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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): NOVEMBER 26, 1997
---------------------
CAPSTAR RADIO BROADCASTING PARTNERS, INC.
(Exact name of Registrant as specified in its charter)
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<C> <C> <C>
DELAWARE 33-92732 13-3034720
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification Number)
600 CONGRESS AVENUE, 78701
SUITE 1400 (Zip code)
AUSTIN, TEXAS
(Address of principal
executive offices)
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Registrant's telephone number, including area code: 512-404-6840
COMMODORE MEDIA, INC.
500 FIFTH AVENUE
SUITE 3000
NEW YORK, NEW YORK 10110
(Former name or former address if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS.
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10.1 -- Amended and Restated Credit Agreement dated as of
February 20, 1997 and amended and restated as of August
12, 1997 (the "Credit Agreement"), among Capstar
Broadcasting Corporation, Capstar Broadcasting Partners,
Inc., Capstar Radio Broadcasting Partners, Inc., various
banks, BankBoston, N.A., as managing agent, NationsBank
of Texas, N.A., as syndication agent, The Bank of New
York, as documentation agent, and Bankers Trust Company,
as administrative agent.*
10.2 -- First Amendment to the Credit Agreement dated as of
August 21, 1997.*
10.3 -- Second Amendment to the Credit Agreement dated as of
September 26, 1997.*
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* Filed herewith.
1
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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.
CAPSTAR RADIO BROADCASTING
PARTNERS, INC.
(Registrant)
By: /s/ PAUL D. STONE
----------------------------------
Name: Paul D. Stone
Title: Executive Vice President
Date: November 26, 1997
2
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INDEX TO EXHIBITS
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EXHIBIT
NO. DESCRIPTION
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<C> <S>
10.1 -- Amended and Restated Credit Agreement dated as of
February 20, 1997 and amended and restated as of August
12, 1997 (the "Credit Agreement"), among Capstar
Broadcasting Corporation, Capstar Broadcasting Partners,
Inc., Capstar Radio Broadcasting Partners, Inc., various
banks, BankBoston, N.A., as managing agent, NationsBank
of Texas, N.A., as syndication agent, The Bank of New
York, as documentation agent, and Bankers Trust Company,
as administrative agent.*
10.2 -- First Amendment to the Credit Agreement dated as of
August 21, 1997.*
10.3 -- Second Amendment to the Credit Agreement dated as of
September 26, 1997.*
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* Filed herewith.
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EXHIBIT 10.1
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AMENDED AND RESTATED CREDIT AGREEMENT
among
CAPSTAR BROADCASTING CORPORATION,
CAPSTAR BROADCASTING PARTNERS, INC.,
CAPSTAR RADIO BROADCASTING PARTNERS, INC.,
VARIOUS BANKS,
BANKBOSTON, N.A., AS MANAGING AGENT
NATIONSBANK OF TEXAS, N.A., AS SYNDICATION AGENT,
THE BANK OF NEW YORK, AS DOCUMENTATION AGENT,
and
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
--------------------------------------
Dated as of February 20, 1997
and
Amended and Restated
as of August 12, 1997
--------------------------------------
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Amount of Each Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.12 Change of Lending Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.13 Replacement of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.14 Term Loan Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.02 Letter of Credit Requests; Notices of Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.03 Letter of Credit Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.04 Agreement to Repay Letter of Credit Drawings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.05 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.02 Voluntary Termination and Reduction of Total
Unutilized Revolving Loan Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 4. Prepayments; Payments; Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.02 Mandatory Repayments and Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.01 Execution of Agreement; Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.02 No Default; Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.03 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.04 Corporate Documents; Proceedings; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.05 Shareholders' Agreements; Management Agreements;
Employment Agreements; Tax Sharing Agreements . . . . . . . . . . . . . . . . . . . . . . . . 36
5.06 Existing Credit Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.07 Subsidiary Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.08 Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.09 Security Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.10 Mortgages; Title Insurance; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.11 Consent Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.12 Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.13 Solvency Letter; Environmental Analyses; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.14 Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.15 Pro Forma Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.16 Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.17 Notice of Borrowing; Letter of Credit Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6. Representations, Warranties and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.01 Corporate or Partnership Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.02 Corporate or Partnership Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.04 Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.07 True and Complete Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.09 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.10 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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6.11 The Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.12 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.13 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.15 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.17 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.18 Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.19 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.20 Patents, Licenses, Franchises and Formulas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.21 Special Purpose Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.22 Business of Holdings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.23 FCC Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.24 Existing Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.25 Subordinated Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.02 Books, Records and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.03 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.04 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.05 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.06 Compliance with Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.07 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.08 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.09 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.10 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.11 Dividends on the Senior Exchangeable Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.12 Maintenance of Separateness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.13 Additional Security; Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.01 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc. . . . . . . . . . . . . . . . . . . . . . . . 69
8.03 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.04 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.05 Advances, Investments and Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
8.06 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
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8.07 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.08 Maximum Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.09 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.10 Limitation on Modifications of Certificate of
Incorporation, Partnership Agreement, Limited
Liability Company Agreement, By-Laws and Certain
Other Agreements; Limitations of Prepayments and
Modifications of Indebtedness; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.11 Limitation on Certain Restrictions on Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 84
8.12 Limitation on Issuance of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
8.13 Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.14 Limitation on Creation of Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.15 No Other Designated Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 9. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.04 Default Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.07 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.08 Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.10 Change of Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.11 Non-Controlled Entity Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 10. Definitions and Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 11. The Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
11.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
11.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
11.03 Lack of Reliance on the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
11.04 Certain Rights of the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
11.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
11.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
11.07 The Administrative Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . 128
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11.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
11.09 Resignation by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
SECTION 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
12.01 Payment of Expenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
12.02 Right of Setoff; Collateral Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
12.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
12.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
12.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
12.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
12.07 Calculations; Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
12.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
12.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
12.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
12.12 Amendment or Waiver; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
12.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
12.14 Domicile of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
12.15 Limitation on Additional Amounts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
12.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
12.17 Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
12.18 Designated Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
12.19 Post-Closing Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
SECTION 13. Parents Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
13.01 The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
13.02 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
13.03 Nature of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
13.04 Independent Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
13.05 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
13.06 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
13.07 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
13.08 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
13.09 Nature of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
</TABLE>
(v)
<PAGE> 7
<TABLE>
<S> <C>
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Existing Letters of Credit
SCHEDULE V Subsidiaries
SCHEDULE VI FCC Licenses
SCHEDULE VII Insurance
SCHEDULE VIII Existing Liens
SCHEDULE IX Existing Indebtedness
SCHEDULE X Existing Investments
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Term Note
EXHIBIT B-2 Revolving Note
EXHIBIT C Term Loan Assumption Agreement
EXHIBIT D Letter of Credit Request
EXHIBIT E Section 4.04(b)(ii) Certificate
EXHIBIT F-1 Opinion of Vinson & Elkins, Special Counsel to the Credit Parties
EXHIBIT F-2 Opinion of Liebowitz & Associates, Special FCC Counsel to the Credit Parties
EXHIBIT G Officers' Certificate
EXHIBIT H Subsidiary Guaranty
EXHIBIT I Pledge Agreement
EXHIBIT J Security Agreement
EXHIBIT K Consent Letter
EXHIBIT L Assignment and Assumption Agreement
EXHIBIT M Parent Note
</TABLE>
(vi)
<PAGE> 8
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February
20, 1997 and Amended and Restated as of August 12, 1997, among CAPSTAR
BROADCASTING CORPORATION, a Delaware corporation ("Parent"), CAPSTAR
BROADCASTING PARTNERS, INC., a Delaware corporation ("Holdings"), CAPSTAR RADIO
BROADCASTING PARTNERS, INC., a Delaware corporation (the "Borrower"), the Banks
party hereto from time to time, BANKBOSTON, N.A., as Managing Agent,
NATIONSBANK OF TEXAS, N.A., as Syndication Agent, THE BANK OF NEW YORK, as
Documentation Agent, and BANKERS TRUST COMPANY, as Administrative Agent (all
capitalized terms used herein and defined in Section 10 are used herein as
therein defined).
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower, the Existing Banks and
Bankers Trust Company, as Administrative Agent, are party to a Credit
Agreement, dated as of February 20, 1997 (as the same has been amended,
modified or supplemented to, but not including, the Restatement Effective Date,
the "Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the
Existing Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Existing
Credit Agreement shall be and hereby is amended and restated in its entirety as
follows:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitment. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with a Term Loan Commitment severally
agrees to make a term loan or term loans (each a "Term Loan" and collectively,
the "Term Loans") to the Borrower, which Term Loans (i) shall be incurred by
the Borrower pursuant to not more than two drawings, the first of which shall
be on the Initial Term Loan Borrowing Date and the remaining drawing, if any,
shall at the option of the Borrower be on a date occurring after the Initial
Term Loan Borrowing Date and prior to the Term Loan Availability Termination
Date, (ii) shall, at the option of the Borrower, be incurred and
<PAGE> 9
maintained as, and/or converted into Base Rate Loans or Eurodollar Loans,
provided that all Term Loans made as part of the same Borrowing shall, unless
otherwise specifically provided herein, consist of Term Loans of the same Type,
and (iii) shall not exceed for any Bank, in initial aggregate principal amount,
that amount which equals the Term Loan Commitment of such Bank on such Term
Loan Borrowing Date (before giving effect to any reductions thereto on such
date pursuant to Section 3.03(d)(i) but after giving effect to any reductions
thereto prior to such date pursuant to Section 3.03(d)(iii)). Once repaid,
Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Bank with a Revolving Loan Commitment severally agrees, (A) to
convert, on the Restatement Effective Date, Existing Revolving Loans made by
such Bank to the Borrower pursuant to the Existing Credit Agreement and
outstanding on the Restatement Effective Date into a Borrowing of Revolving
Loans hereunder (as so converted, together with all Revolving Loans made
pursuant to following clause (B), the "Revolving Loans", and each, a "Revolving
Loan") and (B) at any time and from time to time on and after the Restatement
Effective Date and prior to the Final Maturity Date, to make one or more
additional Revolving Loans to the Borrower, which Revolving Loans (i) shall, at
the option of the Borrower, be incurred and maintained as, and/or converted
into, Base Rate Loans or Eurodollar Loans, provided that, (A) except as
otherwise specifically provided in Section 1.10(b), all Revolving Loans
comprising the same Borrowing shall at all times be of the same Type and (B) no
Revolving Loans maintained as Eurodollar Loans may be incurred prior to the
earlier of (1) the 60th day after the Restatement Effective Date and (2) the
Syndication Date, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed for any Bank at any time outstanding
that aggregate principal amount (which amount, in the case of each Existing
Bank, shall include the principal amount of each Existing Revolving Loan
converted into a Revolving Loan hereunder) which, when added to (I) the
aggregate principal amount of all other then outstanding Revolving Loans made
by such Bank and (II) the product of (x) such Bank's Adjusted RL Percentage and
(y) the aggregate amount of all Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) at such time,
equals the Available Revolving Loan Commitment of such Bank at such time and
(iv) shall not exceed for all Banks at any time outstanding that aggregate
principal amount which, when added to the amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time, equals the Total Available Revolving Loan
Commitment at such time.
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<PAGE> 10
1.02 Minimum Amount of Each Borrowing. The aggregate
principal amount of each Borrowing of Term Loans shall not be less than (x) in
the case of Eurodollar Loans, $1,000,000 (and, if greater, in an integral
multiple of $100,000) and (y) in the case of Base Rate Loans, $500,000 (and, if
greater, in an integral multiple of $100,000). The aggregate principal amount
of each Borrowing of Revolving Loans shall not be less than (x) in the case of
Eurodollar Loans, $200,000 (and, if greater, shall be in an integral multiple
of $50,000) and (y) in the case of Base Rate Loans, $25,000 (and, if greater,
shall be in an integral multiple of $25,000) or, if less, the then Total
Unutilized Revolving Loan Commitment. More than one Borrowing may occur on the
same date, but at no time shall there be outstanding more than six Borrowings
of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires
to incur Loans hereunder, it shall give the Administrative Agent at its Notice
Office at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Base Rate Loan and at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Eurodollar Loan to be made hereunder, provided that any such
notice shall be deemed to have been given on a certain day only if given before
12:00 Noon (New York time) on such day. Each such written notice or written
confirmation of telephonic notice (each a "Notice of Borrowing"), except as
otherwise expressly provided in Section 1.10, shall be irrevocable and shall be
given by the Borrower in the form of Exhibit A, appropriately completed to
specify the aggregate principal amount of the Loans to be incurred pursuant to
such Borrowing, the date of such Borrowing (which shall be a Business Day),
whether the Loans being incurred pursuant to such Borrowing shall constitute
Revolving Loans or Term Loans, and whether the Loans being incurred pursuant to
such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar
Loans and, if Eurodollar Loans, the initial Interest Period to be applicable
thereto. The Administrative Agent shall promptly give each Bank which is
required to make Loans of the Tranche specified in the respective Notice of
Borrowing, notice of such proposed Borrowing, of such Bank's proportionate
share thereof and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent or the Issuing Bank (in the case of the
issuance of Letters of Credit), as the case may be, may act without liability
upon the basis of such telephonic notice, believed by the Administrative Agent
or the Issuing Bank, as the case may be, in good faith to be from an Authorized
Officer of the Borrower prior to receipt of written confirmation. In
-3-
<PAGE> 11
each such case, the Borrower hereby waives the right to dispute the
Administrative Agent's or the Issuing Bank's record of the terms of such
telephonic notice.
1.04 Disbursement of Funds. (a) Except as otherwise
specifically provided in the second succeeding sentence, no later than 12:00
Noon (New York time) on the date specified in each Notice of Borrowing, each
Bank with a Commitment of the respective Tranche will make available its pro
rata portion of each such Borrowing requested to be made on such date. All
such amounts shall be made available in Dollars and in immediately available
funds at the Payment Office of the Administrative Agent, and the
Administrative Agent will make available to the Borrower at the Payment Office
the aggregate of the amounts so made available by the Banks (prior to 1:00 P.M.
on such day, to the extent of funds actually received by the Administrative
Agent prior to 12:00 Noon on such day). Unless the Administrative Agent shall
have been notified by any Bank prior to the date of Borrowing that such Bank
does not intend to make available to the Administrative Agent such Bank's
portion of any Borrowing to be made on such date, the Administrative Agent may
assume that such Bank has made such amount available to the Administrative
Agent on such date of Borrowing and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the
Administrative Agent by such Bank, the Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Bank. If such Bank
does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent. The Administrative Agent shall also be entitled to
recover on demand from such Bank or the Borrower, as the case may be, interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Bank, at the Federal Funds Rate and (ii) if recovered from the Borrower, the
rate of interest applicable to the respective Borrowing, as determined pursuant
to Section 1.08. Nothing in this Section 1.04 shall be deemed to relieve any
Bank from its obligation to make Loans hereunder or to prejudice any rights
which the Borrower may have against any Bank as a result of any failure by such
Bank to make Loans hereunder.
(b) Each Bank with a Revolving Loan Commitment (other than
BTCo) hereby agrees that on the Restatement Effective Date such Bank will make
available to BTCo in Dollars and in immediately available funds its Adjusted RL
Percentage of the principal amount of Existing Revolving Loans converted into
Revolving Loans as provided in Section 1.01(b).
-4-
<PAGE> 12
1.05 Notes. (a) The Borrower's obligation to pay the
principal of, and interest on, the Loans made by each Bank shall be evidenced
(i) if Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-1, with blanks appropriately
completed in conformity herewith (each a "Term Note" and collectively the "Term
Notes") and (ii) if Revolving Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-2, with blanks
appropriately completed in conformity herewith (each, a "Revolving Note" and
collectively, the "Revolving Notes").
(b) The Term Note issued to each Bank that has a Term
Loan Commitment or outstanding Term Loans shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank and be dated the Initial
Term Loan Borrowing Date (or, if issued thereafter, the date of the issuance
thereof), (iii) be in a stated principal amount equal to the Term Loan
Commitment of, or if terminated, the outstanding principal amount of Term Loans
of, such Bank and be payable in the outstanding principal amount of Term Loans
evidenced thereby, (iv) mature on the Final Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02 and (vii) entitled to the benefits of
this Agreement and the other Credit Documents.
(c) The Revolving Note issued to each Bank that has a
Revolving Loan Commitment or outstanding Revolving Loans shall (i) be executed
by the Borrower, (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date (or, if issued thereafter, the date of the issuance
thereof), (iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Bank and be payable in the outstanding principal amount of
the Revolving Loans evidenced thereby, (iv) mature on the Final Maturity Date,
(v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
-5-
<PAGE> 13
(d) In addition to the terms set forth in clauses (b) and
(c) of this Section 1.05, each Note shall also contain the following legend
(which shall be printed thereon in bold face):
THE BORROWER HEREBY DESIGNATES ITS OBLIGATIONS UNDER THIS NOTE AND THE
OTHER CREDIT DOCUMENTS AS "DESIGNATED SENIOR INDEBTEDNESS" FOR
PURPOSES OF, AND AS DEFINED IN, EACH OF THE EXISTING SENIOR
SUBORDINATED NOTE INDENTURE, THE NEW SENIOR SUBORDINATED NOTE
INDENTURE AND THE SUBORDINATED EXCHANGE DEBENTURE INDENTURE (EACH AS
DEFINED IN THE AGREEMENT).
(e) Each Bank will note on its internal records the
amount of each Loan made by it and each payment in respect thereof and will
prior to any transfer of any of its Notes endorse on the reverse side thereof
the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation or any error in any such notation or endorsement shall not
affect the Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to
convert, on any Business Day occurring on or after the earlier of (x) the 60th
day after the Restatement Effective Date and (y) the Syndication Date, all or a
portion equal to at least (x) in the case of the conversion of Term Loans, (i)
maintained as Eurodollar Loans, $1,000,000 (and, if greater, in an integral
multiple of $100,000), and (ii) maintained as Base Rate Loans, $500,000 (and,
if greater, in an integral multiple of $100,000), and (y) in the case of the
conversion of Revolving Loans, (i) maintained as Eurodollar Loans, $200,000
(and, if greater, in an integral multiple of $50,000) and (ii) maintained as
Base Rate Loans, $25,000 (and, if greater, in an integral multiple of $25,000),
of the outstanding principal amount of Loans made pursuant to one or more
Borrowings of one or more Types of Loans into a Borrowing (of the same Tranche)
of another Type of Loan, provided that (i) except as otherwise provided in
Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only on
the last day of an Interest Period applicable to the Loans being converted and
no partial conversion of Eurodollar Loans shall reduce the outstanding
principal amount of such Eurodollar Loans made pursuant to a single Borrowing
to less than (x) in the case of Term Loans, $1,000,000, and (y) in the case of
Revolving Loans, $200,000, (ii) Base Rate Loans may not be converted into
Eurodollar Loans if a violation of Section 9.01 or 9.05 or an Event of Default
is in existence on the date of the conversion and the Administrative Agent or
the Required Banks have determined that such conversion at such time would be
disadvantageous to the Banks and (iii) no conversion pursuant to this Section
1.06 shall result in a greater number of
-6-
<PAGE> 14
Eurodollar Loans than is permitted under Section 1.02. Each such conversion
shall be effected by the Borrower by giving the Administrative Agent at its
Notice Office prior to 12:00 Noon (New York time) at least three Business Days'
prior notice (each a "Notice of Conversion") specifying the Loans to be so
converted, the Borrowing or Borrowings pursuant to which such Loans were made
and, if to be converted into Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Bank
prompt notice of any such proposed conversion affecting any of its Loans. Upon
any such conversion, the proceeds thereof will be deemed to be applied directly
on the day of such conversion to repay the outstanding principal amount of the
Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of Term Loans and
Revolving Loans under this Agreement shall be incurred from the Banks pro rata
on the basis of their Term Loan Commitments or Revolving Loan Commitments, as
the case may be. It is understood that no Bank shall be responsible for any
default by any other Bank of its obligation to make Loans hereunder and that
each Bank shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Bank to make its Loans
hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Borrower until the earlier of (i)
the maturity (whether by acceleration, optional or mandatory, or otherwise) of
such Base Rate Loan and (ii) the conversion of such Base Rate Loan to a
Eurodollar Loan pursuant to Section 1.06, at a rate per annum which shall be
equal to the sum of the Applicable Margin plus the Base Rate in effect from
time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the
maturity (whether by acceleration, optional or mandatory, or otherwise) of such
Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base Rate
Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum
which shall, during each Interest Period applicable thereto, be equal to the
sum of the Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
greater of (x) 2% per annum in excess
-7-
<PAGE> 15
of the rate otherwise applicable to Base Rate Loans of the respective Tranche
from time to time and (y) the rate which is 2% per annum in excess of the rate
then borne by such Loans, in each case with such interest to be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on the last
day of each Interest Period applicable thereto and, in the case of an Interest
Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period and (iii) in respect of
each Loan, on any repayment or prepayment (on the amount repaid or prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable
to Eurodollar Loans and shall promptly notify the Borrower and the Banks
thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or on the third Business Day prior to the expiration of an
Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect, by
giving the Administrative Agent notice thereof, the interest period (each an
"Interest Period") applicable to such Eurodollar Loan, which Interest Period
shall, at the option of the Borrower, be a one, two, three, six or, if
available to each of the Banks, nine or twelve month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Loan of a different Type)
and each Interest Period occurring thereafter in respect of such
Eurodollar Loan shall commence on the day on which the next preceding
Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
-8-
<PAGE> 16
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(v) no Interest Period may be selected at any time when a
violation of Sections 10.01 or 10.05 or an Event of Default is then in
existence and the Administrative Agent or the Required Banks have
determined that such an election at such time would be disadvantageous
to the Banks;
(vi) no Interest Period in respect of any Borrowing shall be
selected which extends beyond the Final Maturity Date;
(vii) no Interest Period in respect of any Borrowing of Term
Loans shall be selected which extends beyond any date upon which a
mandatory repayment will be required to be made under Section 4.02(b)
if the aggregate principal amount of Term Loans which have Interest
Periods that will expire after such date will be in excess of the
remainder of the aggregate principal amount of Term Loans then
outstanding less the aggregate amount of such required repayment; and
(viii) no Interest Period in respect of any Borrowing of
Revolving Loans shall be selected which extends beyond any date upon
which a mandatory repayment of Revolving Loans will be required to be
made under Section 4.02(a), as a result of reductions to the Total
Revolving Loan Commitment pursuant to Section 3.03(b), if the
aggregate principal amount of Revolving Loans which have Interest
Periods that will expire after such date will be in excess of the
remainder of the aggregate principal amount of Revolving Loans then
outstanding less the aggregate amount of such required repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the
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<PAGE> 17
Borrower shall be deemed to have elected to convert such Eurodollar Loans into
Base Rate Loans effective as of the expiration date of such current Interest
Period.
1.10 Increased Costs, Illegality, etc. (a) In the event
that any Bank shall have determined (which determination with respect to clause
(i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the Restatement Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the
Restatement Effective Date in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payment to any
Bank of the principal of or interest on such Eurodollar Loan or any
other amounts payable hereunder (except for changes in the rate of tax
on, or determined by reference to, the net income or profits of such
Bank, or any franchise tax based on the net income or profits of such
Bank, in either case pursuant to the laws of the United States of
America or the jurisdiction in which it is organized or in which its
principal office or applicable lending office is located or any
subdivision thereof or therein), but without duplication of any
amounts payable in respect of Taxes pursuant to Section 4.04(a), or
(B) a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent included
in the computation of the Eurodollar Rate and/or (y) other
circumstances since the Restatement Effective Date affecting such Bank
or the interbank Eurodollar market or the position of such Bank in
such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring
after the Restatement Effective Date which materially and adversely
affects the interbank Eurodollar market;
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<PAGE> 18
then, and in any such event, such Bank (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the Banks
that the circumstances giving rise to such notice by the Administrative Agent
no longer exist, and any Notice of Borrowing or Notice of Conversion given by
the Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower shall, subject to the provisions
of Section 12.15 (to the extent applicable) pay to such Bank, upon written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Bank in its
sole discretion shall determine) as shall be required to compensate such Bank
for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Bank,
showing the basis for the calculation thereof and certifying that it is
generally charging such costs to other similarly situated borrowers under
similar credit facilities, submitted to the Borrower by such Bank in good faith
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law. Each of the
Administrative Agent and each Bank agrees that if it gives notice to the
Borrower of any of the events described in clause (i) or (iii) above, it shall
promptly notify the Borrower and, in the case of any such Bank, the
Administrative Agent, if such event ceases to exist. If any such event
described in clause (iii) above ceases to exist as to a Bank, the obligations
of such Bank to make Eurodollar Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Bank
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent given immediately, or if
permitted by applicable law given
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<PAGE> 19
at such later date permitted thereby, require the affected Bank to convert such
Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank is
affected at any time, then all affected Banks must be treated the same pursuant
to this Section 1.10(b).
(c) If at any time after the Restatement Effective Date any
Bank determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank based on the existence of such Bank's Commitments
hereunder or its obligations hereunder, then the Borrower shall, subject to the
provisions of Section 12.15 (to the extent applicable), pay to such Bank, upon
its written demand therefor, such additional amounts as shall be required to
compensate such Bank or such other corporation for the increased cost to such
Bank or such other corporation or the reduction in the rate of return to such
Bank or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Bank will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
provided that such Bank's reasonable good faith determination (made in a manner
generally consistent with such Bank's standard practices) of compensation owing
under this Section 1.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Bank, upon determining
that any additional amounts will be payable pursuant to this Section 1.10(c),
will give prompt written notice thereof to the Borrower, which notice shall
show the basis for calculation of such additional amounts and certify that it
is generally charging such costs to other similarly situated borrowers under
similar credit facilities.
1.11 Compensation. The Borrower shall, subject to the
provisions of Section 12.15 (to the extent applicable), compensate each Bank,
upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Bank to fund its Eurodollar Loans but excluding any loss
of anticipated profit) which such Bank may sustain: (i) if for any reason
(other than a default by such Bank or the Administrative Agent) a Borrowing of,
or conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a) or
(b)); (ii) if any repayment (including any repayment made pursuant to Section
4.01 or 4.02 or as a result of an acceleration of the
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Loans pursuant to Section 9) or conversion of any of its Eurodollar Loans
occurs on a date which is not the last day of an Interest Period with respect
thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made on
any date specified in a notice of prepayment given by the Borrower; or (iv) as
a consequence of (x) any other default by the Borrower to repay its Loans when
required by the terms of this Agreement or any Note held by such Bank or (y)
any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that upon
the occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such
Bank, it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans affected by such event, provided that such designation is made on
such terms that such Bank and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section
1.12 shall affect or postpone any of the obligations of the Borrower or the
right of any Bank provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (y) upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or
Section 4.04 with respect to any Bank which results in such Bank charging to
the Borrower increased costs in excess of those being generally charged by the
other Banks or (z) in the case of certain refusals by a Bank (other than a Bank
whose commitments are terminated in accordance with Section 3.02(b) and/or
whose Loans are repaid in accordance with Section 4.01(b)) to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as (and to the
extent) provided in Section 12.12(b), the Borrower shall have the right, if no
Default or Event of Default will exist immediately after giving effect to the
respective replacement, to either replace (1) such Bank (the "Replaced Bank")
with one or more other Eligible Transferee or Transferees reasonably acceptable
to the Administrative Agent, none of whom shall constitute a Defaulting Bank at
the time of such replacement (collectively, the "Replacement Bank") or (2) at
the option of the Borrower, to replace only (a) the Revolving Loan Commitment
(and outstandings pursuant thereto) of the Replaced Bank with an identical
Revolving Loan Commitment provided by the Replacement Bank or (b) the Term Loan
Commitment or Term Loans of the Replaced Bank with an identical Term Loan
Commitment or Term Loans provided by the Replacement Bank; provided that (i) at
the time of any replacement pursuant to this Section 1.13, the Replacement Bank
shall enter
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into one or more Assignment and Assumption Agreements pursuant to Section
12.04(b) (and with all fees payable pursuant to said Section 12.04(b) to be
paid by the Replacement Bank) pursuant to which the Replacement Bank shall
acquire the Commitment and outstanding Loans (or, in the case of the
replacement of only (a) the Revolving Loan Commitment, the Revolving Loan
Commitment and outstanding Revolving Loans or (b) the Term Loan Commitment or
outstanding Term Loans, the Term Loan Commitment or the outstanding Term Loans)
of, and in each case (except for the replacement of only the outstanding Term
Loan Commitment or the outstanding Term Loans of the respective Bank)
participations in Letters of Credit by, the Replaced Bank and, in connection
therewith, shall pay to (x) the Replaced Bank in respect thereof an amount
equal to the sum of (without duplication) (A) the principal of, and all accrued
interest on, all outstanding Loans (or of the Loans of the respective Tranche
being replaced) of the Replaced Bank, (B) except in the case of the replacement
of only the Term Loan Commitment or the outstanding Term Loans of a Replaced
Bank, all Unpaid Drawings that have been funded by (and not reimbursed to) such
Replaced Bank, together with all then unpaid interest with respect thereto at
such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees
owing to the Replaced Bank (but only with respect to the relevant Tranche, in
the case of the replacement of less than all Tranches of Loans then held by the
respective Replaced Bank) pursuant to Section 3.01 and (y) except in the case
of the replacement of only the Term Loan Commitment or the outstanding Term
Loans of a Replaced Bank, the Issuing Bank an amount equal to such Replaced
Bank's Adjusted RL Percentage (for this purpose, determined as if the
adjustment described in clause (y) of the immediately succeeding sentence had
been made with respect to such Replaced Bank) of any Unpaid Drawing (which at
such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank, and (ii) all obligations of the
Borrower owing to the Replaced Bank (other than those (a) specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid or (b) relating to any Tranche of
Loans and/or Commitments of the respective Replaced Bank which will remain
outstanding after giving effect to the respective replacement) shall be paid in
full to such Replaced Bank concurrently with such replacement. Upon the
execution of the respective Assignment and Assumption Agreements, the payment
of amounts referred to in clauses (i) and (ii) above, the recordation of the
assignment in the Register by the Administrative Agent pursuant to Section
12.17 and, if so requested by the Replacement Bank, delivery to the Replacement
Bank of the appropriate Note or Notes executed by the Borrower, (x) the
Replacement Bank shall become a Bank hereunder and, unless the respective
Replaced Bank continues to have outstanding Term Loans or a Commitment
hereunder, the Replaced Bank shall cease to constitute a Bank hereunder, except
with respect to indemnification provisions under this Agreement (including,
without limitation, Sections
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<PAGE> 22
1.10, 1.11, 2.05, 4.04, 11.06 and 12.01, as the same may be limited by Section
12.15 (to the extent applicable)), which shall survive as to such Replaced Bank
and (y) in the case of a replacement of a Defaulting Bank with a Non-Defaulting
Bank, the Adjusted RL Percentages of the Banks shall be automatically adjusted
at such time to give effect to such replacement (and to give effect to the
replacement of a Defaulting Bank with one or more Non-Defaulting Banks). Any
replacement of a Bank pursuant to this Section 1.13 shall not be deemed to be a
waiver of any rights which the Borrower, the Administrative Agent or any other
Bank shall have against the Replaced Bank.
1.14 Term Loan Commitments. At any time on and after the
Restatement Effective Date and prior to the Term Loan Availability Termination
Date, with the prior written consent of the Administrative Agent, the Borrower
may request one or more Banks or other lending institutions to assume a Term
Loan Commitment and to make Term Loans to the Borrower as provided in Section
1.01(a) and, in the sole discretion of each such Bank or other institution, any
such Bank or other institution may agree to so commit; provided that (i) no
Default or Event of Default then exists or would result therefrom, (ii) the
increase in the Total Term Loan Commitment pursuant to any such request shall
be in an aggregate amount of at least $50,000,000 and (iii) after giving effect
to each such increase, the Total Term Loan Commitment shall not exceed
$150,000,000. The Borrower and each such Bank or other lending institution
(each an "Assuming Bank") which agrees to commit to make Term Loans shall
execute and deliver to the Administrative Agent a Term Loan Assumption
Agreement substantially in the form of Exhibit C (with the increase in or, in
the case of a new Assuming Bank, assumption of, such Bank's Term Loan
Commitment to be effective upon delivery of such Term Loan Assumption Agreement
to the Administrative Agent). The Administrative Agent shall promptly notify
each Bank as to the occurrence of each Term Loan Assumption Date. On each Term
Loan Assumption Date, (x) Annex I shall be deemed modified to reflect the Term
Loan Commitments of such Banks, and (y) the Borrower shall pay to each such
Assuming Bank such up front fee (if any) as may have been agreed between the
Borrower and such Assuming Bank.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms
and conditions set forth herein, the Borrower may request that any Issuing Bank
issue, at any time and from time to time on and after the Restatement Effective
Date and prior to the Final Maturity Date, (x) for the account of the Borrower
and for the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Obligations of Parent
or any of its Subsidiaries, an irrevocable sight standby letter
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of credit, in a form customarily used by such Issuing Bank or in such other
form as has been approved by such Issuing Bank (each such standby letter of
credit, a "Standby Letter of Credit") in support of such L/C Supportable
Obligations and (y) for the account of the Borrower, an irrevocable sight
commercial letter of credit in a form customarily used by such Issuing Bank
(each such commercial letter of credit, a "Trade Letter of Credit" and each
such Trade Letter of Credit and each Standby Letter of Credit, a "Letter of
Credit") in support of customary commercial transactions of the Borrower and
its Subsidiaries.
(b) Each Issuing Bank may agree in its sole discretion, and
BTCo hereby agrees that, in the event a requested Letter of Credit is not
issued by one of the other Issuing Banks, it will (subject to the terms and
conditions contained herein), at any time and from time to time on or after the
Restatement Effective Date and prior to the Final Maturity Date, following its
receipt of the respective Letter of Credit Request, issue for the account of
the Borrower one or more Letters of Credit (x) in the case of Standby Letters
of Credit, in support of such L/C Supportable Obligations of Parent or any of
its Subsidiaries and (y) in the case of Trade Letters of Credit, in support of
sellers of goods as referenced in Section 2.01(a), provided that the respective
Issuing Bank shall be under no obligation to issue any Letter of Credit of the
types described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit or any
requirement of law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such Issuing Bank shall
prohibit, or request that such Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon such Issuing Bank with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which
such Issuing Bank is not otherwise compensated, including, without
limitation, by reimbursement from the Borrower) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuing Bank as of the date
hereof and which such Issuing Bank in good faith deems material to it;
or
(ii) such Issuing Bank shall have received notice from any
Bank prior to the issuance of such Letter of Credit of the type
described in the second sentence of Section 2.02(b).
