricted Subsidiaries, in an aggregate
outstanding principal amount not to exceed $20,000,000 at any time.
(b) (Limitation on Restricted Payments). The Corporation will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend, or make any other distribution or
payment, on any Junior Securities of the Corporation or on any Equity
Interests of any Restricted Subsidiary (other than dividends or
distributions payable by the Corporation in Junior Securities (other
than Disqualified Stock) of the Corporation or by a Restricted
Subsidiary in Equity Interests (other than Disqualified Stock) of such
Restricted Subsidiary or dividends or distributions payable to the
Corporation or any Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value any
Junior Securities of the Corporation or any Equity Interests of any
Restricted Subsidiary or other Affiliate of the Corporation (other than
any Equity Interests owned by the Corporation or any Restricted
Subsidiary); or
(iii) make an Investment other than (a) a Permitted Investment or (b)
Investments of the Corporation or any Restricted Subsidiary in the
Corporation or any Restricted Subsidiary;
(any payment made for any of the foregoing purposes being herein referred to as
a "Restricted Payment"), unless:
(I) at the time of and immediately after giving effect to the proposed
Restricted Payment, no
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Voting Rights Triggering Event shall have occurred and be continuing or
would occur as a consequence thereof,
(II) the Corporation would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have
been permitted to incur at least $1.00 of additional Indebtedness under
the Debt to EBITDA Ratio test contained in Section 10(a), and
(III) at the time of and immediately after giving effect to the
proposed Restricted Payment (valued at its Fair Market Value, if other
than cash), the aggregate amount of all Restricted Payments (excluding
all payments, investments, redemptions, repurchases, retirements and
other acquisitions described in clauses (2) and (3) of the following
paragraph) declared or made after December 31, 1995 shall not exceed
the sum of
(A) an amount equal to the Corporation's EBITDA cumulated from
December 31, 1995 to the end of the Corporation's most
recently ended full fiscal quarter, taken as a single
accounting period, less 1.4 times the sum of (i) the
Corporation's Consolidated Interest Expense from December 31,
1995 to the end of the Corporation's most recently ended full
fiscal quarter, taken as a single accounting period, plus (ii)
all dividends or other distributions paid or made by the
Corporation or any Restricted Subsidiary on any Disqualified
Stock of the Corporation or any of its Subsidiaries during
such period, plus
(B) an amount equal to the aggregate sum of all net cash
proceeds received after
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December 31, 1995 by the Corporation from the issuance and
sale of Junior Securities (other than any Disqualified Stock
and other than to Restricted Subsidiaries) to the extent that
such proceeds are not used to redeem, repurchase, retire or
otherwise acquire Junior Securities of the Corporation
pursuant to clause (2) in the next paragraph, plus
(C) the aggregate net proceeds received after December 31,
1995 by the Corporation and its Restricted Subsidiaries from
the sale or disposition of any Investment other than a
Permitted Investment.
The foregoing provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment would
have been permitted by the provisions of this Certificate of
Designation;
(2) the redemption, repurchase, retirement or other acquisition for
value of any Junior Securities of the Corporation in exchange for, or
out of the proceeds of, the substantially concurrent sale (other than
to the Corporation or a Restricted Subsidiary) of Junior Securities of
the Corporation (other than Disqualified Stock); or
(3) Restricted Payments made or paid since December 31, 1995 in an
aggregate amount not exceeding $10,000,000.
Payments made pursuant to clause (1) above shall nevertheless be considered
Restricted Payments for purposes of computing the aggregate amount of Restricted
Payments under clause (III) of the preceding paragraph. For purposes
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of clause (B) of the preceding paragraph, the conversion or exchange of
Indebtedness or Disqualified Stock of the Corporation into Junior Securities of
the Corporation (other than into Equity Interests constituting Indebtedness or
Disqualified Stock) shall be deemed to be the issuance and sale by the
Corporation of such Junior Securities at the time of such conversion or exchange
for net cash proceeds equal to the net cash proceeds originally received by the
Corporation for the Indebtedness or Disqualified Stock so converted or exchanged
(or received by the Corporation for any other Indebtedness or Disqualified Stock
previously converted into or exchanged for such Indebtedness or Disqualified
Stock), plus any additional net cash proceeds received by the Corporation upon
such conversion or exchange (or such previous conversion or exchange) and less
any cash paid by the Corporation in connection therewith.