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<PAGE> 24
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $75,000,000 minus the aggregate amount of cash earnest money
deposits outstanding at such time pursuant to Section 8.01(xviii) or (y) when
added to the aggregate outstanding principal amount of all Revolving Loans, the
Adjusted Total Available Revolving Loan Commitment; (ii) each Letter of Credit
shall be denominated in Dollars; (iii) the Stated Amount of each Letter of
Credit shall be no less than $50,000 or such lesser amount as is acceptable to
the Issuing Bank; and (iv) each Letter of Credit shall by its terms terminate
(A) in the case of Standby Letters of Credit, on or before the earlier of (x)
the date which occurs 12 months after the date of the issuance thereof
(although any such Letter of Credit may be extendable, if such Letter of Credit
could otherwise be issued pursuant to the terms and conditions hereof, for
successive periods of up to 12 months, but not beyond the Business Day next
preceding the Final Maturity Date), and (y) the Business Day next preceding the
Final Maturity Date and (B) in the case of Trade Letters of Credit, on or
before the earlier of (x) the date which occurs 180 days after the date of
issuance thereof and (y) the date which is 30 days prior to the Final Maturity
Date.
(d) Schedule IV attached hereto contains a description of all
letters of credit issued by BTCo pursuant to the Existing Credit Agreement and
which are to remain outstanding on the Restatement Effective Date. Each such
letter of credit, including any extension thereof (each an "Existing Letter of
Credit") shall constitute a "Letter of Credit" for all purposes of this
Agreement. Each Existing Letter of Credit shall be deemed issued for purposes
of Sections 2.03(a), 3.01(b) and 3.01(c) on the Restatement Effective Date.
2.02 Letter of Credit Requests; Notices of Issuance. (a)
Whenever the Borrower desires that a Letter of Credit be issued for its
account, the Borrower shall give the Administrative Agent and the respective
Issuing Bank at least two Business Days' (or such shorter period as is
acceptable to the respective Issuing Bank) prior written notice thereof. In
the case of Letters of Credit to be issued pursuant to Section 2.01, each
notice shall be in the form of Exhibit D (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the respective Issuing Bank has received notice
from any Bank before it issues a Letter of Credit that one or more of the
conditions specified in Section 5 are not then satisfied, or
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that the issuance of such Letter of Credit would violate Section 2.01(c), then
such Issuing Bank may issue the requested Letter of Credit for the account of
the Borrower in accordance with such Issuing Bank's usual and customary
practices. Upon its issuance of or amendment to any Standby Letter of Credit,
such Issuing Bank shall promptly notify each Bank participating therein of such
issuance or amendment, which notice shall be accompanied by a copy of the
Letter of Credit actually issued and any amendments thereto. For Trade Letters
of Credit on which the Issuing Bank is other than the Administrative Agent, the
Issuing Bank will send to the Administrative Agent by facsimile transmission,
promptly on the first Business Day of each week, the daily aggregate Stated
Amount of Trade Letters of Credit issued by such Issuing Bank and outstanding
during the preceding week. The Administrative Agent will send to each Bank
after each calendar month end and upon each payment of the Letter of Credit
Fee, a report setting forth for the relevant period the daily aggregate Stated
Amount of all outstanding Trade Letters of Credit of all Issuing Banks during
such period.
2.03 Letter of Credit Participations. (a) Immediately upon
the issuance (or deemed issuance pursuant to Section 2.01(d)) by any Issuing
Bank of any Letter of Credit, such Issuing Bank shall be deemed to have sold
and transferred to each Bank with a Revolving Loan Commitment, other than such
Issuing Bank (each such Bank, in its capacity under this Section 2.03, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Bank, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Adjusted RL Percentage, in such Letter of Credit, each
drawing made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although the Letter of Credit Fee shall be payable directly
to the Administrative Agent for the account of the Participants as provided in
Section 3.01(b) and the Participants shall have no right to receive any portion
of any Facing Fees). Upon any change in the respective Revolving Loan
Commitments of the Banks pursuant to Section 1.13 or 12.04(b), it is hereby
agreed that, with respect to all such outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant
to this Section 2.03 to reflect the new Adjusted RL Percentages of the assignor
and assignee Bank.
(b) In determining whether to pay under any Letter of Credit,
such Issuing Bank shall have no obligation relative to the other Banks other
than to confirm that any documents required to be delivered under such Letter
of Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by any Issuing Bank under or in connection
with any Letter of Credit if taken or omitted in the absence of
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gross negligence or willful misconduct and in accordance with the standards of
care specified in the Uniform Commercial Code of the State of New York, shall
not create for such Issuing Bank any resulting liability to the Borrower or any
Bank.
(c) In the event that any Issuing Bank makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing
Bank shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly
and unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted RL Percentage of the amount of such payment
on such Business Day in same day funds. If and to the extent such Participant
shall not have so made its Adjusted RL Percentage of the amount of such payment
available to such Issuing Bank, such Participant agrees to pay to such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to such Issuing Bank at
the Federal Funds Rate. The failure of any Participant to make available to
such Issuing Bank its Adjusted RL Percentage of any payment under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to such Issuing Bank its Adjusted RL Percentage of any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to such
Issuing Bank such other Participant's Adjusted RL Percentage of any such
payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall pay to each
Participant which has paid its Adjusted RL Percentage thereof, in Dollars and
in same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) The obligations of the Participants to make payments to
each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to
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any qualification or exception whatsoever and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Parent or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such transferee may
be acting), the Administrative Agent, any Issuing Bank, any
Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction
between Parent or any Subsidiary of Parent and the beneficiary named
in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment directly to such Issuing Bank in immediately available funds, for any
payment or disbursement made by it under any Letter of Credit (each such
amount, so paid until reimbursed, an "Unpaid Drawing"), no later than three
Business Days after the date of such payment or disbursement, with interest on
the amount so paid or disbursed by such Issuing Bank, to the extent not
reimbursed prior to 12:00 Noon (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding
the date such Issuing Bank was reimbursed by the Borrower therefor at a rate
per annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Revolving Loans maintained as Base Rate Loans; provided,
however, to the extent such amounts are not reimbursed prior to 12:00 Noon (New
York time) on the fifth Business Day following such payment or disbursement,
interest shall thereafter accrue on the amounts so paid or disbursed by such
Issuing Bank (and until reimbursed by the Borrower)
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<PAGE> 28
at a rate per annum which shall be the Base Rate in effect from time to time
plus the Applicable Margin for Revolving Loans maintained as Base Rate Loans
plus 2%, in each such case, with interest to be payable on demand. The
respective Issuing Bank shall give the Borrower prompt notice of each Drawing
under any Letter of Credit, provided that the failure to give any such notice
shall in no way affect, impair or diminish the Borrower's obligations
hereunder.
(b) The obligations of the Borrower under this Section 2.04
to reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Bank (including in its capacity as the issuer of the
Letter of Credit or as Participant), or any nonapplication or misapplication by
the beneficiary of the proceeds of such Drawing, the respective Issuing Bank's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that
they appear to substantially comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by any Issuing Bank
under or in connection with any Letter of Credit if taken or omitted in the
absence of gross negligence or willful misconduct and in accordance with the
standards of care specified in the Uniform Commercial Code of the State of New
York, shall not create for such Issuing Bank any resulting liability to the
Borrower.
2.05 Increased Costs. If at any time after the Restatement
Effective Date, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant, or any corporation controlling such Person, with any request
or directive by any such authority (whether or not having the force of law),
shall either (i) impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against letters of credit issued by any
Issuing Bank or participated in by any Participant, or (ii) impose on any
Issuing Bank or any Participant, or any corporation controlling such Person,
any other conditions relating, directly or indirectly, to this Agreement or any
Letter of Credit; and the result of any of the foregoing is to increase the
cost to any Issuing Bank or any Participant of issuing, maintaining or
participating in any Letter of Credit, or reduce the amount of any sum received
or receivable by any Issuing Bank or any Participant hereunder or reduce the
rate of return on its capital with respect to Letters of Credit (except for
changes in the rate of tax on, or determined by reference to, the net income or
profits of such Issuing Bank or such Participant, or any
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<PAGE> 29
corporation controlling such Person, or any franchise tax based on the net
income or profits of such Bank or Participant, or any corporation controlling
such Person, in either case pursuant to the laws of the United States of
America, the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), but without duplication of any amounts payable in respect of taxes
pursuant to Section 4.04(a), then, upon demand to the Borrower by such Issuing
Bank or any Participant (a copy of which demand shall be sent by such Issuing
Bank or such Participant to the Administrative Agent) and subject to the
provisions of Section 12.15 (to the extent applicable), the Borrower shall pay
to such Issuing Bank or such Participant such additional amount or amounts as
will compensate such Bank for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Bank
or any Participant, upon determining that any additional amounts will be
payable pursuant to this Section 2.05, will give prompt written notice thereof
to the Borrower, which notice shall include a certificate submitted to the
Borrower by such Issuing Bank or such Participant (a copy of which certificate
shall be sent by such Issuing Bank or such Participant to the Administrative
Agent), setting forth in reasonable detail the basis for the calculation of
such additional amount or amounts necessary to compensate such Issuing Bank or
such Participant. The certificate required to be delivered pursuant to this
Section 2.05 shall, if delivered in good faith and absent manifest error, be
final and conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 Fees. (a) (i) The Borrower agrees to pay the
Administrative Agent for distribution to each Non-Defaulting Bank with a
Revolving Loan Commitment a commitment commission (the "Revolving Loan
Commitment Commission") for the period from the Restatement Effective Date to
and including the Final Maturity Date (or such earlier date as the Total
Revolving Loan Commitment shall have been terminated), computed at a rate for
each day equal to the Applicable Commitment Commission Percentage on the daily
average Unutilized Revolving Loan Commitment of such Non-Defaulting Bank.
Accrued Revolving Loan Commitment Commission shall be due and payable quarterly
in arrears on each Quarterly Payment Date and on the Final Maturity Date or
such earlier date upon which the Total Revolving Loan Commitment is terminated.
(ii) The Borrower agrees to pay the Administrative Agent for
distribution to each Non-Defaulting Bank with a Term Loan Commitment a
commitment commission (the "Term Loan Commitment Commission", and together with
the Revolving Loan
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<PAGE> 30
Commitment Commission, the "Commitment Commission") for the period from the
Restatement Effective Date to and including the Term Loan Availability
Termination Date (or such earlier date as the Total Term Loan Commitment shall
have been terminated), computed at a rate for each day equal to the Applicable
Commitment Commission Percentage on the daily average Term Loan Commitment of
such Non-Defaulting Bank. Accrued Term Loan Commitment Commission shall be due
and payable quarterly in arrears on each Quarterly Payment Date and on the Term
Loan Availability Termination Date or such earlier date upon which the Total
Term Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent
for distribution to each Non-Defaulting Bank with a Revolving Loan Commitment
(based on their respective Adjusted RL Percentages), a fee in respect of each
Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the period
from and including the date of issuance of such Letter of Credit, to and
including the termination of such Letter of Credit computed at a rate per annum
equal to the difference between (i) the Applicable Margin for Revolving Loans
maintained as Eurodollar Loans as in effect from time to time and (ii) 1/4 of
1% on the daily Stated Amount of such Letter of Credit. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing
Bank, for its own account, a facing fee in respect of each Letter of Credit
issued for its account hereunder (the "Facing Fee") for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate equal to 1/4 of 1% per
annum of the daily Stated Amount of such Letter of Credit; provided, that in no
event shall the annual Facing Fee with respect to each Letter of Credit be less
than $500. Accrued Facing Fees shall be due and payable quarterly in arrears
on each Quarterly Payment Date and on the date upon which the Total Revolving
Loan Commitment has been terminated and no Letters of Credit remain
outstanding.
(d) The Borrower shall pay, upon each payment under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge and reasonable out-of-pocket expenses
which the respective Issuing Bank is generally imposing in connection with such
occurrence with respect to letters of credit.
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<PAGE> 31
(e) The Borrower shall pay to the Administrative Agent, for
its own account, such other fees as have been agreed to in writing by the
Borrower and the Administrative Agent.
3.02 Voluntary Termination and Reduction of Total Unutilized
Revolving Loan Commitment. (a) Upon at least two Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), the Borrower shall have
the right, at any time or from time to time, without premium or penalty, to
terminate or partially reduce the Total Unutilized Revolving Loan Commitment in
whole or in part, provided that (x) each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each
Bank with such a Commitment (y) any partial reduction pursuant to this Section
3.02 shall be in integral multiples of $200,000 and (z) the reduction to the
Total Unutilized Revolving Loan Commitment shall in no case be in an amount
which would cause the Revolving Loan Commitment of any Bank to be reduced (as
required by the preceding clause (x)) by an amount which exceeds the Unutilized
Revolving Loan Commitment of such Bank as in effect immediately before giving
effect to such reduction.
(b) In the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as provided in
Section 12.12(b), the Borrower shall have the right, upon five Business Days'
written notice to the Administrative Agent at its Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks) to
terminate the entire Revolving Loan Commitment and/or, if prior to the Term
Loan Availability Termination Date, the Term Loan Commitment of such Bank, so
long as all Loans, together with accrued and unpaid interest, Fees and other
amounts, owing to such Bank (other than amounts owing in respect of the Term
Loans maintained by such Bank, if such Term Loans are not being repaid pursuant
to Section 12.12(b)) are repaid concurrently with the effectiveness of such
termination pursuant to Section 4.01(b) (at which time Schedule I shall be
deemed modified to reflect such changed amounts), and at such time unless the
respective Bank continues to have outstanding Term Loans hereunder such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 11.06 and 12.01, as the same may
be limited by Section 12.15 (to the extent applicable)), which shall survive as
to such repaid Bank.
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<PAGE> 32
3.03 Mandatory Reduction of Commitments. (a) Unless the
Restatement Effective Date shall have occurred on or before August 31, 1997,
the Total Commitment (and the Term Loan Commitment and Revolving Loan
Commitment of each Bank) shall terminate in its entirety.
(b) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, on each date set forth below (each a
"Scheduled Revolving Loan Commitment Reduction Date"), the Total Revolving Loan
Commitment shall be permanently reduced in an amount equal to the product of
(x) the Total Revolving Loan Commitment in effect as of August 1, 2002
(immediately prior to giving effect to the Scheduled Revolving Loan Commitment
Reduction to occur on such date and after giving effect to any increases in the
Total Revolving Loan Commitment prior to such date) multiplied by (y) the
percentage set forth below opposite such date (each such reduction, a
"Scheduled Revolving Loan Commitment Reduction"):
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
August 1, 2002 25%
August 1, 2003 25%
</TABLE>
(c) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Revolving Loan Commitment (and
the Revolving Loan Commitment of each Bank) shall terminate in its entirety on
the Final Maturity Date.
(d) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Term Loan Commitment (and
the Term Loan Commitment of each Bank) shall (i) be reduced on each date on
which Term Loans are incurred (after giving effect to the making of Term Loans
on such date), in an amount equal to the aggregate principal amount of Term
Loans incurred on such date, (ii) terminate in its entirety on the Term Loan
Availability Termination Date (after giving effect to the making of Term Loans
on or prior to such date) and (iii) prior to the termination of the Total Term
Loan Commitment as provided above, be reduced from time to time to the extent
required by Section 4.02.
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<PAGE> 33
(e) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Revolving Loan Commitment
shall be permanently reduced from time to time to the extent required by
Section 4.02(h).
(f) Each reduction to the Total Term Loan Commitment and
the Total Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant
to Section 4.02) shall be applied pro rata to reduce the Term Loan Commitment
or the Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the
right to prepay the Loans, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent prior to 12:00 Noon (New York
time) at its Notice Office (x) at least one Business Day's prior written notice
(or telephonic notice promptly confirmed in writing) of its intent to prepay
Base Rate Loans and (y) at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
Eurodollar Loans, whether Term Loans or Revolving Loans shall be prepaid, the
amount of such prepayment and the Types of Loans to be prepaid and, in the case
of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall promptly transmit to each of
the Banks; (ii) each prepayment shall be in an aggregate principal amount of at
least $25,000, provided that if any partial prepayment of Eurodollar Loans made
pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans made
pursuant to such Borrowing to an amount less than (x) in the case of Term
Loans, $1,000,000, and (y) in the case of Revolving Loans, $200,000, then such
Borrowing shall be converted at the end of the then current Interest Period
into a Borrowing of Base Rate Loans and any election of an Interest Period with
respect thereto given by the Borrower shall have no force or effect; (iii) each
prepayment in respect of any Loans made pursuant to a Borrowing shall, except
as provided in clause (iv) below, be applied pro rata among the Banks which
made such Loans; and (iv) at the Borrower's election in connection with any
prepayment of Loans, such prepayment shall not be applied to the Revolving
Loans of a Defaulting Bank.
(b) In the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as provided in
Section 12.12(b), the Borrower shall have the right, upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall
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<PAGE> 34
promptly transmit to each of the Banks) to repay all Loans, together with
accrued and unpaid interest, Fees, and other amounts owing to such Bank (or
owing to such Bank with respect to each Tranche which gave rise to the need to
obtain such Bank's individual consent), in accordance with said Section
12.12(b) so long as (A) in the case of the repayment of Revolving Loans of any
Bank pursuant to this clause (b), the Revolving Loan Commitment of such Bank is
terminated concurrently with such repayment (at which time Schedule I shall be
deemed modified to reflect the changed Revolving Loan Commitments), (B) in the
case of the repayment of Term Loans of any Bank pursuant to this clause (b),
the Term Loan Commitment of such Bank (to the extent not theretofore
terminated) is terminated concurrently with such repayment (at which time
Schedule I shall be deemed modified to reflect the changed Term Loan
Commitments) and (C) the consents required by Section 12.12(b) in connection
with the repayment pursuant to this clause (b) have been obtained.
(c) Each voluntary prepayment of principal of Term Loans
pursuant to this Section 4.01 (excluding prepayments of Term Loans made
pursuant to Section 4.01(b)) shall be applied to reduce the then remaining
Scheduled Term Loan Repayments on a pro rata basis (based upon the then
remaining number of Scheduled Term Loan Repayments after giving effect to all
prior reductions thereto); provided that if the amount to be applied to any
Scheduled Term Loan Repayment (whether pursuant to preceding clause(c) or this
proviso) would exceed the then remaining amount of such Scheduled Term Loan
Repayment, then an amount equal to such excess shall be applied to reduce the
other then remaining Scheduled Term Loan Repayments pro rata based upon the
then remaining number of such Scheduled Term Loan Repayments after giving
effect to all reductions thereto (including the amount of repayments
theretofore allocated pursuant to preceding clause (c) and this proviso).
4.02 Mandatory Repayments and Commitment Reductions. (a)(i)
On any day on which the sum of the aggregate outstanding principal amount of
Revolving Loans made by Non-Defaulting Banks plus the Letter of Credit
Outstandings on such day exceeds the Adjusted Total Available Revolving Loan
Commitment as then in effect, the Borrower shall repay on such date the
principal of Revolving Loans of Non-Defaulting Banks in an amount equal to such
excess. If, after giving effect to the repayment of all outstanding Revolving
Loans of Non-Defaulting Banks, the aggregate amount of the Letter of Credit
Outstandings exceeds the Adjusted Total Available Revolving Loan Commitment as
then in effect, the Borrower shall pay to the Administrative Agent at the
Payment Office on such date an amount of cash or Cash Equivalents equal to the
amount of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash or Cash Equivalents to be held as
security for all obligations of the Borrower to the Banks hereunder in a cash
collateral account to be established by the Administrative Agent.
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<PAGE> 35
(ii) On any day on which the aggregate outstanding
principal amount of the Revolving Loans made by any Defaulting Bank exceeds the
Available Revolving Loan Commitment of such Defaulting Bank, the Borrower shall
prepay principal of Revolving Loans of such Defaulting Bank in an amount equal
to such excess.
(b) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below the Borrower shall be required to repay the principal of Term Loans, to
the extent then outstanding, in an amount equal to the product of (x) the
aggregate principal amount of Term Loans outstanding on the Term Loan
Availability Termination Date multiplied by (y) the percentage set forth below
opposite such date (each such repayment as the same may be reduced as provided
in Sections 4.01 and 4.02(i), a "Scheduled Term Loan Repayment", and each such
date, a "Scheduled Term Loan Repayment Date"):
<TABLE>
<CAPTION>
Scheduled Term Loan Repayment Date Percentage
---------------------------------- ----------
<S> <C>
September 30, 1999 3.75%
December 31, 1999 3.75%
March 31, 2000 3.75%
June 30, 2000 3.75%
September 30, 2000 3.75%
December 31, 2000 3.75%
March 31, 2001 3.75%
June 30, 2001 3.75%
September 30, 2001 5.00%
December 31, 2001 5.00%
March 31, 2002 5.00%
June 30, 2002 5.00%
September 30, 2002 6.25%
December 31, 2002 6.25%
March 31, 2003 6.25%
June 30, 2003 6.25%
September 30, 2003 6.25%
December 31, 2003 6.25%
March 31, 2004 6.25%
Final Maturity Date 6.25%
</TABLE>
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<PAGE> 36
(c) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Parent or any of its Subsidiaries
receives any proceeds from any capital contributions or any sale or issuance of
its equity (other than (i) proceeds received from the issuance of shares of
Parent Common Stock as a result of any reissuance of Parent Common Stock to new
employees pursuant to, and as permitted by, Section 8.03(iii)(B)(y) to the
extent that the aggregate proceeds do not exceed $7,500,000 in any fiscal year
of Parent, (ii) so long as no Default or Event of Default then exists or would
result therefrom, the first $60,000,000 of proceeds received by Parent from the
sale or issuance of its equity used to finance Permitted Section 8.02(xiii)
Acquisitions and the Patterson Acquisition, (iii) so long as no Default or
Event of Default then exists or would result therefrom, proceeds received from
the sale or issuance of shares of Parent Common Stock to be used to cure
defaults or make principal or interest payments under any Non-Controlled Entity
Credit Facility and (iv) proceeds from any Permitted Issuance), an amount equal
to 100% of the cash proceeds from the respective capital contribution or sale
or issuance (net of all reasonable costs associated therewith, including,
without limitation, all due diligence costs and expenses paid for, or
reimbursed by, Parent and/or any of its Subsidiaries, all underwriting or
similar fees, discounts and commissions, attorneys' fees paid for or reimbursed
by, Parent and/or any of its Subsidiaries and other direct costs associated
therewith) shall be applied as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Sections 4.02(i) and (j).
(d) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Parent or any of its Subsidiaries
receives any proceeds from any incurrence by Parent or any of its Subsidiaries
of Indebtedness for borrowed money (other than Indebtedness for borrowed money
permitted to be incurred pursuant to Section 8.04), an amount equal to 100% of
the cash proceeds of the respective incurrence of Indebtedness (net of all
reasonable costs associated therewith, including, without limitation, all due
diligence costs and expenses paid for, or reimbursed by, Parent and/or any of
its Subsidiaries, any underwriting or similar fees, discounts and commissions,
attorneys' fees and expenses paid for, or reimbursed by, Parent and/or any of
its Subsidiaries, all financing and/or commitment fees and other direct costs
associated therewith) shall be
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<PAGE> 37
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Sections 4.02(i) and (j).
(e) In addition to any other mandatory repayments of
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Parent or any of its Subsidiaries
receives proceeds from any sale of assets (including capital stock and
securities held thereby, but excluding sales of assets to the extent permitted
by Sections 8.02(ii), (v), (vi), (vii), (x) and (xii)), an amount equal to 100%
of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment
and/or commitment reduction in accordance with the requirement of Sections
4.02(i) and (j), provided, that so long as no Default or Event of Default then
exists, the Net Sale Proceeds of the sale of any of the Stations (whether as an
asset sale, stock transfer, merger or otherwise (including sales or swaps of
Stations pursuant to the sales, Station Swaps or Stock Swaps, respectively
effected pursuant to Section 8.02(viii) or (ix)) shall not be required to be so
applied on the date of receipt thereof to the extent the Borrower has delivered
a certificate to the Administrative Agent on or prior to such date stating that
such Net Sale Proceeds shall be reinvested or shall be committed to be
reinvested in radio stations (and related assets) or 100% of the capital stock
or other equity interests of a Person whose principal business is the ownership
and operation of radio stations (and related assets) or equipment to be used at
radio stations (whether by merger of the Borrower or any of its Subsidiaries
(including Subsidiaries created pursuant to Section 8.15), or a Stock Swap or a
Station Swap effected pursuant to Section 8.02(viii) or (ix)) (each a
"Reinvestment Asset" and collectively the "Reinvestment Assets") within 180
days following such date, and the Total Revolving Loan Commitment shall be
temporarily reduced by the amount of such Net Sale Proceeds and shall
constitute Blocked Commitments until the date on which such proceeds are to be
reinvested in Reinvestment Assets on which date such amount shall, subject to
Section 5, be available to the Borrower as Revolving Loans or Letters of
Credit, as applicable to pay actual costs incurred by it in connection with the
acquisition of Reinvestment Assets or the making of any escrow deposits in
connection therewith or the posting of Letters of Credit in connection
therewith, and, provided further, that if all or any portion of such Net Sale
Proceeds not applied as a mandatory repayment and/or commitment reduction
pursuant to the preceding proviso are either (a) not so used or committed to be
used within 180 days after the date of receipt of such Net Sale Proceeds or (b)
if committed to be so used within 180 days after the date of receipt of such
Net Sale Proceeds and not so used within 360 days after the date of receipt of
such Net Sale Proceeds, then, in either such case, such remaining portion not
used or committed to be used in the case of preceding clause (a) and not used
in the case of preceding clause (b) shall be applied on the date which is 180
days following the date of receipt of such Net Sale Proceeds in the case of
clause (a)
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<PAGE> 38
above, or the date occurring 360 days after the date of receipt of such Net
Sale Proceeds in the case of clause (b) above as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(i)
and (j). At the time of the acquisition of any Reinvestment Assets, Parent
shall comply and shall cause its Subsidiaries to comply with Section 7.13.
(f) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each Excess Cash
Payment Date, an amount equal to 50% of the Excess Cash Flow for the relevant
Excess Cash Payment Period shall be applied as a mandatory repayment and/or
mandatory commitment reduction in accordance with the requirements of Sections
4.02(i) and (j).
(g) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 10 days following
each date after the Restatement Effective Date on which Parent or any of its
Subsidiaries receives any proceeds from any Recovery Event, an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs including,
without limitation, legal costs and expenses and taxes incurred in connection
with such Recovery Event) shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(i)
and (j), provided that (x) so long as no Default or Event of Default then
exists and such proceeds do not exceed $2,500,000, such proceeds shall not be
required to be so applied on such date to the extent that the Borrower has
delivered a certificate to the Administrative Agent on or prior to such date
stating that such proceeds shall be used to replace or restore any properties
or assets in respect of which such proceeds were paid within 180 days following
the date of such Recovery Event (which certificate shall set forth the
estimates of the proceeds to be so expended) and (y) so long as no Default or
Event of Default then exists and to the extent that (a) the amount of such
proceeds exceeds $2,500,000, (b) the Borrower has delivered to the
Administrative Agent a certificate on or prior to the date the application
would otherwise be required pursuant to this Section 4.02(g) in the form
described in clause (x) above and also certifying the sufficiency of cash
availability required by succeeding clause (c), and (c) the Borrower has
delivered to the Administrative Agent such evidence as the Administrative Agent
may reasonably request in form and substance satisfactory to the Administrative
Agent establishing that the Borrower has or will have sufficient cash from
ordinary cash flow, business interruption insurance or from other sources
satisfactory to the Administrative Agent and that the Borrower will be
receiving regular payments thereunder in such amounts and at such times as are
necessary to satisfy all obligations and expenses of the Borrower (including,
without limitation, all debt service requirements, including pursuant to this
Agreement), without any delay or extension
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<PAGE> 39
thereof, for the period from the date of the respective casualty, condemnation
or other event giving rise to the Recovery Event and continuing through the
completion of the replacement or restoration of respective properties or
assets, then the entire amount and not just the portion in excess of $2,500,000
shall temporarily reduce the Total Revolving Loan Commitment and shall
constitute Blocked Commitments until the date on which such proceeds are to be
used to replace or restore the respective properties or assets on which date
such amount shall, subject to Section 5, be available to the Borrower as
Revolving Loans or Letters of Credit, as applicable to pay actual costs
incurred by it in connection with the replacement or restoration of the
respective properties or assets (pursuant to such certification requirements as
may be established by the Administrative Agent), and, provided further, that if
all or any portion of such proceeds not required to be applied as a mandatory
repayment and/or commitment reduction pursuant to the preceding proviso
(whether pursuant to clause (x) or (y) thereof) are either (A) not so used
within 180 days after the date of receipt of proceeds from the respective
Recovery Event or (B) if committed to be used within 180 days after the date of
receipt of proceeds from the respective Recovery Event and not so used within
360 days after the date of receipt of proceeds from the respective Recovery
Event, then, in either case, such remaining portion not used or committed to be
used in the case of the preceding clause (A) and not used in the case of
preceding clause (B), shall be applied on the date which is 180 days following
the date of receipt of proceeds from the respective Recovery Event in the case
of clause (A) above, or the date which is 360 days after the date of receipt of
proceeds from the respective Recovery Event in the case of clause (B) above, as
a mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(i) and (j).
(h) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Restatement Effective Date upon which Parent or any of its Subsidiaries
receives any proceeds from any Dividend paid by a Non-Controlled Entity, an
amount equal to 100% of the net proceeds therefrom shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(i) and (j).
(i) Each amount required to be applied by Sections 4.02(c)
through (h), inclusive, in accordance with the requirements of this Section
4.02(i) shall be applied as follows: (i) first, as a mandatory repayment of
the then outstanding principal amount of Term Loans, (ii) second, to the extent
in excess thereof, as a mandatory commitment reduction to the Total Term Loan
Commitment then in effect and (iii) third, to the extent in excess thereof, as
a mandatory commitment reduction to the Total Revolving Loan Commitment then in
effect. The amount of each principal repayment of Term Loans (and
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<PAGE> 40
the amount of each reduction to the Total Term Loan Commitment) made as
required by Sections 4.02(c) through (h) shall be applied to reduce the then
remaining Scheduled Term Loan Repayments pro rata based upon the then remaining
number of Scheduled Term Loan Repayments after giving effect to all prior
reductions thereto; provided that if the amount to be applied to any Scheduled
Term Loan Repayment would exceed the then remaining amount of such Scheduled
Term Loan Repayment, then an amount equal to such excess shall be applied to
reduce the other then remaining Scheduled Term Loan Repayments pro rata based
upon the then remaining number of Scheduled Term Loan Repayments after giving
effect to all prior reductions thereto (including the amount of prepayments
theretofore allocated pursuant to the preceding portion of this sentence).
(j) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans of the respective
Tranche which are to be repaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings of the respective Tranche pursuant to which
made, provided that: (i) repayments of Eurodollar Loans pursuant to this
Section 4.02 may only be made on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans of the respective Tranche with Interest
Periods ending on such date of required repayment and all Base Rate Loans of
the respective Tranche have been paid in full; (ii) if any repayment of
Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than (x) in the case of Term Loans, $1,000,000, and (y) in the case of
Revolving Loans $200,000, such Borrowing shall be converted at the end of the
then current Interest Period into a Borrowing of Base Rate Loans; and (iii)
each repayment of any Loans made pursuant to a Borrowing shall be applied pro
rata among the Banks which made such Loans. In the absence of a designation by
the Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its sole discretion with
a view, but no obligation, to minimize breakage costs owing under Section 1.11.
(k) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Loans shall be repaid in full
on the Final Maturity Date.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or Banks
entitled thereto not later than 12:00 Noon (New York time) on the date when due
and shall be made in Dollars in immediately available funds at the Payment
Office of the Administrative Agent. Whenever any payment to be made hereunder
or under any Note shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next
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succeeding Business Day and, with respect to payments of principal, interest
shall be payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder or under any Note will be made without set-off, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any
political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding, except as provided in the second succeeding
sentence, any tax imposed on or measured by the net income or net profits of a
Bank, or any franchise tax based on the net income or net profits of a Bank, in
either case pursuant to the laws of the United States of America or the
jurisdiction in which it is organized or in which the principal office or
applicable lending office of such Bank is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect
thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence of this Section 4.04(a),
then the Borrower agrees to reimburse each Bank, upon the written request of
such Bank, for taxes imposed on or measured by the net income or net profits of
such Bank, or any franchise tax based on the net income or net profits of such
Bank, in either case pursuant to the laws of the jurisdiction in which such
bank is organized or in which the principal office or applicable lending office
of such Bank is located or under the laws of any political subdivision or
taxing authority of any such jurisdiction in which such Bank is organized or in
which the principal office or applicable lending office of such Bank is located
and for any withholding of taxes as such Bank shall determine in good faith are
payable by, or withheld from, such Bank in respect of such amounts so paid to
or on behalf of such Bank pursuant to the preceding sentence and in respect of
any amounts paid to or on behalf of such Bank pursuant to this sentence. The
Borrower will furnish to the Administrative Agent within 45 days after the date
the payment of any Taxes is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by the Borrower. The Borrower agrees to
indemnify and hold harmless each Bank, and reimburse such Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid by such
Bank.
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(b) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Effective Date, or in
the case of a Bank that is an assignee or transferee of an interest under this
Agreement pursuant to Sections 1.13 or 12.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or Form
1001 (or successor forms) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause
(i) above, (x) a certificate substantially in the form of Exhibit E (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Bank agrees
that from time to time after the Effective Date, when a lapse in time or change
in circumstances renders the previous certification obsolete or inaccurate in
any material respect, it will deliver to the Borrower and the Administrative
Agent two new accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii) Certificate,
as the case may be, and such other forms as may be required in order to confirm
or establish the entitlement of such Bank to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such form or Certificate,
in which case such Bank shall not be required to deliver any such form or
Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section 12.04(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Bank which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes to the extent that such Bank has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) the Borrower shall not be
obligated pursuant to Section 4.04(a) hereof to gross-up payments to be made to
a Bank in respect of income or similar taxes imposed by the United States if
(I) such Bank has not provided to the Borrower the Internal Revenue Service
Forms required to be provided
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to the Borrower pursuant to this Section 4.04(b) or (II) in the case of a
payment, other than interest, to a Bank described in clause (ii) above, to the
extent that such Forms do not establish a complete exemption from withholding of
such taxes. Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 4.04 and except as set forth in Section
12.04(b), the Borrower agrees to pay additional amounts and to indemnify each
Bank in the manner set forth in Section 4.04(a) (without regard to the identity
of the jurisdiction requiring the deduction or withholding) in respect of any
amounts deducted or withheld by it as described in the immediately preceding
sentence as a result of any changes after the Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes.
(c) The provisions of this Section 4.04 are subject to the
provisions of Section 12.15 (to the extent applicable).
SECTION 5. Conditions Precedent. The occurrence of the
Restatement Effective Date and the obligation of each Bank to make or maintain
Loans hereunder and to participate in Letters of Credit under this Agreement,
and the obligations of each Issuing Bank to issue Letters of Credit, is
subject, at the time of each such Credit Event (except as otherwise hereafter
indicated), to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. (a) On or prior to the
Restatement Effective Date (i) this Agreement shall have been executed and
delivered as provided in Section 12.10 and (ii) there shall have been delivered
to the Administrative Agent for the account of each of the Banks with a
Revolving Loan Commitment the appropriate Revolving Note executed by the
Borrower, in the amount, maturity and as otherwise provided herein.
(b) On or prior to each Term Loan Borrowing Date, there shall
have been delivered to the Administrative Agent for the account of each of the
Banks with a Term Loan Commitment the appropriate Term Note executed by the
Borrower, in the amount, maturity and as otherwise provided herein.
5.02 No Default; Representations and Warranties. At the time
of each Credit Event and also after giving effect thereto (i) there shall exist
no Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of the making of such Credit
Event (it being understood and agreed that any representation or
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warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date).
5.03 Opinions of Counsel. On the Restatement Effective Date,
the Administrative Agent shall have received (i) from Vinson & Elkins L.L.P.,
special counsel to Parent and its Subsidiaries, an opinion addressed to the
Administrative Agent, the Agents and each of the Banks and dated the
Restatement Effective Date covering the matters set forth in Exhibit F-1, (ii)
from Liebowitz & Associates, FCC counsel to Parent and its Subsidiaries, an
opinion addressed to the Administrative Agent, the Other Agents and each of the
Banks and dated the Restatement Effective Date covering the matters set forth
in Exhibit F-2 and (iii) from local counsel satisfactory to the Agents opinions
each of which shall be in form and substance reasonably satisfactory to the
Agents and the Required Banks and shall cover the perfection of the security
interests granted pursuant to the Security Agreement and the Mortgages and such
other matters incident to the transactions contemplated herein as the Agents
may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the
Restatement Effective Date, the Administrative Agent shall have received a
certificate, dated the Restatement Effective Date, signed by an Authorized
Officer of each Credit Party, and attested to by the Secretary or any Assistant
Secretary of such Credit Party, all in the form of Exhibit G with appropriate
insertions, together with copies of the certificate or articles of
incorporation, partnership agreement, limited liability company agreement and
by-laws (or other equivalent organization documents) of such Credit Party and
the resolutions, or such other administrative approval, of such Credit Party,
as the case may be, referred to in such certificate, and all of the foregoing
shall be reasonably acceptable to the Agents.
(b) On the Restatement Effective Date, all corporate and
legal proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Credit Documents
shall be reasonably satisfactory in form and substance to the Agents and the
Required Banks, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and
bring-down telegrams or facsimiles, if any, which the Agents reasonably may
have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
5.05 Shareholders' Agreements; Management Agreements;
Employment Agreements; Tax Sharing Agreements. On or prior to the Restatement
Effective Date,
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there shall have been delivered to the Administrative Agent true and correct
copies, certified as true and complete by an Authorized Officer of Parent or
its respective Subsidiaries of (i) all agreements entered into by Parent or any
of its Subsidiaries governing the terms and relative rights of its capital
stock and any agreements entered into by shareholders, relating to any such
entity with respect to its capital stock (collectively, the "Shareholders'
Agreements"), (ii) all agreements with senior members of, or with respect to,
the management of Parent or any of its Subsidiaries (collectively, the
"Management Agreements"), (iii) any employment contracts entered into by Parent
or any of its Subsidiaries (collectively, the "Employment Agreements") and (iv)
all agreements relating to the sharing of tax liabilities and benefits among
Parent and/or its Subsidiaries (each a "Tax Sharing Agreement" and
collectively, the "Tax Sharing Agreements"); all of which Shareholders'
Agreements, Management Agreements, Employment Agreements and Tax Sharing
Agreements, shall be in form and substance reasonably satisfactory to the
Agents and the Required Banks and shall be in full force and effect on the
Restatement Effective Date.
5.06 Existing Credit Agreement. On the Restatement Effective
Date, (i) each Existing Bank shall have surrendered to the Administrative Agent
for cancellation the promissory notes issued to it pursuant to the Existing
Credit Agreement in respect of its Existing Revolving Loans, (ii) each Existing
Bank shall have converted its Existing Revolving Loans as contemplated by
Sections 1.01(b), and (iii) the Borrower shall have paid all interest and fees
(including commitment fees) owing under the Existing Credit Agreement through
the Restatement Effective Date, and (v) the Administrative Agent shall have
received evidence in form, scope and substance satisfactory to it that the
matters set forth in this Section 5.06 have been satisfied on such date.
5.07 Subsidiary Guaranty. On the Restatement Effective Date,
each Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiary Guaranty in the form of Exhibit H hereto (as amended, modified,
extended, renewed, replaced, restated or supplemented from time to time, the
"Subsidiary Guaranty") and the Subsidiary Guaranty shall be in full force and
effect.
5.08 Pledge Agreement. On the Restatement Effective Date,
each Credit Party shall have duly authorized, executed and delivered a Pledge
Agreement in the form of Exhibit I (as amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, the "Pledge Agreement")
and shall have delivered to the Collateral Agent, as pledgee, all the Pledged
Securities referred to therein then owned by such Credit Party, endorsed in
blank in the case of promissory notes or accompanied
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by executed and undated stock powers in the case of capital stock, and the
Pledge Agreement shall be in full force and effect.
5.09 Security Agreement. On the Restatement Effective Date,
each Credit Party shall have duly authorized, executed and delivered a Security
Agreement in the form of Exhibit J (as amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, the "Security Agreement")
covering all of such Credit Party's present and future Security Agreement
Collateral, together with:
(a) executed copies of Financing Statements (Form UCC-1) in
appropriate form for filing under the UCC of each jurisdiction as may
be necessary to perfect the security interests purported to be created
by the Security Agreement;
(b) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements that name Parent or any Subsidiary of Parent as debtor and
that are filed in any jurisdiction where a filing may be necessary or,
in the opinion of the Collateral Agent, desirable to perfect the
security interest purported to be created by the Security Agreement,
together with copies of such financing statements (none of which shall
cover the Collateral except to the extent evidencing Permitted Liens
or in respect of which the Collateral Agent shall have received
termination statements (Form UCC-3) or such other termination
statements as shall be required by local law); and
(c) evidence of the completion of (or the arrangement for)
all other recordings and filings of, or with respect to, the Security
Agreement as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests intended
to be created by the Security Agreement; and the Security Agreement
shall be in full force and effect.
5.10 Mortgages; Title Insurance; etc. (a) On the
Restatement Effective Date, the Collateral Agent shall have received fully
executed counterparts of amendments (the "Mortgage Amendments"), in form and
substance satisfactory to the Agents, to each of the Existing Mortgages,
together with evidence that counterparts of each of the Mortgage Amendments
have been delivered to the title company insuring the Lien on the Existing
Mortgaged Properties for recording in all places to the extent necessary or
desirable, in the judgment of the Collateral Agent, effectively to maintain a
valid and enforceable first priority mortgage lien on the Existing Mortgaged
Properties in favor of the Collateral Agent for the benefit of the Secured
Creditors; and the Collateral Agent
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shall have received endorsements to the Existing Mortgage Policies assuring the
Collateral Agent that each Existing Mortgage is a valid and enforceable first
priority mortgage lien on the respective Existing Mortgaged Properties, free
and clear of all defects and encumbrances except Permitted Encumbrances.
(b) On the Restatement Effective Date, the Collateral Agent
also shall have received:
(i) duly authorized, fully executed, acknowledged,
and delivered deeds of trust or mortgages, in each case in
form and substance satisfactory to the Agents (as amended,
modified, extended, renewed, replaced, restated or
supplemented from time to time, each a "New Mortgage" and,
collectively, the "New Mortgages"), which New Mortgages shall
cover such of the Real Property owned by Parent and/or its
Subsidiaries and shall be designated as such on Part A of
Schedule III as a New Mortgaged Property thereunder (each, a
"New Mortgaged Property" and, collectively, the "New Mortgaged
Properties"), together with evidence that counterparts of the
New Mortgages have been delivered to the title insurance
company insuring the Lien on the New Mortgaged Properties for
recording in all places to the extent necessary, or, in the
reasonable opinion of the Collateral Agent, desirable to
effectively create or maintain a valid and enforceable first
priority mortgage lien, subject only to Permitted
Encumbrances, on the New Mortgaged Properties in favor of the
Collateral Agent (or such other trustee as may be required or
desired under local law) for the benefit of the Secured
Creditors;
(ii) ALTA Lender's extended coverage policies of
mortgage title insurance (or the equivalent in the state where
the respective New Mortgaged Property is located) covering
each New Mortgaged Property, together with all endorsements
reasonably requested by the Collateral Agent relating thereto
issued by First American Title Insurance Company or such other
title insurers reasonably satisfactory to the Collateral Agent
(the "New Mortgage Policies") in amounts reasonably
satisfactory to the Collateral Agent (but not in excess of the
value of the respective New Mortgaged Property) assuring the
Collateral Agent that the New Mortgages on such New Mortgaged
Properties are valid and enforceable first priority mortgage
liens on the respective New Mortgaged Properties, free and
clear of all defects and encumbrances except Permitted
Encumbrances and such New Mortgage Policies shall otherwise be
in
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form and substance reasonably satisfactory to the Agents and
the Required Banks and shall include, as appropriate and to
the extent available in the applicable jurisdiction, an
endorsement for future advances under this Agreement and the
Notes and for any other matter that the Collateral Agent in
its reasonable discretion may reasonably request, shall not
include an exception for mechanics' liens, and shall provide
for affirmative insurance and such reinsurance as the
Collateral Agent in its discretion may reasonably request.
5.11 Consent Letter. On the Restatement Effective Date, the
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 1633 Broadway, New York, New York 10019, substantially in
the form of Exhibit K, indicating its consent to its appointment by each Credit
Party as its agent to receive service of process as specified in Section 12.08.
5.12 Adverse Change. On the Restatement Effective Date,
nothing shall have occurred since December 31, 1996 which could reasonably be
likely to have a material adverse effect on the rights or remedies of the
Administrative Agent, the Other Agents or the Banks, or on the ability of the
Credit Parties to perform their respective obligations to the Administrative
Agent, the Other Agents and the Banks or which could reasonably be likely to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower
and its Subsidiaries taken as a whole or Parent and its Subsidiaries taken as a
whole.
5.13 Solvency Letter; Environmental Analyses; Insurance. On
the Restatement Effective Date, the Borrower shall have delivered or shall
cause to be delivered to the Administrative Agent (i) a solvency letter in form
and substance satisfactory to the Agents from Murray, Devine & Co., Inc.,
setting forth its conclusions that, after giving effect to the Transaction,
each of Parent and its Subsidiaries taken as a whole, and the Borrower and its
Subsidiaries taken as a whole, is not insolvent and will not be rendered
insolvent by the indebtedness incurred in connection therewith, and will not be
left with unreasonably small capital with which to engage in their business and
will not have incurred debts beyond their ability to pay debts as they mature,
(ii) environmental and hazardous substance assessments and analysis in scope,
and in form and substance, satisfactory to the Agents and the Required Banks
and (iii) evidence of insurance complying with the requirements of Section 7.03
for the business and properties of Parent and its Subsidiaries, in scope, form
and substance reasonably satisfactory to the Agents and the Required Banks and
naming the Collateral Agent as an
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additional insured and/or loss payee, and stating that such insurance shall not
be cancelled or revised without 30 days' prior written notice by the insurer to
the Collateral Agent.
5.14 Projections. On or before the Restatement Effective
Date, the Banks shall have received the Projections described in Section
6.05(d), which Projections shall be in form and substance reasonably
satisfactory to the Agents and the Required Banks.
5.15 Pro Forma Balance Sheet. On or before the Restatement
Effective Date, the Banks shall have received the unaudited pro forma
consolidated balance sheet of Parent and its Subsidiaries as of June 30, 1997,
after giving effect to the Transaction and prepared on a basis consistent with
the Projections, which pro forma balance sheet shall be in form and substance
reasonably satisfactory to the Agents and the Required Banks.
5.16 Payment of Fees. On the Restatement Effective Date, the
Borrower shall have paid to the Administrative Agent, the Other Agents and the
Banks all costs, fees and expenses (including, without limitation, legal fees
and expenses) payable to the Administrative Agent, the Other Agents and the
Banks to the extent then due.
5.17 Notice of Borrowing; Letter of Credit Request. (a)
Prior to the making of each Loan, the Administrative Agent shall have received
the notice required by Section 1.03(a).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.02.
The acceptance of the benefit of each Credit Event shall
constitute a representation and warranty by Parent, Holdings and the Borrower
to the Agents and each of the Banks that all the conditions specified in this
Section 5 and applicable to such Credit Event exist as of that time (except to
the extent that any applicable conditions specified in this Section 5 are
required to be satisfactory to or determined by any Bank, the Required Banks,
the Other Agents and/or the Administrative Agent). All of the Notes,
certificates, legal opinions and other documents and papers referred to in and
required to be delivered under this Section 5, unless otherwise specified,
shall be delivered to the Administrative Agent at the Notice Office for the
account of each of the Banks and, except for the Notes, in sufficient
counterparts or copies for each of the Banks.
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Notwithstanding anything to the contrary contained above or in
Section 12.10, if the Restatement Effective Date does not occur on or prior to
August 31, 1997, then it shall not thereafter occur (unless the Required Banks
agree in writing to an extension of such date), and this Agreement shall cease
to be of any force or effect and the Existing Credit Agreement shall continue
to be effective, as the same may have been, or may thereafter be, amended,
modified or supplemented from time to time.
SECTION 6. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the Loans,
and issue (or participate in) the Letters of Credit as provided herein, each of
Parent, Holdings and the Borrower makes the following representations,
warranties and agreements all of which shall survive the execution and delivery
of this Agreement and the Notes and the making of the Loans and the issuance of
the Letters of Credit, with the occurrence of each Credit Event on or after the
Restatement Effective Date being deemed to constitute a representation and
warranty that the matters specified in this Section 6 are true and correct in
all material respects on and as of the date of each such Credit Event (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
6.01 Corporate or Partnership Status. Each of Parent and its
Subsidiaries (i) is a duly organized and validly existing corporation or
partnership in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate or partnership power and authority to own
its property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified to do business and is
in good standing in each jurisdiction where the conduct of its business
requires such qualifications except for failures to be so qualified which,
individually or in the aggregate, could not reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Parent and its Subsidiaries taken as a whole.
6.02 Corporate or Partnership Power and Authority. Each
Credit Party has the corporate or partnership power and authority to execute,
deliver and perform the terms and provisions of each of the Credit Documents to
which it is a party and has taken all necessary corporate or partnership action
to authorize the execution, delivery and performance by it of each of such
Credit Documents. Each Credit Party has duly executed and delivered each of
the Credit Documents to which it is a party, and each of such Credit Documents
constitutes such Credit Party's legal, valid and binding obligation enforceable
in accordance with its terms, except to the extent that the enforceability
thereof
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may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
6.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any applicable law, statute, rule or regulation or any
applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to create or
impose) any Lien (except pursuant to the Security Documents) upon any of the
material properties or assets of Parent or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other material agreement, contract or instrument, to which
Parent or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject or (iii) will violate
any provision of the certificate or articles of incorporation, partnership
agreement or by-laws (or other equivalent organization documents) of Parent or
any of its Subsidiaries.
6.04 Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made on or prior to the Restatement
Effective Date), or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required to authorize, or is required in
connection with, (i) the execution, delivery and performance of any Credit
Document or (ii) the legality, validity, binding effect or enforceability of
any such Credit Document, except where the failure to so obtain or make would
not have a material adverse effect on (x) the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower or of Parent and its Subsidiaries taken as a whole or (y) the ability
of the Credit Parties to perform their obligations under the Credit Documents
or the rights and remedies of the Administrative Agent, the Other Agents and
the Banks thereunder; provided, however, that: (a) subsequent to the date of
execution of the Credit Documents, copies of certain of the Credit Documents
are required to be filed with the FCC; (b) Parent and its Subsidiaries will be
required from time to time to obtain certain authorizations of, or to make
certain filings with, the FCC that are required in connection with the ordinary
course of business of Parent and its Subsidiaries; (c) under the Communications
Act and the FCC rules, FCC approval is required prior to the transfer of
control of Parent, Holdings or the Borrower or any of their respective
Subsidiaries or the assignment of any of the FCC
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Licenses or prior to the exercise of any voting rights or management authority
over Parent, Holdings or the Borrower or any of their respective Subsidiaries;
and (e) prior to the exercise of certain rights or remedies under the Security
Documents by the Administrative Agent or the Banks, or their respective
successors and assigns, FCC consents and notifications with respect to such
exercise may be required to be timely obtained or made.
6.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheets of Parent
and its Subsidiaries for the fiscal year ended December 31, 1996 and the three
month period ended on June 30, 1997, and the related statements of income, cash
flows and shareholders' equity of Parent and its Subsidiaries for such fiscal
year or three month period ended as of said date, as the case may be, copies of
which have been furnished to the Banks on or prior to the Restatement Effective
Date, fairly present the financial condition of Parent and its Subsidiaries at
the date of such statements and the results of operations of the Parent and its
Subsidiaries for such fiscal year and three month period, as the case may be.
All of the foregoing financial statements are true and correct in all material
respects and have been prepared in accordance with GAAP consistently applied
except to the extent provided in the notes to said financial statements and
subject, in the case of the June 30, 1997 statements, to normal year-end
adjustments. Since December 31, 1996, there has been no material adverse
change in the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of Parent and its
Subsidiaries taken as a whole.
(b) On and as of the Restatement Effective Date, on a pro
forma basis after giving effect to the Transaction and all Indebtedness
incurred, and to be incurred, and Liens created, and to be created, by Parent
and its Subsidiaries in connection with the transactions contemplated herein,
(a) the sum of the assets, at a fair valuation, of each of Parent and its
Subsidiaries taken as a whole, Holdings and its Subsidiaries taken as a whole,
and the Borrower and its Subsidiaries taken as a whole, will exceed their
debts; (b) each of Parent and its Subsidiaries taken as a whole, Holdings and
its Subsidiaries taken as a whole, and the Borrower and its Subsidiaries taken
as a whole, has not incurred and does not intend to incur, and does not believe
that they will incur, debts beyond their ability to pay such debts as such
debts mature; and (c) each of Parent and its Subsidiaries taken as a whole,
Holdings and its Subsidiaries taken as a whole, and the Borrower and its
Subsidiaries taken as a whole, will have sufficient capital with which to
conduct their businesses.
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(c) Except as fully disclosed in the financial statements
delivered pursuant to Section 6.05(a), there were as of the Restatement
Effective Date no liabilities or obligations with respect to Parent or any of
its Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which, either individually or
in aggregate, would be material to the Borrower or to Parent and its
Subsidiaries taken as a whole. As of the Restatement Effective Date, neither
Parent, Holdings nor the Borrower knows of any basis for the assertion against
it of any liability or obligation of any nature whatsoever that is not fully
disclosed in the financial statements delivered pursuant to Section 6.05(a)
which, either individually or in the aggregate, could reasonably be expected to
be material to the Borrower or Parent and its Subsidiaries taken as a whole.
(d) On and as of the Restatement Effective Date, the
financial projections (the "Projections") previously delivered to the
Administrative Agent and the Banks have been prepared on a basis consistent
with the financial statements referred to in Section 6.05(a) (other than as set
forth or presented in such Projections), and there are no statements or
conclusions in any of the Projections which are based upon or include
information known to Parent, Holdings or the Borrower to be misleading in any
material respect or which fail to take into account material information
regarding the matters reported therein. The Projections contain estimates and
projections based upon information that was available at such time and believed
to be correct and upon assumptions believed to be reasonable, and Parent,
Holdings and the Borrower do not warrant that such estimates and projections
will ultimately prove to have been correct.
6.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of Parent, Holdings, and the Borrower,
threatened (i) with respect to any Credit Document or (ii) that could
reasonably be expected to materially and adversely affect (x) the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of the Borrower or of Parent and its Subsidiaries taken as a whole
or (y) the rights or remedies of the Administrative Agent, the Collateral
Agent, the Other Agents or the Banks or on the ability of any Credit Party to
perform its obligations to them hereunder and under the other Credit Documents
to which it is, or will be, a party.
6.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of Parent, Holdings or the
Borrower in writing to the Administrative Agent or any Bank (including, without
limitation, all information contained in the Credit Documents, but excluding
the Projections) for purposes of or in connection with this Agreement, the
other Credit Documents or any transaction contemplated
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herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of Parent, Holdings or the Borrower in
writing to the Administrative Agent or any Bank will be, true and accurate in
all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any fact necessary to make
such information (taken as a whole) not misleading in any material respect at
such time in light of the circumstances under which such information was
provided.
6.08 Use of Proceeds; Margin Regulations. (a) The proceeds
of Revolving Loans shall be used by the Borrower to provide for the Borrower's
and its Subsidiaries' working capital and general corporate purposes (including
to effect Permitted Section 8.02(xiii) Acquisitions to the extent permitted in
this Agreement).
(b) The proceeds of Term Loans shall be used by the Borrower
to effect (i) the Patterson Acquisition and (ii) Permitted Section 8.02(xiii)
Acquisitions to the extent permitted in this Agreement.
(c) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulation G, T, U or X.
6.09 Tax Returns and Payments. Each of Parent, Holdings, the
Borrower and each of their Subsidiaries have timely filed or caused to be
timely filed, on the due dates thereof or within applicable grace periods, with
the appropriate taxing authority, all Federal and all material state returns,
statements, forms and reports for taxes (the "Returns") required to be filed by
or with respect to the income, properties or operations of Parent and/or any of
its Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of Parent, Holdings, the Borrower and their respective
Subsidiaries, as the case may be, for the periods covered thereby. Each of
Parent, Holdings, the Borrower and their respective Subsidiaries have paid all
material taxes payable by them other than taxes which are not delinquent, and
other than those contested in good faith and for which adequate reserves have
been established in accordance with GAAP. Except as disclosed in the financial
statements referred to in Section 6.05(a), there is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the best
knowledge of Parent, Holdings or the Borrower, threatened by any authority
regarding any taxes relating to Parent, Holdings, the Borrower or any of their
respective Subsidiaries. As of the Restatement Effective Date, none of Parent,
Holdings, the Borrower nor any of their respective Subsidiaries has entered
into an agreement or
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waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of
Parent, Holdings, the Borrower or any of their respective Subsidiaries, or is
aware of any circumstances that would cause the taxable years or other taxable
periods of Parent, Holdings, the Borrower or any of their respective
Subsidiaries not to be subject to the normally applicable statute of
limitations. None of Parent, Holdings, the Borrower or any of their respective
Subsidiaries has incurred, or will incur, any material tax liability in
connection with the Transaction or the other transactions contemplated hereby.
6.10 Compliance with ERISA. Each Plan is in substantial
compliance with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan; no Plan is insolvent or in reorganization; no Plan has an
Unfunded Current Liability; no Plan has an accumulated or waived funding
deficiency, has permitted decreases in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Code; all contributions required to be made with respect to
a Plan have been timely made; none of Parent, Holdings, the Borrower nor any of
their respective Subsidiaries nor any ERISA Affiliate has incurred any material
liability to or on account of a Plan pursuant to Section 409, 502(i), 502(1),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971, 4975 or 4980 of the Code or reasonably expects to incur any material
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted to terminate or appoint a trustee to
administer any Plan; no condition exists which presents a material risk to
Parent, Holdings, the Borrower or any of their respective Subsidiaries or any
ERISA Affiliate of incurring a material liability to or on account of a Plan
pursuant to the foregoing provisions of ERISA and the Code; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of Parent, Holdings, the Borrower,
their respective Subsidiaries and their ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of the most recent Credit Event,
would not exceed $1,000,000; no lien imposed under the Code or ERISA on the
assets of Parent, Holdings, the Borrower or any of their respective
Subsidiaries or any ERISA Affiliate exists or is reasonably likely to arise on
account of any Plan; and Parent, Holdings, the Borrower and their respective
Subsidiaries do not maintain or contribute to any employee welfare benefit plan
(as defined in Section 3(1) of ERISA) which provides benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or any employee pension benefit plan (as defined in Section 3(2) of
ERISA) the obligations with respect to which could reasonably be expected to
have a material adverse effect on the ability of Parent, Holdings, the
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Borrower or any of its Subsidiaries to perform their respective obligations
under the Credit Documents to which they are a party.
6.11 The Security Documents. (a) The provisions of the
Security Agreement are effective to create in favor of the Collateral Agent for
the benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Security Agreement, upon the
filing of Form UCC-1 financing statements or the appropriate equivalent (which
filing, if this representation is being made more than 10 days after the
Restatement Effective Date, has been made), creates a fully perfected first
priority lien on, and security interest in, all right, title and interest in
all of the Security Agreement Collateral described therein, subject to no other
Liens other than Permitted Liens. Each party to the Security Agreement has
good and indefeasible title to all Security Agreement Collateral described
therein, free and clear of all Liens except those described above in this
clause (a).
(b) The security interests created in favor of the Collateral
Agent, as pledgee, for the benefit of the Secured Creditors under the Pledge
Agreement constitute first priority perfected security interests in the Pledged
Securities described in the Pledge Agreement, subject to no security interest
of any other person. No filings or recordings are required in order to perfect
(or maintain the perfection or priority of) the security interests created in
the Pledged Securities and the proceeds thereof under the Pledge Agreement.
(c) The Mortgages create, as security for the obligations
purported to be secured thereby, a valid and enforceable perfected security
interest in and mortgage lien on all of the Mortgaged Properties in favor of
the Collateral Agent (or such other trustee as may be required or desired under
local law) for the benefit of the Secured Creditors, superior to and prior to
the rights of all third persons (except that the security interest and mortgage
lien created in the Mortgaged Properties may be subject to the Permitted
Encumbrances related thereto) and subject to no other Liens (other than Liens
permitted under Section 8.01). Part A and B of Schedule II contain a true and
complete list of each parcel of Real Property owned or leased by Parent,
Holdings, the Borrower and their respective Subsidiaries on the Restatement
Effective Date, and the type of interest therein held by Parent, Holdings, the
Borrower or such Subsidiary. Parent, Holdings, the Borrower and each of their
respective Subsidiaries have good and indefeasible title to all Mortgaged
Properties free and clear of all Liens except those described in the first
sentence of this subsection (c).
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6.12 Properties. Parent, Holdings, the Borrower and each of
their respective Subsidiaries have good and indefeasible title to all
properties (or a valid leasehold estate with respect to leased properties)
owned by them, including all property reflected in the balance sheet of the
Borrower referred to in Section 6.05(a), free and clear of all Liens, other
than (i) as referred to in the balance sheet or in the notes thereto or in the
pro forma balance sheet or (ii) Permitted Liens.
6.13 Capitalization. (a) On the Restatement Effective Date
the authorized capital stock of Parent shall consist of (w) 75,000,000 shares
of Class A common stock, $.01 par value per share, of which 26,337,243 shares
are issued and outstanding, (x) 50,000,000 shares of Class B common stock, $.01
par value per share, of which 48,179,897 shares are outstanding, (y)
300,000,000 shares of Class C common stock, $.01 par value per share, of which
228,123,470 shares are issued and outstanding (collectively the Class A, Class
B and Class C common stock are herein called "Parent Common Stock"), and (z)
50,000,000 shares of preferred stock, $.01 par value per share, none of which
is outstanding. All such outstanding shares have been duly and validly issued,
are fully paid and non-assessable and have been issued free of preemptive
rights. As of the Restatement Effective Date, Parent does not have outstanding
any securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock, in each case other than the options outstanding or to be
issued pursuant to the Employment Agreements or the Employee Stock Option Plan.
(b) On the Restatement Effective Date, the authorized
capital stock of Holdings shall consist of (x) 279,632,180 shares of common
stock, $.01 par share, of which 279,632,180 shares shall be issued and
outstanding and (y) 1,000,000 shares of Senior Exchangeable Preferred Stock, of
which 1,000,000 shares shall be issued and outstanding. All such outstanding
shares have been duly and validly issued, are fully paid and nonassessable, are
free of preemptive rights and, in the case of all such outstanding shares of
common stock, have been pledged pursuant to the Pledge Agreement. As of the
Restatement Effective Date, Holdings does not have outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock.
(c) On the Restatement Effective Date, the authorized capital
stock of the Borrower shall consist of 475,874,792 shares of common stock, $.01
par value per share,
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of which 475,874,792 shares shall be issued and outstanding. All such
outstanding shares have been duly and validly issued, are fully paid and
nonassessable, are free of preemptive rights and, have been pledged pursuant to
the Pledge Agreement. As of the Restatement Effective Date, the Borrower does
not have outstanding any securities convertible into or exchangeable for its
capital stock or outstanding any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
6.14 Subsidiaries. As of the Restatement Effective Date,
Parent has no direct or indirect Subsidiaries other than Holdings and its
Subsidiaries, Holdings has no direct or indirect Subsidiaries other than the
Borrower and its Subsidiaries and those other Subsidiaries listed on Schedule V
hereto and the Borrower has no Subsidiaries other than those Subsidiaries
listed on Schedule V hereto and those Subsidiaries created or acquired after
the Restatement Effective Date pursuant to Section 8.15. Schedule V correctly
sets forth, as of the Restatement Effective Date, the percentage ownership
(direct and indirect) of Parent in each class of capital stock of each of its
Subsidiaries and also identifies the direct owner thereof.
6.15 Compliance with Statutes, etc. Each of Parent and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or of Parent and its Subsidiaries taken as a whole.
6.16 Environmental Matters. (a) Parents, Holdings, the
Borrower and each of their respective Subsidiaries have complied with, and on
the date of such Credit Event are in compliance with, all applicable
Environmental Laws and the requirements of any permits issued under such
Environmental Laws. There are no pending or, to the best knowledge of Parent,
Holdings and the Borrower after due inquiry, past or threatened Environmental
Claims against Parent, Holdings, the Borrower or any of their respective
Subsidiaries or any Real Property owned or operated by Parent, Holdings, the
Borrower or any of their respective Subsidiaries. There are no facts,
circumstances, conditions or occurrences on any Real Property owned or operated
by Parent, Holdings, the Borrower or any of their respective Subsidiaries or,
to the best knowledge of Parent, Holdings and the Borrower after due inquiry,
on any property adjoining or in the vicinity of any such Real Property that, to
the best knowledge of Parent,
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Holdings and the Borrower after due inquiry, could reasonably be expected (i)
to form the basis of an Environmental Claim against Parent, Holdings, the
Borrower or any of their respective Subsidiaries or any such Real Property or
(ii) to cause any such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real Property by Parent,
Holdings, the Borrower or any of their respective Subsidiaries under any
applicable Environmental Law.
(b) Hazardous Materials have not at any time been
generated, used, treated or stored on, or transported to or from, any Real
Property owned or operated by Parent or any of its Subsidiaries except in
compliance with applicable Environmental Laws. Hazardous Materials have not at
any time been Released on or from any Real Property owned or operated by Parent
or any of its Subsidiaries except in compliance with applicable Environmental
Laws. There are not now any underground storage tanks located on any Real
Property owned or operated by Parent or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this
Section 6.16, the representations made in this Section 6.16 shall only be
untrue if the aggregate effect of all failures and noncompliances of the types
described above could reasonably be expected to have a material adverse effect
on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of Parent and its
Subsidiaries taken as a whole.
6.17 Investment Company Act. None of Parent, Holdings, the
Borrower nor any of their respective Subsidiaries is an "investment company" or
a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
6.18 Public Utility Holding Company Act. None of Parent,
Holdings, the Borrower nor any of their respective Subsidiaries is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate"
of a "holding company" or of a "subsidiary company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
6.19 Labor Relations. None of Parent, Holdings, the Borrower
nor any of their respective Subsidiaries is engaged in any unfair labor
practice that could reasonably be expected to have a material adverse effect on
the Borrower or on Parent and its Subsidiaries taken as a whole. There is (i)
no unfair labor practice complaint
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pending against Parent or any of its Subsidiaries or, to the best knowledge of
Parent, Holdings and the Borrower, threatened against any of them, before the
National Labor Relations Board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against Parent or any of its Subsidiaries or, to the
best knowledge of Parent, Holdings and the Borrower, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against
Parent or any of its Subsidiaries or, to the best knowledge of Parent, Holdings
and the Borrower, threatened against Parent or any of its Subsidiaries and
(iii) to the best knowledge of Parent, Holdings, the Borrower, no union
representation question existing with respect to the employees of Parent or any
of its Subsidiaries, except (with respect to any matter specified in clause
(i), (ii) or (iii) above, either individually or in the aggregate) such as
could not reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Borrower or of Parent and its Subsidiaries taken as
a whole.
6.20 Patents, Licenses, Franchises and Formulas. Each of
Parent and its Subsidiaries owns all material patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises and formulas, or
rights with respect to the foregoing, and has obtained assignments of all
leases and other rights of whatever nature, necessary for the present conduct
of its business, without any known conflict with the rights of others which, or
the failure to obtain which, as the case may be, could reasonably be likely to
result in a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower or of Parent and its Subsidiaries taken as a whole.
6.21 Special Purpose Corporation. Parent engages in no
business activities and has no significant assets (other than the capital stock
of Holdings) or liabilities (other than its guaranty provided in Section 13 and
as otherwise permitted by this Agreement).