(c) (Limitation on Restricted Subsidiary Equity Interests). The
Corporation will not permit any Restricted Subsidiary to issue any Equity
Interests, except for (i) Equity Interests issued to and held by the Corporation
or a Restricted Subsidiary, and (ii) Equity Interests issued by a Person prior
to the time that (A) such Person becomes a Restricted Subsidiary, (B) such
Person merges with or into a Restricted Subsidiary or (C) a Restricted
Subsidiary merges with or into such Person; provided that such Equity Interests
were not issued or incurred by such Person in anticipation of the type of
transaction contemplated by subclause (A), (B) or (C).
(d) (Provision of Financial Information). Whether or not required by
the rules and regulations of the SEC, so long as any shares of Exchangeable
Preferred Stock are outstanding, the Corporation will furnish to the Holders of
Exchangeable Preferred Stock:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Corporation were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual
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information only, a report thereon by the Corporation's independent
certified public accountants, and
(ii) all reports that would be required to be filed with the SEC on
Form 8-K if the Corporation were required to file such reports.
In addition, whether or not required by the rules and regulations of the SEC,
the Corporation will file a copy of all such information with the SEC for public
availability (unless the SEC will not accept such filing) and make such
information available to investors who request it in writing.
SECTION 11. Status of Reacquired Shares. If shares of the Exchangeable
Preferred Stock are redeemed pursuant to Section 6 or Section 7 hereof or
exchanged pursuant to Section 8 hereof, the shares so redeemed or exchanged
shall, upon compliance with any statutory requirements, assume the status of
authorized but unissued shares of preferred stock of the Corporation.
SECTION 12. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand or by first class mail, postage prepaid, or when
sent by telex or telecopier (with receipt confirmed), provided a copy is also
sent by first class mail, postage prepaid, or express (overnight, if possible)
courier, addressed (i) in the case of a Holder of the Exchangeable Preferred
Stock, to such Holder's address of record, and (ii) in the case of the
Corporation, to the Corporation's principal executive offices to the attention
of the Corporation's Chief Executive Officer and Chief Financial Officer.
SECTION 13. Amendments and Waivers. Any right, preference, privilege or
power of, or restriction provided for the benefit of, the Exchangeable Preferred
Stock set forth herein may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Corporation and the vote or
consent of the Holders of a majority of the shares of Exchangeable
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Preferred Stock then outstanding, and any amendment or waiver so effected shall
be binding upon the Corporation and all Holders of the Exchangeable Preferred
Stock.
SECTION 14. Definitions. As used in this Certificate of Designation,
the following terms shall have the following meanings (with terms defined in the
singular having comparable meanings when used in the plural and vice versa),
unless the context otherwise requires:
"Acquired Debt" means with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person
merges with or into, or becomes a Subsidiary of, such specified Person,
including Indebtedness incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a Subsidiary
of, such specified Person.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For
purposes of this definition, "control of" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common
control with") any Person means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the voting securities of a Person shall be
deemed to be control.
"Board of Directors" means the board of directors of the
Corporation or any duly authorized committee of that board.
"Broadcast Assets" means assets used or useful in the
ownership or operation of an AM or FM radio station.
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"Broadcast License" means an authorization issued by the FCC
for the operation of an AM or FM radio station.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City
of New York are authorized or obligated by law or executive order to
close.
"Capital Lease Obligation" means, at any time any
determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be required to be
capitalized on the balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of any association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) or capital stock and (iii) in the case
of a partnership, partnership interests (whether general or limited)
and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions
of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof
having maturities of less than one year from the date of acquisition,
(iii) certificates of deposit and eurodollar time deposits with
maturities of less than one year from the date of acquisition, bankers'
acceptances with maturities of less than one year and overnight bank
deposits, in each case with any lender party to either of the Credit
Agreements or with any domestic commercial bank having capital and
surplus in excess of $500,000,000 and a Keefe Bank Watch Rating of "B"
or better, (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses
(ii) and (iii)
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entered into with any financial institution meeting the qualifications
specified in clause (iii) above and (v) commercial paper having the
highest rating obtainable from Moody's Investors Service, Inc. or
Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., and in each case maturing within nine months after the
date of acquisition.
"Cash Proceeds Redemption Price" has the meaning assigned
thereto in Section 6(a)(ii).
"Change of Control" has the meaning assigned thereto in
Section 7(f).
"Consolidated Interest Expense" means, without duplication,
with respect to any period, the sum of (i) the interest expense and all
capitalized interest of the Corporation and its Restricted Subsidiaries
for such period, on a consolidated basis, including, without
limitation, (a) amortization of debt discount, (b) the net cost under
interest rate contracts (including amortization of debt discount), (c)
the interest portion of any deferred payment obligation and (d) accrued
interest, plus (ii) the interest component of any Capital Lease
Obligation paid or accrued or scheduled to be paid or accrued by the
Corporation during such period, determined on a consolidated basis in
accordance with GAAP.