6.22 Business of Holdings. Holdings owns the capital stock
of its Subsidiaries, provides administrative and management services thereto
and in connection therewith, has employees, enters into certain leases and
other agreements, and conducts all activities reasonably associated therewith.
6.23 FCC Licenses. Parent and its Subsidiaries hold such
validly issued FCC licenses and authorizations as are necessary to operate the
Stations as they are currently operated (collectively, the "FCC Licenses"),
each of which is in full force and effect. The FCC Licenses as of the
Restatement Effective Date are listed on Schedule VI,
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each of which FCC Licenses has the expiration date indicated on Schedule VI.
Neither Parent, Holdings nor the Borrower has knowledge of any material adverse
condition imposed by the FCC as part of any FCC License which is neither set
forth on the face thereof as issued by the FCC nor contained in the rules and
regulations of the FCC applicable generally to stations of the type, nature,
class or location of each Station. Each Station is being operated in all
material respects (i) in accordance with the terms and conditions of the FCC
Licenses applicable to it and (ii) in accordance with the rules and regulations
of the FCC and the Communications Act of 1934, as amended (the "Communications
Act"). No proceedings are pending or, to the knowledge of Parent, Holdings or
the Borrower, are threatened which may reasonably be expected to result in the
revocation, modification, non-renewal or suspension of any of the FCC Licenses,
the denial of any pending applications, the issuance of any cease and desist
order or the imposition of any material fines, forfeitures or other
administrative actions by the FCC with respect to the Stations or their
operation, other than proceedings affecting the radio broadcasting industry in
general. Reports, applications and other documents required to be filed by any
Credit Party with the FCC with respect to the Stations have in all material
respects been timely filed and all such reports, applications and documents are
true, correct and complete in all material respects, and neither Parent,
Holdings nor the Borrower has knowledge of any matters (i) which could
reasonably be expected to result in the suspension or revocation of or the
refusal to renew any of the FCC Licenses or the imposition of any material
fines or forfeitures by the FCC upon any Credit Party or (ii) which could
reasonably be expected to result in the modification or revocation of any FM
Stations' authorization to operate as currently authorized, or to operate the
AM Stations as currently authorized, as applicable, under the rules and
regulations of the FCC. There are no unsatisfied or otherwise outstanding
notices of apparent liability or violations issued by the FCC with respect to
any Station or its operations. The Borrower has delivered to the
Administrative Agent true and complete copies of the FCC Licenses (including
any and all amendments and other modifications thereto).
6.24 Existing Senior Notes. This Agreement constitutes the
"New Credit Facility" under, and as defined in, the Existing Senior Note
Indenture and neither the execution, delivery or performance by any Credit
Party of the Credit Documents to which it is a party nor the extensions of
credit contemplated by this Agreement will conflict with, result in any breach
of any of the terms, covenants or provisions of, or constitute a default under
the Existing Senior Note Indenture.
6.25 Subordinated Notes. The subordination provisions
contained in the Existing Senior Subordinated Notes, the other Existing Senior
Subordinated Note Documents, the New Senior Subordinated Notes and the other
New Senior Subordinated
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Note Documents are enforceable, and after the issuance, if any, of the
Subordinated Exchange Debentures the subordination provisions contained therein
and in the Subordinated Exchange Debenture Indenture shall be enforceable, by
the Banks against the Borrower, the Subsidiary Guarantors and the holders of
the Existing Senior Subordinated Notes, the New Senior Subordinated Notes and
the Subordinated Exchange Debentures, as the case may, and all Obligations
hereunder and under the other Credit Documents are or will be within the
definitions of "Senior Indebtedness," "Designated Senior Indebtedness" and
"Guarantor Senior Indebtedness," as the case may be, included in such
provisions of the Existing Senior Subordinated Note Documents, the New Senior
Subordinated Note Documents, the Subordinated Exchange Debentures and the
Subordinated Exchange Debenture Indenture.
SECTION 7. Affirmative Covenants. Parent, Holdings and the
Borrower hereby covenant and agree that on and after the Restatement Effective
Date and until the Total Commitment and all Letters of Credit have terminated
and the Loans, Notes and Unpaid Drawings, together with interest, Fees and all
other Obligations incurred hereunder and thereunder, are paid in full:
7.01 Information Covenants. Parent, Holdings and/or the
Borrower will furnish to each Bank:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month (other than the fiscal months ending March, June,
September and December) of Parent, (i) the combined and combining
balance sheets of Parent and its Consolidated Subsidiaries for each
fiscal month, each as of the end of such month and the related
combined and combining statements of income and statements of cash
flows for such month and for the elapsed portion of the fiscal year
ended with the last day of such month, in each case setting forth in
the statements of income only, the comparative figures for the
corresponding month in the prior fiscal year and the budgeted figures
for such month as set forth in the respective budget delivered
pursuant to Section 7.01(e) and (ii) the combined balance sheets for
the Stations located in each Market as of the end of such month and
the related statements of income and statements of cash flows for such
month and for the elapsed portion of the fiscal year ended with the
last day of such month, in each case setting forth in the statements
of income only, the comparative figures for the corresponding month in
the prior fiscal year and the budgeted figures for such month as set
forth in the respective budget delivered pursuant to Section 7.01(e).
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(b) Quarterly Financial Statements. As soon as available and
in any event within 45 days after the close of each of the first three
quarterly accounting periods in each fiscal year of Parent, (i) the
combined and combining balance sheets of Parent and its Consolidated
Subsidiaries for each fiscal quarter, each as of the end of such
quarter and the related combined and combining statements of income
and statements of cash flows for such quarter and for the elapsed
portion of the fiscal year ended with the last day of such quarter and
setting forth in the statements of income only, the comparative
figures for the corresponding quarter in the prior fiscal year and the
budgeted figures for such quarter as set forth in the respective
budget delivered pursuant to Section 7.01(e), and (ii) the combined
balance sheets for the Stations located in each Market as of the end
of such quarter and the related statements of income and statements of
cash flows for such quarter and for the elapsed portion of the fiscal
year ended with the last day of such quarter, in each case setting
forth in the statements of income only, the comparative figures for
the corresponding quarter in the prior fiscal year and the budgeted
figures for such quarter as set forth in the respective budget
delivered pursuant to Section 7.01(e).
(c) Annual Financial Statements. Within 95 days after the
close of each fiscal year of Parent, (i) the consolidated and
consolidating balance sheets of Parent and its Consolidated
Subsidiaries for each fiscal year, each as at the end of such fiscal
year and the related statements of income and retained earnings and of
cash flows for such fiscal year and, setting forth comparative figures
for the preceding fiscal year commencing fiscal year 1996 and
certified, in the case of such consolidated statements, by Coopers &
Lybrand L.L.P. or such other independent certified public accountants
of recognized national standing reasonably acceptable to the Agents,
together with a report of such accounting firm (which report shall be
unqualified as to scope) stating that in the course of its regular
audit of the financial statements of Parent and its Subsidiaries,
which audit was conducted in accordance with generally accepted
auditing standards, such accounting firm obtained no knowledge of any
Default or Event of Default under Sections 8.03, 8.04, 8.05 and 8.07
through 8.09, inclusive, which has occurred and is continuing or, if
in the opinion of such accounting firm such a Default or Event of
Default has occurred and is continuing, a statement as to the nature
thereof, (ii) the combined balance sheets for the Stations located in
each Market at the end of such fiscal year and the related statement
of income and retained earnings and statement of cash flows for such
fiscal year, in each case setting forth comparative figures for the
preceding fiscal year for income statements only, and (iii)
management's discussions and analysis of the important operational and
financial developments during such fiscal year in respect of Parent
and its Subsidiaries.
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(d) Management Letters. Promptly after the receipt thereof
by Parent or any of its Subsidiaries, a copy of any final "management
letter" received by Parent or such Subsidiary from its certified
public accountants and management's responses thereto.
(e) Budgets. No later than 30 days following the
commencement of the first day of each fiscal year of Parent, a budget
in form satisfactory to the Agents prepared by Parent for (x) in the
case of budgeted statements of income, each of the twelve months of
such fiscal year prepared in detail, and (y) in the case of budgeted
statements of sources and uses of cash and balance sheets, for such
fiscal year on an annual basis and prepared in detail and for each of
the five years immediately following such fiscal year prepared in
summary form, in each case, of each of Parent and its Subsidiaries and
each of the Markets accompanied by the statement of an Authorized
Officer of Parent to the effect that, to the best of his knowledge,
the budget is a reasonable estimate for the period covered thereby.
(f) Officer's Certificates. At the time of the delivery of
the financial statements provided for in Section 7.01(a), (b) and (c),
a certificate of an Authorized Officer of the Borrower to the effect
that, to the best of such officer's knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature and
extent thereof, which certificate shall, in the case of any such
financial statements delivered in respect of a period ending on the
last day of a fiscal quarter or year of Parent, (x) set forth the
calculations required to establish whether the Borrower was in
compliance with the provisions of Sections 8.03, 8.04, 8.05, and 8.07
through 8.09, inclusive, at the end of such fiscal quarter or year, as
the case may be, (y) set forth the calculations required to establish
the Applicable Margin and Applicable Commitment Commission Percentage
at such time and (z) only in the case of financial statements
delivered pursuant to Section 7.01(c), set forth the calculations
required to establish whether the Borrower was in compliance with
Section 4.02(f) and set forth the amount of Excess Cash Flow for the
respective Excess Cash Payment Period.
(g) Notice of Default or Litigation. Promptly, and in any
event within three Business Days after an Authorized Officer of Parent
or any of its Subsidiaries obtains knowledge thereof, notice of (i)
the occurrence of any event
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which constitutes a Default or Event of Default and (ii) any
litigation or governmental investigation or proceeding pending (x)
against Parent or any of its Subsidiaries which could reasonably be
expected to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or Parent and its Subsidiaries taken as a
whole, (y) with respect to any material Indebtedness of the Borrower
and its Subsidiaries taken as a whole or (z) with respect to any
Credit Document which could reasonably be expected to materially and
adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower or Parent and its Subsidiaries taken as a whole.
(h) Other Reports and Filings. Promptly, copies of all (x)
financial information, proxy materials and other information and
reports, if any, which Parent or any of its Subsidiaries shall file
with the Securities and Exchange Commission or any successor thereto
(the "SEC") including, without limitation, in connection with the
issuance of the Existing Senior Notes, the Existing Senior
Subordinated Notes, the New Senior Subordinated Notes or the
Subordinated Exchange Debentures, or deliver to holders of its
Indebtedness pursuant to the terms of the documentation governing such
Indebtedness (or any trustee, agent or other representative therefor)
and (y) material filings or communications with the FCC or pursuant to
and/or as required by the Communications Act.
(i) Annual Meetings with Banks. At the request of the
Administrative Agent or the Required Banks, Parent shall within 120
days after the close of each fiscal year of Parent hold a meeting at a
time and place selected by Parent and acceptable to the Administrative
Agent with all of the Banks at which meeting shall be reviewed the
financial results of the previous fiscal year and the financial
condition of Parent and its Subsidiaries and the budgets presented for
the current fiscal year of Holdings and its Subsidiaries.
(j) Environmental Matters. Promptly upon, and in any event
within ten (10) Business Days after, an officer of Parent or any of
its Subsidiaries obtains knowledge thereof, notice of one or more of
the following environmental matters, unless such environmental matters
could not, individually or when aggregated with all other such
environmental matters, be reasonably expected to materially and
adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower or of Parent and its Subsidiaries taken as a whole: (i) any
pending or threatened Environmental Claim against Parent or any of its
Subsidiaries or any Real Property owned or
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operated by Parent or any of its Subsidiaries; (ii) any condition or
occurrence on or arising from any Real Property owned or operated by
Parent or any of its Subsidiaries that (x) results in noncompliance
by, Parent or any of its Subsidiaries with any applicable
Environmental Law or (y) could reasonably be expected to form the
basis of an Environmental Claim against Parent or any of its
Subsidiaries or any such Real Property; (iii) any condition or
occurrence on any Real Property owned or operated by Parent or any of
its Subsidiaries that could reasonably be expected to cause such Real
Property to be subject to any restrictions on the ownership,
occupancy, use or transferability by Parent or any of its Subsidiaries
of such Real Property under any Environmental Law; and (iv) the taking
of any removal or remedial action in response to the actual or alleged
presence of any Hazardous Material on any Real Property owned or
operated by Parent or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative agency;
provided, that in any event Parent shall deliver to each Bank all
notices received by Parent or any of its Subsidiaries from any
government or governmental agency under, or pursuant to, CERCLA. All
such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and Parent's or such Subsidiary's response thereto. In
addition, Parent will provide the Banks with copies of all
communications with any government or governmental agency relating to
Environmental Laws, all communications with any person relating to
Environmental Claims, and such detailed reports of any Environmental
Claim as may reasonably be requested by the Banks.
(k) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to
Parent or its Subsidiaries as the Administrative Agent, any Other
Agent or any Bank may reasonably request in writing.
7.02 Books, Records and Inspections. Parent will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. Parent will, and will cause each of its
Subsidiaries to, permit officers and designated representatives of the
Administrative Agent, any Other Agent or any Bank to visit and inspect, during
regular business hours and under guidance of officers of Parent or such
Subsidiary, any of the properties of Parent, or such Subsidiary, and to examine
the books of account of Parent or such Subsidiary and discuss the affairs,
finances and accounts of Parent or such Subsidiary with, and be advised as to
the same by, its and their officers and independent
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accountants, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent, such Other Agent or such Bank may request.
7.03 Maintenance of Property; Insurance. (a) Schedule VII
sets forth a true and complete listing of all insurance maintained by Holdings
and its Subsidiaries as of the Restatement Effective Date. Parent will, and
will cause each of its Subsidiaries to, (i) keep all property necessary in its
business in good working order and condition (ordinary wear and tear excepted),
(ii) maintain insurance on all its property in at least such amounts and
against at least such risks as is consistent and in accordance with industry
practice and (iii) furnish to each Bank, upon written request, full information
as to the insurance carried. In addition to the requirements of the
immediately preceding sentence, Parent, Holdings and the Borrower will at all
times cause insurance of the types described in Schedule VII to be maintained
(with the same scope of coverage as that described in Schedule VII) at levels
which are at least as great as the respective amount described opposite the
respective type of insurance on Schedule VII under the column headed "Maximum
Amount Required to be Maintained."
(b) Parent will, and will cause its Subsidiaries to, at all
times keep their respective property insured in favor of the Collateral Agent,
and all policies or certificates (or certified copies thereof) with respect to
such insurance (and any other insurance maintained by Parent or any of its
Subsidiaries) (i) shall be endorsed to the Collateral Agent's satisfaction for
the benefit of the Collateral Agent (including, without limitation, by naming
the Collateral Agent as loss payee or as an additional insured), (ii) shall
state that such insurance policies shall not be cancelled without 30 days'
prior written notice thereof by the respective insurer to the Collateral Agent,
(iii) shall provide that the respective insurers irrevocably waive any and all
rights of subrogation with respect to the Collateral Agent and the Secured
Creditors, (iv) shall contain the standard non-contributory mortgagee clause
endorsement in favor of the Collateral Agent with respect to hazard insurance
coverage, (v) shall, except in the case of public liability insurance and
workers' compensation insurance, provide that any losses shall be payable
notwithstanding (A) any act or neglect of Parent or any of its Subsidiaries,
(B) the occupation or use of the properties for purposes more hazardous than
those permitted by the terms of the respective policy if such coverage is
obtainable at commercially reasonable rates and is of the kind from time to time
customarily insured against by Persons owning or using similar property and in
such amounts as are customary, (C) any foreclosure or other proceeding relating
to the insured properties if such coverage is available at commercially
reasonable rates or (D) any change in the title to or ownership or possession of
the insured properties if such coverage is available at commercially
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reasonable rates and (vi) shall be deposited with the Collateral Agent if such
coverage is available at commercially reasonable rates.
(c) If Parent or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 7.03, or if Parent or
any of its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation) to
procure such insurance and the Borrower agrees to reimburse the Administrative
Agent or the Collateral Agent as the case may be, for all costs and expenses of
procuring such insurance.
7.04 Corporate Franchises. Parent will, and will cause each
of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 7.04 shall prevent (i) sales of assets by Parent or any of its
Subsidiaries in accordance with Section 8.02 or (ii) the withdrawal by Parent
or any of its Subsidiaries of their qualification as a foreign corporation in
any jurisdiction where such withdrawal could not reasonably be expected to have
a material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of the Borrower or of Parent
and its Subsidiaries taken as a whole.
7.05 Compliance with Statutes, etc. Parent will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
control), except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of Parent and its Subsidiaries taken
as a whole.
7.06 Compliance with Environmental Laws. (a) Parent will
comply, and will cause each of its Subsidiaries to comply, in all material
respects with all Environmental Laws applicable to the ownership or use of its
Real Property now or hereafter owned or operated by Parent or any of its
Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws. Neither Parent nor any of its Subsidiaries will generate,
use, treat, store, release or dispose of, or permit the generation, use,
treatment,
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storage, release or disposal of Hazardous Materials on any Real Property now or
hereafter owned or operated by Parent or any of its Subsidiaries, or transport
or permit the transportation of Hazardous Materials to or from any such Real
Property except for Hazardous Materials used or stored at any such Real
Properties in material compliance with all applicable Environmental Laws and
reasonably required in connection with the operation, use and maintenance of
any such Real Property.
(b) At the written request of the Administrative Agent or
the Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Borrower will provide, at the
Borrower's sole cost and expense, an environmental site assessment report
concerning any Real Property owned or operated by Parent or any of its
Subsidiaries, prepared by an environmental consulting firm approved by the
Administrative Agent, indicating the presence or absence of Hazardous Materials
and the potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property, provided that such request may be
made only if (i) there has occurred and is continuing an Event of Default, (ii)
the Administrative Agent reasonably believes that Parent, any of its
Subsidiaries or any such Real Property is not in material compliance with
Environmental Law, or (iii) circumstances exist that reasonably could be
expected to form the basis of a material Environmental Claim against Parent,
any of its Subsidiaries or any such Real Property. If the Borrower fails to
provide the same within ninety (90) days after such request was made, the
Administrative Agent may order the same, and the Borrower shall grant and
hereby grants to the Administrative Agent and the Banks and their agents access
to such Real Property and specifically grants the Administrative Agent and the
Banks an irrevocable non-exclusive license, subject to the rights of tenants,
to undertake such an assessment, all at the Borrower's expense.
7.07 ERISA. As soon as possible and, in any event, within 20
days after Parent or any of its Subsidiaries or any ERISA Affiliate knows or
has reason to know of the occurrence of any of the following, Parent will
deliver to each of the Banks a certificate of an Authorized Officer of Parent
setting forth details as to such occurrence and the action, if any, that
Parent, such Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given to or filed
with or by Parent, such Subsidiary, the ERISA Affiliate, the PBGC, or a Plan
participant or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency has been incurred or
an application is likely to be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that
a
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contribution required to be made to a Plan has not been timely made; that a
Plan has been or is reasonably expected to be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability giving rise to a lien under ERISA or the Code; that
proceedings are likely to be or have been instituted or notice has been given
to terminate or appoint a trustee to administer a Plan, that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that Parent, any of its Subsidiaries or any ERISA
Affiliate will or is reasonably expected to incur any material liability
(including any contingent or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
4971 or 4975 of the Code or Section 409 or 502(i) or 502(l) of ERISA; or that
Parent, or any Subsidiary may incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA) in addition to the liability that existed on
the Effective Date pursuant to any such plan or plans. Upon request the
Borrower will deliver to each of the Banks a complete copy of the annual report
(Form 5500) of each Plan required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Banks
pursuant to the first sentence hereof, copies of any adverse material notices
received by Parent, or any of its Subsidiaries or any ERISA Affiliate from a
governmental agency with respect to any Plan shall be delivered to the Banks no
later than 20 days after the date such notice has been received by Parent, the
Subsidiary or the ERISA Affiliate, as applicable.
7.08 End of Fiscal Years; Fiscal Quarters. Parent shall
cause (i) each of its, and each of its Subsidiaries', fiscal years to end on
December 31, and (ii) each of its, and each of its Subsidiaries', fiscal
quarters to end on March 31, June 30, September 30 and December 31.
7.09 Performance of Obligations. Parent will, and will cause
each of its Subsidiaries to, perform all of their obligations under the terms
of each mortgage, indenture, security agreement and other debt instrument by
which it is bound, except such non-performances as could not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial
or otherwise) or prospects of the Borrower and its Subsidiaries taken as a
whole or of Parent and its Subsidiaries taken as a whole.
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7.10 Payment of Taxes. Parent will pay and discharge or
cause to be paid and discharged, and will cause each of its Subsidiaries to pay
and discharge, all material taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits, or upon any material
properties belonging to it, in each case on a timely basis, and all lawful
claims which, if unpaid, might become a lien or charge upon any properties of
Parent or any of its Subsidiaries; provided that none of Parent nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it
has maintained adequate reserves with respect thereto in accordance with GAAP.
7.11 Dividends on the Senior Exchangeable Preferred Stock.
Holdings will pay all Dividends on the Senior Exchangeable Preferred Stock
solely through the issuance of additional shares of Senior Exchangeable
Preferred Stock rather than in cash, except as permitted to be paid in cash
pursuant to Sections 8.03(viii) and (ix).
7.12 Maintenance of Separateness. Parent will, and will
cause each of its Subsidiaries to, satisfy customary corporate formalities
including the holding of regular board of directors' and shareholders' meetings
and the maintenance of corporate offices and records. None of the Borrower nor
any of its Subsidiaries shall, except as otherwise expressly permitted by this
Agreement, make any payment to a creditor of Parent, Holdings or any Non-
Controlled Entity in respect of any liability of Parent, Holdings or such
Non-Controlled Entity which is not a liability of the Borrower or such
Subsidiary, and no bank account of Parent, Holdings or any Non-Controlled
Entity shall be commingled with any bank account of the Borrower or any of its
Subsidiaries. Any financial statements distributed to any creditors of Parent
or Holdings shall, to the extent permitted by GAAP, clearly establish the
corporate separateness of Parent, Holdings and each Non-Controlled Entity from
the Borrower and its Subsidiaries. Neither Parent nor any of its Subsidiaries
shall take any action, or conduct its affairs in a manner, which is likely to
result in the corporate existence of Parent, Holdings or any Non-Controlled
Entity being ignored, or in the assets and liabilities of the Borrower or any
of its Subsidiaries being substantively consolidated with those of Parent,
Holdings or any Non- Controlled Entity in a bankruptcy, reorganization or other
insolvency proceeding.
7.13 Additional Security; Further Assurances. (a) Parent
will, and will cause each of its respective Subsidiaries to, grant to the
Collateral Agent security interests in Reinvestment Assets at the time of the
acquisition thereof as described in this clause (a). To the extent
Reinvestment Assets are acquired by the Borrower and/or its Subsidiaries, the
Borrower or such Subsidiary shall grant a Lien on and a security interest in
such Reinvestment Assets on the same terms as set forth in the Security
Documents
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and as otherwise set forth in this Section 7.13. To the extent Reinvestment
Assets are acquired by a merger or the acquisition of capital stock, the
Borrower shall cause the Person acquiring such Reinvestment Assets to become a
Subsidiary of the Borrower and/or its Subsidiaries, and shall pledge or cause
to be pledged all capital stock of any such Person so acquired pursuant to the
Pledge Agreement, and cause such Person to enter into an additional guaranty
substantially similar to the Subsidiary Guaranty and additional security
documents substantially similar to the Security Documents, all as otherwise set
forth in this Section 7.13; provided, that, absent a change in the relevant
sections of the Code or the rules, regulations, rulings, notices or other
official pronouncements issued or promulgated thereunder, the Borrower and its
Subsidiaries shall be required to pledge only 65% of the voting capital stock
of a foreign Subsidiary and no foreign Subsidiary shall be required to enter
into such guaranty or Security Documents; provided further, the Borrower and
its Subsidiaries shall not be required to grant a security interest in any
Reinvestment Assets that are acquired subject to a Lien permitted by Section
8.01(vii), (viii) or (xix).
(b) Parent will, and will cause each of its Subsidiaries to,
grant to the Collateral Agent security interests and mortgages (an "Additional
Mortgage") in such Real Property of Parent or any of its Subsidiaries as are
not covered by the original Mortgages to the extent acquired after the
Restatement Effective Date, and as may reasonably be requested from time to
time by the Administrative Agent or the Required Banks (each such Real
Property, an "Additional Mortgaged Property"). All such Additional Mortgages
shall be granted pursuant to documentation substantially in the form of the
Mortgages or in such other form as is reasonably satisfactory to the
Administrative Agent and shall constitute valid and enforceable perfected Liens
superior to and prior to the rights of all third Persons and subject to no
other Liens except as are permitted by Section 8.01 at the time of perfection
thereof. The Additional Mortgages or instruments related thereto shall have
been duly recorded or filed in such manner and in such places as are required
by law to establish, perfect, preserve and protect the Liens in favor of the
Collateral Agent for the benefit of the Secured Creditors required to be
granted pursuant to the Additional Mortgages and all taxes, fees and other
charges payable in connection therewith shall have been paid in full.
Notwithstanding anything to the contrary stated above in this clause (b),
Parent and its Subsidiaries shall be required to only grant Additional
Mortgages in fee owned Real Property with a fair market value at the time of
acquisition thereof in excess of $250,000.
(c) Parent will, and will cause each of its Subsidiaries to,
grant to the Collateral Agent security interests in assets acquired pursuant to
Sections 8.02(ix) or (xiii) at the time of the acquisition thereof as described
in this clause (c). To the extent
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assets are acquired by the Borrower or any of its Subsidiaries pursuant to such
Sections, the Borrower or such Subsidiary shall grant a Lien on and a security
interest in such assets on the same terms as set forth in the Security
Documents and as otherwise set forth in this Section 7.13. In connection with
the acquisition of the capital stock of a Person pursuant to such Sections, the
Borrower shall cause such Person to become a direct or indirect Subsidiary of
the Borrower, and shall pledge or cause to be pledged all capital stock of any
such Person so acquired pursuant to the Pledge Agreement, and cause such Person
to enter into an additional guaranty substantially similar to the Subsidiary
Guaranty and additional security documents substantially similar to the
Security Documents, all as otherwise set forth in this Section 7.13; provided,
that, absent a change in the relevant sections of the Code or the rules,
regulations, rulings, notices or other official pronouncements issued or
promulgated thereunder, the Borrower and its Subsidiaries shall be required to
only pledge 65% of the voting capital stock of a foreign Subsidiary and no
foreign Subsidiary shall be required to enter into such guaranty or Security
Documents; provided further, that the Borrower and its Subsidiaries shall not
be required to grant a security interest in such assets that are acquired
subject to a Lien permitted by Section 8.01(vii), (viii) or (xix).
Notwithstanding anything to the contrary contained above, Parent and its
Subsidiaries shall be required to only grant Additional Mortgages in fee owned
Real Property with a fair market value at the time of acquisition in excess of
$250,000.
(d) Parent will, and will cause each of its Subsidiaries to,
at the expense of the Borrower, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require pursuant to this
Section 7.13. Furthermore, Parent, Holdings and the Borrower shall cause to be
delivered to the Collateral Agent such opinions of counsel, title insurance and
other related documents as may be requested by the Collateral Agent to assure
itself that this Section 7.13 has been complied with.
(e) Parent will cause each Subsidiary established or created
in accordance with Section 8.15 to execute and deliver a guaranty of all
Obligations and all obligations under Interest Rate Protection Agreements in
substantially the form of the Subsidiary Guaranty; provided that absent a
change in the relevant sections of the Code or the rules, regulations, rulings,
notices or other official pronouncements issued or promulgated thereunder, no
foreign Subsidiary shall be required to enter into such guaranty.
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(f) Parent will cause each Subsidiary established or created
in accordance with Section 8.15 to grant to the Collateral Agent a first
priority Lien on all property (tangible and intangible) of such Subsidiary upon
terms similar to those set forth in the Security Documents as appropriate, and
satisfactory in form and substance to the Collateral Agent and Required Banks;
provided, that absent a change in the relevant sections of the Code or the
rules, regulations, rulings, notices or other official pronouncements issued or
promulgated thereunder, no foreign Subsidiary shall be required to enter into
such Security Documents; provided further, that the Borrower and its
Subsidiaries shall not be required to grant a security interest in such assets
that are acquired subject to a Lien permitted by Section 8.01(vii), (viii) or
(xix); provided further, that such Subsidiary shall be required to only grant
Additional Mortgages in fee owned Real Property with a fair market value at the
time of acquisition in excess of $250,000. Parent will cause each Subsidiary,
at its own expense, to execute, acknowledge and deliver, or cause the
execution, acknowledgement and delivery of, and thereafter register, file or
record in any appropriate governmental office, any document or instrument
reasonably deemed by the Collateral Agent to be necessary or desirable for the
creation and perfection of the foregoing Liens. Parent will cause each of its
Subsidiaries to take all actions requested by the Collateral Agent (including,
without limitation, the filing of UCC-1's) in connection with the granting of
such security interests.
(g) The security interests required to be granted pursuant to
this Section 7.13 shall be granted pursuant to security documentation which
shall be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable, or otherwise
satisfactory in form and substance to the Administrative Agent and shall
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens except such Liens as
are permitted by Section 8.01. The Additional Security Documents and other
instruments related thereto shall be duly recorded or filed in such manner and
in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens, in favor of the Collateral Agent for the
benefit of the respective Secured Creditors, required to be granted pursuant to
the Additional Security Documents and all taxes, fees and other charges payable
in connection therewith shall be paid in full by the Borrower. At the time of
the execution and delivery of the Additional Security Documents, the Borrower
shall cause to be delivered to the Collateral Agent such opinions of counsel,
Mortgage Policies, title surveys and other related documents as may be
reasonably requested by the Administrative Agent or the Required Banks to
assure themselves that this Section 7.13 has been complied with.
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(h) Each of Parent, Holdings and the Borrower agrees that
each action required above by Section 7.13 shall be completed as soon as
possible, but in no event later than 60 days after such action is requested to
be taken by the Administrative Agent or the Required Banks; provided that each
of Parent, Holdings and the Borrower further agrees that any additional
guaranty or any Additional Security Documents required to be executed pursuant
to this Section 7.13 shall be entered into contemporaneously with the creation
or acquisition of any new Subsidiary.
SECTION 8. Negative Covenants. Parent, Holdings and the
Borrower covenant and agree that on and after the Restatement Effective Date
and until the Total Commitment and all Letters of Credit have terminated and
the Loans, Notes and Unpaid Drawings, together with interest, Fees and all
other Obligations incurred hereunder and thereunder, are paid in full:
8.01 Liens. Parent will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Parent or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to Parent or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; provided that the provisions of this Section 8.01
shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP;
(ii) Liens in respect of property or assets of the
Borrower or any of its Subsidiaries imposed by law, which were
incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers', warehousemen's,
materialmen's and mechanics' liens and other similar Liens arising in
the ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of the Borrower's or such
Subsidiary's property or assets or materially impair the use thereof
in the operation of the business of the Borrower or such Subsidiary or
(y) which are being contested in good faith
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by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence on the Restatement Effective Date
which are listed, and the property subject thereto described, in
Schedule VII, if any, set forth in such Schedule VIII for the removal
and termination of any such Liens, plus renewals, replacements and
extensions of such Liens to the extent set forth on Schedule VIII,
provided that (x) the aggregate principal amount of the Indebtedness,
if any, secured by such Liens does not increase from that amount
outstanding at the time of any such renewal, replacement or extension
and (y) any such renewal, replacement or extension does not encumber
any additional assets or properties of Parent or any of its
Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) licenses, leases or subleases granted to other
Persons in a manner consistent with past practice or the radio
industry generally not materially interfering with the conduct of the
business of Parent and its Subsidiaries taken as a whole;
(vii) Liens upon assets subject to Capitalized Lease
Obligations to the extent permitted by Section 8.04, provided that (x)
such Liens only serve to secure the payment of Indebtedness arising
under such Capitalized Lease Obligation and (y) the Lien encumbering
the asset giving rise to the Capitalized Lease Obligation does not
encumber any other asset of either the Borrower or any Subsidiary of
the Borrower;
(viii) Liens on equipment or machinery used by the Borrower
or any of its Subsidiaries in the ordinary course of business and
incurred at the time of acquisition thereof by the Borrower or any
such Subsidiary or within 120 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof and all
renewals, replacements or extensions thereof, provided that (x) the
aggregate outstanding principal amount of all Indebtedness secured by
Liens permitted by this clause (viii) shall not at any time exceed
$5,000,000 and (y) in all events, the Lien encumbering the equipment
or machinery so acquired does not encumber any other asset of either
the Borrower or any of its Subsidiaries;
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(ix) easements, rights-of-way, restrictions (including
zoning restrictions), encroachments, protrusions and other similar
charges or encumbrances, and minor title deficiencies, in each case
whether now or hereafter in existence, not securing Indebtedness and
not materially interfering with the conduct of the business of the
Borrower or any of its Subsidiaries;
(x) Liens arising from precautionary UCC financing
statement filings regarding operating leases entered into by Parent or
any of its Subsidiaries in the ordinary course of business, provided
that such Lien is limited to the respective lessor's interest in such
leased property;
(xi) Liens arising out of the existence of judgments or
awards not constituting an Event of Default under Section 9.09,
provided that no cash or property is deposited or delivered to secure
the respective judgment or award (or any appeal bond in respect
thereof, except as permitted by following clause (xiii));
(xii) statutory, contractual and common law landlords'
liens under leases to which the Borrower or any of its Subsidiaries is
a party;
(xiii) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory
obligations, surety, stay, customs and appeal bonds, statutory bonds,
bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money), provided that the
aggregate amount of deposits at any time pursuant to this clause
(xiii) shall not exceed $250,000;
(xiv) any interest or title of a lessor, sublessor,
licensee or licensor under any lease or license agreement permitted by
this Agreement;
(xv) Liens in favor of a banking institution arising as a
matter of law encumbering deposits (including the right of set-off)
held by such banking institutions incurred in the ordinary course of
business and which are within the general parameters customary in the
banking industry;
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(xvi) deposits made in the ordinary course of business to
secure liabilities for premiums to insurance carriers, provided that
such deposits do not exceed $500,000 in the aggregate at any time;
(xvii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for sale of goods
entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business, in accordance with past practices of the
Borrower and its Subsidiaries;
(xviii) cash earnest money deposits in connection with
acquisitions otherwise permitted by Section 8.02 in an aggregate
amount at any one time not to exceed that amount which, when added to
the aggregate amount of Letter of Credit Outstandings at such time to
provide assurance of performance in connection with acquisitions
otherwise permitted by Section 8.02, equals $75,000,000, provided that
Parent and its Subsidiaries shall not make any cash earnest money
deposits when there exists a Default or an Event of Default;
(xix) Liens on property or assets in existence at the time
such property or assets are acquired pursuant to Section 8.02(ix) or
(xiii), provided that (x) any Indebtedness that is secured by such
Liens is permitted to exist under Section 8.04(xii)(y) and (y) such
Liens are not incurred in connection with, or in contemplation or
anticipation of, such acquisition and do not attach to any other asset
of Parent or any of its Subsidiaries; and
(xx) Liens not otherwise permitted under this Section 8.01
to the extent attaching to properties and assets with an aggregate
fair market value not in excess of, and securing liabilities not in
excess of, $5,000,000 in the aggregate at any time outstanding.
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
Parent will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or merge, consolidate, convey, sell, lease or
otherwise dispose of all or any part of its property or assets, or enter into
any sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, equipment and
intangible assets, including property acquired by way of trade or barter
agreements, in the ordinary course of business) of any Person, except that:
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(i) Capital Expenditures made by the Borrower and its
Subsidiaries shall be permitted to the extent not in violation of
Section 8.07;
(ii) each of the Borrower and its Subsidiaries may in the
ordinary course of business, sell, lease or otherwise dispose of any
assets provided that the aggregate Net Sale Proceeds of all assets
subject to sales or other dispositions pursuant to this clause (ii)
shall not exceed $2,500,000 in any fiscal year of the Borrower;
(iii) investments may be made to the extent permitted by
Section 8.05;
(iv) each of the Borrower and its Subsidiaries may lease
(as lessee) real or personal property in the ordinary course of
business (so long as such lease does not create a Capitalized Lease
Obligation not otherwise permitted by Section 8.04(iv));
(v) each of the Borrower and its Subsidiaries may make
sales or other transfers of airtime in the ordinary course of business
and consistent with past practices;
(vi) licenses or sublicenses by the Borrower and its
Subsidiaries of software, trademarks and other intellectual property
and general intangibles and licenses, leases or subleases of other
property in the ordinary course of business and which do not
materially interfere with the business of the Borrower or any
Subsidiary;
(vii) the Borrower or any Wholly-Owned Subsidiary of the
Borrower may transfer assets to or lease assets to or acquire or lease
assets from the Borrower or any Wholly-Owned Subsidiary (so long as
the security interests granted pursuant to the Security Documents are
not, in the judgment of the Collateral Agent, adversely affected
thereby) or any Subsidiary of the Borrower may be merged or
consolidated with or into, or be liquidated or dissolved into, the
Borrower or any Wholly-Owned Subsidiary of the Borrower (so long as
the Borrower or such Wholly-Owned Subsidiary is the surviving
corporation);
(viii) (x) the sale or other disposition of Stations of the
Borrower shall be permitted for cash at fair market value (as
determined in good faith by the Borrower) so long as the proceeds
thereof are applied in accordance with Section 4.02(e), provided that
the Broadcast Cash Flow attributable to all Stations so sold
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or disposed of during any period of four consecutive fiscal quarters
of the Borrower shall not, when netted against the Broadcast Cash Flow
attributed to all Stations acquired during such period, exceed 5% of
Consolidated Broadcast Cash Flow for such period and (y) the
acquisition of Reinvestment Assets for consideration not to exceed the
fair market value of such Reinvestment Assets shall be permitted in
accordance with Sections 4.02(e) and 7.13;
(ix) so long as (x) no Default or Event of Default then
exists or would arise therefrom and (y) the Borrower shall be in
compliance with the financial covenants contained in Sections 8.08 and
8.09, with such financial covenants to be calculated on a Pro Forma
Basis, the Borrower may, and may permit its Subsidiaries to,
simultaneously exchange (for reasonably equivalent value, a portion
thereof which may include cash) (A) 100% of the capital stock of any
Subsidiary of such Person (the "Stock Swapped Station") for 100% of
the capital stock of any Person (the "Stock Target Station") owning a
station (each such occurrence a "Stock Swap") or (B) all or
substantially all of the assets of a radio Station or group of
Stations (the "Asset Swapped Station," with each Stock Swapped Station
and Asset Swapped Station, a "Swapped Station") for all or
substantially all of the assets of another radio station or group of
stations (the "Asset Target Station," with each Stock Target Station
and each Asset Target Station, a "Target Station") (each such
occurrence a "Station Swap"), provided, that at the time of such Stock
Swap or Station Swap the Borrower and/or such Subsidiary, and the
newly acquired entity, shall comply with Section 7.13, provided
further, that any cash proceeds received by Borrower or any of its
Subsidiaries in connection with any such Stock Swap or Asset Swap
shall be applied in accordance with the requirements of Section
4.02(e);
(x) the Borrower and its Subsidiaries may sell or
discount, accounts receivable arising in the ordinary course of
business (x) which are overdue or (y) which the Borrower may
reasonably determine are difficult to collect, but only in connection
with the compromise or collection thereof consistent with customary
industry practice (and not as part of any bulk sale or financing of
receivables);
(xi) transfers of condemned property to the respective
governmental authority or agency that have condemned same (whether by
deed in lieu of condemnation or otherwise), and transfers of
properties that have been subject to a casualty to the respective
insurer of such property or its designee as part of an insurance
settlement, so long as the proceeds thereof are applied as required by
Section 4.02(g);
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(xii) each of the Borrower and its Subsidiaries may in the
ordinary course of business sell or otherwise dispose of equipment
which, in the reasonable judgment of such Person, is obsolete, worn
out or otherwise no longer useful, in the conduct of such Person's
business;
(xiii) so long as (x) no Default or Event of Default then
exists or would result therefrom and (y) the Borrower shall
demonstrate compliance with the financial covenants contained in
Sections 8.08 and 8.09 with such financial covenants to be calculated
on a Pro Forma Basis, the Borrower or any of its Wholly-Owned
Subsidiaries may acquire additional Stations or 100% of the capital
stock of any Person that owns radio stations (any such acquisition
permitted pursuant to this clause (xiii), a "Permitted Section
8.02(xiii) Acquisition"), provided, that (i) if such acquisition is
structured as a stock acquisition, then either (A) the Person so
acquired becomes a Wholly-Owned Subsidiary (direct or indirect) of the
Borrower or (B) such Person is merged with and into the Borrower or a
Wholly-Owned Subsidiary of the Borrower (with the Borrower or such
Wholly-Owned Subsidiary being the surviving corporation of such
merger), and, in any case, all of the provisions of Section 7.13 have
been complied with in respect of such Person, (ii) the Borrower
delivers detailed projections and other information reasonably
requested by the Administrative Agent or the Required Banks, (iii) any
Liens or Indebtedness assumed or incurred in connection with such
acquisition are otherwise permitted under Section 8.01 or 8.04, as the
case may be, (iv) immediately after giving effect to each such
Permitted Section 8.02(xiii) Acquisition, the Total Unutilized
Revolving Loan Commitment shall be equal to at least $25,000,000, and
(v) any such Permitted Section 8.02(xiii) Acquisition involving an
expenditure (including, without limitation, earn-out, non-compete or
deferred compensation arrangements and transaction expenses) by the
Borrower and its Wholly-Owned Subsidiaries in excess of $100,000,000
shall not be consummated without the prior written consent of the
Required Banks;
(xiv) the Patterson Acquisition shall be permitted;
(xv) the Borrower or any Wholly-Owned Subsidiary of the
Borrower may sell assets to any Non- Controlled Entity so long as (x)
the fair market value of all assets so sold (as determined in good
faith by the Borrower) to all such Non-Controlled Entities does not
exceed $165,000,000, (y) no Default or Event of Default then exists or
would result therefrom and (z) the Borrower or such Wholly-Owned
Subsidiary applies the full amount of the Net Sale Proceeds
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therefrom as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Section 4.02(e);
(xvi) the BBOC Disposition shall be permitted so long as no
Default or Event of Default then exists or would result therefrom; and
(xvii) the RKZ Disposition shall be permitted so long as no
Default or Event of Default then exists or would result therefrom.
To the extent the Required Banks waive the provisions of this Section 8.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted
by this Section 8.02 (other than clause (vii) hereof), such Collateral shall be
sold free and clear of the Liens created by the Security Documents, and the
Administrative Agent and Collateral Agent shall be authorized to take any
actions deemed appropriate in order to effect the foregoing.
8.03 Dividends. Parent shall not, and shall not permit any
of its Subsidiaries to, authorize, declare or pay any Dividends with respect to
Parent or any of its Subsidiaries except that:
(i) any Subsidiary of the Borrower may pay Dividends to
the Borrower or any Wholly-Owned Subsidiary of the Borrower so long as
any such Dividends paid by a non-Wholly-Owned Subsidiary of the
Borrower are paid on a pro rata basis to such Subsidiary's
shareholders generally (based on the relative holdings of the equity
interest or interests in the Subsidiary paying such Dividends and
taking into account the relative preferences, if any, of the various
classes of equity interests in such Subsidiary);
(ii) the Borrower may pay cash Dividends to Holdings and
Holdings may pay cash Dividends to Parent for the purpose of paying,
so long as all proceeds thereof are promptly used by Holdings or
Parent, as the case may be, to pay, its operating expenses incurred in
the ordinary course of business and other corporate overhead costs and
expenses (including, without limitation, legal and accounting expenses
and similar expenses) in a maximum principal amount of $5,000,000 per
annum;
(iii) the Borrower may pay cash Dividends to Holdings and
Holdings may pay cash Dividends to Parent for the purpose of paying,
so long as all proceeds thereof are promptly used by Parent or
Holdings, as the case may be,
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to (A) pay management fees or executive compensation to the extent
such management fees or executive compensation are permitted by
Section 8.06(v) and (vi), and pursuant to the Monitoring and Oversight
Agreements, to the extent permitted pursuant to Section 8.06(iv) and
(B) repurchase Parent Common Stock and/or options to purchase Parent
Common Stock held by (x) directors, executives, officers, members of
management, or employees of Parent, Holdings, the Borrower or any of
their respective Subsidiaries upon the exercise of options in
accordance with the Employee Stock Option Plan, or (y) other
stockholders of Parent so long as the purpose of such purchase is to
acquire Parent Common Stock for reissuance to new employees of Parent
and its Subsidiaries to the extent so reissued within 12 months of any
such purchase so long as the aggregate amount of cash expended by
Parent pursuant to subclause (B) of this clause (iii) shall not exceed
$7,500,000 in any fiscal year or $15,000,000 in the aggregate (plus
the amount of cash proceeds paid by any new employee in consideration
for reissuance of Parent Common Stock repurchased by Parent to the
extent received by Parent within 12 months following any such
repurchase), so long as in the case of subclause (B) of this clause
(iii), no Default or Event of Default exists or would result
therefrom;
(iv) the Borrower may pay cash Dividends to Holdings and
Holdings may pay cash Dividends to Parent for the purpose of paying,
so long as all proceeds thereof are promptly used by Parent or
Holdings, as the case may be, to pay, franchise taxes and federal,
state and local income taxes and interest, and penalties with respect
thereto, if any, payable by Parent or Holdings, as the case may be,
provided that any refund shall be promptly returned by Parent or
Holdings to the Borrower;
(v) the Borrower may pay cash Dividends to Holdings so
long as Holdings promptly uses such proceeds to pay cash Dividends to
Parent to enable Parent to pay cash Dividends to redeem fractional
shares of Parent Common Stock so long as the aggregate amount thereof
does not exceed $10,000.
(vi) so long as (x) no Default or Event of Default then
exists or would result therefrom and (y) such payment of cash
Dividends is permitted under the Existing Senior Subordinated Note
Indenture, the New Senior Subordinated Note Indenture and any other
indenture, certificate of designation or other agreement which may
restrict such payments, the Borrower may pay cash Dividends to
Holdings for the purpose of making, so long as Holdings promptly uses
all such proceeds to make, regularly scheduled interest payments on
its Existing Senior Notes (it being understood that no interest
payments shall be made prior to August 1, 2002);
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(vii) Holdings may pay regularly scheduled Dividends on its
Senior Exchangeable Preferred Stock pursuant to the terms thereof
solely through the issuance of additional shares of Senior
Exchangeable Preferred Stock, except as otherwise permitted by clauses
(viii) and (ix) below;
(viii) the Borrower may pay cash Dividends to Holdings for
the purpose of paying, so long as all such proceeds are promptly used
by Holdings to pay, cash Dividends on its Senior Exchangeable
Preferred Stock in lieu of issuing fractional shares of Senior
Exchangeable Preferred Stock;
(ix) so long as (w) no Default or Event of Default then
exists or would result therefrom, (x) Borrower establishes compliance
with the financial covenants contained in Sections 8.08 and 8.09, with
such financial covenants to be calculated on a Pro Forma Basis, (y)
the Leverage Ratio on the date of payment thereof is less than or
equal to 5.0:1.0 and (z) such payment of cash Dividends is permitted
under the Existing Senior Note Indenture, the Existing Senior
Subordinated Note Indenture, the New Senior Subordinated Note
Indenture, the Subordinated Exchange Debenture Indenture and any other
indenture, certificate of designation or other agreement which may
restrict such payments, the Borrower may pay cash Dividends to
Holdings for the purpose of paying, so long as Holdings promptly uses
all such proceeds to pay, regularly scheduled Dividends on its Senior
Exchangeable Preferred Stock;
(x) so long as (x) no Default or Event of Default then
exists or would result therefrom and (y) such payment of cash
Dividends is permitted under the Existing Senior Note Indenture, the
Existing Senior Subordinated Note Indenture, the New Senior
Subordinated Note Indenture, the Subordinated Exchange Debenture
Indenture and any other indenture, certificate of designation or other
agreement which may restrict such payments, the Borrower may pay cash
Dividends to Holdings so long as Holdings promptly uses such proceeds
to pay cash Dividends to Parent to enable Parent to cure defaults or
make principal or interest payments under any Non-Controlled Entity
Credit Facility or to satisfy its obligations under the Limited
Guaranty; provided that the aggregate amount of such cash Dividends
shall not exceed $25,000,000 plus an amount equal to 6.25% of each
dollar of equity raised by Parent after the Restatement Effective
Date;
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(xi) so long as no Default or Event of Default then exists
or would result therefrom, the Borrower may pay cash Dividends to
Holdings so long as Holdings promptly uses the proceeds therefrom to
pay cash Dividends to Parent to enable Parent to make loans or
advances as provided in Section 8.05(xix); and
(xii) the Borrower may pay a cash Dividend to Holdings so
long as Holdings promptly uses the proceeds therefrom to pay a cash
Dividend to Parent to enable Parent to repurchase 1,187,947 shares of
Parent Common Stock from William R. Hicks and Ben Downs, provided that
(x) the aggregate amount of such Dividend shall not exceed $765,000
and (y) no Default or Event of Default shall then exist or result
therefrom.
8.04 Indebtedness. Parent will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and
the other Credit Documents;
(ii) Indebtedness existing on the Restatement Effective
Date shall be permitted to the extent the same is listed on Schedule
IX, and extensions, replacements, refinancings or renewals thereof,
provided that no such extension, replacement, refinancing or renewal
shall increase the principal amount thereof;
(iii) Indebtedness under Interest Rate Protection
Agreements to the extent entered into pursuant to Section 8.05;
(iv) Indebtedness evidenced by Capitalized Lease
Obligations to the extent permitted pursuant to Section 8.07;
(v) Indebtedness subject to Liens permitted under Section
8.01(viii);
(vi) Indebtedness of Holdings incurred under the Existing
Senior Notes in an aggregate principal amount not to exceed
$277,000,000 (less any repayments of principal thereof);
(vii) so long as no Default or Event of Default then exists
or would arise therefrom, with the consent of the Total Supermajority
Banks, Holdings may exchange all of the issued and outstanding Senior
Exchangeable Preferred Stock
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for Subordinated Exchange Debentures in accordance with the terms of
the Senior Exchangeable Preferred Stock Documents.
(viii) Indebtedness (x) of the Borrower evidenced by the
Existing Senior Subordinated Notes in an aggregate principal amount
not to exceed $76,808,000 (less any repayments of principal thereof)
and (y) arising under guaranties by the Subsidiaries of the Borrower
of the obligations of the Borrower under the Existing Senior
Subordinated Notes;
(ix) Indebtedness of the Borrower incurred under the New
Senior Subordinated Notes in an aggregate principal amount not to
exceed $200,000,000 (less any repayments of principal thereof);
(x) Contingent Obligations of the Borrower or any
Subsidiary of the Borrower as a guarantor of the obligations of the
lessee under any lease pursuant to which the Borrower or such
Subsidiary is the lessee so long as such lease is otherwise permitted
hereunder;
(xi) intercompany Indebtedness of any Wholly-Owned
Subsidiary of the Borrower owing to the Borrower or any other
Wholly-Owned Subsidiary of the Borrower, or of the Borrower owing to
any Wholly-Owned Subsidiary of the Borrower, to the extent permitted
by Section 8.05(x);
(xii) (x) unsecured Indebtedness of the Borrower and its
Subsidiaries owing to the seller in any acquisition permitted pursuant
to Section 8.02(ix) in an aggregate principal amount not to exceed
$10,000,000 at any time outstanding or (y) Indebtedness of the
Borrower and its Subsidiaries assumed in connection with any
acquisition of an asset permitted pursuant to Section 8.02(ix)
securing such Indebtedness in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding, provided that such
Indebtedness was not incurred in connection with, or in anticipation
or contemplation of, such acquisition;
(xiii) Contingent Obligations of the Borrower or any of its
Subsidiaries pursuant to its guaranty of Indebtedness permitted
pursuant to Section 8.04(ii) existing on the Restatement Effective
Date and extensions, replacements, refinancings and renewals thereof,
provided that no such extension, replacement, refinancing or renewal
shall (x) amend, modify or supplement the subordination provisions, if
any, contained in such guaranty in a manner adverse to interests of
the Banks or (y) increase the principal amount of such Indebtedness
guaranteed by the original guaranty;
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(xiv) so long as (i) the Borrower shall have delivered a
certificate of an Authorized Officer of the Borrower certifying that,
to the best of such officer's knowledge, (x) no Default or Event of
Default then exists (or would result from the incurrence of the
additional Indebtedness contemplated by this Section 8.04(xiv)), and
(y) all representations and warranties herein or in any other Credit
Document are true and correct in all material respects with the same
effect as if such representations and warranties had been made on the
date of the incurrence of Indebtedness contemplated by this clause
8.04(xiv) (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of
such specified date) and (ii) new Notes and the documentation
necessary to incur such Indebtedness are delivered in form and
substance satisfactory to the Administrative Agent pursuant to
Sections 12.04 and 12.12, then the Borrower may increase the Total
Revolving Loan Commitment, in whole or in part, by an aggregate amount
not to exceed $150,000,000 with the consent of the Banks providing
such additional amount (and no other Banks);
(xv) Indebtedness of Parent arising under the Limited
Guaranty in an aggregate amount not to exceed $100,000,000 (less any
payments made in respect of its obligations under the Limited
Guaranty) plus an amount equal to 25% of each dollar of equity raised
by Parent after the Restatement Effective Date; and
(xvi) additional Indebtedness of the Borrower and its
Subsidiaries not otherwise permitted under this Section 8.04 not to
exceed $5,000,000 in aggregate principal amount outstanding at any
time.
8.05 Advances, Investments and Loans. Parent will not,
and will not permit any of its Subsidiaries to, directly or indirectly, lend
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract, or hold
any cash or Cash Equivalents, except that the following shall be permitted:
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(i) the Borrower and its Subsidiaries may acquire and
hold accounts receivables owing to any of them, if created or acquired
in the ordinary course of business and payable or dischargeable in
accordance with customary terms;
(ii) the Borrower and its Subsidiaries may acquire and
hold cash and Cash Equivalents, provided that during any time that
Revolving Loans of Non-Defaulting Banks are outstanding, the aggregate
amount of cash and Cash Equivalents permitted to be held by the
Borrower and its Subsidiaries shall not exceed $5,000,000 for any
period of five consecutive days (exclusive of any cash held by the
Borrower as permitted by Sections 8.01(xviii));
(iii) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to officers, directors and
employees of Parent and its Subsidiaries so long as the aggregate
principal amount thereof at any time outstanding (determined without
regard to any write-downs or write-offs of such loans and advances)
shall not exceed $5,000,000 (subject to any restrictions contained in
the Existing Senior Subordinated Note Indenture and the New Senior
Subordinated Note Indenture);
(iv) the Borrower may enter into Interest Protection
Agreements on terms reasonably satisfactory to the Administrative
Agent;
(v) Parent may repurchase Parent Common Stock to the
extent permitted by Section 8.03;
(vi) Parent and any of its Subsidiaries may make
investments in accordance with Section 4.02(e) (including investments
necessary to form Subsidiaries under Section 8.15);
(vii) promissory notes and other similar non-cash
consideration received by the Borrower and its Subsidiaries in
connection with dispositions permitted by Section 8.02 so long as the
aggregate principal amount thereof does not exceed $2,500,000 at any
one time outstanding;
(viii) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
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(ix) investments by the Borrower in any Wholly-Owned
Subsidiary;
(x) any Wholly-Owned Subsidiary of the Borrower may make
intercompany loans and advances to the Borrower or any other
Wholly-Owned Subsidiary and the Borrower may make intercompany loans
and advances to any of its Wholly-Owned Subsidiaries, provided that if
such intercompany loans are evidenced by an intercompany promissory
note, such note is pledged by the Borrower or such Wholly-Owned
Subsidiary as Collateral pursuant to the Pledge Agreement;
(xi) investments by the Borrower or any of its
Subsidiaries to the extent permitted by Section 8.07;
(xii) advances, loans and investments made by the Borrower
and its Subsidiaries in existence on the Restatement Effective Date
and set forth on Schedule X shall be permitted, without giving effect
to any additions thereto or replacements thereof;
(xiii) guarantees of Indebtedness made by Parent or any of
its Subsidiaries to the extent otherwise permitted by Section 8.04;
(xiv) investments permitted pursuant to Section 8.02;
(xv) investments pursuant to capital calls on Southern
Star Communications, Inc. (formerly known as Osborn Communications
Corporation) as provided in the Stockholders' Agreement, dated April
20, 1989, among Ruth Communications Corporation, Southern Star
Communications, Inc. (formerly known as Osborn Communications
Corporation) and Ray Broadcasting, Inc., not to exceed $1,200,000;
(xvi) a loan by the Borrower or any of its Subsidiaries to
Emerald City Radio Partners, L.P. in an aggregate principal amount not
to exceed $13,475,000 in connection with the proposed acquisition of
stations WNOK-FM and WIOC-AM in Columbia, South Carolina and WMFX-FM
in St. Andrews, South Carolina;
(xvii) in addition to investments permitted by clauses (i)
through (xvi) above and clauses (xviii) through (xxi) below of this
Section 8.05, the Borrower
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and its Subsidiaries may make additional loans, advances and
investments in an aggregate principal amount not to exceed $5,000,000
at any time outstanding;
(xviii) the Borrower or any Wholly-Owned Subsidiary of the
Borrower may make capital contributions to any Non-Controlled Entity
so long as (x) the aggregate amount of all such capital contributions
does not exceed $2,000,000 and (x) no Default or Event of Default then
exists or would result therefrom;
(xix) Parent may make loans and advances to any
Non-Controlled Entity to enable such Non-Controlled Entity to purchase
assets from the Borrower or any Wholly-Owned Subsidiary of the
Borrower so long as (v) no Default or Event of Default then exists or
would result therefrom, (w) the aggregate outstanding principal amount
of all loans and advances made pursuant to this clause (xix) shall not
exceed $50,000,000 (determined without regard to any write-downs or
write-offs of such loans or advances) at any time, (x) each such loan
or advance shall be evidenced by a Parent Note, (y) each such Parent
Note shall be pledged to the Collateral Agent pursuant to the Pledge
Agreement and (z) any interest payments or any prepayments or
repayments of principal received in respect of any Parent Note shall
be immediately contributed (directly or indirectly) to the capital of
the Borrower and the Borrower shall promptly use such proceeds to
repay outstanding Revolving Loans (without a corresponding reduction
to the Total Revolving Loan Commitment);
(xx) Parent may make investments in Holdings and Holdings
may make investments in the Borrower; and
(xxi) promissory notes and other similar non-cash
consideration received by RKZ Television, Inc. in connection with the
RKZ Disposition so long as the aggregate principal amount thereof does
not exceed $3,138,000.
8.06 Transactions with Affiliates. Parent will not, and
will not permit any of its Subsidiaries to enter into any transaction or series
of related transactions, whether or not in the ordinary course of business,
with any Affiliate of Parent or any of its Subsidiaries, other than in the
ordinary course of business and on terms and conditions substantially as
favorable to Parent or such Subsidiary as would reasonably be obtained by
Parent or such Subsidiary at that time in a comparable arm's-length transaction
with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in
Section 8.03;
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(ii) loans may be made and other transactions may be
entered into by the Borrower and its Subsidiaries to the extent
permitted by Sections 8.02, 8.04 and 8.05;
(iii) customary fees and reimbursement of expenses may be
paid to directors of Parent;
(iv) Parent or, to the extent not paid by Parent, Holdings
or the Borrower may pay to Hicks, Muse & Co. Partners, L.P., its
Affiliates or any successor thereto controlled by Jack D. Furst,
Charles W. Tate, Thomas O. Hicks and/or John R. Muse, the amounts set
forth in the Monitoring and Oversight Agreement dated as of July 1,
1997, between Parent and Hicks, Muse & Co. Partners, L.P. and the
Financial Advisory Agreement dated as of July 1, 1997, between Hicks,
Muse & Co. Partners, L.P. and Parent, in each case in the form
delivered to the Banks on or prior to the Restatement Effective Date,
as same may be modified thereafter but without giving effect to any
modifications thereto which in any way adversely affects the interests
of the Banks (including, without limitation, by increasing in any
respect the costs or liabilities of Parent or any of its Subsidiaries)
without the consent of the Administrative Agent and the Required Banks
(the "Monitoring and Oversight Agreements");
(v) Parent and its Subsidiaries may enter into and make
payments pursuant to employment arrangements with executive officers
and senior management employees in the ordinary course of business;
(vi) Parent and its Subsidiaries may make payments
pursuant to Employment Agreements existing on the Effective Date;
(vii) Parent and its Subsidiaries may make payments
pursuant to the Tax Sharing Agreements;
(viii) Parent may make capital contributions to Holdings and
Holdings may make capital contributions to the Borrower;
(ix) the Borrower or any Wholly-Owned Subsidiary of the
Borrower may make capital contributions to (A) a Non-Controlled Entity
as provided in Section 8.05(xviii) or (B) to any of its Wholly-Owned
Subsidiaries.
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Except as specifically provided above, no management or
similar fees shall be paid or payable by Parent or any of its Subsidiaries to
any Person other than the Borrower.
8.07 Capital Expenditures. (a) Parent will not, and will
not permit any of its Subsidiaries to, make any Capital Expenditures, except
that (x) during the period (taken as one accounting period) commencing on the
Restatement Effective Date and ending on December 31, 1998, the Borrower and
its Subsidiaries may make Capital Expenditures (exclusive of acquisitions
otherwise permitted by this Agreement) so long as the aggregate amount of such
Capital Expenditures does not exceed $25,000,000 during such period and (y)
during any fiscal year thereafter (taken as one accounting period) the Borrower
and its Subsidiaries may make Capital Expenditures (exclusive of acquisitions
otherwise permitted by this Agreement) so long as the aggregate amount of such
Capital Expenditures does not exceed $13,500,000 in any fiscal year.
(b) Notwithstanding anything to the contrary contained in
clause (a) above, to the extent that the Capital Expenditures made by the
Borrower and its Subsidiaries in any period set forth in clause (a) above are
less than the amount permitted to be made in such period (without giving effect
to any additional amount available as a result of this clause (b) or clause (c)
below), the amount of such difference may be carried forward and used to make
Capital Expenditures in the immediately succeeding fiscal year of the Borrower.
(c) In addition to the Capital Expenditures permitted
pursuant to preceding clauses (a) and (b), the Borrower and its Subsidiaries
may make additional Capital Expenditures consisting of (i) the reinvestment of
Net Sale Proceeds from asset sales not required to be applied to repay Loans
pursuant to Section 4.02(e) and (ii) the reinvestment of insurance proceeds
from Recovery Events not required to be applied to repay Loans pursuant to
Section 4.02(g), provided that in each case any proceeds that are so used to
make Capital Expenditures pursuant to this clause (c) are, to the extent
required by Section 4.02(e) or (g), as the case may be, used within the period
of time as is set forth in such Section 4.02(e) or (g), as the case may be.
8.08 Maximum Leverage Ratio. The Borrower will not permit
the Leverage Ratio at any time during a period set forth below to be greater
than the ratio set forth opposite such period below:
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<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Restatement Effective Date to and
including December 31, 1998 6.75:1.00
January 1, 1999 to and including
December 31, 1999 6.00:1.00
January 1, 2000 to and including
December 31, 2000 5.00:1.00
January 1, 2001 and thereafter 4.00:1.00
</TABLE>
8.09 Interest Coverage Ratio. The Borrower will not permit
the Interest Coverage Ratio for any Test Period during a period set forth below
to be less than the amount set forth opposite such period below:
<TABLE>
<CAPTION>
Fiscal Quarter Ratio
-------------- -----
<S> <C>
Restatement Effective Date to and
including December 31, 1998 1.50:1.00
January 1, 1999 to and including
December 31, 1999 1.75:1.00
January 1, 2000 to and including
December 31, 2000 2.25:1.00
January 1, 2001 and thereafter 3.00:1.00
</TABLE>
8.10 Limitation on Modifications of Certificate of
Incorporation, Partnership Agreement, Limited Liability Company Agreement,
By-Laws and Certain Other Agreements; Limitations of Prepayments and
Modifications of Indebtedness; etc. Parent will not, and will not permit any
of its Subsidiaries to (i) make (or give any notice with respect of) any
voluntary or optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of paying
when due), after the issuance thereof, any Existing Senior Notes, Subordinated
Exchange Debentures, Existing Senior Subordinated Notes or New Senior
Subordinated Notes, (ii) amend or modify, or permit the amendment or
modification of any provision of the
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Existing Senior Note Documents, Senior Exchangeable Preferred Stock Documents
(including as relating to the Subordinated Exchange Debentures), New Senior
Subordinated Note Documents, Existing Senior Subordinated Note Documents, the
Tax Sharing Agreement, the Patterson Stock Purchase Agreement, the BBOC Stock
Purchase Agreement or the RKZ Asset Purchase Agreement (other than (x)
amendments or modifications to the Tax Sharing Agreement and the BBOC Stock
Purchase Agreement which are not materially adverse to the interests of the
Banks and (y) amendments or modifications to the Existing Senior Note
Indenture, Existing Senior Subordinated Note Indenture, New Senior Subordinated
Note Indenture and Subordinated Exchange Debenture Indenture to the extent that
such amendments or modifications (I) are permitted to be made under the
respective indenture without the consent of the holders of the Existing Senior
Notes, Existing Senior Subordinated Notes, New Senior Subordinated Notes or
Subordinated Exchange Debentures, as the case may be, and (II) are not
materially adverse to the interests of the Banks,) or (iii) amend, modify or
change its certificate or articles of incorporation (including, without
limitation, by the filing or modification of any certificate of designation),
partnership agreement, limited liability company agreement or by-laws, or any
agreement entered into by it, as the case may be, with respect to its capital
stock (including any Shareholders' Agreement), partnership interests or limited
liability company interests, or enter into any new agreement with respect to
its capital stock, other than any amendments, modifications or changes pursuant
to this clause or any such new agreements which do not in any way adversely
affect the interests of the Banks.
8.11 Limitation on Certain Restrictions on Subsidiaries.
Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any
Subsidiary of the Borrower, or pay any Indebtedness owed to the Borrower or any
Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any
Subsidiary of the Borrower or (c) transfer any of its properties or assets to
the Borrower or any Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) the Existing Senior
Subordinated Note Documents, (iv) the Existing Senior Note Documents, (v) the
New Senior Subordinated Notes, (vi) the Subordinated Exchange Debenture
Indenture, (vii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Borrower or any Subsidiary of
the Borrower, (viii) customary provisions restricting assignment of any
licensing agreement entered into by the Borrower or any Subsidiary of the
Borrower in the
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ordinary course of business and (ix) customary restrictions in any industrial
revenue bond, purchase money financing, capital lease or any other agreement
permitted by this Agreement.
8.12 Limitation on Issuance of Capital Stock. (a) Parent
will not issue (i) any preferred stock or (ii) any class of redeemable common
stock, other than (x) Qualified Capital Stock and (y) Permitted Issuances.
(b) Parent will not permit Holdings or any other Subsidiary
to issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and similar issuances which do
not decrease the percentage ownership of Parent or any of its Subsidiaries in
any class of the capital stock of Holdings or such Subsidiary, (iii) to qualify
directors to the extent required by applicable law, (iv) the Borrower may issue
additional shares of common stock to Holdings, so long as all such shares are
immediately delivered to the Collateral Agent and pledged pursuant to the
Pledge Agreement, (v) in connection with the creation of Subsidiaries of the
Borrower in compliance with Section 8.15 and (vi) in the case of Holdings, for
the Senior Exchangeable Preferred Stock.
8.13 Business. (a) Parent will not, and will not permit any
of its Subsidiaries to, engage (directly or indirectly) in any business other
than the type of business in which such Subsidiaries are engaged on the
Restatement Effective Date and reasonable extensions thereof.
(b) From the Restatement Effective Date to the date upon
which the certificate(s) evidencing 100% of the outstanding capital stock of
Atlantic City Broadcasting Corp. has been delivered by the Borrower or any of
its Subsidiaries to the Collateral Agent, Parent will not, and will not permit
any of its Subsidiaries to, transfer or lease any assets, or make any capital
contributions, to Atlantic City Broadcasting Corp. and Atlantic City
Broadcasting Corp. shall engage in no significant business activities and
shall have no material assets (other than approximately $10,000 in cash) or
liabilities (other than Indebtedness owing to AMRESCO Institutional, Inc.).