"Credit Agreements" means the $550,000,000 Credit Agreement
and the $350,000,000 Credit Agreement, each dated as of January 24,
1997 among the Corporation, The Bank of New York, as Collateral Agent
and Administrative Agent, and the Co-Syndication Agents, the Managing
Agents, the Agent and the Co-Agents named therein and the lenders
parties thereto, including (i) any related notes, guarantees (including
guarantees by the Corporation's Subsidiaries), collateral documents,
instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time, and (ii) any notes, guarantees (including
guarantees by the Corporation's
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Subsidiaries), collateral documents, instruments and agreements
executed in connection with any such amendment, modification, renewal,
refunding, replacement or refinancing.
"Debenture Exchange Date" has the meaning assigned thereto in
Section 8(a).
"Debt to EBITDA Ratio" means, with respect to any date, the
ratio of (a) the aggregate principal amount of all outstanding
Indebtedness (excluding Hedging Obligations, including interest rate
swap obligations, that are incurred in the ordinary course of business
for the purpose of fixing or hedging interest rate risk with respect to
any floating rate Indebtedness that is permitted by the terms of this
Certificate of Designation to be outstanding) of the Corporation and
its Restricted Subsidiaries as of such date on a consolidated basis,
plus the aggregate liquidation preference or redemption amount of all
outstanding Disqualified Stock of the Corporation and its Restricted
Subsidiaries as of such date (excluding any such Disqualified Stock
held by the Corporation or a Wholly Owned Restricted Subsidiary), to
(b) EBITDA of the Corporation and its Restricted Subsidiaries on a
consolidated basis for the four most recent full fiscal quarters ending
immediately prior to such date, determined on a pro forma basis after
giving effect to each acquisition or disposition of assets made by the
Corporation and its Restricted Subsidiaries from the beginning of such
four-quarter period through such date as if such acquisition or
disposition had occurred at the beginning of such four-quarter period.
"Default Period" means has the meaning assigned thereto in
Section 5(c)(i).
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person
(whether or not such Person is the Surviving Person) or the sale,
assignment, transfer, lease conveyance or other disposition of all or
substantially all of such Person's assets.
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"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the Holder
thereof (other than upon a Change of Control of the Corporation in
circumstances where the Holders of the Securities would have similar
rights), in whole or in part on or prior to one year after January 15,
2009. The amount of Disqualified Stock shall be the greater of the
liquidation preference or mandatory or optional redemption price
thereof.
"Dividend Default" has the meaning assigned thereto in Section
5(e)(i).
"Dividend Payment Date" has the meaning assigned thereto in
Section 3(a).
"Dividend Period" means the period from the Issue Date to and
including the first Dividend Payment Date and thereafter each quarterly
period commencing on each April 16, July 16, October 16, and January 16
and ending on the next succeeding Dividend Payment Date.
"EBITDA" of a specified person means, for any period, the
consolidated net income of such specified Person and its Restricted
Subsidiaries for such period:
(i) plus (without duplication and to the extent involved in
computing such consolidated net income) (a) interest expense,
(b) provision for income taxes, (c) depreciation and
amortization and other non-cash charges (including
amortization of goodwill and other intangibles and barter
expenses), (d) EBITDA of Sponsored Investees (where such
Person is the Corporation), and (e) local marketing agreement
expenses; and
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(ii) minus (without duplication and to the extent involved in
computing such consolidated net income) (a) any gains (or plus
losses), together with any related provision for taxes on such
gains or losses, realized in connection with any sale of
assets (including, without limitation, dispositions pursuant
to sale and leaseback transactions), (b) any non-cash or
extraordinary gains (or plus losses), together with any
related provision for taxes on such extraordinary gains or
losses, (c) the amount of any cash payments related to
non-cash charges that were added back in determining EBITDA in
any prior period, (d) barter revenues, and (e) interest
attributable to Indebtedness of Sponsored Investees (where
such Person is the Corporation) that is owed to the
Corporation or a Restricted Subsidiary, together with any
taxes attributable thereto;
provided that:
(i) the net income of any other Person (other than a Sponsored
Investee) that is accounted for by the equity method of
accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to such specified
Person whose EBITDA is being determined or a Wholly Owned
Restricted Subsidiary thereof;
(ii) the net income of any other Person that is a Restricted
Subsidiary (other than a Wholly Owned Restricted Subsidiary)
or is an Unrestricted Subsidiary shall be included only to the
extent of the amount of dividends or distributions paid in
cash to such specified Person whose EBITDA is being determined
or a Wholly Owned Restricted Subsidiary thereof;
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(iii) the net income (loss) of any other Person acquired after
the Issue Date in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded
(to the extent otherwise included); and
(iv) gains or losses from sales of assets other than sales of
assets acquired and held for resale in the ordinary course of
business shall be excluded (to the extent otherwise included).