8.14 Limitation on Creation of Subsidiaries. Parent shall
not and will not permit any Subsidiary to establish, create or acquire any
additional Subsidiaries after the Restatement Effective Date without the prior
written consent of the Required Banks, except that the Borrower or any
Wholly-Owned Subsidiary of the Borrower may create
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or otherwise acquire new Subsidiaries in connection with the acquisition of
Stations or Persons that own radio stations in compliance with Sections
4.02(e), 8.02(ix), 8.02(xiii) or 8.05(vi).
8.15 No Other Designated Senior Indebtedness. Parent will
not, and will not permit any Subsidiary to, designate any Indebtedness (other
than the Obligations) as "Designated Senior Indebtedness" for purposes of, and
as defined in, the Existing Senior Subordinated Note Indenture, the New Senior
Subordinated Indenture or the Subordinated Exchange Debenture Indenture.
SECTION 9. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for three or more Business Days, in the
payment when due of any Unpaid Drawings or interest on any Loan or Note, or any
Fees or any other amounts owing hereunder, thereunder or under any other Credit
Document; or
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue
in any material respect on the date as of which made or deemed made; or
9.03 Covenants. Parent, Holdings or the Borrower shall (i)
default in the due performance or observance by it of any term, covenant or
agreement contained in Section 7.01(g)(i), 7.08, 7.13, Section 8 or Section
12.19 or (ii) default in the due performance or observance by it of any other
term, covenant or agreement contained in this Agreement (other than as
described in Section 9.01, 9.02 or 9.03(i)), and such default shall continue
unremedied for a period of 30 days after written notice to the Borrower by the
Administrative Agent, any Other Agent or any Bank; or
9.04 Default Under Other Agreements. Parent or any of its
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
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condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause
(determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity, or (iii) any
Indebtedness (other than the Obligations) of Parent or any of its Subsidiaries
shall be declared to be due and payable, or required to be prepaid other than
by a regularly scheduled required prepayment, prior to the stated maturity
thereof, provided that it shall not be a Default or Event of Default under this
Section 9.04 unless the aggregate principal amount of all Indebtedness as
described in preceding clauses (i) through (iii), inclusive, is at least
$2,500,000; or
9.05 Bankruptcy, etc. Parent or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against Parent or any of its Subsidiaries and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of Parent or any of
its Subsidiaries, or Parent or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Parent or any of
its Subsidiaries, or there is commenced against Parent or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or Parent or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Parent or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or
Parent or any of its Subsidiaries makes a general assignment for the benefit of
creditors; or any corporate action is taken by Parent or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code, any Plan shall have had or, in the reasonable opinion
of the Required Banks, is likely to have a trustee appointed to administer such
Plan, any Plan is, shall have been or is likely to be terminated or to be the
subject of termination proceedings under ERISA, any Plan shall have an Unfunded
Current Liability, a contribution required to be made to a Plan has not been
made, Parent or any of its Subsidiaries or any ERISA Affiliate has incurred or
is likely to incur a liability to or on account of a Plan under Section 409,
502(i),
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502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code, or Parent or any of its Subsidiaries has
incurred or is likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(1) of ERISA) which provide
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or employee pension benefit plans (as defined in
Section 3(2) of ERISA); (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability
or a material risk of incurring a liability; and (c) in each case in clauses
(a) and (b) above, such lien, security interest or liability, in the reasonable
opinion of the Required Banks, will have a material adverse effect upon the
business, operations, property, assets, liabilities or condition (financial or
otherwise) Parent and its Subsidiaries taken as a whole or of Holdings and its
Subsidiaries taken as a whole or of the Borrower and its Subsidiaries taken as
a whole; or
9.07 Security Documents. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease in any material respect to give the Collateral Agent
for the benefit of the Secured Creditors the Liens, rights, powers and
privileges purported to be created thereby (including, without limitation, a
perfected security interest in, and Lien on, all of the Collateral), in favor
of the Collateral Agent, superior to and prior to the rights of all third
Persons (except as permitted by Section 8.01), and subject to no other Liens
(except as permitted by Section 8.01), or any Credit Party shall default in the
due performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to any of the Security Documents and such
default shall continue beyond any grace period specifically applicable thereto
pursuant to the terms of such Security Document; or
9.08 Guaranty. Any Guaranty or any provision thereof shall
cease to be in full force or effect as to the relevant Guarantor or other party
thereunder (other than in accordance with the express terms thereof) or any
Guarantor or other party thereunder or Person acting by or on behalf of such
Guarantor or such party shall deny or disaffirm such Guarantor's or such
party's obligations under the relevant Guaranty, or any Guarantor or such party
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any Guaranty; or
9.09 Judgments. One or more judgments or decrees shall be
entered against Parent or any of its Subsidiaries involving in the aggregate
for Parent and its Subsidiaries a liability (not paid or fully covered by a
reputable and solvent insurance
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company) and such judgments and decrees either shall be final and
non-appealable or shall not be vacated, discharged or stayed or bonded pending
appeal for any period of 60 consecutive days, and the aggregate amount of all
such judgments exceeds $2,500,000; or
9.10 Change of Ownership. A Change of Ownership shall occur;
or
9.11 Non-Controlled Entity Credit Facility. There shall
exist (i) a default in any payment of principal, interest, fees or other
amounts owing under any Non-Controlled Entity Credit Facility beyond the period
of grace, if any, provided in such Non-Controlled Entity Credit Facility, or
(ii) a default in the observance or performance of any agreement or condition
contained in any Non-Controlled Entity Credit Facility or any other agreement
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or
permit the holder or holders of the Indebtedness under such Non-Controlled
Entity Credit Facility (or trustee or agent on behalf of such holder or
holders) to cause (determined without regard to whether any notice is
required), the Indebtedness under such Non-Controlled Entity Credit Facility to
become due prior to its stated maturity, or (iii) Indebtedness under any
Non-Controlled Entity Credit Facility shall be declared to be due and payable,
or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent, upon the written
request of the Required Banks, shall by written notice to the Borrower, take
any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Other Agent, any Bank or the holder of any Note to
enforce its claims against any Credit Party (provided that, if an Event of
Default specified in Section 9.05 shall occur with respect to the Borrower, the
result which would occur upon the giving of written notice by the
Administrative Agent to the Borrower as specified in clauses (i) and (ii) below
shall occur automatically without the giving of any such notice): (i) declare
the Total Commitment terminated, whereupon all Commitments of each Bank shall
forthwith terminate immediately and any Commitment Commission shall forthwith
become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and the Notes and
all Obligations owing hereunder (including Unpaid Drawings) and thereunder to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Credit Party; (iii) terminate any Letter of Credit which
may be terminated in accordance with its terms; (iv) direct the Borrower to pay
(and the Borrower agrees that
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upon receipt of such notice, or upon the occurrence of an Event of Default
specified in Section 9.05 with respect to the Borrower, it will pay) to the
Collateral Agent at the Payment Office such additional amount of cash, to be
held as security by the Collateral Agent, as is equal to the aggregate Stated
Amount of all Letters of Credit issued for the account of the Borrower and then
outstanding; (v) enforce, as Collateral Agent, all of the Liens and security
interests created pursuant to the Security Documents, and (vi) apply any cash
or Cash Equivalents held as collateral pursuant to Section 4.02 in satisfaction
of the Obligations.
SECTION 10. Definitions and Accounting Terms.
10.01 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Additional Collateral" shall mean all property (whether real
or personal) in which security interests are granted (or have been purported to
be granted) (and continue to be in effect at the time of determination)
pursuant to Section 7.13 (which shall in any event exclude any interest in the
FCC Licenses to the extent prohibited by applicable law).
"Additional Mortgage" shall have the meaning provided in
Section 7.13(b).
"Additional Mortgaged Property" shall have the meaning
provided in Section 7.13(b).
"Additional Security Documents" shall mean all mortgages,
pledge agreements, security agreements and other security documents entered
into pursuant to Section 7.13 with respect to Additional Collateral.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense,
but excluding any net non-cash charges reflected in Adjusted Consolidated
Working Capital) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less the sum of the amount of all net
non-cash gains (exclusive of such non-cash items reflected in Adjusted
Consolidated Working Capital) included in arriving at Consolidated Net Income
for such period.
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"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted RL Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank, such Bank's RL Percentage and (y) at a time when
a Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and
(ii) for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Commitment at such time by the Adjusted Total Revolving
Loan Commitment at such time, it being understood that all references herein to
Revolving Loan Commitments and the Adjusted Total Revolving Loan Commitment at
a time when the Total Revolving Loan Commitment or Adjusted Total Revolving
Loan Commitment, as the case may be, has been terminated shall be references to
the Revolving Loan Commitments or Adjusted Total Revolving Loan Commitment, as
the case may be, in effect immediately prior to such termination, provided that
(A) no Bank's Adjusted RL Percentage shall change upon the occurrence of a Bank
Default from that in effect immediately prior to such Bank Default if after
giving effect to such Bank Default, and any repayment of Revolving Loans at
such time pursuant to Section 4.02(a) or otherwise, the sum of the aggregate
outstanding principal amount of Loans of all Non-Defaulting Banks plus the
Letter of Credit Outstandings, exceed the Adjusted Total Revolving Loan
Commitment; (B) the changes to the Adjusted RL Percentage that would have
become effective upon the occurrence of a Bank Default but that did not become
effective as a result of the preceding clause (A) shall become effective on the
first date after the occurrence of the relevant Bank Default on which the sum
of the aggregate outstanding principal amount of the Revolving Loans of all
Non-Defaulting Banks plus the Letter of Credit Outstandings is equal to or less
than the Adjusted Total Revolving Loan Commitment; and (C) if (i) a
Non-Defaulting Bank's Adjusted Percentage is changed pursuant to the preceding
clause (B) and (ii) any repayment of such Bank's Loans, or of Unpaid Drawings
with respect to Letters of Credit, that were made during the period commencing
after the date of the relevant Bank Default and ending on the date of such
change to its Adjusted RL Percentage must be returned to the Borrower as a
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Bank's Adjusted RL Percentage
effected pursuant to said clause (B) shall be reduced to that positive change,
if any, as would have been made to its Adjusted RL Percentage if (x) such
repayments had not been made and (y) the maximum change
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to its Adjusted RL Percentage would have resulted in the sum of the outstanding
principal of Loans made by such Bank plus such Bank's new Adjusted RL
Percentage of the outstanding principal amount of Letter of Credit Outstandings
equalling such Bank's Revolving Loan Commitment at such time.
"Adjusted Total Available Revolving Loan Commitment" shall
mean, at any time, the Total Available Revolving Loan Commitment at such time
less the aggregate Revolving Loan Commitments of all Defaulting Banks at such
time.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall mean BTCo, in its capacity as
Administrative Agent for the Banks hereunder, and shall include any successor
to the Administrative Agent appointed pursuant to Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other
Person (including for purposes of Section 8.06 only, all directors, officers
and partners of such Person) directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person; provided,
however, that for purposes of Section 8.06, an Affiliate of Parent shall
include any Person that directly or indirectly owns more than 10% of any class
of the capital stock of Parent. A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent and each of the
Other Agents.
"Agreement" shall mean this Credit Agreement, as amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time.
"Applicable Commitment Commission Percentage" shall mean (i)
for the period from the Restatement Effective Date through but not including
the first Start Date, .50%, and (ii) from and after any Start Date to and
including the corresponding End Date, the respective percentage per annum set
forth in clause (A) or (B) below if, but only if, as of the Test Date for such
Start Date the applicable condition set forth in clause (A) or (B) below, as
the case may be, is met:
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(A) .50%, if, but only if, as of the Test Date for such
Start Date the Leverage Ratio for the Test Period ended on such Test
Date shall be greater than 4.5:1.0; and
(B) .375%, if, but only if, as of the Test Date for such
Start Date the Leverage Ratio for the Test Period ended on such Test
Date shall be equal to or less than 4.5:1.0.
Notwithstanding anything to the contrary contained above in this definition,
the Applicable Commitment Commission Percentage shall be a percentage per annum
equal to .50% at all times during which there shall exist a Default or an Event
of Default.
"Applicable Margin" shall mean (i) for the period from the
Restatement Effective Date through but not including the first Start Date, (x)
in the case of Base Rate Loans, 1.25%, and (y) in the case of Eurodollar Loans,
2.25%, and (ii) from and after any Start Date to and including the
corresponding End Date, the respective percentage per annum set forth in clause
(A), (B), (C), (D), (E), (F) or (G) below if, but only if, as of the Test Date
for such Start Date the applicable condition set forth in clause (A), (B), (C),
(D), (E), (F) or (G) below, as the case may be, is met:
(A) (x) in the case of Base Rate Loans, 1.25%, and (y) in
the case of Eurodollar Loans, 2.25%, if, but only if, as of the Test
Date for such Start Date the Leverage ratio for the Test Period ended
on such Test Date shall be greater than 6.5:1.0
(B) (x) in the case of Base Rate Loans, 1.00%, and (y) in
the case of Eurodollar Loans, 2.00%, if, but only if, as of the Test
Date for such Start Date the Leverage Ratio for the Test Period ended
on such Test Date shall be less than or equal to 6.5:1.0 and greater
than 6.0:1.0.
(C) (x) in the case of Base Rate Loans, 0.75%, and (y) in
the case of Eurodollar Loans, 1.75%, if, but only if, as of the Test
Date for such Start Date the Leverage Ratio for the Test Period ended
on such Test Date shall be less than or equal to 6.0:1.0 and greater
than 5.5:1.0;
(D) (x) in the case of Base Rate Loans, 0.50%, and (y)
in the case of Eurodollar Loans, 1.50%, if, and only if, as of the
Test Date for such Start Date the Leverage Ratio for the Test Period
ended on such Test Date shall be less than or equal to 5.5:1.0 and
greater than 5.0:1.0;
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(E) (x) in the case of Base Rate Loans, 0.25%, and (y)
in the case of Eurodollar Loans, 1.25%, if, but only if, as of the
Test Date for such Start Date the Leverage Ratio for the Test Period
ended on such Test Date shall be less than or equal to 5.0:1.0 but
greater than 4.5:1.0;
(F) (x) in the case of Base Rate Loans, 0%, and (y) in
the case of Eurodollar Loans, 1.00%, if, but only if, as of the Test
Date for such Start Date the Leverage Ratio for the Test Period ended
on such Test Date shall be less than or equal to 4.5:1.0 and greater
than 4.0:1.0; and
(G) (x) in the case of Base Rate Loans, 0%, and (y) in
the case of Eurodollar Loans, 0.75%, if, but only if, as of the Test
Date for such Start Date the Leverage Ratio for the Test Period ended
on such Test Date shall be less than 4.0:1.0.
Notwithstanding anything to the contrary contained above in this definition,
the Applicable Margin shall be a percentage per annum equal to (x) in the case
of Base Rate Loans, 1.25%, and (y) in the case of Eurodollar Loans, 2.25%, at
all times when a Default or an Event of Default shall exist.
"Asset Swapped Station" shall have the meaning provided in
Section 8.02(ix).
"Asset Target Station" shall have the meaning provided in
Section 8.02(ix).
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of Exhibit L
(appropriately completed).
"Assuming Bank" shall have the meaning provided in Section
1.14.
"Authorized Officer" of any Credit Party shall mean and
include the Chairman of the Board, the President, the Chief Executive Officer,
any Vice President, the Treasurer, the Secretary, any Assistant Secretary, any
Assistant Treasurer, the Chief Financial Officer or the Controller of such
Credit Party or any other officer of such Credit Party which is designated in
writing to the Administrative Agent and the Issuing Bank by any of the
foregoing officers of such Credit Party as being authorized to give such
notices under this Agreement.
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"Available Revolving Loan Commitment" for any Bank shall mean,
at any time, the Revolving Loan Commitment of such Bank as then in effect less
such Bank's RL Percentage of the amount of the Blocked Commitment, if any, at
such time.
"Bank" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Bank" hereunder pursuant to
Sections 1.13 and 12.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.03(c) or (ii) a Bank
having notified in writing the Borrower and/or the Administrative Agent that it
does not intend to comply with its obligations under Section 1.01 or 2, in the
case of either clause (i) or (ii), as a result of any takeover of such Bank by
any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1%
in excess of the Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan designated or deemed
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"BBOC Disposition" shall mean the sale by Parent of 100% of
the issued and outstanding capital stock of Bryan Broadcasting Operating
Company, Inc. pursuant to the Stock Purchase Agreement, among Parent, William
R. Hicks and Ben Downs (the "BBOC Stock Purchase Agreement"), which shall be in
form and substance satisfactory to the Administrative Agent.
"BBOC Stock Purchase Agreement" shall have the meaning
provided in the definition of BBOC Disposition.
"Blocked Commitment" shall mean for the period from and
including the date of the sale or disposition of any asset or Recovery Event
resulting in a temporary reduction of the Total Revolving Loan Commitment
pursuant to Section 4.02(e) or (g) through but not including the date on which
all or a part of the net sale proceeds or Reinvestment Amount, as applicable,
for such asset are reinvested pursuant to such Section, as applicable, the
amount of net sale proceeds or proceeds from a Recovery Event, as applicable.
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"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan from
all the Banks on a pro rata basis on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurodollar Loans
the same Interest Period, provided that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of the related Borrowing of Eurodollar
Loans.
"Broadcast Cash Flow" shall mean, with respect to any Station
during any period, the sum of (x) EBITDA of such Station for such period and
(y) corporate overhead expense allocated to such Station for such period
adjusted, as applicable, for Cost Savings Measures; it being understood that
the Broadcast Cash Flow of any Person shall mean the total Broadcast Cash Flow
of all Stations owned by such Person.
"BTCo" shall mean Bankers Trust Company in its individual
capacity.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) above and which is also a day
for trading by and between banks in the New York interbank Eurodollar market.
"Calculation Period" shall mean the Test Period most recently
ended on or prior to the date that any determination is required to be made
hereunder on a Pro Forma Basis.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures (excluding barter transactions effected in the ordinary course
of business consistent with past practices) by such Person which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
GAAP) and the amount of Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under GAAP, are or will be required to be capitalized
on the books of such Person, in each case taken at the amount thereof accounted
for as indebtedness in accordance with GAAP.
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"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having
maturities of not more than one year from the date of acquisition, (ii) time
deposits and certificates of deposit of any commercial bank having, or which is
the principal banking subsidiary of a bank holding company organized under the
laws of the United States, any State thereof, the District of Columbia or any
foreign jurisdiction having capital, surplus and undivided profits aggregating
in excess of $200,000,000, with maturities of not more than one year from the
date of acquisition by such Person, (iii) repurchase obligations with a term of
not more than 90 days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications
specified in clause (ii) above, (iv) commercial paper issued by any Person
incorporated in the United States rated at least A-1 or the equivalent thereof
by Standard & Poor's Ratings Group or at least P-1 or the equivalent thereof by
Moody's Investors Service, Inc. and in each case maturing not more than one
year after the date of acquisition by such Person, (v) investments in money
market funds substantially all of whose assets are comprised of securities of
the types described in clauses (i) through (iv) above and (vi) demand deposit
accounts maintained in the ordinary course of business.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time
to time, 42 U.S.C. Section 9601 et seq.
"Change of Ownership" shall mean (i) Parent shall cease to own
beneficially 100% of the capital stock (other than the Senior Exchangeable
Preferred Stock) of Holdings; (ii) Holdings shall cease to own beneficially
100% of the capital stock of the Borrower; (iii) if the HM Group shall cease to
have the power, directly or indirectly, to vote or direct the voting of
securities having a majority of the ordinary voting power for the election of
directors of Parent, provided that the occurrence of the foregoing event shall
not be deemed a "Change of Ownership" if (A) at any time prior to the
consummation of an Initial Public Offering, (1) the HM Group otherwise have the
right to designate (and do so designate) a majority of the board of directors
of Parent or (2) the HM Group own of record and beneficially an amount of
common stock of Parent equal to at least 50% of the amount of common stock of
Holdings (adjusted for stock splits, stock dividends and other similar events
on an equitable basis) owned by the HM
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Group of record and beneficially as of the Restatement Effective Date and such
ownership by the HM Group represents the largest single block of voting
securities of Parent held by any "person" or "group" for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or (B) at any time after the consummation of an Initial Public Offering, (1) no
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), excluding the HM Group, shall become the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of more than the greater of (x) 15% of the then outstanding Voting
Stock of Parent and (y) the percentage of the then outstanding Voting Stock of
Parent owned by the HM Group and (2) the board of directors of Parent shall
consist of a majority of Continuing Directors; (iv) HM Group (excluding R.
Steven Hicks) shall own beneficially fewer shares of outstanding common stock
of Parent than R. Steven Hicks; or (v) a "Change of Control" under and as
defined in the Existing Senior Note Indenture or the Existing Senior
Subordinated Note Indenture, the New Senior Subordinated Note Indenture or the
Subordinated Exchange Debenture Indenture shall have occurred.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder. Section references to the Code are to the Code, as in
effect at the Effective Date, and to any subsequent provision of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement Collateral,
all Mortgaged Properties and all cash and Cash Equivalents delivered as
collateral pursuant to Section 4.02 or Section 9 hereof and all Additional
Collateral, if any (all of which shall in any event exclude any interest in the
FCC Licenses to the extent prohibited by applicable law).
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Commitment" shall mean any of the commitments of any Bank,
i.e., whether the Term Loan Commitment or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a)(ii).
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"Communications Act" shall have the meaning provided in
Section 6.23.
"Consolidated Broadcast Cash Flow" shall mean, for any period,
the Broadcast Cash Flow of Parent and its Consolidated Subsidiaries determined
on a consolidated basis in accordance with GAAP during such period.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP plus the Total
Unutilized Revolving Loan Commitment at such time.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP at such
time, but excluding (i) the current portion of any Indebtedness under this
Agreement and any other long-term Indebtedness which would otherwise be
included therein, (ii) accrued but unpaid interest with respect to the
Indebtedness described in clause (i), and (iii) the current portion of
Capitalized Lease Obligations.
"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP, before Consolidated
Net Interest Expense and provision for taxes and without giving effect to any
extraordinary gains or losses or gains or losses from sales of assets other
than inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, (I) plus, without duplication and to the extent deducted
from Consolidated EBIT for such period, the sum of (a) depreciation and
amortization expense, (b) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (c) non-cash charges in respect
of pension and retiree benefits, (d) the amount resulting from Cost Savings
Measures and (e) any other non-cash charges, and (II) minus the total
consolidated cash interest income for such period.
"Consolidated Indebtedness" shall mean, at any time, the sum
of the aggregate outstanding principal amount of all Indebtedness for borrowed
money, and the principal component of Capitalized Lease Obligations of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Cash Interest Expense" shall mean, for any
period, the total consolidated cash interest expense of the Borrower and its
Consolidated Subsidiaries
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determined on a consolidated basis in accordance with GAAP for such period
plus, without duplication, that portion of Capitalized Lease Obligations of
Holdings and its Consolidated Subsidiaries representing the interest factor for
such period in each case net of the total consolidated cash interest income of
the Borrower and its Consolidated Subsidiaries for such period.
"Consolidated Net Income" shall mean, for any period, net
after tax income of the Borrower and its Consolidated Subsidiaries determined
on a consolidated basis in accordance with GAAP, minus the amount of Dividends
paid by the Borrower pursuant to Section 8.03(ii); provided, that any non-cash
expenses attributable to grants or exercises of employee stock options shall
not be included in the determination of Consolidated Net Income.
"Consolidated Net Interest Expense" shall mean, for any
period, the total consolidated interest expense of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP for such period (calculated without regard to any limitations on the
payment thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP representing the interest factor for
such period in each case net of the total consolidated cash interest income of
the Borrower and its Consolidated Subsidiaries for such period, but excluding
the amortization of any deferred financing costs incurred in connection with
this Agreement.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv)
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otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made (or, if less, the maximum amount of such primary obligation for which
such Person may be liable pursuant to the terms of the instrument evidencing
such Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of Parent on
the date which occurs six months prior to the consummation of an Initial Public
Offering and each other director, if such director's nomination for election to
the Board of Directors of Parent is recommended by a majority of the then
Continuing Directors or any other nominee of the HM Group.
"Cost Savings Measures" shall mean cost savings resulting from
employee terminations, facilities consolidations and closings, standardization
of employee benefits and compensation practices, consolidation of property,
casualty and other insurance coverage and policies, standardization of sales
representation commissions and other contract rates, and reductions in taxes
other than income taxes, which cost savings the Borrower reasonably believes in
good faith would have been achieved during the Test Period as a result of such
asset acquisitions (regardless of whether such cost savings could then be
reflected in pro forma financial statements under GAAP), provided that both (A)
such cost savings and cost savings measures were identified and such cost
savings were quantified in an officers' certificate delivered to the
Administrative Agent at the time of the consummation of the asset acquisition
and (B) with respect to each asset acquisition completed prior to the 90th day
preceding such date of determination, actions were commenced or initiated by
the Borrower or its Subsidiaries within 90 days of such asset acquisition to
effect the cost savings measures identified in such officers' certificate
(regardless, however, of whether the corresponding cost savings were ultimately
achieved).
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Security Document and the Subsidiary Guaranty.
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"Credit Event" shall mean the making of any Loan (but shall
not include conversions or continuations of existing Loans) or the issuance of
any Letter of Credit.
"Credit Party" shall mean each Parent Guarantor, the Borrower
and each Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Disqualified Capital Stock" shall mean 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 (i) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the first anniversary of
the Final Maturity Date, or (ii) is convertible into or exchangeable (unless at
the sole option of the issuer thereof) for (a) debt securities or (b) any
capital stock referred to in (i) above, in each case at any time prior to the
first anniversary of the Final Maturity Date.
"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than common stock of such Person) or cash to its
stockholders as such, or redeemed, retired, purchased or otherwise acquired,
directly or indirectly, for consideration any shares of any class of its
capital stock outstanding on or after the Restatement Effective Date (or any
options or warrants issued by such Person with respect to its capital stock),
or set aside any funds for any of the foregoing purposes, or shall have
permitted any of its Subsidiaries to purchase or otherwise acquire for
consideration any shares of any class of the capital stock of such Person
outstanding on or after the Restatement Effective Date (or any options or
warrants issued by such Person with respect to its capital stock).
"Documentation Agent" shall mean The Bank of New York in its
capacity as Documentation Agent for the Banks hereunder.
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"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Drawing" shall have the meaning provided in Section 2.04(b).
"EBIT" shall mean, for any period, net after tax income of any
Person before Net Interest Expense and provision for taxes and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"EBITDA" shall mean, for any period, EBIT, adjusted by adding
thereto the amount of all amortization of intangibles and depreciation that
were deducted in arriving at EBIT for such period.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution, any fund that invests in bank loans or other
institutional "accredited investor" (as defined in Regulation D of the
Securities Act).
"Employee Stock Option Plan" shall mean the Capstar
Broadcasting Corporation 1997 Employee Stock Option Plan, as amended, and any
plan entered into after the Restatement Effective Date, for the compensation of
management of Parent or any of its Subsidiaries, or any arrangement for the
benefit of management of Parent or any of its Subsidiaries, provided that such
plan is in form and substance reasonably acceptable to the Administrative
Agent.
"Employment Agreements" shall have the meaning provided in
Section 5.05.
"End Date" shall mean, for any Margin Reduction Period, the
last day of such Margin Reduction Period.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
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indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment
due to the presence of Hazardous Materials.
"Environmental Law" means any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial
or administrative order, consent decree or judgment, relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act
of 1990, 33 U.S.C. Section 2701 et seq.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq., the
Hazardous Material Transportation Act, 49 U.S.C. Section 1801 et seq. and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; and any
state and local or foreign counterparts or equivalents, in each case as amended
from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with Parent or any Subsidiary of Parent
would be deemed to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean each Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean the offered quotation to
first-class banks in the New York interbank Eurodollar market by BTCo for
Dollar deposits of amounts in immediately available funds comparable to the
outstanding principal amount of the Eurodollar Loan of BTCo with maturities
comparable to the Interest Period applicable to such Eurodollar Loan commencing
two Business Days thereafter as of 10:00 A.M. (New York time) on the date which
is two Business Days prior to the commencement of such Interest Period, divided
(and rounded upward to the nearest 1/16 of 1%) by a
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percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section
9.
"Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) Adjusted Consolidated Net Income for such period and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Capital Expenditures made by the Borrower and its Subsidiaries on a
consolidated basis during such period pursuant to and in accordance with
Section 8.07(a) and (b), except to the extent financed with the proceeds of
Indebtedness or pursuant to Capitalized Lease Obligations, (ii) the aggregate
amount of permanent principal payments of Indebtedness for borrowed money of
the Borrower and the permanent repayment of the principal component of
Capitalized Lease Obligations of the Borrower and its Subsidiaries (excluding
(1) payments with proceeds of issuances of Indebtedness or equity or with
proceeds of asset sales or insurance recovery and condemnation events and (2)
payments of Loans or other Obligations, provided that repayments of Loans shall
be deducted in determining Excess Cash Flow if such repayments were (x)
required as a result of a Scheduled Term Loan Repayment under Section 4.02(b)
(but not as a reduction to the amount of Scheduled Term Loan Repayments
pursuant to another provision of this Agreement) or (y) made as a voluntary
prepayment pursuant to Section 4.01 with internally generated funds (but in the
case of a voluntary prepayment of Revolving Loans, only to the extent
accompanied by a voluntary reduction to the Total Revolving Loan Commitment))
during such period, (iii) the increase, if any, in Adjusted Consolidated
Working Capital from the first day to the last day of such period and (iv) the
amount of all expenses (including expenses incurred in connection with
acquisitions) that have been paid during such period to the extent that such
expenses have been capitalized in accordance with GAAP but only to the extent
that the payment thereof does not otherwise reduce Adjusted Consolidated Net
Income.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending December 31, 1998).
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"Excess Cash Payment Period" shall mean with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Banks" shall mean each Bank under, and as defined
in, the Existing Credit Agreement.
"Existing Credit Agreement" shall have the meaning provided in
the first Whereas clause of this Agreement.
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(d).
"Existing Mortgage Policies" shall mean the "Mortgage
Policies" under, and as defined in, the Existing Credit Agreement.
"Existing Mortgaged Properties" shall mean all Real Property
of Parent and its Subsidiaries listed on Part A of Schedule III and designated
as "Existing Mortgage Properties" therein.
"Existing Mortgages" shall mean all "Mortgages" (as defined in
the Existing Credit Agreement) and "Additional Mortgages" (as defined in the
Existing Credit Agreement) granted by Parent and its Subsidiaries pursuant to
the Existing Credit Agreement which have not been released by the lenders
thereunder prior to the Restatement Effective Date.
"Existing Revolving Loans" shall mean the "Revolving Loans"
under, and, as defined in, the Existing Credit Agreement.
"Existing Senior Note Documents" shall mean each of the
documents and other agreements entered into (including, without limitation, the
Existing Senior Note Indenture) relating to the issuance by Holdings of the
Existing Senior Notes, as in effect on the Restatement Effective Date and as
the same may be amended, modified or supplemented from time to time pursuant to
the terms hereof and thereof.
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"Existing Senior Note Indenture" shall mean that certain
Indenture, dated as of February 20, 1997, between Holdings and U.S. Trust
Company of Texas N.A., as Trustee, as in effect on the Restatement Effective
Date and as the same may be amended, modified, extended, renewed, replaced,
restated or supplemented from time to time pursuant to the terms thereof and
hereof.
"Existing Senior Notes" shall mean Holdings' 12 3/4% senior
discount notes due 2009.
"Existing Senior Subordinated Note Documents" shall mean and
include each of the documents and other agreements entered into (including,
without limitation, the Existing Senior Subordinated Note Indenture) relating
to the issuance by the Borrower of the Existing Senior Subordinated Notes, as
in effect on the Restatement Effective Date and as the same may be entered
into, modified, supplemented or amended from time to time pursuant to the terms
hereof and thereof.
"Existing Senior Subordinated Note Indenture" shall mean that
certain indenture, dated as of April 21, 1995, among the Borrower, as issuer,
Commodore Media of Delaware, Inc., Commodore Media of Pennsylvania, Inc.,
Commodore Media of Florida, Inc., Commodore Media of Kentucky, Inc., Commodore
Media of Norwalk, Inc., and Commodore Media of Westchester, Inc., as
guarantors, and IBJ Schroder Bank & Trust Company, as Trustee, as in effect on
the Restatement Effective Date and as the same may be amended, modified,
extended, renewed, replaced, restated or supplemented from time to time
pursuant to the terms thereof and hereof.
"Existing Senior Subordinated Notes" shall mean the Borrower's
13 1/4% Senior Subordinated Notes due 2003, issued pursuant to the Existing
Senior Subordinated Note Indenture.
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"FCC" shall mean the Federal Communications Commission, or any
successor thereto.
"FCC Licenses" shall have the meaning provided in Section
6.23.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by
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Federal Funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal Funds brokers of
recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Final Maturity Date" shall mean August 1, 2004
"GAAP" shall have the meaning provided in Section 12.07(a).
"Guaranteed Obligations" shall mean all obligations of the
Borrower (i) to each Bank for the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of the principal and
interest on each Note issued by the Borrower to such Bank, and Loans made,
under the Credit Agreement and all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit, together with all the other
obligations and liabilities (including, without limitation, indemnities, fees
and interest thereon) of the Borrower to such Bank now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement or
any other Credit Document and the due performance and compliance with all the
terms, conditions and agreements contained in the Credit Documents by the
Borrower and (ii) to each Bank and each Affiliate of a Bank which enters into
an Interest Rate Protection Agreement with the Borrower, which by its express
terms are entitled to the benefit of the Parents Guaranty pursuant to Section
13 with the written consent of the Borrower, the full and prompt payment when
due (whether by acceleration or otherwise) of all obligations of the Borrower
owing under any such Interest Rate Protection Agreement, whether now in
existence or hereafter arising, and the due performance and compliance with all
terms, conditions and agreements contained therein.
"Guarantor" shall mean and include each Parent Guarantor and
each Subsidiary Guarantor.
"Guaranty" shall mean and included each of the Parents
Guaranty, the Subsidiary Guaranty, and any guaranty executed pursuant to
Section 7.13.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea
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formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority.
"HM Group" shall mean, collectively, (i) Hicks, Muse, Tate &
Furst Incorporated, its Affiliates and R. Steven Hicks taken as a whole, (ii)
so long as Hicks, Muse, Tate & Furst Incorporated, its Affiliates and R. Steven
Hicks taken as a whole possess sole voting right with respect to the Voting
Stock held by each such individual, such individuals who are or were employees,
officers, directors or partners of Hicks, Muse, Tate & Furst Incorporated or
such Affiliate and the family members of such individuals or trusts created for
the sole benefit of such family members and (iii) so long as Hicks, Muse, Tate
& Furst Incorporated, its Affiliates and R. Steven Hicks taken as a whole
possess sole voting right with respect to the Voting Stock of Parent held by
each such Person, any Person not otherwise described by clause (i) and (ii)
above, provided that the aggregate number of shares held by all such Persons in
accordance with this clause (iii) at any time shall not exceed 3% of the
aggregate number of shares held by the Persons described in clause (i) and (ii)
above at such time.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price
of property or services due more than 90 days after acquisition of the property
or receipt of services or which is otherwise represented by a note, (ii) the
maximum amount available to be drawn under all letters of credit issued for the
account of such Person and all unpaid drawings in respect of such letters of
credit, (iii) all Indebtedness of the types described in clause (i), (ii),
(iv), (v) or (vi) of this definition secured by any Lien on any property owned
by such Person, whether or not such Indebtedness has been assumed by such
Person (to the extent of the lesser of the amount of such Indebtedness and the
value of the respective property), (iv) Capitalized Lease Obligations, (v) all
Contingent Obligations of such Person and (vi) all obligations under any
Interest Rate Protection Agreement or under any similar type of
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agreement; provided, that Indebtedness shall not include trade payables and
accrued expenses, in each case arising in the ordinary course of business.
"Initial Term Loan Borrowing Date" shall mean the date upon
which the initial borrowing of Term Loans occurs hereunder.
"Initial Public Offering" means an underwritten public
offering of common stock of Parent pursuant to a registration statement filed
with the SEC in accordance with the Securities Act, which public equity
offering results in gross proceeds to Parent of not less than $50,000,000.
"Interest Coverage Ratio" shall mean, on the date of
determination thereof, the ratio of (x) Consolidated EBITDA for the Test Period
then most recently ended (taken as one accounting period) to (y) Consolidated
Net Cash Interest Expense for the Test Period then most recently ended (taken
as one accounting period).
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Issuing Bank" shall mean, BTCo and any Bank which at the
request of the Borrower and with the consent of the Administrative Agent
agrees, in such Bank's sole discretion, to become an Issuing Bank for the
purpose of issuing Letters of Credit pursuant to Section 2. The sole Issuing
Bank on the Restatement Effective Date is BTCo.
"L/C Supportable Obligations" shall mean obligations of Parent
or any of its Subsidiaries as are consistent with the policies of the
respective Issuing Bank and otherwise permitted to exist pursuant to the terms
of this Agreement, which shall include the posting of Letters of Credit to
provide assurance of performance in connection with acquisitions otherwise
permitted by Section 8.02.
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"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of, without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the amount of, without duplication, all Unpaid
Drawings in respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, on the date of determination
thereof, the ratio of (x) Consolidated Indebtedness on such date to (y)
Consolidated EBITDA for the Test Period then most recently ended (taken as one
accounting period).
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Limited Guaranty" shall mean the limited, unsecured and
unconditional guaranty provided by Parent of the obligations and liabilities of
any Non-Controlled Entity under its Non-Controlled Entity Credit Facility,
which guaranty shall be in form and substance satisfactory to the
Administrative Agent.
"Loan" shall mean each Term Loan and each Revolving Loan.
"Management Agreements" shall have the meaning provided in
Section 5.05.
"Managing Agent" shall mean BankBoston, N.A. in its capacity
as Managing Agent for the Banks hereunder.
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"Margin Reduction Period" shall mean each period which shall
commence on a date on which the financial statements are delivered pursuant to
Section 8.01(b) or Section 8.01(c), as the case may be, and which shall end on
the earlier of (i) the date of actual delivery of the next financial statements
pursuant to Section 8.01(b) or Section 8.01(c), as the case may be, and (ii)
the latest date on which the next financial statements are required to be
delivered pursuant to Section 8.01(b) or Section 8.01(c), as the case may be;
provided that the first Margin Reduction Period shall commence on the date of
delivery of the financial statements in respect of the fiscal quarter of the
Borrower ending on December 31, 1997.
"Margin Stock" shall have the meaning provided in Regulation
U.
"Market" shall mean a Metropolitan Statistical Area.
"Monitoring and Oversight Agreement" shall have the meaning
provided in Section 8.06(iv).
"Mortgage" shall mean mortgages, deeds of trust, leasehold
mortgages and leasehold deeds of trust granted in favor of the Collateral Agent
for the benefit of the respective Secured Creditors with respect to the
Mortgaged Properties, which mortgages, deeds of trust, leasehold mortgages and
leasehold deeds of trust are or shall be in a form which is satisfactory to the
Required Banks, with such changes as are necessary or desirable in the opinion
of local counsel to conform with applicable state law and procedure.
"Mortgage Amendment" shall have the meaning provided in
Section 5.10(a)(i).
"Mortgaged Properties" shall mean the Existing Mortgaged
Properties and the New Mortgaged Properties.
"Net Interest Expense" shall mean, for any period, the total
interest expense of any Person for such period (calculated without regard to
any limitations on the payment thereof) plus, without duplication, that portion
of Capitalized Lease Obligations of such Person representing the interest
factor for such period in each case net of the total consolidated cash interest
income of such Person for such period, but excluding the amortization of any
deferred financing costs incurred in connection with this Agreement.
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"Net Sale Proceeds" shall mean for any sale, lease, transfer
or other disposition of assets, the gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note, receivable
or otherwise, but only as and when received) received by Parent and/or any of
its Subsidiaries from such sale, lease, transfer or other disposition, net of
reasonable transaction costs (including, without limitation, any underwriting,
brokerage or other customary selling commissions and reasonable legal, advisory
and other fees and expenses, including title and recording expenses and
reasonable expenses incurred for preparing such assets for sale, associated
therewith) and payments of unassumed liabilities relating to the assets sold at
the time of, or within 30 days after, the date of such sale, the amount of such
gross cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Banks pursuant to this Agreement) which is secured by the
respective assets which were sold, and the estimated marginal increase in
income taxes which will be payable by Parent's consolidated group with respect
to the fiscal year in which the sale occurs as a result of such sale; but
excluding any portion of any such gross cash proceeds which Parent determines
in good faith should be reserved for post-closing adjustments (to the extent
Parent delivers to the Banks a certificate signed by an Authorized Officer as
to such determination), it being understood and agreed that on the day that all
such post-closing adjustments have been determined (which shall not be later
than six months following the date of the respective asset sale), the amount
(if any) by which the reserved amount in respect of such sale or disposition
exceeds the actual post-closing adjustments payable by Parent or any of its
Subsidiaries shall constitute Net Sale Proceeds on such date.
"New Mortgage" shall have the meaning provided in Section
5.10(b)(i) and, after the execution and delivery thereof, shall include each
Additional Mortgage delivered pursuant to Section 7.13.
"New Mortgaged Properties" shall have the meaning provided in
Section 5.10(b)(i) and after the execution and delivery thereof, shall include
each property covered by an Additional Mortgage.
"New Senior Subordinated Note Documents" shall mean and
include each of the documents and other agreements entered into (including,
without limitation, the New Senior Subordinated Note Indenture) relating to the
issuance by the Borrower of the New Senior Subordinated Notes, as in effect on
the Restatement Effective Date, and as the same may be modified, supplemented
or amended from time to time pursuant to the terms hereof and thereof.
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"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"New Senior Subordinated Note Indenture" shall mean that
certain indenture, dated as of June 17, 1997, among the Borrower, as issuer,
and US Trust Company of Texas, N.A., as Trustee, as in effect on the
Restatement Effective Date and as the same may be amended, modified, extended,
renewed, replaced, restated or supplemented from time to time pursuant to the
terms thereof and hereof.
"New Senior Subordinated Notes" shall mean the New Series A
Senior Subordinated Notes and any New Series B Senior Subordinated Notes issued
in exchange therefor in accordance with the terms of the New Senior
Subordinated Note Indenture.
"New Series A Senior Subordinated Notes" shall mean the
Borrower's 9-1/4% Series A Senior Subordinated Notes due 2007, issued pursuant
to the New Senior Subordinated Note Indenture.
"New Series B Senior Subordinated Notes" shall mean the
Borrower's 9-1/4% Series B Senior Subordinated Notes due 2007, issued pursuant
to the New Senior Subordinated Note Indenture.
"Non-Controlled Entity" shall mean any Person in which the
Borrower or any Wholly-Owned Subsidiary of the Borrower shall own up to 33-1/3%
of the economic interest and 0% of the voting interest and which shall be
designated as a "Non-Controlled Entity" at time of the investment therein by
the Borrower or such Wholly-Owned Subsidiary. Each such designation shall be
evidenced by delivering to the Administrative Agent an officers' certificate of
an Authorized Officer of the Borrower certifying that the foregoing conditions
have been complied with.
"Non-Controlled Entity Credit Facility" shall mean the credit
agreement entered into by any Non- Controlled Entity for the purpose of raising
proceeds to purchase assets from the Borrower or any Wholly-Owned Subsidiary of
the Borrower, which shall be in form and substance satisfactory to the
Administrative Agent.
"Non-Defaulting Bank" shall mean and include each Bank which
is not a Defaulting Bank.
"Note" shall mean each Term Note and each Revolving Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
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"Notice Office" shall mean the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006, Attention:
David Bell, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent or any Bank pursuant to the terms of
this Agreement or any other Credit Document.
"Other Agents" shall mean each of the Managing Agent, the
Syndication Agent and the Documentation Agent.
"Parent" shall have the meaning provided in the first
paragraph of this Agreement.
"Parent Common Stock" shall have the meaning provided in
Section 6.13(a).
"Parent Guarantors" shall mean and include each of Parent and
Holdings.
"Parent Note" shall mean each promissory note, in the form of
Exhibit M, evidencing the intercompany Loans and advances made by Parent
pursuant to Section 8.05(xix).
"Parents Guaranty" shall mean the guaranty of the Parent
Guarantors pursuant to Section 13.
"Participant" shall have the meaning provided in Section
2.03(a).
"Patterson Acquisition" shall mean the acquisition of all
outstanding preferred stock, common stock and common stock equivalents of
Patterson Broadcasting, Inc. pursuant to the terms of the Patterson Stock
Purchase Agreement.
"Patterson Stock Purchase Agreement shall mean that certain
Stock Purchase Agreement, dated as of June 12, 1997, by and among Capstar
Acquisition Company, Inc., Capstar Broadcasting Partners, Inc., Patterson
Broadcasting, Inc. and the selling shareholders named therein, as the same may
be amended, modified or supplemented from time to time pursuant to the terms
thereof and hereof.
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"Payment Office" shall mean the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006, Attention:
Anita Manglani or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto, all of
which exceptions must be acceptable to the Administrative Agent in its
reasonable discretion.
"Permitted Issuance" shall mean (a) the issuance by Parent of
options or other equity securities (including as a result of the exercise of
any options with regard thereto) of Parent to outside directors, members of
management or employees of Parent or any Subsidiary of Parent, (b) the issuance
of securities as interest or dividends on pay-in-kind debt or preferred equity
securities permitted hereunder and under the other Credit Documents and (c) the
issuance to Parent or any Subsidiary of Parent (or any director, with respect
to directors' qualifying shares) by any of its Subsidiaries of any of their
respective capital stock (other than in the case of capital contributions made
by Parent to Holdings with the proceeds received by Parent in respect of
payments made on any Parent Note as required by Section 8.05(xix)), in each
case with respect to this clause (c) to the extent such capital stock is
pledged to the Collateral Agent pursuant to the applicable Pledge Agreement
(provided that only 65% of the voting capital stock of a foreign Subsidiary of
Parent is required to be so pledged).
"Permitted Liens" shall have the meaning provided in Section
8.01.
"Permitted Section 8.02(xiii) Acquisition" shall have the
meaning provided in Section 8.02(xiii).
"Person" shall mean any individual, partnership, joint
venture, limited liability company, firm, corporation, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan,
as defined in Section 4001 of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), Parent or a Subsidiary
of Parent or an ERISA Affiliate,
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and each such plan for the five year period immediately following the latest
date on which Parent, a Subsidiary of Parent or an ERISA Affiliate maintained,
contributed or had an obligation to contribute to such plan.
"Pledge Agreement" shall mean have the meaning provided in
Section 5.08.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in the Pledge Agreement.
"Pledged Securities" shall mean "Pledged Securities" as
defined in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other
loans at rates of interest at, above or below the Prime Lending Rate.
"Prior Acquisition or Sale" shall mean the acquisition of any
radio station or 100% of the capital stock of any Person that owns radio
stations or the sale of any radio station or Subsidiary, in each case, which
was consummated prior to the Restatement Effective Date.
"Pro Forma Basis" shall mean, in connection with any
calculation of compliance with any financial covenant or financial term
required to be determined on a Pro Forma Basis, the calculation thereof after
giving effect on a pro forma basis to (v) to the extent the Patterson
Acquisition occurred after the first day of the relevant Calculation Period,
the Patterson Acquisition as if the same had occurred on the first day of the
relevant period, (w) any Prior Acquisition or Sale that occurred after the
first day of the relevant Calculation Period as if same had occurred on the
first day of such period, (x) the assumption, incurrence or issuance of any
Indebtedness or capital stock (other than revolving Indebtedness, except to the
extent same is incurred to refinance other outstanding Indebtedness or to
finance Stock Swaps, Station Swaps or Permitted Section 8.02(xiii)
Acquisitions) after the first day of the relevant Calculation Period as if such
Indebtedness had been incurred or capital stock issued (and the proceeds
thereof applied) on the first day of the relevant Calculation Period, (y) the
permanent repayment of any Indebtedness (other than revolving Indebtedness
(except to the extent accompanied by a
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permanent commitment reduction)) and any Term Loan Scheduled Repayment after
the first day of the relevant Calculation Period as if such Indebtedness had
been retired or redeemed on the first day of the relevant Calculation Period
and (z) the Stock Swap, Station Swap, Permitted Section 8.02(xiii) Acquisition
or sale of any radio station or Subsidiary, if any, then being consummated as
well as any other Stock Swap, Station Swap, Permitted Section 8.02(xiii)
Acquisition or sale of any radio station or Subsidiary consummated after the
first day of the relevant Calculation Period and on or prior to the date of the
respective Stock Swap, Station Swap, Permitted Section 8.02(xiii) Acquisition
or sale of any radio station or Subsidiary then being effected as if such Stock
Swaps, Station Swaps, Permitted Section 8.02(xiii) Acquisitions or sale of any
radio station or Subsidiary had occurred on the first day of the relevant
Calculation Period, with the following rules to apply in connection therewith:
(i) all Indebtedness and capital stock (x) (other than
revolving Indebtedness, except to the extent same is incurred to
refinance other outstanding Indebtedness, or to finance the Patterson
Acquisition, Permitted Section 8.02(xiii) Acquisitions, Stock Swaps or
Station Swaps) assumed, incurred or issued after the first day of the
relevant Calculation Period (whether incurred to finance the Patterson
Acquisition, a Stock Swap, Station Swap or Permitted Section
8.02(xiii) Acquisition, to refinance Indebtedness or otherwise) shall
be deemed to have been incurred or issued (and the proceeds thereof
applied) on the first day of the respective Calculation Period and
remain outstanding through the date of determination and (y) (other
than revolving Indebtedness (except to the extent accompanied by a
permanent commitment reduction)) permanently retired or redeemed after
the first day of the relevant Calculation Period shall be deemed to
have been retired or redeemed on the first day of the respective
Calculation Period and remain retired through the date of
determination;
(ii) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest at (x) the
rate applicable thereto, in the case of fixed rate indebtedness or (y)
the rates which would have been applicable thereto during the
respective period when same was deemed outstanding, in the case of
floating rate Indebtedness (although interest expense with respect to
any Indebtedness for periods while same was actually outstanding
during the respective period shall be calculated using the actual
rates applicable thereto while same was actually outstanding); and
(iii) in making any determination of Consolidated EBITDA,
pro forma effect shall be given to the Patterson Acquisition, any
Prior Acquisition or Sale,
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any Stock Swap, any Station Swap, any Permitted Section 8.02(xiii)
Acquisition or sale of any radio station or Subsidiary for the periods
described above, taking into account, in the case of the Patterson
Acquisition, any Permitted Section 8.02(xiii) Acquisition, Prior
Acquisition or Sale (only with respect to such acquisition, if any),
Station Swap or Stock Swap, any Cost Savings Measures which are
directly attributable to the Patterson Acquisition, such Permitted
Section 8.02(xiii) Acquisition, Prior Acquisition or Sale (only with
respect to such acquisition, if any) Station Swap or Stock Swap, as if
such Cost Savings Measures were realized on the first day of the
respective period.
"Projections" shall have the meaning provided in Section
6.05(d).
"Qualified Capital Stock" shall mean any capital stock that
is not Disqualified Capital Stock.
"Quarterly Payment Date" shall mean the last Business Day of
each March, June, September and December occurring after the Restatement
Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Recovery Event" shall mean the receipt by Parent or any of
its Subsidiaries of any (i) cash insurance proceeds payable (x) by reason of
theft, loss, physical destruction or damage or any other similar event with
respect to any property or assets of Parent or any of its Subsidiaries and (y)
under any policy of insurance required to be maintained under Section 7.03 or
(ii) condemnation award payable by reason of eminent domain or deed in lieu
thereof.
"Register" shall have the meaning set forth in Section 12.17.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
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"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Reinvestment Assets" shall have the meaning provided in
Section 4.02(e).
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, pouring and the like, into or upon any land or water or air, or
otherwise entering into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks, the sum of
whose outstanding Term Loans (or, if prior to the Term Loan Availability
Termination Date, Term Loan Commitments and then outstanding Term Loans of such
Non- Defaulting Banks) and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and Adjusted RL Percentage of Letter of
Credit Outstandings) represent an amount greater than 50% of the sum of all
outstanding Term Loans (or, if prior to the Term Loan Availability Termination
Date, Term Loan Commitments and all then
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outstanding Term Loans of all Non-Defaulting Banks) of Non-Defaulting Banks and
the Adjusted Total Revolving Loan Commitment (or after the termination thereof,
the sum of the then total outstanding Revolving Loans of Non-Defaulting Banks
and the aggregate Adjusted RL Percentages of all Non-Defaulting Banks of Letter
of Credit Outstandings at such time).
"Restatement Effective Date" shall have the meaning provided
in Section 12.10.
"Returns" shall have the meaning provided in Section 6.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(b).
"Revolving Loan Commitment" shall mean for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment", as same may be (x) reduced
from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 12.04(b).
"Revolving Loan Commitment Commission" shall have the meaning
provided in Section 3.01(a)(i).
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"RKZ Asset Purchase Agreement" shall mean that certain asset
purchase agreement, dated as of June 3, 1997, by and between Flagship
Broadcasting Corporation and RKZ Television, Inc., as the same may be amended,
modified or supplemented from time to time pursuant to the terms thereof and
hereof.
"RKZ Disposition" shall mean the disposition of the RKZ
television station and related assets pursuant to, and in accordance with, the
terms of the RKZ Asset Purchase Agreement.
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined
immediately prior (and without giving effect) to such termination.
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"Scheduled Revolving Loan Commitment Reduction" shall have
the meaning provided in Section 3.03(b).
"Scheduled Revolving Loan Commitment Reduction Date" shall
have the meaning provided in Section 3.03(b).
"Scheduled Term Loan Repayment" shall have the meaning
provided in Section 4.02(b).
"Scheduled Term Loan Repayment Date" shall have the meaning
provided in Section 4.02(b).
"SEC" shall have the meaning provided in Section 7.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
"Secured Creditors" shall have the meaning assigned that term
in the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in
Section 5.09.
"Security Agreement Collateral" shall mean all "Collateral"
as defined in the Security Agreement (which shall in any event exclude any
interests in the FCC Licenses to the extent prohibited or ineffectual under
applicable law).
"Security Document" shall mean and include the Pledge
Agreement, the Security Agreement, each Mortgage and, after the execution and
delivery thereof, each Additional Mortgage and each Additional Security
Document required to be delivered pursuant to Section 7.13.
"Senior Exchangeable Preferred Stock" shall mean Holdings'
12% Senior Exchangeable Preferred Stock due 2009.
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"Senior Exchangeable Preferred Stock Documents" shall mean
each document delivered pursuant to the issuance of the Senior Exchange
Preferred Stock or in connection therewith (including, but not limited to, the
Subordinated Exchange Debenture Indenture and all documents relating thereto),
which shall be in form and substance satisfactory to the Administrative Agent,
as in effect on the Restatement Effective Date and as the same may be modified,
supplemented or amended from time to time pursuant to the terms hereof and
thereof.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.05.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Start Date" shall mean, with respect to any Margin Reduction
Period, the first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Station Swap" shall have the meaning provided in Section
8.02(ix).
"Stations" shall mean and include (i) all of the radio
stations owned and operated by Parent and its Subsidiaries on the Restatement
Effective Date, (ii) any radio stations acquired after the Restatement
Effective Date.
"Stock Swapped Station" shall have the meaning provided in
Section 8.02(ix).
"Stock Swaps" shall have the meaning provided in Section
8.02(ix).
"Stock Target Station" shall have the meaning provided in
Section 8.02(ix).
"Subordinated Exchange Debentures" shall mean Holdings'
Subordinated Notes due 2009 issued pursuant to the Subordinated Exchange
Debenture Indenture.
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"Subordinated Exchange Debenture Indenture" shall mean that
certain indenture, dated as of the date of issuance of the Subordinated
Exchange Debentures, by and between Holdings and U.S. Trust Company of Texas,
N.A., as trustee, which shall be in form and substance satisfactory to the
Administrative Agent.
"Subordinated Notes" shall mean and include the Existing
Senior Subordinated Notes, the New Senior Subordinated Notes and, after the
issuance thereof, the Subordinated Exchange Debentures.
"Subsidiary" shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, association,
joint venture or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean any Subsidiary of Parent
that is or becomes a party to the Subsidiary Guaranty.
"Subsidiary Guaranty" shall have the meaning provided in
Section 5.07.
"Supermajority Banks" shall mean Non-Defaulting Banks the sum
of whose outstanding Term Loans (and, if prior to the Term Loan Availability
Termination Date, Term Loan Commitments and then outstanding Term Loans of such
Non- Defaulting Banks) represent an amount greater than 66-2/3% of all
outstanding Term Loans (and, if prior to the Term Loan Availability Termination
Date, Term Loan Commitments and all then outstanding Term Loans of all
Non-Defaulting Banks) of Non-Defaulting Banks.
"Swapped Station" shall have the meaning provided in Section
8.02(ix).
"Syndication Agent" shall mean NationsBank of Texas, N.A., in
its capacity as Syndication Agent for the Banks hereunder.
"Syndication Date" shall mean that date upon which the
Administrative Agent determines in its sole discretion (and notifies the
Borrower) that the primary syndication (and resultant addition of institutions
as Banks pursuant to Section 12.04) has been completed.
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"Target Station" shall have the meaning provided in Section
8.02(ix).
"Tax Sharing Agreement" shall have the meaning provided in
Section 5.05.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall have the meaning provided in Section
1.01(a).
"Term Loan Assumption Agreement" shall mean and include each
Term Loan Assumption Agreement in the form of Exhibit C hereto executed in
accordance with Section 1.14 hereof.
"Term Loan Assumption Date" shall mean each date (which in no
event shall occur after December 31, 1998) on which one or more Term Loan
Assumption Agreements are delivered to the Administrative Agent pursuant to
Section 1.14 of this Agreement.
"Term Loan Availability Termination Date" shall mean December
31, 1998.
"Term Loan Borrowing Date" shall mean and include each of the
Initial Term Loan Borrowing Date and such other date upon which a Borrowing of
Term Loans occurs hereunder.
"Term Loan Commitment" shall mean, with respect to each Bank,
initially zero, as same may be (x) increased pursuant to Section 1.14, (y)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (z)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.12 or 12.04(b).
"Term Loan Commitment Commission" shall have the meaning
provided in Section 3.01(a)(ii).
"Term Note" shall have the meaning provided in Section
1.05(a).
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"Test Date" shall mean, with respect to any Start Date, the
last day of the most recent fiscal quarter of the Borrower ended immediately
prior to such Start Date.
"Test Period" shall mean the four consecutive fiscal quarters
then last ended (taken as one accounting period).
"Total Available Revolving Loan Commitment" shall mean, at
any time, the Total Revolving Loan Commitment less the Blocked Commitment, if
any, at such time.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time,
the sum of the Revolving Loan Commitments of each of the Banks.
"Total Supermajority Banks" shall mean Non-Defaulting Banks
the sum of whose outstanding Term Loans (and, if prior to the Term Loan
Availability Termination Date, Term Loan Commitments and then outstanding Term
Loans of such Non-Defaulting Banks) and Revolving Loan Commitments (or after
the termination thereof, outstanding Revolving Loans and Adjusted RL Percentage
of Letter of Credit Outstandings) represent an amount greater than 66-2/3% of
all outstanding Term Loans (and, if prior to Term Loan Availability Termination
Date, Term Loan Commitments and all then outstanding Term Loans of all
Non-Defaulting Banks) of Non-Defaulting Banks and the Adjusted Total Revolving
Loan Commitment (or after the termination thereof, the sum of the then total
outstanding Revolving Loans of Non-Defaulting Banks and the aggregate Adjusted
RL Percentages of all Non-Defaulting Banks of Letter of Credit Outstandings at
such time.)
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Term Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, the amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate principal amount of
Revolving Loans then outstanding plus the aggregate amount of Letter of Credit
Outstandings at such time.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
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"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being two separate Tranches,
i.e., Term Loans and Revolving Loans.
"Transaction" shall mean and include the amendment and
restatement of the Existing Credit Agreement, the execution and delivery of
this Agreement and related guaranties and security documents as provided herein
and the payment of fees and expenses in connection with the foregoing.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated benefits under the
Plan as of the close of its most recent plan year, determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets allocable
thereto, determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any
Bank, at any time, shall mean such Bank's Revolving Loan Commitment at such
time less the sum of (i) the aggregate outstanding principal amount of
Revolving Loans made by such Bank plus (ii) such Bank's Adjusted RL Percentage
of all Letter of Credit Outstandings at such time.
"Voting Stock" shall mean, as to any Person, any class or
classes of capital stock of such Person pursuant to which the holders thereof
have the general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors of such Person, or any class or classes of
capital stock convertible into such stock at the option of the holders thereof.
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"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time. Any
reference to a Wholly-Owned Subsidiary, unless expressly to a Wholly-Owned
Subsidiary of another Person, shall mean a Wholly-Owned Subsidiary of the
Borrower.
SECTION 11. The Administrative Agent.
11.01 Appointment. The Banks hereby designate BTCo as
Administrative Agent (for purposes of this Section 11, the term "Administrative
Agent" shall include BTCo in its capacity as Collateral Agent pursuant to the
Security Documents) to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to
or required of the Administrative Agent by the terms hereof and thereof and
such other powers as are reasonably incidental thereto. The Administrative
Agent may perform any of its duties hereunder by or through its respective
officers, directors, agents, employees or affiliates. The Managing Agent,
Syndication Agent and Documentation Agent shall have no duties or liabilities
in such capacities hereunder.
11.02 Nature of Duties. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. Neither the Administrative Agent nor
any of its respective officers, directors, agents, employees or affiliates
shall be liable for any action taken or omitted by it or them hereunder or
under any other Credit Document or in connection herewith or therewith, unless
caused by its or their gross negligence or willful misconduct. The duties of
the Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Bank or the holder
of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
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11.03 Lack of Reliance on the Agent. Independently and
without reliance upon the Administrative Agent, each Bank and the holder of
each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of Parent and its Subsidiaries in connection with the making and the
continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of
Parent and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Bank or the holder of
any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Bank or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectability, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of Parent and its Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Credit Document, or the financial
condition of Parent and its Subsidiaries or the existence or possible existence
of any Default or Event of Default.
11.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Banks;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, neither any Bank nor the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
11.05 Reliance. The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal
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matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by the
Administrative Agent.
11.06 Indemnification. To the extent the Administrative
Agent is not reimbursed and indemnified by the Borrower, the Banks will
reimburse and indemnify the Agent, in proportion to their respective
"percentages" as used in determining the Required Banks, for and against any
and all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent in
performing its respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's gross negligence or willful misconduct.
11.07 The Administrative Agent in Its Individual Capacity.
With respect to its obligation to make Loans under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for a
"Bank" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Banks," "Required Banks,"
"holders of Notes" or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to,
and generally engage in any kind of banking, trust or other business with any
Credit Party or any Affiliate of any Credit Party as if it were not performing
the duties specified herein, and may accept fees and other consideration from
the Borrower or any other Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.
11.08 Holders. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment, transfer or endorsement thereof, as
the case may be, shall have been filed with the Administrative Agent. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
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11.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Borrower and the Banks. Such
resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation, the Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been
so appointed within such 15 Business Day period, the Administrative Agent, with
the consent of the Borrower, shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required
Banks shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any, as
the Banks appoint a successor Administrative Agent as provided above.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White
& Case and local counsel) in connection with the preparation, execution and
delivery of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein and any amendment, waiver or consent
relating hereto or thereto, of the Administrative Agent in connection with its
syndication efforts with respect to this Agreement and of the Administrative
Agent and each of the Banks in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Administrative Agent and for each of
the Banks); (ii) pay and hold each of the Banks harmless from and against any
and all present and future stamp, excise and
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other similar taxes with respect to the foregoing matters and save each of the
Banks harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Bank) to pay such taxes; and (iii) indemnify the Administrative Agent, the
Collateral Agent and each Bank, and each of their respective officers,
directors, employees, representatives, agents and affiliates from and hold each
of them harmless against any and all liabilities, obligations (including
removal or remedial actions), losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements (including reasonable
attorneys' and consultants' fees and disbursements) incurred by, imposed on or
assessed against any of them as a result of, or arising out of, or in any way
related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not the Administrative Agent or any Bank or any of their
affiliates is a party thereto) related to the entering into and/or performance
of this Agreement or any other Credit Document or the use of any Letter of
Credit or the proceeds of any Loans hereunder or the consummation of any
transactions contemplated herein or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or subsurface of any
Real Property owned or at any time operated by Parent or any of its
Subsidiaries, the generation, storage, transportation, handling or disposal of
Hazardous Materials at any location, whether or not owned or operated by Parent
or any of its Subsidiaries, the non-compliance of any Real Property with
foreign, federal, state and local laws, regulations, and ordinances (including
applicable permits thereunder) applicable to any Real Property, or any
Environmental Claim asserted against Parent, any of its Subsidiaries or any
Real Property owned or at any time operated by Parent or any of its
Subsidiaries, including, in each case, without limitation, the reasonable fees
and disbursements of counsel and other consultants incurred in connection with
any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified). To the extent that the undertaking to indemnify, pay or hold
harmless the Administrative Agent or any Bank set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
12.02 Right of Setoff; Collateral Matters. (a) In addition
to any rights now or hereafter granted under applicable law or otherwise, and
not by way of limitation of any such rights, upon the occurrence of an Event of
Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or
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other notice of any kind to Parent or any of its Subsidiaries or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of Parent or any of its Subsidiaries against and on
account of the Obligations and liabilities of Parent or any of its Subsidiaries
to such Bank under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations purchased by such
Bank pursuant to Section 12.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Bank shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY
TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY
LOCATED IN CALIFORNIA, NO BANK SHALL EXERCISE A RIGHT OF SETOFF, BANKER'S LIEN
OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY
PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE THAT IS NOT
TAKEN BY THE REQUIRED BANKS OR APPROVED IN WRITING BY THE REQUIRED BANKS IF
SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO SECTIONS 580a,
580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF
THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE
VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL
AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND
OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY BANK OF ANY SUCH
RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED BANKS SHALL BE NULL AND
VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE BANKS HEREUNDER AND SHALL
NOT CREATE ANY RIGHTS FOR THE BENEFIT OF ANY CREDIT PARTY OR ANY OTHER PERSON.
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12.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, telecopier or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered: if to any
Credit Party, at the address specified opposite its signature below or in the
other relevant Credit Documents; if to any Bank, at its address specified
opposite its name set forth on Schedule II hereto; and if to the Administrative
Agent, at its Notice Office; or, as to any Credit Party or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Bank, at such other address
as shall be designated by such Bank in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company,
cable company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Administrative Agent
and the Borrower shall not be effective until received by the Administrative
Agent or the Borrower, as the case may be.