All of the foregoing will be determined in accordance with GAAP.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (including any
Indebtedness or Disqualified Stock that is convertible into, or
exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934 as it
may be amended and any successor act thereto.
"Exchange Debentures" has the meaning assigned
thereto in Section 8(a).
"Existing Indebtedness" means any outstanding Indebtedness of
the Corporation and its Restricted Subsidiaries as of the Issue Date or
which thereafter becomes Indebtedness of the Corporation or any of its
Restricted Subsidiaries as a result of the merger of EZ Communications,
Inc. into the Corporation and which was outstanding Indebtedness of EZ
Communications, Inc. or its Subsidiaries on the Issue Date.
"Existing Investments" means any Investments of the
Corporation and its Restricted Subsidiaries (other than Investments in
Unrestricted Subsidiaries) as of the Issue Date or which thereafter
becomes an Investment of the Corporation or any of its Restricted
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Subsidiaries as a result of the merger of EZ Communications, Inc. into
the Corporation, and was an Investment of EZ Communications, Inc. or
its Subsidiaries on the Issue Date.
"Expiration Date" has the meaning assigned thereto in Section
7(b).
"EZ Notes" means the 9 3/4% Senior Subordinated Notes Due 2005
issued pursuant to the Indenture, dated as of November 21, 1995,
between State Street Bank and Trust Company, as Trustee, and EZ
Communications, Inc. as such Indenture has been and may be amended or
supplemented, and as assumed by the Corporation in connection with the
merger of EZ Communications, Inc.
into the Corporation.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length
transaction between an informed and willing seller under no compulsion
to sell and an informed and willing buyer under no compulsion to buy.
All determinations of Fair Market Value shall be made by the Board of
Directors of the Corporation and shall be evidenced by a resolution of
such Board set forth in an Officers' Certificate.
"FCC" means the Federal Communications Commission, as from
time to time constituted, created under the Federal Communications Act
of 1934, or, if at any time after the filing of this Certificate of
Designation, the FCC is not existing and performing the duties now
assigned to it under such act, then the body performing such duties at
such time.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as have been
approved by a
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significant segment of the accounting profession, which are in effect
on the Issue Date.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection or deposit in the ordinary course
of business), direct or indirect, in any manner (including, without
limitation, letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and
(ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Holders" means a Holder of shares of Exchangeable Preferred
Stock as reflected in the stock books of the Corporation.
"incur" means, with respect to any obligation of any Person,
to create, issue, incur, assume or directly or indirectly guarantee or
in any other manner become directly or indirectly liable for any
Indebtedness (and "incurrence", "incurred", "incurrable" and
"incurring" shall have meanings correlative to the foregoing).
"Indenture" has the meaning assigned thereto in Section 8(a).
"Indebtedness" means, with respect to any Person, whether or
not contingent, (i) all indebtedness of such Person for borrowed money
or for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business
and payable in accordance with customary practices) or which is
evidenced by a note, bond, debenture or similar instrument, (ii) all
Capital Lease Obligations of such Person, (iii) all obligations of such
Person in respect of letters of credit or bankers' acceptances
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issued or created for the account of such Person, (iv) all Hedging
Obligations of such Person, (v) all liabilities secured by any Lien on
any property owned by such Person even if such Person has not assumed
or otherwise become liable for the payment thereof to the extent of the
value of the property subject to such Lien, and (vi) to the extent not
otherwise included, any guarantee by such person of any other Person's
indebtedness or other obligations described in clauses (i) through (v)
above.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates of
such Person) in the form of loans, guarantees, advances or capital
contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities of any other Person and all other
items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Issue Date" means the date of original issuance of the
Exchangeable Preferred Stock.
"Junior Securities" has the meaning assigned thereto in
Section 1.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in any asset and
any filing of, or agreement to give, any financing statement under the
"Uniform Commercial Code" (or equivalent statutes) of any
jurisdiction).
"Mandatory Redemption Price" has the meaning assigned thereto
in Section 6(b).
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<PAGE>
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Offer to Purchase" has the meaning assigned thereto in
Section 7(b).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, President, a Chief
Operating Officer, a Vice President, or the Chief Financial Officer
and, without duplication, by the Treasurer, an Assistant Treasurer,
Controller, the Secretary or an Assistant Secretary, of the
Corporation.
"Optional Redemption Price" has the meaning assigned thereto
in Section 6(a).
"Parity Securities" has the meaning assigned thereto in
Section 1.
"Permitted Investment" means:
(i) any Investment in the Corporation or any
Wholly Owned Restricted Subsidiary;
(ii) any Investment in Cash Equivalents;
(iii) any Investment in a Person if, as a result of such Investment,
(a) such Person becomes a Wholly Owned Restricted Subsidiary of the
Corporation, or (b) such Person either (1) is merged, consolidated or
amalgamated with or into the Corporation or one of its Wholly Owned
Restricted Subsidiaries and the Corporation or such Wholly Owned
Restricted Subsidiary is the Surviving Person or the Surviving Person
becomes a Wholly Owned Restricted Subsidiary, or (2) transfers or
conveys all or substantially all of its assets to, or is liquidated
into, the Corporation or one of its Wholly Owned Restricted
Subsidiaries;
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<PAGE>
(iv) any Investment in a Sponsored Investee as contemplated by clause
(ii) of the definition of "Sponsored Investee";
(v) any Investment in accounts and notes receivable acquired in the
ordinary course of business;
(vi) notes from employees issued to the Corporation representing
payment of the exercise price of options to purchase capital stock of
the Corporation;
(vii) investments in Tower Parent and Tower (excluding Existing
Investments) aggregating up to $25,000,000 in cash and/or property made
within two years from the Issue Date, provided that at the time of and
immediately after giving effect to each proposed Investment, (a) each
of Tower Parent and Tower is an Unrestricted Subsidiary, (b) no Voting
Rights Triggering Event shall have occurred and be continuing or would
occur as a consequence thereof and (c) the Debt to EBITDA Ratio of the
Corporation and its Restricted Subsidiaries is 7.0:1 or less;
(viii) Investments in Unrestricted Subsidiaries represented by shares
of Capital Stock (other than Disqualified Stock) of the Corporation or
assets and property acquired in exchange for Capital Stock (other than
Disqualified Stock) of the Corporation; and
(ix) any Existing Investment.
Any Investment in an Unrestricted Subsidiary shall not be a Permitted Investment
unless included in clauses (i) through (ix) above.
"Permitted Sponsored Investee Indebtedness" means
Indebtedness of a Sponsored Investee to a Person other
than the Corporation or a Wholly Owned Restricted
Subsidiary, provided that:
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<PAGE>
(a) such Indebtedness ranks junior in right of
payment to the Investments of the Corporation and
any Wholly Owned Restricted Subsidiary in the
Sponsored Investee:
(b) the net proceeds of such Indebtedness (other than
indebtedness of The Ten Eighty Corporation in an aggregate
principal amount not exceeding $2,000,000 (exclusive of
accrued and unpaid interest) owed to an Affiliate of such
corporation and outstanding on the Issue Date) are utilized to
reduce the amount outstanding on the Corporation's or a Wholly
Owned Restricted Subsidiary's Investments in the Sponsored
Investee;
(c) the terms of such Indebtedness do not restrict the ability
of the Sponsored Investee to make any payments to the
Corporation or a Wholly Owned Restricted Subsidiary; and
(d) if such Sponsored Investee becomes a Restricted
Subsidiary, such Indebtedness is refinanced by the Corporation
(and no longer outstanding to such other Person) prior to or
simultaneously with the Sponsored Investee becoming a
Restricted Subsidiary.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Public or 144A Equity Offering" means an underwritten public
offering, or an exempt offering made on a firm commitment basis by
initial purchasers the substantial majority of which is contemplated to
be resold by the initial purchasers pursuant to Rule 144A under the
Securities Act, of Equity Interests (other than Indebtedness or
Disqualified Stock) of a Person, the net proceeds from which (after
deducting any underwriting discounts and commissions) exceeds
$10,000,000.
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<PAGE>
"Purchase Date" has the meaning assigned thereto
in Section 7(b).
"Redemption Date" , with respect to any shares of Senior
Exchangeable Preferred Stock, means the date on which such shares of
Senior Exchangeable Preferred Stock are redeemed by the Corporation.
"Redemption Notice" has the meaning assigned thereto in
Section 6(c).
"Refinancing Indebtedness" means (i) Indebtedness of the
Corporation or any Restricted Subsidiary incurred or given in exchange
for, or the proceeds of which are used to, extend, refinance, renew,
replace, substitute, defease or refund any other Indebtedness or
Disqualified Stock incurred by the Corporation in accordance with the
terms of this Certificate of Designation, and (ii) Indebtedness of any
Restricted Subsidiary incurred or given in exchange for, or the
proceeds of which are used to, extend, refinance, renew, replace,
substitute, defease or refund any other Indebtedness or Disqualified
Stock of the Corporation or any Restricted Subsidiary in accordance
with the terms of this Certificate of Designation.
"Restricted Payment" has the meaning assigned thereto in
Section 10(b).
"Restricted Subsidiary" means a Subsidiary of the Corporation
other than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act.
"Securities Act" means the Securities Act of 1933, as it may
be amended and any successor act thereto.
"Senior Bank Debt" means (i) the Indebtedness outstanding
under either of the Credit Agreements, provided that Senior Bank Debt
under this clause (i) shall not exceed the difference between (a) the
sum of
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<PAGE>
$750,000,000 plus the aggregate principal amount (up to $150,000,000)
of borrowings incurred under the applicable Credit Agreement to finance
the repurchase by the Corporation of EZ Notes (the "EZ Note Amount")
plus any borrowings and letters of credit under either of the Credit
Agreements after the Issue Date to the extent that such borrowings or
letters of credit at the time of incurrence or issuance, as the case
may be, resulted in combined Indebtedness under the Credit Agreements
exceeding the sum of $750,000,000 plus the EZ Note Amount and to the
extent that such borrowings or letters of credit at the time of
incurrence or issuance, as the case may be, were permitted under
Section 10(a) and (b) the aggregate amount of net proceeds from asset
sales applied to permanently reduce the level of permitted borrowings
under either of the Credit Agreements pursuant to the terms of any of
the Corporation's outstanding Indebtedness and (ii) all Obligations
incurred by or owing to the holders or their agent or representatives
of such Indebtedness outstanding under either of the Credit Agreements
(including, but not limited to, all fees and expenses of counsel and
all other interest, charges, fees and expenses).
"Senior Securities" has the meaning assigned thereto in
Section 1.
"Sponsored Investee" means a Person:
(i) which owns or acquires Broadcast Assets (including a
Broadcast License);
(ii) which either (A) obtains substantially all of the funds
required for such acquisition (other than capital
contributions from the stockholders of such Person) and for
the physical improvement of such Broadcast Assets approved by
the Corporation at the time of such acquisition, from the
proceeds of Investments by the Corporation in such Person or
(B) receives all or a portion of the purchase price for such
assets, in either
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<PAGE>
case, in the form of Indebtedness bearing interest at a rate
of not less than the lesser of 10% per annum or the prime rate
plus 1% per annum;
(iii) in respect of which the Corporation has a right to
acquire either (A) all of such Person's Equity Interests
outstanding on the acquisition date or (B) such Broadcast
Assets (including such Broadcast License), subject, in either
case to no conditions other than customary closing conditions,
including without limitation compliance with the rules and
regulations of the FCC relating to acquisitions of Broadcast
Licenses and any Federal laws restricting the number of
Broadcast Licenses or share of a market which any Person may
own or control;
(iv) in which the Corporation has the right to share in not
less than 75% of the appreciation in value of the Broadcast
Assets, subject to the right of the stockholders of the
Sponsored Investee to receive a return on their capital
contribution which is not greater than the annual interest
rate on the Indebtedness owed to the Corporation;
(v) which has agreed that it will not --
(a) incur or be liable for any
Indebtedness, except for Investments
owned by the Corporation and Permitted
Sponsored Investee Indebtedness,
(b) make any Investments, except
Investments of the type mentioned in
clauses (ii), (iv) and (v) of the
definition of Permitted Investments,
(c) declare or pay any dividend or
other distribution on any of its Equity
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<PAGE>
Interests or purchase, redeem or
otherwise acquire or retire for value
any of its Equity Interests, other than
Equity Interests owned by the
Corporation or any Restricted
Subsidiary,
(d) sell, lease, convey or otherwise
dispose of any assets (including by way
of a sale-and-leaseback) other than in
the ordinary course of business or to
the Corporation or any Restricted
Subsidiary, or
(e) permit to exist any Liens, except
Permitted Liens or Liens in favor of
the Corporation or any Restricted
Subsidiary;
(v) which has employed a general manager of each radio station
owned by such Person who has, in the reasonable opinion of the
Corporation's Board of Directors, experience commensurate with
that which the Corporation would expect of its radio station
general managers; and
(vi) which has agreed that not less than 90% of the excess of
its cumulative cash flow from operations that exceeds $500,000
will be used to meet its obligations on the Investments in it
held by the Corporation or to prepay such Investments, except
such portion of its cash flow which is used to purchase
property, plant and equipment (a) in the ordinary course of
business and approved by the Corporation (to the extent
permitted by FCC regulations) or (b) pursuant to plans
approved in writing by the Corporation at the time the Person
became a Sponsored Investee.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity
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of which more than 50% of the total voting power of shares of Equity
Interests entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
or other governing body thereof is at the time owned or controlled by
such Person (regardless of whether such Equity Interests are owned
directly or through one or more other Subsidiaries of such Person or a
combination thereof).
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving
such Disposition or the Person to which such Disposition is made.
"Tower" means American Tower Systems Inc., a Delaware
corporation.
"Tower Parent" means American Tower Systems Holding
Corporation, a Delaware corporation.
"Unrestricted Subsidiary" means (i) Tower, (ii) Tower Parent,
(iii) Radio Data Group, Inc., a Virginia corporation, (iv) American
Merger Corporation, a Delaware corporation, (v) any Subsidiary of the
Corporation that at the time of determination shall be an Unrestricted
Subsidiary (as designated by the Board of Directors of the Corporation,
as provided below) and (vi) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors of the Corporation may designate any
Subsidiary of the Corporation (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary if all of the
following conditions apply: (a) neither the Corporation nor any of its
Restricted Subsidiaries provides credit support for any Indebtedness of
such Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness), (b) such Subsidiary is not liable,
directly or indirectly, with respect to any Indebtedness other than
Unrestricted Subsidiary Indebtedness, (c) such Unrestricted Subsidiary
is not a party to any agreement, contract, arrangement or understanding
at such time with the Corporation or any
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<PAGE>
Restricted Subsidiary of the Corporation unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable
to the Corporation or such Restricted Subsidiary than those that might
be obtained at the time from Persons who are not Affiliates of the
Corporation (the "Third Party Value") or, in the event such condition
is not satisfied, an amount equal to the value of the portion of such
agreement, contract, arrangement or understanding to such Subsidiary in
excess of the Third Party Value shall be deemed a Restricted Payment,
and (d) such Unrestricted Subsidiary does not own any Capital Stock of
any Subsidiary of the Corporation that has not theretofore been or is
not simultaneously being designated an Unrestricted Subsidiary. Any
such designation by the Board of Directors of the Corporation shall be
evidenced by a board resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complies with
the foregoing conditions. The Board of Directors of the Corporation may
designate any Unrestricted Subsidiary as a Restricted Subsidiary;
provided that (i) immediately after giving effect to such designation,
the Corporation could incur $1.00 of additional Indebtedness pursuant
to the restrictions under Section 10(a) and (ii) all Indebtedness of
such Unrestricted Subsidiary shall be deemed to be incurred on the date
such Subsidiary is designated a Restricted Subsidiary.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary (i) as to
which neither the Corporation nor any Restricted Subsidiary is directly
or indirectly liable (by virtue of the Corporation or any such
Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness) and (ii) which,
upon the occurrence of a default with respect thereto, does not result
in, or permit any Holder of any Indebtedness of the Corporation or any
Restricted Subsidiary to declare, a default on such Indebtedness of the
Corporation or any Restricted Subsidiary or cause the
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payment thereof to be accelerated or payable prior to
its stated maturity.
"Voting Rights Triggering Event" has the meaning
assigned thereto in Section 5(c).
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary all of the outstanding Equity Interests (other than
directors' qualifying shares) of which are owned, directly or
indirectly, by the Corporation or a Surviving Person of any Disposition
involving the Corporation, as the case may be.
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<PAGE>
IN WITNESS WHEREOF, American Radio Systems Corporation has caused this
Certificate of Designation to be duly executed by its duly authorized officer
and attested by its secretary this 29th day of January, 1997.
AMERICAN RADIO SYSTEMS CORPORATION
By:
----------------------------------------
Name:
Title:
ATTEST:
- --------------------------------------------
Name:
Title: Secretary
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Exhibit 99.11
[AMERICAN RADIO SYSTEMS LOGO]
FOR IMMEDIATE RELEASE Contact: Joe Winn, Chief Financial
Officer or Bruce Danziger, Director
of Investor Relations
(617) 375-7500
AMERICAN RADIO SYSTEMS TO LIST ON
NEW YORK STOCK EXCHANGE
Boston, Massachusetts - February 3, 1997 - American Radio Systems
Corporation announced today that it has filed an application to list its Class A
Common Stock on the New York Stock Exchange. The Company's shares will continue
trading on the NASDAQ National Market until the New York Stock Exchange listing
is effective, which is expected to be on February 5, 1997. The Company will be
trading under the symbol AFM.
American Radio Systems Corporation began trading shares publicly in
June, 1995 on NASDAQ. The Company owns and/or manages 46 FM and 22 AM stations
in Boston, Baltimore, Portland, Sacramento, Hartford, Las Vegas, Austin,
Buffalo, San Jose, West Palm Beach, Rochester, Dayton, and Fresno. The Company
also has options and/or agreements to buy additional radio stations in Boston,
Cincinnati, Baltimore, Sacramento, San Jose, West Palm Beach, Rochester, Dayton
and Fresno. In addition, on August 5, 1996 the company announced that it had
reached an agreement to merge with EZ Communications, Inc. EZ Communications
owns and/or operates 23 radio stations in seven markets nationwide.
##
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116 Huntington Avenue, Boston, Massachusetts 02116
(617) 375-7500 FAX (617) 375-7575
Exhibit 99.12
[AMERICAN RADIO SYSTEMS LOGO]
FOR IMMEDIATE RELEASE Contact: Joe Winn, Chief Financial
Officer or Bruce Danger, Director
of Investor Relations
(617) 375-7500
AMERICAN TOWER SYSTEMS TO ACQUIRE CALIFORNIA'S LEADING
TOWER COMPANIES: MERIDIAN COMMUNICATIONS AND DIABLO
COMMUNICATIONS
Boca Raton, Florida - February 5, 1997 ----- American Tower Systems ("ATS"), a
wholly-owned subsidiary of American Radio Systems Corporation (NYSE:AFM), has
entered into agreements to acquire the assets of California's leading antenna
site providers: the Meridian Communications companies (collectively,
"Meridian"); and Diablo Communications and Diablo Communications of Southern
California
(collectively, "Diablo").
Meridian, based in Calabasas, California, is the premiere antenna site provider
in southern California, with more than 55 sites in service, in addition to
numerous others currently under development. Meridian's sites are strategically
located in an area reaching from the Mexican border to north of Santa Barbara.
Diablo, based in Point Richmond, California, is the premiere antenna site
provider in northern California, with more than 90 sites in service and many
others in various stages of development. Diablo's sites are principally located
from the San Francisco Bay area to southern California.
Following the Diablo and Meridian acquisitions, currently anticipated to be
completed by June 1997, ATS will own and/or manage more than 450 antenna sites
nationwide. James S. Eisenstein, Chief Operating Officer of ATS, commented, "We
are delighted to be acquiring the two leading tower companies in the State of
California."
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116 Huntington Avenue, Boston, Massachusetts 02116
(617) 375-7500 FAX (617) 375-7575
<PAGE>
Page 2
ATS Press Release
February 5, 1997
This will give ATS a significant presence in California and provide us with a
platform for continued growth in California and other western states. Dick
Spight and Jerry Lindquist at Diablo, and Jack and Rich Reichler at Meridian
have done tremendous jobs in building their respective companies into market and
industry leaders. We look forward to working with them as they continue their
remarkable growth."
Eisenstein continued, "Our new presence in the west will also position us to
better serve the growing broadcasting needs of our parent company, American
Radio Systems, which currently operates stations in Seattle, Portland,
Sacramento, San Jose, Fresno and Las Vegas."
American Tower Systems develops, acquires, manages and markets antenna sites for
the wireless communications industry. ATS is headquartered in Boca Raton,
Florida, with regional offices in Connecticut, Massachusetts, Pennsylvania,
Washington, D.C., and Florida.
American Radio Systems Corporation began trading shares publicly in June, 1995.
The Company owns and/or manages 46 FM and 22 AM stations in Boston, Baltimore,
Portland, Sacramento, Hartford, Las Vegas, Austin, Buffalo, San Jose, West Palm
Beach, Rochester, Dayton, and Fresno. The Company also has options and/or
agreements to buy additional radio stations in Cincinnati, Sacramento, San Jose,
West Palm Beach, Rochester, Dayton and Fresno. In addition, on August 5, 1996
the company announced that it had reached an agreement to merge with EZ
Communications, Inc. EZ Communications owns and/or operates 23 radio stations in
seven markets nationwide.
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116 Huntington Avenue, Boston, Massachusetts 02116
(617) 375-7500 FAX (617) 375-7575