12.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit
Party may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document without the prior written consent
of the Banks and, provided further, that, although any Bank may transfer,
assign or grant participations in its rights hereunder, such Bank shall remain
a "Bank" for all purposes hereunder (and may not transfer or assign all or any
portion of its Commitment hereunder except as provided in Section 12.04(b)) and
the transferee, assignee or participant, as the case may be, shall not
constitute a "Bank" hereunder and, provided further, that no Bank shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Final Maturity Date) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan and an increase
in the available portion of any Commitment of any Bank shall be permitted
without the consent of any participant
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if the participant's participation is not increased as a result thereof), (ii)
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (iii) release all or substantially all of
the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans hereunder in which such
participant is participating. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by the
Borrower hereunder shall be determined as if such Bank had not sold such
participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Revolving Loan Commitment (and related outstanding Obligations hereunder),
and/or its outstanding Term Loans (or, if prior to the Term Loan Availability
Termination Date, Term Loan Commitment and/or outstanding Term Loans) to (i)
its parent company and/or any affiliate of such Bank which is at least 50%
owned by such Bank or its parent company or to one or more Banks or (ii) in the
case of any Bank that is a fund that invests in bank loans, any other fund that
invests in bank loans and is managed by the same investment advisor of such
Bank or by an Affiliate of such investment advisor or (y) assign all, or if
less than all, a portion equal to at least $2,500,000 in the aggregate for the
assigning Bank or assigning Banks, of such Revolving Loan Commitments and
outstanding principal amount Term Loans (or, if prior to the Term Loan
Availability Termination Date, Term Loan Commitment and/or outstanding Term
Loans) hereunder to one or more Eligible Transferees (treating any fund that
invests in bank loans and any other fund that invests in bank loans and is
managed by the same investment advisor of such fund or by an Affiliate of such
investment advisor as a single Eligible Transferee), each of which assignees
shall become a party to this Agreement as a Bank by execution of an Assignment
and Assumption Agreement, provided that, (i) at such time Schedule I shall be
deemed modified to reflect the Commitment (and/or outstanding Term Loans) of
such new Bank and of the existing Banks, (ii) upon surrender of the old Notes,
new Notes will be issued, at the Borrower's expense, to such new Bank and to
the assigning Bank, such new Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments (and/or outstanding Term Loans), (iii) the consent of
the Administrative Agent and the Borrower shall be required in connection with
any such assignment pursuant to clause (y) of this Section 12.04(b) (which
consents shall not be unreasonably withheld) and (iv) the Administrative Agent
shall receive at the time of each such assignment, from the assigning or
assignee Bank, the payment of a non-refundable assignment fee of $3,500
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and, provided further, that such transfer or assignment will not be effective
until recorded by the Administrative Agent on the Register pursuant to Section
12.17 hereof. To the extent of any assignment pursuant to this Section
12.04(b), the assigning Bank shall be relieved of its obligations hereunder
with respect to its assigned Commitments. At the time of each assignment
pursuant to this Section 12.04(b) to a Person which is not already a Bank
hereunder and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Bank shall provide to the Borrower and the Administrative
Agent the appropriate Internal Revenue Service Forms (and, if applicable a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent
that an assignment of all or any portion of a Bank's Commitment and related
outstanding Obligations pursuant to Section 1.13 or this Section 12.04(b)
would, at the time of such assignment, result in increased costs under Section
1.10, 1.11, 2.05 or 4.04 from those being charged by the respective assigning
Bank prior to such assignment, then the Borrower shall not be obligated to pay
such increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank and,
with the consent of the Administrative Agent, any Bank which is a fund may
pledge all or any portion of its Loans and Notes hereunder to its trustee in
support of its obligations to its trustee. No pledge pursuant to this clause
(c) shall release the transferor Bank from any of its obligations hereunder.
12.05 No Waiver; Remedies Cumulative. No failure or delay
on the part of the Administrative Agent or any Bank or any holder of any Note
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit
Party and the Administrative Agent or any Bank or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein
or in any other Credit Document expressly provided are cumulative and not
exclusive of any rights, powers or remedies which the Administrative Agent or
any Bank or the holder of any Note would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the
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Administrative Agent or any Bank or the holder of any Note to any other or
further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) Except as otherwise provided
in this Agreement, the Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of the Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other
than any Bank that has consented in writing to waive its pro rata share of any
such payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than the total of such Obligation then owed and due
to such Bank bears to the total of such Obligation then owed and due to all of
the Banks immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Banks an interest in the Obligations of the respective Credit Party to
such Banks in such amount as shall result in a proportional participation by
all the Banks in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 12.06(a) and (b) shall be
subject to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Banks as opposed to Defaulting
Banks.
12.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Banks); provided that, notwithstanding anything to the contrary
contained in this Agreement, all computations determining compliance with
Sections 8.08 and 8.09 and the definitions of Applicable Commitment
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Commission Percentage and Applicable Margin shall include the consolidated
Indebtedness (other than Indebtedness for borrowed money evidenced by a Parent
Note), consolidated net cash interest expense and consolidated EBITDA, as the
case may be, of each Non-Controlled Entity; provided further that, except as
otherwise specifically provided herein, (i) all computations of Excess Cash
Flow and all computations determining compliance with Sections 8.07 through
8.09, inclusive, and the definitions of Applicable Commitment Commission
Percentage and Applicable Margin shall utilize accounting principles and
policies in conformity with those used to prepare the historical financial
statements delivered to the Banks pursuant to Section 6.05(a) and (ii) all
computations determining compliance with Sections 8.08 and 8.09 and the
definitions of Applicable Commitment Commission Percentage and Applicable
Margin shall be determined on a Pro Forma Basis (with the foregoing generally
accepted accounting principles, subject to the preceding proviso, herein called
"GAAP").
(b) All computations of interest, Commitment Commission and
Fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest, Commitment Commission or Fees are
payable.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL,
EXCEPT AS OTHERWISE PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF PARENT HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF PARENT
HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS
CT CORPORATION SYSTEM, WITH OFFICES AT 1633 BROADWAY, NEW YORK, NEW YORK 10019
AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND
ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL
PROCESS, SUMMONS,
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NOTICES AND TRANSACTION DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH, EACH OF PARENT, HOLDINGS AND THE BORROWER
AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE
TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE
AGENT UNDER THIS AGREEMENT. EACH OF PARENT, HOLDINGS AND THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY CREDIT PARTY AT ITS
ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF ANY
NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST PARENT, HOLDINGS OR THE BORROWER IN
ANY OTHER JURISDICTION.
(b) EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN
THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which
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when so executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective
on the date (the "Restatement Effective Date") on which (i) each of the
Borrower, each Agent and each Bank shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have delivered
(including by way of facsimile device) the same to the Administrative Agent at
its Notice Office and (ii) the conditions precedent contained in Section 5 are
met to the satisfaction of the Administrative Agent and the Required Banks
(determined immediately after the occurrence of the Restatement Effective
Date). Unless the Administrative Agent has received actual notice from any
Bank that the conditions contained in Section 5 have not been met to its
satisfaction, upon the satisfaction of the condition described in clause (i) of
the immediately preceding sentence and upon the Administrative Agent's good
faith determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Restatement Effective
Date shall have been deemed to have occurred, regardless of any subsequent
determination that one or more of the conditions thereto had not been met
(although the occurrence of the Restatement Effective Date shall not release
the Borrower from any liability for failure to satisfy one or more of the
applicable conditions contained in Section 5). The Administrative Agent will
give the Borrower and each Bank prompt written notice of the occurrence of the
Restatement Effective Date.
12.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
12.12 Amendment or Waiver; etc. (a) Neither this Agreement
nor any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks, provided that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank) (with Obligations being directly affected), (i) extend the final
scheduled maturity of any Loan or Note or extend the stated maturity of any
Letter of Credit beyond the Final Maturity Date, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with a
waiver of applicability of any post-default increase in interest rates), or
reduce the principal amount thereof (except to the extent repaid in cash), (ii)
release all or substantially all of the Collateral (except as expressly
provided in the Credit Documents) under all the Security
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Documents, (iii) amend, modify or waive any provision of this Section 12.12,
(iv) reduce the percentage specified in the definition of Required Banks (it
being understood that, with the consent of the Required Banks, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Banks on substantially the same basis as the
extensions of Revolving Loan Commitments are included on the Restatement
Effective Date and Term Loans are included on each Term Loan Borrowing Date) or
(v) consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement or any other Credit Document; provided
further, that no such change, waiver, discharge or termination shall (u)
increase the Commitment of any Bank over the amount thereof then in effect
without the consent of such Bank (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitment shall not constitute an
increase of the Commitment of any Bank, and that an increase in the available
portion of any Commitment of any Bank shall not constitute an increase in the
Commitment of such Bank), (v) without the consent of each Issuing Bank, amend,
modify or waive any provision of Section 2 or alter its rights or obligations
with respect to Letters of Credit, (w) without the consent of the
Administrative Agent, amend, modify or waive any provision of Section 11 as
same applies to such Administrative Agent or any other provision as same
relates to the rights or obligations of such Agent, (x) without the consent of
the Collateral Agent, amend, modify or waive any provision relating to the
rights or obligations of the Collateral Agent, (y) without the consent of the
Supermajority Banks, amend, modify or change the definition of Supermajority
Banks or extend or reduce any Scheduled Term Loan Repayment and (z) without the
consent of the Total Supermajority Banks, amend, modify or waive Section
8.04(xiv) or reduce the percentage specified in the definition of Total
Supermajority Banks (it being understood that, with the consent of the Total
Supermajority Banks, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Total Supermajority Banks on
substantially the same basis as the extensions of Revolving Loan Commitments
are included on the Restatement Effective Date and Term Loans are included on
each Term Loan Borrowing Date). Notwithstanding anything to the contrary
contained herein, the Administrative Agent may enter into documentation
(including any changes to this Agreement or the other Credit Documents)
necessary to effect the increase in the Total Revolving Loan Commitment
pursuant to Section 8.04(xiv).
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 12.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all
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non-consenting Banks are treated as described in clauses (A) or (B) below, to
either (A) replace each such non- consenting Bank or Banks (or, at the option
of the Borrower, if the respective Bank's consent is required with respect to
less than all Tranches of Loans (or related Commitments), to replace only the
respective Tranche or Tranches of Commitments and/or Loans of the respective
non-consenting Bank which gave rise to the need to obtain such Bank's
individual consent) with one or more Replacement Banks pursuant to Section 1.13
so long as at the time of such replacement, each such Replacement Bank consents
to the proposed change, waiver, discharge or termination or (B) terminate such
non-consenting Bank's Commitment and repay its Loans, in accordance with
Sections 3.02(b) and/or 4.01(b), provided, that unless the Commitments
terminated, and Loans repaid, pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Banks or the increase
of the Commitments and/or Loans of existing Banks (who in each case must
specifically consent thereto), then, in the case of any action pursuant to
preceding clause (B), the Required Banks (determined before giving effect to
the proposed action) shall specifically consent thereto, provided further, that
in any event the Borrower shall not have the right to replace a Bank, terminate
its Commitment or repay its Loans solely as a result of the exercise of such
Bank's rights (and the withholding of any required consent by such Bank)
pursuant to the second proviso to Section 12.12(a).
12.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 11.06 and 12.01 shall,
subject to Section 12.15 (to the extent applicable), survive the execution,
delivery and termination of this Agreement and the Notes and the making and
repayment of the Loans for a period of nine months thereafter.
12.14 Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Bank. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 12.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11, 2.05
or 4.04 from those being charged by the respective Bank prior to such transfer,
then the Borrower shall not be obligated to pay such increased costs (although
the Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes giving rise to such increased costs
after the date of the respective transfer).
12.15 Limitation on Additional Amounts, etc.
Notwithstanding anything to the contrary contained in Section 1.10, 1.11, 2.05
or 4.04 of this Agreement, unless a Bank gives notice to the Borrower that it
is obligated to pay an amount under the
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respective Section within six months after the date the Bank incurs the
respective increased costs, Taxes, loss, expense or liability, reduction in
amounts received or receivable or reduction in return on capital, then such
Bank shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the
extent the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital are incurred or
suffered on or after the date which occurs six months prior to such Bank giving
notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be; provided
that if the circumstances giving rise to such claims have a retroactive effect,
then such six month period shall be extended to include the period of such
retroactive effect. This Section 12.15 shall have no applicability to any
Section of this Agreement other than said Sections 1.10, 1.11, 2.05 and 4.04.
12.16 Confidentiality. (a) Subject to the provisions of
clause (b) of this Section 12.16, each Bank agrees that it will use its best
efforts not to disclose without the prior consent of Parent, Holdings or the
Borrower (other than to its employees, officers, directors, auditors, advisors
or counsel or to another Bank if the Bank or such Bank's holding or parent
company in its sole discretion determines that any such party should have
access to such information, provided such Persons shall be subject to the
provisions of this Section 12.16 to the same extent as such Bank) any
information with respect to Parent or any of its Subsidiaries which is now or
in the future furnished pursuant to this Agreement or any other Credit Document
and which is designated by either Parent, Holdings or the Borrower to the Banks
in writing as confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or appropriate
in respect to any summons or subpoena or in connection with any litigation, (d)
in order to comply with any law, order, regulation or ruling applicable to such
Bank, (e) to the Administrative Agent or the Collateral Agent and (f) to any
prospective or actual transferee or participant in connection with any
contemplated transfer or participation of any of the Notes or Commitments or
any interest therein by such Bank, provided that such prospective transferee
agrees to abide by the provisions of this Section 12.16.
(b) Each of Parent, Holdings and the Borrower hereby
acknowledges and agrees that each Bank may share with any of its affiliates any
information related to
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Parent or any of its Subsidiaries (including, without limitation, any nonpublic
customer information regarding the creditworthiness of Parent and its
Subsidiaries, provided such Persons shall be subject to the provisions of this
Section 12.16 to the same extent as such Bank).
12.17 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 12.17, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Banks, the Loans made
by each of the Banks and each repayment in respect of the principal amount of
the Loans of each Bank. Failure to make any such recordation, or any error in
such recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such Bank
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of
any Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
12.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Bank shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Bank and/or the
new Bank. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 12.17.
12.18 Designated Senior Indebtedness. Each Credit Party
hereby designates its obligations under this Agreement and the other Credit
Documents as "Designated Senior Indebtedness" for purposes of, and as defined
in, the Existing Senior Subordinated Note Indenture, the New Senior
Subordinated Note Indenture and the Subordinated Exchange Debenture Indenture.
12.19 Post-Closing Actions. Each of the Parent, Holdings
and the Borrower hereby acknowledges that certain Credit Parties have failed to
deliver all of the
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Pledged Securities to the Collateral Agent on the Restatement Effective Date as
required by Section 5.08 and agrees that it will take, and cause each of its
Subsidiaries to take, all necessary action to deliver such Pledged Securities,
together with executed and undated stock powers, to the Collateral Agent no
later than seven Business Days after the Restatement Effective Date. Each of
Parent, Holdings and the Borrower further agrees that failure to deliver such
Pledged Securities within the period of time specified above shall constitute
an Event of Default.
SECTION 13. Parents Guaranty.
13.01 The Guaranty. In order to induce the Banks to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by each Parent Guarantor from the proceeds of
the Loans and the issuance of the Letters of Credit and to induce the Banks or
any of their respective Affiliates to enter into Interest Rate Protection
Agreements, each Parent Guarantor hereby agrees with the Banks as follows:
each Parent Guarantor hereby, jointly and severally, unconditionally and
irrevocably guarantees as primary obligor and not merely as surety the full and
prompt payment when due, whether upon maturity, by acceleration or otherwise,
of any and all of the Guaranteed Obligations of the Borrower to the Secured
Creditors. If any or all of the Guaranteed Obligations of the Borrower to the
Secured Creditors becomes due and payable hereunder, each Parent Guarantor
unconditionally, jointly and severally, promises to pay such indebtedness to
the Secured Creditors, or order, on demand, together with any and all
reasonable expenses which may be incurred by the Administrative Agent or the
Secured Creditors in collecting any of the Guaranteed Obligations. All
payments made by each Parent Guarantor under this Guaranty shall be made on the
same basis as payments by the Borrower under Sections 4.03 and 4.04.
13.02 Bankruptcy. Additionally, each Parent Guarantor,
jointly and severally, unconditionally and irrevocably guarantees the payment
of any and all of the Guaranteed Obligations of the Borrower to the Secured
Creditors whether or not then due or payable by the Borrower upon the
occurrence in respect of the Borrower of any of the events specified in Section
9.05, and unconditionally and irrevocably, jointly and severally, promises to
pay such Guaranteed Obligations to the Secured Creditors, or order, on demand,
in lawful money of the United States.
13.03 Nature of Liability. (a) The liability of each Parent
Guarantor hereunder is exclusive and independent of any security for or other
guaranty of the Guaranteed Obligations of the Borrower whether executed by such
Parent Guarantor, any other guarantor or by any other party, and the liability
of each Parent Guarantor
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hereunder shall not be affected or impaired by (i) any direction as to
application of payment by the Borrower or by any other party, or (ii) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor
or of any other party as to the Guaranteed Obligations of the Borrower, or
(iii) any payment on or in reduction of any such other guaranty or undertaking,
or (iv) any dissolution, termination or increase, decrease or change in
personnel by the Borrower, or (v) any payment made to the Administrative Agent
or the Secured Creditors on the Guaranteed Obligations which the Administrative
Agent or such Secured Creditors repay to the Borrower pursuant to court order
in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each Parent Guarantor waives any right to the deferral
or modification of its obligations hereunder by reason of any such proceeding.
(b) If claim is ever made upon the Administrative Agent or
any Secured Creditor for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guaranteed Obligations and any
of the aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event each Parent Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be
binding upon such Parent Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of the Borrower, and each Parent
Guarantor shall be and remain jointly and severally liable to the aforesaid
payees hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by any such payee.
13.04 Independent Obligation. The obligations of each
Parent Guarantor hereunder are independent of the obligations of any other
guarantor or the Borrower, and a separate action or actions may be brought and
prosecuted against each Parent Guarantor whether or not action is brought
against any other guarantor or the Borrower and whether or not any other
guarantor or the Borrower be joined in any such action or actions. Each Parent
Guarantor waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to such Parent Guarantor. This Guaranty is a
continuing one and all liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been created in reliance
hereon.
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<PAGE> 157
13.05 Authorization. Each Parent Guarantor authorizes the
Administrative Agent and the Secured Creditors without notice or demand (except
as shall be required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations (including any increase or decrease in the
rate of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the Guaranty herein made shall
apply to the Guaranteed Obligations as so changed, extended, renewed or
altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against
the Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than the
Banks;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of the Borrower to the Secured Creditors
regardless of what liability or liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission
or default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this Agreement or
any of such other instruments or agreements; and/or
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<PAGE> 158
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of any Parent Guarantor from its liabilities under this Guaranty.
13.06 Reliance. It is not necessary for the Administrative
Agent or the Secured Creditors to inquire into the capacity or powers of Parent
or its Subsidiaries or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any Guaranteed Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
13.07 Subordination. Any of the indebtedness of the
Borrower now or hereafter owing to any Parent Guarantor is hereby subordinated
to the Guaranteed Obligations of the Borrower owing to the Administrative Agent
and the Secured Creditors; and if the Administrative Agent so requests at a
time when an Event of Default exists, all such indebtedness of the Borrower to
such Parent Guarantor shall be collected, enforced and received by such Parent
Guarantor for the benefit of the Secured Creditors and be paid over to the
Administrative Agent on behalf of the Secured Creditors on account of the
Guaranteed Obligations of the Borrower to the Secured Creditors, but without
affecting or impairing in any manner the liability of such Parent Guarantor
under the other provisions of this Guaranty. Prior to the transfer by any
Parent Guarantor of any note or negotiable instrument evidencing any of the
indebtedness of the Borrower to such Parent Guarantor, such Parent Guarantor
shall mark such note or negotiable instrument with a legend that the same is
subject to this subordination. The provisions of this Section 13.07 (and any
claims of each Parent Guarantor as described above) are subject to the
provisions of Section 13.08(c) and (d).
13.08 Waiver. (a) Each Parent Guarantor waives any right
(except as shall be required by applicable statute and cannot be waived) to
require the Administrative Agent or the Secured Creditors to (i) proceed
against the Borrower, any other guarantor or any other party, (ii) proceed
against or exhaust any security held from the Borrower, any other guarantor or
any other party or (iii) pursue any other remedy in the Administrative Agent's
or the Secured Creditors' power whatsoever. Each Parent Guarantor waives any
defense based on or arising out of any defense of the Borrower, any other
guarantor or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of the Borrower, any
other guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower other than payment in full of the Guaranteed
Obligations. The Administrative Agent and the Secured Creditors may, at their
election, foreclose on any security held by the
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<PAGE> 159
Administrative Agent, the Collateral Agent or the Secured Creditors by one or
more judicial or nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable (to the extent such sale is permitted by
applicable law, including, but not limited to, the Communications Act), or
exercise any other right or remedy the Administrative Agent and the Secured
Creditors may have against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of any Parent Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid. Each
Parent Guarantor waives any defense arising out of any such election by the
Administrative Agent and the Secured Creditors, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of such Parent Guarantor against any Borrower or any
other party or any security.
(b) Each Parent Guarantor waives all presentments, demands
for performance, protests and notices, including without limitation notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Each Parent Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which such Parent Guarantor assumes and incurs hereunder,
and agrees that the Administrative Agent and the Secured Creditors shall have
no duty to advise any Parent Guarantor of information known to them regarding
such circumstances or risks.
(c) Each Parent Guarantor understands that to the extent the
Guaranteed Obligations are secured by Real Property, each Parent Guarantor
shall be liable for the full amount of the liability hereunder notwithstanding
foreclosure on any such Real Property by trustee sale or any other reason
impairing such Parent Guarantor's or any secured creditors' right to proceed
against the Borrower. Each Parent Guarantor hereby waives, to the fullest
extent permitted by applicable laws, all rights and benefits under Sections
580a, 580b, 580d and 726 of the California Code of Civil Procedure. In
addition, each Parent Guarantor hereby waives, to the fullest extent permitted
by applicable laws, without limiting the generality of the foregoing or any
other provision hereof, all rights and benefits which might otherwise be
available to such Parent Guarantor under California Civil Code Sections 2787
through 2855 inclusive, 2899 and 3433.
(d) Each Parent Guarantor understands, is aware and hereby
acknowledges that if the Banks elect to foreclose on any of the Mortgaged
Property
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<PAGE> 160
security nonjudicially, any right of subrogation of such Parent Guarantor
against the Borrower may be impaired or extinguished and that as a result of
such impairment or extinguishment of subrogation rights, such Parent Guarantor
may have a defense to a deficiency judgment arising out of the operation of
Section 580d of the California Code of Civil Procedure and related principles
of estoppel. Each Parent Guarantor waives all rights and defenses arising out
of an election of remedies by the Banks, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed the guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the
California Code of Civil Procedure or otherwise.
13.09 Nature of Liability. It is the desire and intent of
each Parent Guarantor and the Secured Creditors that this Guaranty shall be
enforced against such Parent Guarantor to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. If, however, and to the extent that, the obligations of any Parent
Guarantor under this Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of such Parent
Guarantor shall be deemed to be reduced and such Parent Guarantor shall pay the
maximum amount of the Guaranteed Obligations which would be permissible under
applicable law.
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<PAGE> 161
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
600 Congress Avenue CAPSTAR BROADCASTING CORPORATION
Suite 1400
Austin, Texas 78701
Attn: Paul D. Stone
William S. Banowsky By /s/
Telephone: (512) 404-6840 ------------------------------
Telecopy: (512) 404-6850 Title:
with a copy to:
Hicks, Muse, Tate & Furst
Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Lawrence D. Stuart, Jr.
Telephone:(214) 740-7300
Telecopy:(214) 740-7313
600 Congress Avenue CAPSTAR BROADCASTING PARTNERS, INC.
Suite 1400
Austin, Texas 78701
Attn: Paul D. Stone
William S. Banowsky By /s/
Telephone: (512) 404-6840 ------------------------------
Telecopy: (512) 404-6850 Title:
with a copy to:
600 Congress Avenue CAPSTAR RADIO BROADCASTING PARTNERS,
Suite 1400 INC.
Austin, Texas 78701
Attn: Paul D. Stone
William S. Banowsky
Telephone: (512) 404-6840 By /s/
Telecopy: (512) 404-6850 ----------------------------
Title:
<PAGE> 162
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/
----------------------------
Title:
BANKBOSTON, N.A.,
Individually and as Managing Agent
By /s/
------------------------------
Title:
NATIONSBANK OF TEXAS, N.A.,
Individually and as Syndication Agent
By /s/
------------------------------
Title:
THE BANK OF NEW YORK,
Individually and as Documentation
Agent
By /s/
------------------------------
Title:
<PAGE> 163
SCHEDULE I
COMMITMENTS
<TABLE>
<CAPTION>
Revolving Term Loan
Bank Loan Commitment Commitment
---- --------------- ----------
<S> <C> <C>
Bankers Trust Company $80,000,000
BankBoston, N.A. $40,000,000
NationsBank of Texas, N.A. $40,000,000
The Bank of New York $40,000,000
------------ ------------
Total: $200,000,000 $150,000,000
============ ============
</TABLE>
<PAGE> 164
SCHEDULE II
BANK ADDRESSES
<TABLE>
<CAPTION>
Bank Address
- ---- -------
<S> <C>
Bankers Trust Company 130 Liberty Street
New York, NY 10006
Attn: David Bell
Tel: (212) 250-9048
Fax: (212) 250-7218
BankBoston, N.A. 100 Federal Street
MS-01-08-08
Boston, MA 02110
Attn: Lenny Mason
Tel: (617) 434-6489
Fax: (617) 434-3401
NationsBank of Texas, N.A. 901 Main Street
64th Floor
Dallas, TX 75202
Attn: Jennifer Zydney
Tel: (214) 508-2752
Fax: (214) 508-9390
The Bank of New York One Wall Street
New York, NY 10286
Attn: Joseph P. Matteo
Tel: (212) 635-8609
Fax: (212) 635-8595
</TABLE>
<PAGE> 1
EXHIBIT 10.2
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of August 21,
1997, among CAPSTAR BROADCASTING CORPORATION, a Delaware corporation
("Parent"), CAPSTAR BROADCASTING PARTNERS, INC., a Delaware corporation
("Holdings"), CAPSTAR RADIO BROADCASTING PARTNERS, INC., a Delaware corporation
(the "Borrower"), the lenders party to the Amended and Restated Credit
Agreement referred to below (the "Banks"), BANKBOSTON, N.A., as Managing Agent
(in such capacity, the "Managing Agent"), NATIONSBANK OF TEXAS, N.A., as
Syndication Agent (in such capacity, the "Syndication Agent"), THE BANK OF NEW
YORK, as Documentation Agent (in such capacity, the "Documentation Agent"), and
BANKERS TRUST COMPANY, as Administrative Agent (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, all capitalized
terms used herein shall have the respective meanings provided such terms in the
Amended and Restated Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Parent, Holdings, the Borrower, the Banks, the
Managing Agent, the Syndication Agent, the Documentation Agent and the
Administrative Agent are parties to an Amended and Restated Credit Agreement,
dated as of February 20, 1997 and amended and restated as of August 12, 1997
(the "Amended and Restated Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Amended and
Restated Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
<PAGE> 2
I. Amendments and Modifications to Amended and Restated Credit Agreement
1. Section 8.05(ii) of the Amended and Restated Credit Agreement
is hereby amended by deleting the word "five" appearing therein and inserting
the word "fifteen" in lieu thereof.
2. Exhibit M to the Amended and Restated Credit Agreement shall
be amended by deleting such Exhibit in its entirety and inserting in lieu
thereof a new Exhibit M in the form of Schedule A hereto.
3. Section 8.03 of the Amended and Restated Credit Agreement is
hereby amended by (i) deleting the word "and" appearing at the end of clause
(xi) thereof, (ii) deleting the period appearing at the end of clause (xii)
thereof and inserting "; and" in lieu thereof and (iii) inserting the following
new clause (xiii) immediately following existing clause (xii) thereof:
"(xiii) the Borrower may pay cash Dividends to Holdings so
long as Holdings immediately uses such cash proceeds to pay cash
Dividends to Parent and then only so long as Parent promptly uses such
cash proceeds to pay fees and interest expenses owing in connection
with that certain letter of credit agreement between Parent and BTCo,
provided that no Default or Event of Default then exists or would
result therefrom."
4. Section 8.04 of the Amended and Restated Credit Agreement is
hereby amended by (i) deleting the word "and" appearing at the end of clause
(xv) thereof, (ii) deleting the period appearing at the end of clause (xvi)
thereof an inserting "; and" in lieu thereof and (iii) inserting the following
new clause (xvii) immediately following existing clause (xvi) thereof:
"(xvii) Indebtedness (including, without limitation, any
reimbursement obligations related thereto) of Parent under that
certain letter of credit agreement, between Parent and BTCo, and the
related documents in an amount not to exceed $100,000,000."
5. The definition of "RKZ Disposition" appearing in Section 10.01
of the Amended and Restated Credit Agreement is hereby amended by deleting the
words "RKZ television station" appearing therein and inserting the words
"television station WJSU" in lieu thereof.
-2-
<PAGE> 3
II. Miscellaneous Provisions
1. In order to induce the Banks to enter into this Amendment, each of
Parent, Holdings and the Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the First
Amendment Effective Date (as hereinafter defined), both before and
after giving effect to this Amendment; and
(b) all of the representations and warranties contained in
the Amended and Restated Credit Agreement and the other Credit
Documents are true and correct in all material respects as of the
First Amendment Effective Date, both before and after giving effect to
this Amendment, with the same effect as though such representations
and warranties had been made on and as of the First Amendment
Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Amended and
Restated Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when each of Parent, Holdings, the Borrower and the
Required Banks shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at its Notice Office.
-3-
<PAGE> 4
6. From and after the First Amendment Effective Date, all references
in the Amended and Restated Credit Agreement and each of the other Credit
Documents to the Amended and Restated Credit Agreement shall be deemed to be
references to the Amended and Restated Credit Agreement as amended hereby.
-4-
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
CAPSTAR BROADCASTING CORPORATION
By /s/
-----------------------------------
Title:
CAPSTAR RADIO BROADCASTING
PARTNERS, INC.
By /s/
-----------------------------------
Title:
CAPSTAR RADIO BROADCASTING
PARTNERS, INC.
By /s/
-----------------------------------
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative
Agent
By /s/
-----------------------------------
Title:
<PAGE> 6
BANKBOSTON, N.A.,
Individually and as Managing Agent
By /s/
-----------------------------------
Title:
NATIONSBANK OF TEXAS, N.A.,
Individually and as Syndication Agent
By /s/
-----------------------------------
Title:
THE BANK OF NEW YORK,
Individually and as Documentation
Agent
By /s/
-----------------------------------
Title:
<PAGE> 1
EXHIBIT 10.3
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of September 26,
1997, among CAPSTAR BROADCASTING CORPORATION, a Delaware corporation
("Parent"), CAPSTAR BROADCASTING PARTNERS, INC., a Delaware corporation
("Holdings"), CAPSTAR RADIO BROADCASTING PARTNERS, INC., a Delaware corporation
(the "Borrower"), the lenders party to the Amended and Restated Credit
Agreement referred to below (the "Banks"), BANKBOSTON, N.A., as Managing Agent
(in such capacity, the "Managing Agent"), NATIONSBANK OF TEXAS, N.A., as
Syndication Agent (in such capacity, the "Syndication Agent"), THE BANK OF NEW
YORK, as Documentation Agent (in such capacity, the "Documentation Agent"), and
BANKERS TRUST COMPANY, as Administrative Agent (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, all capitalized
terms used herein shall have the respective meanings provided such terms in the
Amended and Restated Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Parent, Holdings, the Borrower, the Banks, the
Managing Agent, the Syndication Agent, the Documentation Agent and the
Administrative Agent are parties to an Amended and Restated Credit Agreement,
dated as of February 20, 1997 and amended and restated as of August 12, 1997
(as amended, modified or supplemented from time to time to the date hereof, the
"Amended and Restated Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Amended and
Restated Credit Agreement as provided herein;
NOW, THEREFORE, it is agreed:
<PAGE> 2
I. Amendments and Modifications to Amended and Restated Credit Agreement
1. Section 8.03(xi) of the Amended and Restated Credit Agreement
is hereby amended by deleting the text "Section 8.05(xix)" appearing therein
and inserting the text "Sections 8.05(xix) and 8.05(xxi) in lieu thereof".
2. Section 8.05(xxi) of the Amended and Restated Credit Agreement
is hereby deleted in its entirety and the following new Section 8.05(xxi) is
hereby inserted in lieu thereof:
"(xxi) Parent may make a loan to Flagship Broadcasting
Corporation in connection with the RKZ Disposition so long as (v) no
Default or Event of Default then exists or would result therefrom, (w)
the aggregate outstanding principal amount of the loan made pursuant
to this clause (xxi) shall not exceed $3,138,000 (determined without
regard to any write-downs or write-offs of such loan), (x) the loan
shall be evidenced by a promissory note in form and substance
reasonably satisfactory to the Administrative Agent, (y) such
promissory note shall be pledged to the Collateral Agent pursuant to
the Pledge Agreement and (z) any interest payments or any prepayments
or repayments of principal recovered in respect of such promissory
note shall be immediately contributed (directly or indirectly) to the
capital of the Borrower and the Borrower shall promptly use such
proceeds to repay outstanding Revolving Loans (without a corresponding
reduction to the Total Revolving Loan Commitment);"
3. The definition of "RKZ Asset Purchase Agreement" appearing in
Section 10.01 of the Amended and Restated Credit Agreement is hereby amended by
deleting the reference to the date "June 3, 1997" appearing therein and
inserting the date "July 7, 1997" in lieu thereof.
II. Miscellaneous Provisions
1. In order to induce the Banks to enter into this Amendment, each of
Parent, Holdings and the Borrower hereby represents and warrants that:
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(a) no Default or Event of Default exists as of the Second
Amendment Effective Date (as hereinafter defined), both before and
after giving effect to this Amendment; and
(b) all of the representations and warranties contained in
the Amended and Restated Credit Agreement and the other Credit
Documents are true and correct in all material respects as of the
Second Amendment Effective Date, both before and after giving effect
to this Amendment, with the same effect as though such representations
and warranties had been made on and as of the Second Amendment
Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Amended and
Restated Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the "Second
Amendment Effective Date") when each of Parent, Holdings, the Borrower and the
Required Banks shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at the Notice Office.
6. From and after the Second Amendment Effective Date, all references
in the Amended and Restated Credit Agreement and each of the other Credit
Documents to the Amended and Restated Credit Agreement shall be deemed to be
references to the Amended and Restated Credit Agreement as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
CAPSTAR BROADCASTING CORPORATION
By /s/
--------------------------------
Title:
CAPSTAR BROADCASTING
PARTNERS, INC.
By /s/
--------------------------------
Title:
CAPSTAR RADIO BROADCASTING
PARTNERS, INC.
By /s/
--------------------------------
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative
Agent
By /s/
--------------------------------
Title:
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BANKBOSTON, N.A.,
Individually and as Managing Agent
By /s/
-----------------------------
Title:
NATIONSBANK OF TEXAS, N.A.,
Individually and as
Syndication Agent
By /s/
------------------------------
Title:
THE BANK OF NEW YORK,
Individually and as Documentation
Agent
By /s/
------------------------------
Title:
