EXECUTION COPY EXHIBIT 10.1
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FIFTH AMENDED AND RESTATED LOAN AGREEMENT
Dated as of June 28, 2005
by and among
XXXX TELEVISION, INC.,
as Borrower
THE LENDERS REFERRED TO HEREIN,
as Lenders
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent for the Lenders
with
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Lead Arranger and Sole Book Manager
AND
Bank of America, N.A.,
as Syndication Agent
AND
Deutsche Bank Trust Company Americas,
Allied Irish Banks, PLC and
KeyBank National Association,
each as a Documentation Agent
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FIFTH AMENDED AND RESTATED
LOAN AGREEMENT
among
XXXX TELEVISION, INC.,
as Borrower
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
as Lenders
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent for the Lenders
with
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Lead Arranger and Sole Book Manager
and
Bank of America, N.A.
as Syndication Agent
and
Deutsche Bank Trust Company Americas,
Allied Irish Banks PLC and
KeyBank National Association,
each as a Documentation Agent
INDEX
Page
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ARTICLE 1 DEFINITIONS 2
Section 1.1 Defined Terms................................................................ 2
Section 1.2 Interpretation............................................................... 27
Section 1.3 Cross References............................................................. 27
Section 1.4 Accounting Provisions........................................................ 27
ARTICLE 2 LOANS AND LETTERS OF CREDIT 28
Section 2.1 The Loans.................................................................... 28
Section 2.2 Manner of Borrowing and Disbursement......................................... 28
Section 2.3 Interest..................................................................... 31
Section 2.4 Fees......................................................................... 33
Section 2.6 Voluntary Commitment Reductions.............................................. 34
Section 2.7 Prepayments and Repayments................................................... 35
Section 2.8 Evidence of Indebtedness; Loan Accounts...................................... 39
Section 2.9 Manner of Payment............................................................ 39
Section 2.10 Reimbursement................................................................ 41
Section 2.11 Pro Rata Treatment........................................................... 41
Section 2.12 Capital Adequacy............................................................. 42
Section 2.13 Lender Tax Forms............................................................. 43
Section 2.14 Letters of Credit............................................................ 43
Section 2.15 Incremental Facility Loans................................................... 48
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ARTICLE 3 CONDITIONS PRECEDENT 50
Section 3.1 Conditions Precedent to Effectiveness of Agreement........................... 50
Section 3.2 Conditions Precedent to Each Advance......................................... 53
Section 3.3 Conditions Precedent to Issuance of Letters of Credit........................ 54
ARTICLE 4 REPRESENTATIONS AND WARRANTIES 55
Section 4.1 Representations and Warranties............................................... 55
Section 4.2 Survival of Representations and Warranties, etc.............................. 63
ARTICLE 5 GENERAL COVENANTS 64
Section 5.1 Preservation of Existence and Similar Matters................................ 64
Section 5.2 Business; Compliance with Applicable Law..................................... 64
Section 5.3 Maintenance of Properties.................................................... 64
Section 5.4 Accounting Methods and Financial Records..................................... 64
Section 5.5 Insurance.................................................................... 64
Section 5.6 Payment of Taxes and Claims.................................................. 65
Section 5.7 Compliance with ERISA........................................................ 65
Section 5.8 Visits and Inspections....................................................... 67
Section 5.9 Payment of Indebtedness; Loans............................................... 67
Section 5.10 Use of Proceeds.............................................................. 67
Section 5.11 Indemnity.................................................................... 68
Section 5.12 Interest Rate Hedging........................................................ 68
Section 5.13 Covenants Regarding Formation of Restricted Subsidiaries and Acquisitions;
Partnership, Restricted Subsidiaries......................................... 69
Section 5.14 Payment of Wages............................................................. 69
Section 5.15 Further Assurances........................................................... 69
Section 5.16 License Subs................................................................. 69
Section 5.17 Maintenance of Network Affiliations; Operating Agreements.................... 70
Section 5.18 Ownership Reports............................................................ 70
Section 5.19 Environmental Compliance and Indemnity....................................... 70
ARTICLE 6 INFORMATION COVENANTS 71
Section 6.1 Quarterly Financial Statements and Information............................... 72
Section 6.2 Annual Financial Statements and Information.................................. 72
Section 6.3 Monthly Financial Information................................................ 73
Section 6.4 Performance Certificates..................................................... 73
Section 6.5 Copies of Other Reports...................................................... 73
Section 6.6 Notice of Litigation and Other Matters....................................... 74
ARTICLE 7 NEGATIVE COVENANTS 75
Section 7.1 Indebtedness of the Borrower and its Restricted Subsidiaries................. 75
Section 7.2 Limitation on Liens.......................................................... 76
Section 7.3 Amendment and Waiver......................................................... 76
Section 7.4 Liquidation, Merger or Disposition of Assets................................. 76
Section 7.5 Limitation on Guaranties..................................................... 77
Section 7.6 Investments and Acquisitions................................................. 77
Section 7.7 Restricted Payments; Restricted Purchases.................................... 79
Section 7.8 Senior Leverage Ratio........................................................ 79
Section 7.9 Interest Coverage Ratio...................................................... 80
Section 7.10 Fixed Charge Coverage Ratio.................................................. 80
Section 7.11 Leverage Ratio............................................................... 80
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Section 7.12 Affiliate Transactions....................................................... 80
Section 7.13 Real Estate.................................................................. 80
Section 7.14 ERISA Liabilities............................................................ 80
Section 7.15 No Limitation on Upstream Dividends by Restricted Subsidiaries............... 80
Section 7.16 Nature of Business........................................................... 81
ARTICLE 8 DEFAULT 81
Section 8.1 Events of Default............................................................ 81
Section 8.2 Remedies..................................................................... 84
Section 8.3 Payments Subsequent to Declaration of Event of Default....................... 86
ARTICLE 9 THE ADMINISTRATIVE AGENT 87
Section 9.1 Appointment and Authority.................................................... 87
Section 9.2 Rights as a Lender........................................................... 87
Section 9.3 Exculpatory Provisions....................................................... 87
Section 9.4 Reliance by the Administrative Agent......................................... 88
Section 9.5 Delegation of Duties......................................................... 88
Section 9.6 Resignation of Administrative Agent.......................................... 89
Section 9.7 Non-Reliance on Administrative Agent and Other Lenders....................... 90
Section 9.8 No Other Duties, etc......................................................... 90
Section 9.9 Indemnification.............................................................. 90
Section 9.10 Collateral and Guaranty Matters.............................................. 90
Section 9.11 Release of Unrestricted Subsidiaries......................................... 91
ARTICLE 10 CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES 91
Section 10.1 LIBOR Basis Determination Inadequate or Unfair............................... 91
Section 10.2 Illegality................................................................... 91
Section 10.3 Increased Costs.............................................................. 92
Section 10.4 Effect On Other Advances..................................................... 93
Section 10.5 Claims for Increased Costs and Taxes......................................... 93
ARTICLE 11 MISCELLANEOUS 94
Section 11.1 Notices...................................................................... 94
Section 11.2 Expenses..................................................................... 95
Section 11.3 Waivers...................................................................... 96
Section 11.4 Set-Off...................................................................... 96
Section 11.5 Successors and Assigns; Participations....................................... 96
Section 11.6 Accounting Principles........................................................ 100
Section 11.7 Counterparts................................................................. 100
Section 11.8 Governing Law................................................................ 100
Section 11.9 Severability................................................................. 101
Section 11.10 Interest..................................................................... 101
Section 11.11 Table of Contents and Headings............................................... 101
Section 11.12 Amendment and Waiver......................................................... 101
Section 11.13 Entire Agreement............................................................. 102
Section 11.14 Other Relationships.......................................................... 102
Section 11.15 Directly or Indirectly....................................................... 102
Section 11.16 Reliance on and Survival of Various Provisions............................... 102
Section 11.17 Senior Debt.................................................................. 103
Section 11.18 Obligations Several.......................................................... 103
Section 11.19 Survival of Indemnities...................................................... 103
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Section 11.20 Term of Agreement............................................................ 103
Section 11.21 Advice of Counsel............................................................ 103
Section 11.22 No Strict Construction....................................................... 103
Section 11.23 Amendment and Restatement; No Novation....................................... 103
Section 11.24 USA Patriot Act.............................................................. 104
ARTICLE 12 WAIVER OF JURY TRIAL 104
Section 12.1 Waiver of Jury Trial......................................................... 104
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EXHIBITS
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Borrower Pledge Agreement
Exhibit C - Borrower Security Agreement
Exhibit D - Form of Certificate of Financial Condition
Exhibit E - Form of Request for Advance
Exhibit F-1 - Form of Revolving Loan Note
Exhibit F-2 - Form of Term Loan A Note
Exhibit F-3 - Form of Term Loan B Note
Exhibit F-4 - Form of Incremental Facility Note
Exhibit G - Subsidiary Guaranty
Exhibit H - Subsidiary Pledge Agreement
Exhibit I - Subsidiary Security Agreement
Exhibit J-1 - Form of Borrower Loan Certificate
Exhibit J-2 - Form of Subsidiary Loan Certificate
Exhibit K - Form of Performance Certificate
Exhibit L-1 - Assignment of General Partner Interests
Exhibit L-2 - Assignment of Limited Partner Interests
Exhibit M - Form of Notice of Incremental Facility Commitment
Exhibit N - Form of Notice of Increase in Revolving Loan Commitment
Exhibit O - Form of Reaffirmation Agreement
SCHEDULES
Schedule 1 Unrestricted Subsidiaries
Schedule 2 Liens
Schedule 3 Stations, Operating Agreements and Licenses
Schedule 4 Restricted Subsidiaries
Schedule 5 Litigation
Schedule 6 Affiliate Transactions
Schedule 7 Indebtedness
Schedule 8 Trademarks, Patents, Copyrights
Schedule 9 Labor Matters
Schedule 10 Environmental Matters
Schedule 11 Real Property
Schedule 12 Existing Letters of Credit
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FIFTH AMENDED AND RESTATED LOAN AGREEMENT
THIS FIFTH AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") is
entered into as of this 28th day of June, 2005 by and among XXXX TELEVISION,
INC. (formerly known as Xxxx Communications Systems, Inc.), a Georgia
corporation (the "Borrower"), the lenders who are or may become a party to this
Agreement (the "Lenders"), and WACHOVIA BANK, NATIONAL ASSOCIATION (formerly
known as First Union National Bank), as administrative agent (the
"Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Fourth Amended and Restated Loan Agreement dated
as of October 25, 2002 (as amended prior to the date hereof, the "Prior Loan
Agreement"), by and among the Borrower, the lenders party thereto (the "Prior
Lenders"), Wachovia Bank, National Association, as administrative agent, Bank of
America, N.A., as syndication agent, and Deutsche Bank Trust Company Americas,
as documentation agent, the Prior Lenders extended certain credit facilities to
the Borrower pursuant to the terms thereof; and
WHEREAS, the Borrower has requested that the Administrative Agent and the
Lenders amend and restate the Prior Loan Agreement in the form of this
Agreement; and
WHEREAS, the Administrative Agent and the Lenders have agreed to amend and
restate the Prior Loan Agreement, as more fully set forth in this Agreement; and
WHEREAS, the Borrower acknowledges and agrees that the security interest
granted to the Administrative Agent, for itself and on behalf of the Prior
Lenders pursuant to the Prior Loan Agreement and the Security Documents (as
defined in the Prior Loan Agreement) executed in connection therewith, shall
remain outstanding and in full force and effect in accordance with the Prior
Loan Agreement (other than certain security interests granted in connection with
the Unrestricted Subsidiaries) and shall continue to secure the Obligations (as
hereinafter defined); and
WHEREAS, the Borrower acknowledges and agrees that: (i) the Obligations
(as hereinafter defined) represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Prior Loan Agreement) arising in connection with
the Prior Loan Agreement and the other Security Documents executed in connection
therewith; (ii) the parties hereto intend that the Prior Loan Agreement and the
Security Documents, executed in connection therewith and the collateral pledged
thereunder (other than certain security interests granted in connection with the
Unrestricted Subsidiaries), shall secure, without interruption or impairment of
any kind, all existing Indebtedness under the Prior Loan Agreement and the
Security Documents, executed in connection therewith, as so amended, restated,
restructured, renewed, extended, consolidated and modified hereunder, together
with Obligations (as hereinafter defined), (iii) all Liens evidenced by the
Prior Loan Agreement and the Security Documents, executed in connection
therewith (other than certain Liens granted in connection with the Unrestricted
Subsidiaries) are hereby
ratified, confirmed and continued; and (iv) the Loan Documents (as hereinafter
defined) are intended to restructure, restate, renew, extend, consolidate, amend
and modify the Prior Loan Agreement and the Security Documents, executed in
connection therewith; and
WHEREAS, the parties hereto intend that the provisions of the Prior Loan
Agreement and the other Security Documents executed in connection therewith, to
the extent restructured, restated, renewed, extended, consolidated, amended and
modified hereby, are hereby superseded and replaced by the provisions hereof and
of the Loan Documents;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. The following terms when used in this Agreement
shall have the following meanings:
"Acquisition" shall mean (whether by purchase, lease, exchange, issuance
of stock or other equity or debt securities, merger, reorganization or any other
method) (a) any acquisition by the Borrower or any Restricted Subsidiary of any
other Person, which Person shall then become consolidated with the Borrower or
any such Restricted Subsidiary in accordance with GAAP; (b) any acquisition by
the Borrower or any Restricted Subsidiary of all or substantially all of the
assets of any other Person; or (c) any other acquisition by the Borrower or any
Restricted Subsidiary of the assets of another Person which acquisition is not
in the ordinary course of business for the Borrower or such Restricted
Subsidiary.
"Additional Unrestricted Group Cash Flow" shall mean, with respect to the
Unrestricted Subsidiaries, as of the end of each fiscal quarter of the Borrower
ending after the Agreement Date, the excess, if any, without duplication, of (a)
the sum of (i) Operating Cash Flow for such fiscal quarter, and (ii) any
decrease in the working capital account of the Unrestricted Subsidiaries during
such fiscal quarter (excluding cash and Cash Equivalents from current assets for
such working capital account determination), minus (b) the sum of the following:
(i) Capital Expenditures made during such fiscal quarter; (ii) Debt Service for
such fiscal quarter; (iii) cash taxes paid by the Unrestricted Subsidiaries
during such fiscal quarter; (iv) Restricted Payments or Restricted Purchases
made during such fiscal quarter; and (v) any increase in the working capital
account of the Unrestricted Subsidiaries during such fiscal quarter (excluding
cash and Cash Equivalents from current assets for such working capital account
determination); in each case, as determined in accordance with GAAP; provided
that, solely as used in this definition, "Operating Cash Flow," "Capital
Expenditures," "Debt Service," "Restricted Payments" and "Restricted Purchases"
shall be calculated only with respect to the Unrestricted Subsidiaries,
notwithstanding the terms of such definitions to the contrary.
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"Adjusted Total Debt" shall mean, as of any date, the difference between
(a) Total Debt as of such date minus (b) the aggregate amount of the Borrower's
cash then on hand, not to exceed $25,000,000.
"Administrative Agent" shall mean Wachovia Bank, National Association, a
national banking association, in its capacity as Administrative Agent for the
Lenders or any successor Administrative Agent appointed pursuant to Section 9.6
hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at Syndication Agency Services, Xxxxxxxxx Xxxxx,
XX-0, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000, or such other office
as may be designated pursuant to the provisions of Section 11.1 hereof.
"Advance" shall mean amounts advanced by the Lenders to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. "Affiliate" shall also
mean any beneficial owner of Ownership Interests representing ten percent (10%)
or more of the total voting power of such Ownership Interests (on a fully
diluted basis) of the Borrower or of rights or warrants to purchase such
Ownership Interests (whether or not currently exercisable) and any Person who
would be an Affiliate of any such beneficial owner pursuant to the first
sentence hereof. Unless otherwise specified, "Affiliate" shall mean an Affiliate
of the Borrower. For purposes hereof, all Unrestricted Subsidiaries shall be
considered Affiliates of the Borrower and its Restricted Subsidiaries.
"Agreement" shall mean this Fifth Amended and Restated Loan Agreement, as
amended, supplemented, restated or otherwise modified from time to time.
"Agreement Date" shall mean the date as of which this Agreement is dated.
"Applicable Law" shall mean, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person, including, without limitation,
the Communications Act, zoning ordinances and all Environmental Laws, and all
orders, decisions, judgments and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question is a party or by which it
is bound.
"Applicable Margin" shall mean the interest rate margin applicable to Base
Rate Advances and LIBOR Advances, as the case may be, in each case determined in
accordance with
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Section 2.3(f) hereof (or, with respect to Incremental Facility Loans, as set
forth in the Notice of Incremental Facility Commitment).
"Approved Fund" means any Person (other than a natural Person), including,
without limitation, any special purpose entity, that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business; provided,
that with respect to any assignment of any Revolving Loan Commitment, such
Approved Fund must be administered, managed or underwritten by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Asset Sale" shall mean the sale, lease, transfer or other disposition by
the Borrower or any Restricted Subsidiary to any Person of any of the stock,
partnership interests or other equity interests of any Restricted Subsidiary or
any other assets of the Borrower or any Restricted Subsidiary (excluding the
stock, partnership interests or other equity interests of any Unrestricted
Subsidiary).
"Assignment and Assumption Agreement" shall mean any Assignment and
Assumption Agreement substantially in the form of Exhibit A attached hereto
pursuant to which any Lender, as further provided in Section 11.5 hereof, sells
a portion of its Commitments and/or Loans.
"Assignment of General Partner Interests" shall mean the Amended and
Restated Master Assignment of General Partner Interests dated as of October 25,
2002 between certain Subsidiaries and the Administrative Agent attached hereto
as Exhibit L-1, as amended, restated, supplemented or otherwise modified.
"Assignment of Limited Partner Interests" shall mean the Amended and
Restated Master Assignment of Limited Partner Interests dated as of October 25,
2002 between certain Subsidiaries and the Administrative Agent attached hereto
as Exhibit L-2, as amended, restated, supplemented or otherwise modified.
"Authorized Signatory" shall mean such senior personnel of a Person as may
be duly authorized and designated in writing from time to time by such Person to
execute documents, agreements and instruments on behalf of such Person.
"Available Letter of Credit Commitment" shall mean, at any time, the
lesser of (a) (i) $30,000,000.00, minus (ii) all Letter of Credit Obligations
then outstanding, and (b) (i) the Available Revolving Loan Commitment.
"Available Revolving Loan Commitment" shall mean, as of any date, (a) the
Revolving Loan Commitment in effect on such date minus (b) the sum of (i) the
aggregate amount of all Letter of Credit Obligations then outstanding and (ii)
the Revolving Loans then outstanding.
"Base Rate" shall mean, at any time, a fluctuating interest rate per annum
equal to the higher of (a) the rate of interest quoted from time to time by the
Administrative Agent as its "prime rate" or "base rate" or (b) the Federal Funds
Rate plus one-half of one percent (1/2%).
4
The Base Rate is not necessarily the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit.
"Base Rate Advance" shall mean an Advance which the Borrower requests to
be made as or converted to a Base Rate Advance, in accordance with the
provisions of Section 2.2 hereof, and which shall be in a principal amount of at
least $500,000.00, and in an integral multiple of $250,000.00.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of
(a) the Base Rate and (b) the Applicable Margin applicable to Base Rate
Advances. The Base Rate Basis shall be adjusted automatically as of the opening
of business on the effective date of each change in the Base Rate to account for
such change, and shall also be adjusted to reflect changes of the Applicable
Margin applicable to Base Rate Advances.
"Borrower" shall mean Xxxx Television, Inc. (formerly known as Xxxx
Communications Systems, Inc.), a Georgia corporation.
"Borrower Pledge Agreement" shall mean that certain Amended and Restated
Borrower Pledge Agreement dated as of October 25, 2002 by and between the
Borrower and the Administrative Agent attached hereto as Exhibit B, as amended,
restated, supplemented or otherwise modified.
"Borrower Security Agreement" shall mean that certain Amended and Restated
Borrower Security Agreement dated as of October 25, 2002 by and between the
Borrower and the Administrative Agent attached hereto as Exhibit C, as amended,
restated, supplemented or otherwise modified.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
Charlotte, North Carolina, Atlanta, Georgia and London, England, as relevant to
the determination to be made or the action to be taken.
"Capital Expenditures" shall mean any payments by the Borrower or any of
its Restricted Subsidiaries for or in connection with the rental, lease,
purchase, construction or use of any real or personal property, the value or
cost of which, under GAAP, should be capitalized and appear on the Borrower's or
such Restricted Subsidiary's balance sheet in the category of property, plant or
equipment, without regard to the manner in which such payments or the instrument
pursuant to which they are made are characterized by the Borrower or such
Restricted Subsidiary or any other Person; provided, however, that neither (a)
the capitalized portion of the purchase price payable in connection with any
Acquisition permitted hereunder, nor (b) expenditures of proceeds of insurance
policies reasonably and promptly applied to replace insured assets, shall
constitute a Capital Expenditure for purposes of this Agreement.
"Capitalized Lease Obligation" shall mean that portion of any obligation
of a Person as lessee under a lease which at the time would be required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
5
"Capital Stock" means corporate stock and any and all securities, shares,
partnership interests (whether general, limited, special or other), limited
liability company interests, membership interests, equity interests,
participations, rights or other equivalents (however designated) of corporate
stock or any of the foregoing issued by any entity (whether a corporation, a
partnership, a limited liability company or another entity) and includes,
without limitation, securities convertible into Capital Stock and rights,
warrants or options to acquire Capital Stock.
"Cash Equivalents" shall mean, as of any date of determination, (a)
marketable securities (i) issued or directly and unconditionally guaranteed as
to interest and principal by the United States government or (ii) issued by any
agency of the United States government the obligations of which are backed by
the full faith and credit of the United States of America, in each case maturing
within one (1) year after such date; (b) marketable direct obligations issued by
any state of the United States or any political subdivision of any such state or
any public instrumentality thereof, in each case maturing within one (1) year
after such date and having, at the time of the acquisition thereof, the highest
rating obtainable from either Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc., or Xxxxx'x Investors Service, Inc.; (c) commercial
paper, money-market funds and business savings accounts issued by corporations,
each of which shall have a combined net worth of at least $100,000,000.00 and
each of which conducts a substantial part of its business in the United States,
maturing within two hundred seventy (270) days from the date of the original
issue thereof, and rated "P-2" or better by Xxxxx'x Investors Service, Inc. or
"A-2" or better by Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.; (d) certificates of deposit or bankers' acceptances
maturing within one (1) year after such date and issued or accepted by any
Lender or by any commercial bank organized under the laws of the United States
or any state thereof or the District of Columbia that (i) is at least
"adequately capitalized" (as defined in the regulations of its primary Federal
banking regulator) and (ii) has Tier 1 capital (as defined in the regulations)
of not less than $100,000,000.00; and (e) shares of any money market mutual fund
that (i) has at least ninety-five percent (95%) of its assets invested
continuously in the types of investments referred to in clauses (a), (b) and (c)
above, (ii) has net assets of not less than $500,000,000.00, and (iii) has the
highest rating obtainable from either Standard & Poor's Ratings Group, a
division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx'x Investors Service, Inc.
"Certificate of Financial Condition" shall mean a certificate dated the
Agreement Date, substantially in the form of Exhibit D attached hereto, signed
by the chief financial officer of the Borrower, together with any schedules,
exhibits or annexes appended thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean any property of any kind constituting collateral
for the Obligations under any of the Security Documents.
"Commercial Letter of Credit" shall mean a documentary letter of credit
issued in respect of the purchase of goods or services by the Borrower or its
Restricted Subsidiaries by the Issuing Bank in accordance with the terms hereof.
6
"Commitments" shall mean, collectively, the Revolving Loan Commitment, the
Term Loan A Commitment, the Term Loan B Commitment and, as applicable, the
Incremental Facility Commitments; and "Commitment" shall mean any of the
foregoing Commitments.
"Commitment Ratio" shall mean, with respect to any Lender for any
Commitment, the percentage equivalent of the ratio which such Lender's portion
of such Commitment (or, in the case of the Term Loan A or the Term Loan B after
the Agreement Date or Incremental Facility Loans after the funding date thereof,
such Lender's portion of such Loan) bears to the aggregate amount of such
Commitment or Loan, as the case may be (as each may be adjusted from time to
time as provided herein); and "Commitment Ratios" shall mean, with respect to
any Commitment, the Commitment Ratios of all of the Lenders with respect to such
Commitment. The Commitment Ratios of the Lenders party to this Agreement shall
be set forth in the Register.
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Continue", "Continuation" and "Continued" shall mean the continuation
pursuant to Article 2 hereof of a LIBOR Advance as a LIBOR Advance from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall mean a conversion pursuant
to Article 2 hereof of a LIBOR Advance into a Base Rate Advance or of a Base
Rate Advance into a LIBOR Advance, as applicable.
"Debt Service" shall mean, for any period, the amount of all principal
paid or required to be paid and Interest Expense of the Borrower and its
Restricted Subsidiaries on a consolidated basis in respect of Indebtedness of
the Borrower and its Restricted Subsidiaries (other than voluntary principal
payments of the Revolving Loans which are not required to be accompanied by an
identical reduction in the Revolving Loan Commitment).
"Default" shall mean any Event of Default, and any of the events specified
in Section 8.1 hereof, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event as an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the applicable Base Rate Basis and (b) two percent (2%).
"Eligible Assignee" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having combined capital and surplus in excess of
$500,000,000, (b) a commercial bank organized under the laws of any other
country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the
7
ordinary course of business extends credit of the type extended hereunder and
that has total assets in excess of $1,000,000,000, (d) already a Lender
hereunder (whether as an original party to this Agreement or as the assignee of
another Lender), (e) the successor (whether by transfer of assets, merger or
otherwise) to all or substantially all of the commercial lending business of the
assigning Lender, (f) any Affiliate of an assigning Lender, (g) any Approved
Fund or (h) any other Person that has been approved in writing as an Eligible
Assignee by the Borrower (other than upon the occurrence and during the
continuance of any Default or Event of Default) and the Administrative Agent.
"Employee Pension Plan" shall mean any Plan which is maintained by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (a) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (b) in connection with any Hazardous
Materials or any actual or alleged Hazardous Materials Activity, or (c) in
connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to public health, safety or the
pollution or protection of the environment, including, without limitation, those
relating to releases, discharges, emissions, spills, leaching, or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any fraction
thereof, or other hydrocarbons), pollutants or contaminants, to exposure to
toxic, hazardous or other controlled, prohibited, or regulated substances,
including, without limitation, any such provisions under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.), the Hazardous Materials Transportation Act (49
U.S.C. Section 1801 et seq.), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
Section 136 et seq.), the Occupational Safety and Health Act (29 U.S.C. Section
651 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 et
seq.), each as amended or supplemented, any analogous present or future state or
local statutes or laws, and any regulations promulgated pursuant to any of the
foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
8
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations of
which the Borrower is a member and which is covered by a Plan.
"Event of Default" shall mean any of the events specified in Section 8.1
hereof, provided that any requirement for notice or lapse of time, or both, has
been satisfied.
"Excess Cash Flow" shall mean, with respect to the Borrower and its
Restricted Subsidiaries, as of the end of any fiscal year of the Borrower based
on the audited financial statements provided under Section 6.2 hereof for such
fiscal year, the excess, if any, without duplication, of (a) the sum of (i)
Operating Cash Flow for such fiscal year, and (ii) any decrease in the
Borrower's working capital account during such fiscal year (excluding cash and
Cash Equivalents from current assets for such working capital account
determination), minus (b) the sum of the following: (i) Capital Expenditures
made during such fiscal year; (ii) Debt Service for such fiscal year; (iii) cash
taxes paid during such fiscal year; (iv) Restricted Payments or Restricted
Purchases made during such fiscal year which are permitted under Section 7.7
hereof; and (v) any increase in the Borrower's working capital account during
such fiscal year (excluding cash and Cash Equivalents from current assets for
such working capital account determination); in each case, as determined in
accordance with GAAP.
"Existing Letters of Credit" shall mean all letters of credit issued by
Wachovia Bank, National Association under the Prior Loan Agreement and
outstanding on the Agreement Date and set forth on Schedule 12 attached hereto.
"FCC" shall mean the Federal Communications Commission and any successor
or substitute governmental commission, agency, department, board or authority
performing functions similar to those performed by the Federal Communications
Commission on the date hereof.
"FCC License" shall mean any license required under the Communications Act
or from the FCC.
"FCC Regulations" shall mean all rules, regulations, written policies,
orders and decisions of the FCC under the Communications Act.
"Federal Funds Rate" shall mean, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte, North Carolina time). Rates for weekends or
holidays shall be the same as the rate for the most immediately preceding
Business Day.
"Fed Regulations" shall have the meaning ascribed thereto in Section
4.1(n) hereof.
9
"Fixed Charge Coverage Ratio" shall mean the ratio of (a) Operating Cash
Flow for the four (4) quarter period then ended or most recently ended to (b)
Fixed Charges for the four (4) quarter period then ended or most recently ended.
"Fixed Charges" shall mean, with respect to the Borrower and its
Restricted Subsidiaries, as of any date for any period, the sum of (a) all
Interest Expense, (b) all required principal payments due on the Term Loan A,
the Term Loan B and, as applicable, Incremental Facility Loan made pursuant to
scheduled repayments under Section 2.7(b)(i)(A), Section 2.7(b)(i)(B) or the
Notice of Incremental Facility Commitment, as applicable, (c) all principal
payments required to be made on Total Debt (other than the Loans), (e) Capital
Expenditures made during such period, (e) any federal, state or local income
taxes paid in cash during such period, (f) any purchases of common stock of the
Borrower by the Borrower or any of its Restricted Subsidiaries, in each case,
for or during such period, plus (g) dividends made in respect of the Ownership
Interests of the Borrower or such Restricted Subsidiary (excluding dividends
made in such Ownership Interests). For purposes of calculating the Fixed Charge
Coverage Ratio as of any date, Fixed Charges shall exclude actual HDTV Capital
Expenditures in an amount not to exceed $30,000,000.00 in the aggregate from the
Agreement Date to the Maturity Date.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, any reimbursement
obligations as to amounts drawn down by beneficiaries of outstanding letters of
credit or capital call requirements.
"Xxxxxx Agreement" shall mean that certain Exclusive Master Purchasing
Agreement dated as of September 25, 2000 between the Borrower and Xxxxxx
Corporation d/b/a Xxxxxx Broadcast Communications Division, as existing on the
Agreement Date.
"Xxxxxx Agreement Obligations" shall mean the Indebtedness incurred
pursuant to the Xxxxxx Agreement, in a principal amount not to exceed
$20,000,000.00 in the aggregate at any time outstanding; provided such
Indebtedness is purchase money Indebtedness of the Borrower or any of its
Subsidiaries that within ninety (90) days of such purchase is incurred to
finance part or all of (but not more than) the purchase price of Equipment (as
defined in the Xxxxxx Agreement) in which neither the Borrower nor such
Subsidiary had at any time prior to such purchase any interest other than a
security interest or an interest as a lessee under an operating lease on terms
and conditions no more restrictive than those contained hereunder.
"Hazardous Materials" shall mean (a) any chemical, material or substance
at any time defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous waste," "acutely
hazardous waste," "radioactive
10
waste," "biohazardous waste," "pollutant," "toxic pollutant," "contaminant,"
"restricted hazardous waste," "infectious waste," "toxic substances," or any
other term or expression intended to define, list or classify substances by
reason of properties harmful to health, safety or the indoor or outdoor
environment (including, without limitation, harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (b) any oil, petroleum, petroleum fraction or
petroleum derived substance; (c) any drilling fluids, produced waters and other
wastes associated with the exploration, development or production of crude oil,
natural gas or geothermal resources; (d) any flammable substances or explosives;
(e) any radioactive materials; (f) any asbestos-containing materials; (g) urea
formaldehyde foam insulation; (h) electrical equipment which contains any oil or
dielectric fluid containing polychlorinated biphenyls; (i) pesticides; and (j)
any other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority or which may or could pose a
hazard to the health and safety of the owners, occupants or any Persons in the
vicinity of any Real Property or to the indoor or outdoor environment.
"Hazardous Materials Activity" shall mean any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HDTV Capital Expenditures" shall mean Capital Expenditures made in
connection with mandated conversion to digital television broadcasting,
including, without limitation, the purchase of transmission, distribution,
studio and antenna equipment and transmission site modifications, including
construction and modification of towers.
"Incremental Facility Advance" shall mean an Advance made by any Lender
holding an Incremental Facility Commitment pursuant to Section 2.15 hereof.
"Incremental Facility Commitment" shall mean the commitment of any Lender
or Lenders to make advances to the Borrower in accordance with Section 2.15
hereof (the Borrower may obtain Incremental Facility Commitments from more than
one Lender, which commitments shall be several obligations of each such Lender);
and "Incremental Facility Commitments" shall mean the aggregate of the
Incremental Facility Commitments of each Lender.
"Incremental Facility Commitment Ratios" shall mean percentages in which
the Lenders holding an Incremental Facility Commitment are severally bound to
fund their respective portions of Advances to the Borrower under the Incremental
Facility Commitments which are set forth in the Notice of Incremental Facility
Commitment.
"Incremental Facility Loans" shall mean the amounts advanced by the
Lenders holding an Incremental Facility Commitment to the Borrower as
Incremental Facility Loans under the Incremental Facility Commitment.
11
"Incremental Facility Maturity Date" shall mean that date specified in the
Notice of Incremental Facility Commitment as the maturity date of an Incremental
Facility Loan.
"Incremental Facility Notes" shall mean, collectively, those promissory
notes issued to each of the Lenders requesting a note pursuant to Section 2.8 by
the Borrower with respect to the Incremental Facility Commitment, each one
substantially in the form of Exhibit F-4 attached hereto, any other promissory
note issued by the Borrower to evidence the Incremental Facility Loans pursuant
to this Agreement, and any extensions, renewals or amendments to, or
replacements of, the foregoing.
"Indebtedness" shall mean, with respect to any Person as of any date, all
liabilities, obligations and reserves, contingent or otherwise, which, in
accordance with GAAP, would be reflected as a liability on a balance sheet
(excluding trade accounts payable and accrued expenses arising in the ordinary
course of business), including, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to assets
purchased by such Person, (e) all obligations of such Person issued or assumed
as the deferred purchase price of property or services, (f) all obligations of
others secured by (or for which the holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed by such Person, (g) all obligations or liabilities otherwise
constituting Indebtedness under this definition Guaranteed by such Person, (h)
all Capitalized Lease Obligations of such Person, (i) all net payment
obligations incurred by any such Person pursuant to Interest Rate Hedge
Agreements, and (j) all obligations of such Person as an account party to
reimburse any Person in respect of letters of credit (including, without
limitation, the Letters of Credit) or bankers' acceptances. The Indebtedness of
any Person shall include any recourse Indebtedness of any partnership in which
such Person is a general partner.
"Indemnitee" shall have the meaning ascribed thereto in Section 5.11
hereof.
"Interest Coverage Ratio" shall mean the ratio of (a) Operating Cash Flow
for the four (4) quarter period then ended or most recently ended to (b)
Interest Expense for the four (4) quarter period then ended or most recently
ended.
"Interest Expense" shall mean, for any period, the gross interest expense
accrued by the Borrower and its Restricted Subsidiaries in respect of their
Indebtedness for such period, net of interest income for such period, determined
on a consolidated basis, all fees payable under Section 2.4 or any fee letter of
the Borrower executed in connection with this Agreement, and any other fees,
charges, commissions and discounts in respect of Indebtedness, including,
without limitation, any fees payable in connection with the Letters of Credit,
but excluding deferred finance charges all calculated in accordance with GAAP.
For purposes of the foregoing, gross interest expense shall be determined after
giving effect to any net payments made or received by the Borrower and its
Restricted Subsidiaries with respect to Interest Rate
12
Hedge Agreements, but shall exclude any non-xxxx xxxx-to-market adjustments made
by the Borrower and its Restricted Subsidiaries with respect to Interest Rate
Hedge Agreements.
"Interest Period" shall mean (a) in connection with any Base Rate Advance,
the period beginning on the date such Advance is made as or Converted to a Base
Rate Advance and ending on the last day of the fiscal quarter in which such
Advance is made or as Converted to a Base Rate Advance, provided, however, that
if a Base Rate Advance is made or Converted on the last day of any fiscal
quarter, it shall have an Interest Period ending on, and its Payment Date shall
be, the last day of the following fiscal quarter, and (b) in connection with any
LIBOR Advance, the term of such Advance selected by the Borrower or otherwise
determined in accordance with this Agreement. Notwithstanding the foregoing,
however, (i) any applicable Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless, with respect to LIBOR Advances only, such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any applicable Interest Period, with respect to
LIBOR Advances only, which begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period is to
end shall (subject to clause (i) above) end on the last day of such calendar
month, and (iii) the Borrower shall not select an Interest Period which extends
beyond the Maturity Date, or such earlier date as would interfere with the
Borrower's repayment obligations under Section 2.7 hereof. Interest shall be due
and payable with respect to any Advance as provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR Basis,
as appropriate.
"Interest Rate Hedge Agreements" shall mean any agreement or other
arrangement of any Person with any other Person whereby, directly or indirectly,
such Person is entitled to receive from time to time periodic payments
calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such Person calculated
by applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"Interest Rate Hedge Obligations" shall mean all existing and future
payments and other obligations owing by the Borrower or its Restricted
Subsidiaries under any Interest Rate Hedge Agreements permitted hereunder with
any Person that is a Lender or an Affiliate thereof at the time such Interest
Rate Hedge Agreement is executed.
"Investment" shall mean, with respect to the Borrower or any of its
Restricted Subsidiaries, (a) any loan, advance or extension of credit (other
than to customers in the ordinary course of business) by such Person to, or any
Guaranty or other contingent liability with respect to the capital stock,
indebtedness or other obligations of, or any contributions to the capital of,
any other Person, or any ownership, purchase or other acquisition by such Person
of any interest in any capital stock, limited partnership interests, general
partnership interest, or other securities of such other Person, other than an
Acquisition, (b) any Joint Sales Agreement, Local Marketing Agreement or Shared
Services Agreement entered into by such Person or any commitment, promise or
agreement by such Person to enter into any such agreement, and (c) all
expenditures by the Borrower or any of its Restricted Subsidiaries relating to
the foregoing.
13
"Issuing Bank" shall mean Wachovia Bank, National Association, in its
capacity as the issuer of the Letters of Credit, or any successor issuer of the
Letters of Credit.
"Joint Sales Agreement" shall mean an agreement for the sale of commercial
or advertising time or any similar arrangement pursuant to which a Person
obtains the right to (a) sell at least a majority of the time for commercial
spot announcements, and/or resell to advertisers such time on, (b) provide the
sales staff for the sale of the advertising time or the collection of accounts
receivable with respect to commercial advertisements broadcast on, (c) set the
rates for advertising on and/or (d) provide the advertising material for
broadcast on, a television broadcast station the FCC License of which is held by
a Person other than an Affiliate of such Person.
"known to the Borrower" or "to the knowledge of the Borrower" shall mean
known by or reasonably should have been known by the executive officers of the
Borrower (including, without limitation, the chief executive officer, president,
the chief operating officer, if any, the chief financial officer, the
controller, the chief accounting officer or the general counsel of the
Borrower).
"Lead Arranger" shall mean Wachovia Capital Markets, LLC.
"Lenders" shall mean the Persons whose names appear as "Lenders" on the
signature pages hereof and any other Person which becomes a "Lender" hereunder
after the Agreement Date; and "Lender" shall mean any one of the foregoing
Lenders.
"Letter of Credit Obligations" shall mean, as of any date, the sum of (a)
an amount equal to the aggregate undrawn and unexpired amount (including the
amount to which any such Letter of Credit can be reinstated pursuant to the
terms hereof) of the then outstanding Letters of Credit and (b) an amount equal
to the aggregate drawn, but unreimbursed drawings on any Letters of Credit.
"Letters of Credit" shall mean either Standby Letters of Credit or
Commercial Letters of Credit issued by the Issuing Bank at the request of the
Borrower on behalf of the Borrower or its Restricted Subsidiaries from time to
time in accordance with the terms hereof and shall include the Existing Letters
of Credit.
"Leverage Ratio" shall mean, as of any date, the ratio of (a) Adjusted
Total Debt as of such date to (b) Operating Cash Flow for the four (4) quarter
period then ended or most recently ended.
"LIBOR" means, with respect to a particular Interest Period, the rate of
interest per annum determined on the basis of the rate for deposits in United
States Dollars in minimum amounts of at least $1,000,000.00 for a period equal
to the applicable Interest Period which appears on the Dow Xxxxx Market Screen
3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of the applicable Interest Period (rounded upward, if necessary,
to the nearest 1/100th of 1%). If, for any reason, such rate does not appear on
Dow Xxxxx Market Screen 3750, then
14
"LIBOR" shall be determined by the Administrative Agent to be the arithmetic
average of the rate per annum at which deposits in United States Dollars in
minimum amounts of at least $1,000,000.00 would be offered by first class banks
in the London interbank market to the Administrative Agent at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period. Each
calculation by the Administrative Agent of LIBOR shall be conclusive and binding
for all purposes, absent manifest error.
"LIBOR Advance" shall mean an Advance which the Borrower requests to be
made as, Continued as or Converted to a LIBOR Advance in accordance with the
provisions of Section 2.2 hereof, and which shall be in a principal amount of at
least $1,000,000.00 and in an integral multiple of $1,000,000.00.
"LIBOR Basis" shall mean a simple per annum interest rate (rounded upward,
if necessary, to the nearest one-hundredth (1/100th) of one percent (1.0%))
equal to the sum of (a) the quotient of (i) the LIBOR divided by (ii) one (1)
minus the LIBOR Reserve Percentage, if any, stated as a decimal, plus (b) the
Applicable Margin. The LIBOR Basis shall apply to Interest Periods of one (1),
two (2), three (3), six (6), or, to the extent available to all Lenders, twelve
(12) months, and, once determined, shall remain unchanged during the applicable
Interest Period, except for changes to reflect adjustments in the LIBOR Reserve
Percentage and the Applicable Margin as adjusted pursuant to Section 2.3(f)
hereof. The LIBOR Basis for any LIBOR Advance shall be adjusted as of the
effective date of any change in the LIBOR Reserve Percentage and the Applicable
Margin. The Borrower may not elect an Interest Period in excess of six (6)
months unless the Administrative Agent has notified the Borrower that each of
the Lenders has funds available to it for such Lender's portion of the proposed
Advance which are not required for other purposes, and that such funds are
available to each Lender at a rate (exclusive of reserves and other adjustments)
at or below the LIBOR Basis for such proposed Advance and Interest Period.
"LIBOR Reserve Percentage" means for any day that percentage (expressed as
a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) for
a member bank of the Federal Reserve System in respect of Eurocurrency
Liabilities (as that term is defined in Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time). The LIBOR Rate
shall be adjusted automatically on and as of the effective date of any change in
the LIBOR Reserve Percentage.
"License" shall mean any license, authorization, permit, consent,
franchise, ordinance, registration, certificate, agreement or other right filed
with, granted by, or entered into by a federal, state or local governmental
authority which permits or authorizes the acquisition, construction or operation
of a television station or any part of a television station or which is required
for the acquisition, ownership or operation of any Station or any other
Permitted Business, including, without limitation, the FCC Licenses.
15
"License Sub" shall mean each Restricted Subsidiary of the Borrower which
has no assets other than FCC Licenses.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, collateral assignment,
charge, security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not xxxxxx, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, all fee letters, all Requests for Advance, all Notices of Incremental
Facility Commitments, all compliance certificates issued by the Borrower or any
of its Restricted Subsidiaries and all other documents, agreements, supplements,
confirmations, instruments or certificates executed or delivered in connection
with or contemplated by this Agreement or any of the foregoing (excluding any
Interest Rate Hedge Agreement).
"Loans" shall mean, collectively, the Revolving Loans, the Term Loan A,
the Term Loan B, and, if applicable, the Incremental Facility Loans.
"Local Marketing Agreement" shall mean a local marketing arrangement, time
brokerage agreement, management agreement or similar arrangement pursuant to
which a Person, subject to customary preemption rights and other limitations,
obtains the right to exhibit programming and sell advertising time during more
than fifteen percent (15%) of the air time of a television broadcast station
licensed to another Person.
"margin stock" shall have the meaning ascribed thereto in Section 4.1(n)
hereof.
"Materially Adverse Effect" shall mean a material adverse effect upon or
change in (a) the properties, assets, business, operations, financial condition
or prospects of the Borrower or any of its Restricted Subsidiaries or on the
ability of the Borrower or any such Restricted Subsidiary to conduct its
business, (b) the ability of the Borrower, any of its Restricted Subsidiaries or
any other party to a Loan Document (other than the Administrative Agent or any
Lender) to perform its obligations hereunder or under any other Loan Document to
which it is a party, (c) the validity or enforceability of this Agreement or any
other Loan Document, or (d) the rights or remedies of the Administrative Agent
or the Lenders under this Agreement or any other Loan Document or at law or in
equity.
"Maturity Date" shall mean the Revolving Loan Maturity Date, the Term Loan
A Maturity Date, the Term Loan B Maturity Date or the Incremental Facility
Maturity Date, as applicable.
"Multiemployer Plan" shall mean a multiemployer pension plan as defined in
Section 3(37) of ERISA to which the Borrower, any of its Restricted Subsidiaries
or any ERISA Affiliate is or has been required to contribute.
16
"Necessary Authorizations" shall mean all approvals, consents and licenses
from, and all filings and registrations with, any governmental or other
regulatory authority, shareholder or other third party, including, without
limitation, all approvals, consents, Licenses, filings and registrations under
the Communications Act.
"Net Earnings" shall mean, as of any date with respect to the Borrower,
the consolidated net income (or deficit) of the Borrower and its Restricted
Subsidiaries for the period involved, after taxes accrued and after all proper
charges and reserves (excluding, however, non-recurring special charges and
credits), all as determined in accordance with GAAP.
"Net Proceeds (Asset Sales)" shall mean, with respect to any Asset Sale
by, or any insurance or condemnation proceeding in respect of any assets of, the
Borrower or any of its Restricted Subsidiaries, as applicable, the aggregate
amount of cash received for such assets (including, without limitation, any
payments received for non-competition covenants, any time brokerage, consulting
or management fees for services rendered on or prior to the consummation of such
sale (other than such fees received in the ordinary course of business for
brokerage, management or consulting services rendered after the consummation of
such sale in amounts usual and customary for the services rendered), and any
portion of the amount received evidenced by a promissory note or other evidence
of Indebtedness issued by the purchaser), net of (a) amounts reserved, if any,
for taxes payable with respect to any such sale (after application (assuming
application first to such reserves) of any available losses, credits or other
offsets), (b) reasonable and customary transaction costs properly attributable
to such transaction and payable by the Borrower or any of its Restricted
Subsidiaries (other than to an Affiliate) in connection with such Asset Sale,
including, without limitation, commissions, and (c) until actually received by
the Borrower or any of its Restricted Subsidiaries, any portion of the amount
received held in escrow, evidenced by a promissory note or other evidence of
Indebtedness, or in respect of a purchase or non-compete, consulting or
management agreement or covenant or otherwise for which compensation is paid
over time. Upon receipt by the Borrower or any of its Restricted Subsidiaries of
(i) amounts referred to in item (c) of the preceding sentence, or (ii) if there
shall occur any reduction in the tax reserves referred to in item (a) of the
preceding sentence resulting in a payment to the Borrower or its Restricted
Subsidiaries, such amounts shall then be deemed to be "Net Proceeds (Asset
Sales)."
"Net Proceeds (Indebtedness)" shall mean, with respect to any sale,
issuance or other disposition of any Indebtedness of the Borrower or its
Restricted Subsidiaries by the Borrower or its Restricted Subsidiaries, the
difference between (a) the aggregate amount of cash or Cash Equivalents received
in connection with the sale, issuance or other disposition of such Indebtedness,
and (b) the aggregate amount of any reasonable and customary transaction costs
incurred in connection therewith, including, without limitation, all fees and
expenses of attorneys, accountants and other consultants, all underwriting or
placement agent fees, and fees and expenses of any trustee, registrar or
transfer agent.
"Notes" shall mean, collectively, the Revolving Loan Notes, the Term Loan
A Notes, the Term Loan B Notes, and, if applicable, the Incremental Facility
Notes.
17
"Notice of Incremental Facility Commitment" shall mean the notice by the
Borrower of the Incremental Facility Commitment, which notice shall be
substantially in the form of Exhibit M attached hereto and shall be delivered to
the Administrative Agent and the Lenders.
"Notice of Revolving Increase" shall mean the written notice by the
Borrower, in substantially the form of Exhibit N attached hereto to the
Administrative Agent, of the Borrower's desire to increase the Revolving Loan
Commitment pursuant to Section 2.16.
"Obligations" shall mean all payment and performance obligations of every
kind, nature and description of the Borrower, its Restricted Subsidiaries, and
any other obligors to the Lenders, or the Administrative Agent, or any of them,
under this Agreement and the other Loan Documents (including any interest, fees
and other charges on the Loans or otherwise under the Loan Documents that would
accrue but for the filing of a bankruptcy action and including all Interest Rate
Hedge Obligations) as they may be amended from time to time, or as a result of
making the Loans, whether such obligations are direct or indirect, absolute or
contingent, due or not due, contractual or tortious, liquidated or unliquidated,
arising by operation of law or otherwise, now existing or hereafter arising.
"OFAC" means the U.S. Department of the Treasury's Office of Foreign
Assets Control.
"Operating Agreement" shall mean any programming agreement, time
brokerage, local marketing or similar agreement, network affiliation agreement,
franchise agreement, lease or other agreement of the Borrower or any of its
Restricted Subsidiaries relating to the operation of a Station or any other
Permitted Business, the termination or adverse modification of which could
reasonably be expected to have a Material Adverse Effect.
"Operating Cash Flow" shall mean, with respect to the Borrower and its
Restricted Subsidiaries, as of any date for any period, (a) the Net Earnings for
such period (excluding, to the extent included in Net Earnings, (i) the effect
of any exchange of advertising time for non-cash consideration, such as
merchandise or services, (ii) any other non-cash income or expense (including
the cumulative effect of a change in accounting principles and extraordinary
items) and (iii) any gains or losses from sales, exchanges and other
dispositions of property not in the ordinary course of business), minus (b) any
cash payments made in respect of Programming Obligations, plus (c) the sum of
(i) depreciation on or obsolescence of fixed or capital assets and amortization
of intangibles and leasehold improvements (including, without limitation,
amortization in respect of Programming Obligations) for such period, plus (ii)
Interest Expense in such period, plus (iii) federal, state and local income
taxes in such period to the extent deducted in calculating Net Earnings in such
period (other than any such taxes resulting from any gains from sales and
exchanges and other distributions not in the ordinary course of business), plus
(d) one-time corporate restructuring charges calculated in accordance with GAAP
to be taken during fiscal years 2005 and 2006, in an aggregate amount not to
exceed $6,000,000 plus (e) Additional Unrestricted Group Cash Flow during such
period which is available to the Borrower and its Restricted Subsidiaries in
cash, such cash not subject to any Lien, other than the Lien of the
Administrative Agent plus (f) adjustments to actual historical Operating Cash
Flow in connection with any Acquisition permitted pursuant to Section 7.6;
provided that such adjustments are (i) consistent with Regulation S-X of the
U.S. Securities and Exchange Commission and (ii)
18
approved by the Lead Arranger in its reasonable business judgment, all on a
consolidated basis and computed on the accrual method. For purposes of
calculating Operating Cash Flow in any period, any Acquisition or Asset Sale
which occurs during such period shall be deemed to have occurred on the first
day of such period.
"Ownership Interests" shall mean, as applied to any Person, any ownership
interests or Capital Stock of such Person, regardless of class or designation,
and all warrants, options, purchase rights, conversion or exchange rights,
voting rights, calls or claims of any character with respect thereto, or any
partnership interests, membership interest or other instruments or securities
evidencing ownership of such Person, as applicable.
"Ownership Reports" shall mean, with respect to any Station, the reports
and certifications filed with the FCC pursuant to 47 C.F.R. Section 73.3615, or
any comparable reports filed pursuant to any successor regulation thereto.
"Participant" shall have the meaning assigned thereto in Section 11.5(d).
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Performance Certificate" shall have the meaning assigned thereto in
Section 6.4.
"Permitted Business" shall mean the business of owning or operating
Stations, all businesses directly related thereto, and any electronic news and
information delivery business and any other television broadcasting-related or
television content-related business.
"Permitted Liens" shall mean, as applied to any Person:
(a) any Lien in favor of the Administrative Agent or any Lender
given to secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments, judgments, governmental charges or levies or claims the
non-payment of which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside on such Person's
books in accordance with GAAP, but only so long as no forfeiture, foreclosure,
distraint, sale or similar proceedings have been commenced with respect thereto;
(c) statutory Liens of carriers, warehousemen, mechanics, vendors,
laborers and materialmen incurred in good faith in the ordinary course of
business for sums not yet due or being diligently contested in good faith, if
adequate reserves have been set aside on such Person's books in accordance with
GAAP, or appropriate provisions shall have been made therefor, and no
forfeiture, foreclosure, distraint, sale or similar proceedings have been
commenced with respect thereto;
19
(d) Liens incurred in the ordinary course of business in connection
with worker's compensation and unemployment insurance, social security
obligations, assessments or government charges which are not overdue for more
than sixty (60) days;
(e) restrictions on the transfer of assets of the Borrower or its
Restricted Subsidiaries imposed by the Communications Act and any regulations
thereunder;
(f) easements, rights-of-way, zoning restrictions, leases, licenses,
reservations or restrictions on use and other similar encumbrances on the use of
Real Property which do not materially interfere with the ordinary conduct of the
business of such Person or the use or value of such property;
(g) Liens reflected by Uniform Commercial Code financing statements
filed in respect of true leases (excluding any Capital Leases) of the Borrower
or any of its Restricted Subsidiaries;
(h) Liens to secure performance of statutory obligations, surety or
appeal bonds, performance bonds, bids, tenders or escrow deposits in connection
with Acquisitions and, in each case, in the ordinary course of business;
(i) judgment Liens which do not result in an Event of Default under
Section 8.1(h) hereof;
(j) Liens existing on the Agreement Date as set forth in Schedule 2
hereof;
(k) Liens approved by the Administrative Agent and set forth in any
title policy insuring the interest of the Administrative Agent in any
Collateral, or set forth in title report, title examination or similar document
with respect to any of the Collateral;
(l) Liens securing the Xxxxxx Agreement Obligations;
(m) Liens securing obligations incurred in connection with an
Acquisition permitted under Section 7.6 in an amount, when aggregated with Liens
permitted pursuant to clause (n) below, not to exceed $30,000,000.00 in the
aggregate at any time outstanding; and
(n) other Liens securing Indebtedness in an amount, when aggregated
with Liens permitted pursuant to clause (m) above, not to exceed $30,000,000.00
in the aggregate at any time outstanding.
"Person" shall mean an individual, corporation, limited liability company,
association, partnership, joint venture, trust or estate, an unincorporated
organization, a government or any agency or political subdivision thereof, or
any other entity.
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"Plan" shall mean an employee benefit plan within the meaning of Section
3(3) of ERISA or any other employee benefit plan maintained for employees of any
Person or any affiliate of such Person.
"Prior Lenders" shall have the meaning assigned to such term in the
preamble hereto.
"Prior Loan Agreement" shall have the meaning assigned to such term in the
preamble hereto.
"Programming Obligations" means all direct or indirect monetary
liabilities, contingent or otherwise, with respect to contracts for television
broadcast rights relating to television series or other programs produced or
distributed for television release.
"Purchasing Lender" shall have the meaning assigned thereto in Section
11.5(b).
"Reaffirmation Agreement" shall mean that certain Master Reaffirmation,
Amendment and Release Agreement, dated as of the Agreement Date, by and between
the Borrower, its Restricted Subsidiaries and the Administrative Agent
substantially in the form attached hereto as Exhibit O, as amended, restated,
supplemented or otherwise modified.
"Real Property" shall mean any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by the Borrower or any of its
Restricted Subsidiaries or any of their respective predecessors or Affiliates.
The Real Property as of the Agreement Date is set forth on Schedule 11 attached
hereto.
"Register" shall have the meaning ascribed thereto in Section 11.5(c)
hereof.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through the air,
soil, surface water or groundwater.
"Reportable Event" shall mean, with respect to any Employee Pension Plan,
an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a "Request
for Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance, Continuation or Conversion hereunder, which shall be in substantially
the form of Exhibit E attached hereto, and shall, among other things, (i)
specify the date of such Advance, Continuation or Conversion,
21
which shall be a Business Day, the amount and type of Advance (LIBOR or Base
Rate), and, with respect to LIBOR Advances, the Interest Period selected by the
Borrower, (ii) state that there shall not exist, on the date of the requested
Advance and after giving effect thereto, a Default or Event of Default, (iii)
the Applicable Margin then in effect, and (iv) designate the amount of the
Revolving Loan Commitments and, if applicable, the Incremental Facility
Commitments, being drawn.
"Request for Issuance of Letter of Credit" shall mean any application or
other documents signed by an Authorized Signatory of the Borrower requesting
that the Issuing Bank issue a Letter of Credit hereunder, which application or
other documents shall be in such form as may be approved from time to time by
the Issuing Bank and shall, among other things, specify (a) that the requested
Letter of Credit is either a Commercial Letter of Credit or a Standby Letter of
Credit, (b) the stated amount of the Letter of Credit, (c) the effective date
for the issuance of the Letter of Credit (which shall be a Business Day), (d)
the date on which the Letter of Credit is to expire (which shall be a Business
Day), (e) the Person for whose benefit such Letter of Credit is to be issued,
and (f) other relevant terms of such Letter of Credit.
"Required Lenders" shall mean, at any time, the Lenders holding more than
fifty percent (50%) of the sum of the Revolving Loan Commitments plus the then
aggregate unpaid principal amount of the Term Loans and Incremental Facility
Loans, as applicable, or, if no Revolving Loan Commitments are then outstanding,
the Lenders holding more than fifty percent (50%) of the aggregate unpaid
principal amount of the Loans and Letter of Credit Obligations then outstanding.
"Required Revolving Lenders" shall mean, at any time, the Lenders holding
more than fifty percent (50%) of the then aggregate Revolving Loan Commitments,
or, if no Revolving Loan Commitments are then outstanding, the Lenders holding
more than fifty percent (50%) of the aggregate unpaid principal amount of the
Revolving Loans and Letter of Credit Obligations then outstanding.
"Restricted Payment" shall mean (a) any direct or indirect distribution,
dividend or other payment to any Person (other than to the Borrower or any of
its Restricted Subsidiaries) on account of any Ownership Interests of the
Borrower or any of its Restricted Subsidiaries (other than dividends payable
solely in Ownership Interests of such Person and splits thereof), (b) any
payment of principal of, or interest on, or payment into a sinking fund for the
retirement of, or any defeasance of Subordinated Debt, or (c) any management,
consulting or similar fees, or any interest thereon, payable by the Borrower or
any of its Restricted Subsidiaries to any of their respective Affiliates (other
than such fees and interest payable to the Borrower or any of its Restricted
Subsidiaries).
"Restricted Purchase" shall mean any payment (including, without
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption, defeasance or other acquisition or
retirement of any Ownership Interests of or Subordinated Debt of the Borrower or
any of its Restricted Subsidiaries, including, without limitation, any warrants
or other rights or options to acquire shares of Ownership Interests of the
Borrower or of any of its Restricted Subsidiaries or any loan, advance, release
or forgiveness of Indebtedness by the
22
Borrower or any of its Restricted Subsidiaries to any partner, shareholder or
Affiliate (other than to the Borrower or any of its Restricted Subsidiaries) of
any such Person.
"Restricted Subsidiaries" means all direct and indirect Subsidiaries of
the Borrower other than the Unrestricted Subsidiaries.
"Revolving Loan Commitment" shall mean the several obligations of the
Lenders to fund their respective portion of the Revolving Loans to the Borrower
in accordance with their respective Commitment Ratios in the aggregate sum as of
the Agreement Date of up to $100,000,000.00, pursuant to the terms hereof, as
such obligations may be increased or reduced from time to time pursuant to the
terms hereof.
"Revolving Loan Commitment Ratio" shall mean, with respect to any Lender,
the percentage equivalent of the ratio which such Lender's portion of the
Revolving Loan Commitment bears to the aggregate Revolving Loan Commitment (as
each may be adjusted from time to time as provided herein).
"Revolving Loan Maturity Date" shall mean June 15, 2011 or such earlier
date as payment of the Revolving Loans shall be due (whether by acceleration,
reduction of the Revolving Loan Commitment to zero or otherwise).
"Revolving Loan Notes" shall mean, collectively, those promissory notes
issued to each of the Lenders requesting a note pursuant to Section 2.8 hereof
by the Borrower with respect to the Revolving Loan Commitment, each one
substantially in the form of Exhibit F-1 attached hereto, any other promissory
note issued by the Borrower to evidence the Revolving Loans pursuant to this
Agreement, and any extensions, renewals or amendments to, or replacements of,
the foregoing.
"Revolving Loans" shall mean, collectively, those amounts advanced by the
Lenders to the Borrower under the Revolving Loan Commitment not to exceed the
Revolving Loan Commitment at any one time.
"Sanctioned Entity" shall mean (a) an agency of the government of, (b) an
organization directly or indirectly controlled by, or (c) a person resident in a
country that is subject to a sanctions program identified on the list maintained
by OFAC and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx, or as
otherwise published from time to time as such program may be applicable to such
agency, organization or person.
"Sanctioned Person" shall mean a person named on the list of Specially
Designated Nationals or Blocked Persons maintained by OFAC available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/xxxxx.xxxx, or as otherwise
published from time to time.
"Security Documents" shall mean, collectively, the Reaffirmation
Agreement, the Borrower Pledge Agreement, the Borrower Security Agreement, any
Subsidiary Guaranty, any Subsidiary Pledge Agreement, any Subsidiary Security
Agreement, any Assignment of General
23
Partner Interests, any Assignment of Limited Partner Interests, any other
agreement or instrument providing Collateral for the Obligations whether now or
hereafter in existence, and any filings, instruments, agreements and documents
related thereto or to this Agreement, and providing the Administrative Agent,
for the benefit of the Lenders, with Collateral for the Obligations.
"Security Interest" shall mean, collectively, all Liens in favor of the
Administrative Agent, for the benefit of the Lenders, created hereunder or under
any of the Security Documents to secure the Obligations.
"Senior Debt" shall mean, as of any date, (a) Adjusted Total Debt on such
date minus (b) Subordinated Debt on such date.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
Senior Debt as of such date to (b) Operating Cash Flow for the four (4) quarter
period then ended or most recently ended.
"Shared Services Agreement" shall mean a shared services arrangement or
other similar arrangement pursuant to which two Persons owning separate
television broadcast stations agree to share the costs of certain services and
procurements which they individually require in connection with the ownership
and operation of one television broadcast station, whether through the form of
joint or cooperative buying arrangements or the performance of certain functions
relating to the operation of one television broadcast station by employees of
the owner and operator of the other television broadcast station, including, but
not limited to, the co-location of the studio, non-managerial administrative
and/or master control and technical facilities of such television broadcast
station and/or the sharing of maintenance, security and other services relating
to such facilities.
"Standby Letter of Credit" shall mean a letter of credit issued to support
obligations of the Borrower or its Restricted Subsidiaries incurred in the
ordinary course of business, and which is not a Commercial Letter of Credit.
"Station" shall mean, collectively (a) each of the television stations
owned and operated by the Borrower and its Restricted Subsidiaries on the
Agreement Date as set forth in Schedule 3 attached hereto and (b) any television
station acquired after the Agreement Date by the Borrower or any of its
Restricted Subsidiaries in accordance herewith.
"Subordinated Debt" shall mean, as of any date, the sum of (a) all
Indebtedness of the Borrower and its Subsidiaries under the Subordinated Note
Indenture or any agreements, notes, instruments or documents executed or
delivered in connection therewith and (b) all other Indebtedness of the Borrower
the repayment of which is subordinated in right of payment to the Obligations
pursuant to a subordination agreement in form and substance satisfactory to the
Lead Arranger, in each case, as of such date.
"Subordinated Note Indenture" shall mean that certain Indenture dated as
of December 15, 2001 by and among the Borrower, all of its Subsidiaries and
Deutsche Bank Trust Company
24
Americas formerly known as Bankers Trust Company in respect of the Borrower's
9-1/4% Senior Subordinated Notes due 2011, as the same may be amended from time
to time to the extent permitted hereunder.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation of
which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or limited liability company of which more than fifty percent (50%)
of the outstanding partnership or ownership interests, is at the time owned
directly or indirectly by such Person, or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person, or (b)
any other entity which is directly or indirectly controlled or capable of being
controlled by such Person, or by one or more Subsidiaries of such Person, or by
such Person and one or more Subsidiaries of such Person. "Subsidiaries" as used
herein shall mean the Subsidiaries of the Borrower unless otherwise specified.
"Subsidiary Guaranty" shall mean that certain Amended and Restated Master
Subsidiary Guaranty dated as of October 25, 2002, in favor of the Administrative
Agent and the Lenders, given by each Subsidiary of the Borrower, attached hereto
as Exhibit G, as amended, restated, supplemented or otherwise modified.
"Subsidiary Pledge Agreement" shall mean that certain Amended and Restated
Master Subsidiary Pledge Agreement dated as of October 25, 2002 made by each
Subsidiary of the Borrower having one or more of its own Subsidiaries, on the
one hand, in favor of the Administrative Agent, on the other hand, attached
hereto as Exhibit H, as amended, restated, supplemented or otherwise modified.
"Subsidiary Security Agreement" shall mean that certain Amended and
Restated Master Subsidiary Security Agreement dated as of October 25, 2002
between any of the Borrower's Subsidiaries, on the one hand, and the
Administrative Agent, on the other hand, attached hereto as Exhibit I, as
amended, restated, supplemented or otherwise modified.
"Term Loan A" shall mean, collectively, the amounts advanced by the
Lenders to the Borrower under the Term Loan A Commitment.
"Term Loan A Commitment" shall mean the several obligations of the Lenders
to advance to the Borrower, in accordance with their respective Commitment
Ratios, an aggregate sum of up to $100,000,000.00, pursuant to the terms hereof.
"Term Loan A Maturity Date" shall mean June 15, 2011 or such earlier date
as payment of the Term Loan A shall be due (whether by acceleration or
otherwise).
"Term Loan A Notes" shall mean, collectively, those promissory notes
issued to each of the Lenders requesting a note pursuant to Section 2.8 hereof
by the Borrower with respect to the Term Loan Commitment, each one substantially
in the form of Exhibit F-2 attached hereto, any
25
other promissory note issued by the Borrower to evidence the Term Loan A
pursuant to this Agreement, and any extensions, renewal, or amendments to, or
replacements of, the foregoing.
"Term Loan B" shall mean, collectively, the amounts advanced by the
Lenders to the Borrower under the Term Loan B Commitment.
"Term Loan B Commitment" shall mean the several obligations of the Lenders
to advance to the Borrower, in accordance with their respective Commitment
Ratios, an aggregate sum of up to $200,000,000.00, pursuant to the terms hereof.
"Term Loan B Maturity Date" shall mean the earlier of (a) December 31,
2012 or (b) June 15, 2011 if the Borrower's senior subordinated notes issued
under the Subordinated Note Indenture have not been refinanced on or prior to
December 15, 2010 on terms and conditions satisfactory to the Administrative
Agent (such terms to include, without limitation, a maturity date at least six
(6) months after the Term Loan B Maturity Date).
"Term Loan B Notes" shall mean, collectively, those promissory notes
issued to each of the Lenders requesting a note pursuant to Section 2.8 hereof
by the Borrower with respect to the Term Loan B Commitment, each one
substantially in the form of Exhibit F-3 attached hereto, any other promissory
note issued by the Borrower to evidence the Term Loan B pursuant to this
Agreement, and any extensions, renewal, or amendments to, or replacements of,
the foregoing.
"Term Loans" shall mean, collectively, the amounts advanced by the Lenders
to the Borrower under the Term Loan A Commitment and the Term Loan B Commitment.
"Total Debt" shall mean, as of any date, the sum of, without duplication,
(a) all Indebtedness of the Borrower and its Restricted Subsidiaries for
borrowed money (excluding Indebtedness permitted by the Xxxxxx Agreement
Obligations), including, without limitation, the Loans, (b) all Capitalized
Lease Obligations of the Borrower and its Restricted Subsidiaries, (c) all other
Indebtedness of the Borrower or any of its Restricted Subsidiaries represented
by notes or drafts representing extensions of credit on which interest is
typically charged, (d) all obligations of the Borrower or any of its Restricted
Subsidiaries evidenced by bonds, debentures, notes or other similar instruments
(including, without limitation, all such obligations to which any property or
asset owned by the Borrower or any of its Restricted Subsidiaries is subject,
whether or not the obligation secured thereby shall have been assumed), (e) all
obligations of the Borrower or any of its Restricted Subsidiaries under
conditional sale or other title retention agreements relating to purchased
assets, (f) all obligations of the Borrower or any of its Restricted
Subsidiaries which are incurred, issued or assumed as the deferred purchase
price of property or services and which are payable over a period in excess of
one (1) year (excluding Programming Obligations), (g) all obligations or
liabilities Guaranteed by the Borrower or any of its Restricted Subsidiaries,
(h) at any time after the occurrence and during the continuance of an event of
default under any Interest Rate Hedge Agreement, the aggregate amount payable by
the Borrower or such Restricted Subsidiary under such agreement, and (i) all
obligations of the Borrower or any of its Restricted Subsidiaries as an account
party to reimburse any Person in respect of letters of credit (including,
without limitation, all Letters of Credit) or bankers' acceptances, in each
case, as of such date.
26
"Total Leverage Ratio" shall mean, as of any date, the ratio of (a) Total
Debt as of such date to (b) Operating Cash Flow for the four (4) quarter period
then ended or most recently ended.
"Treasury Stock" means any Ownership Interests of the Borrower held by the
Borrower as treasury stock.
"Unrestricted Subsidiaries" shall mean, collectively, (a) those certain
Subsidiaries of the Borrower listed on Schedule 1 and (b) any additional
Subsidiary of the Borrower created solely in connection with the merger or other
transfer of assets of or ownership interest in those Subsidiaries referred to in
clause (a); provided that, with respect to clauses (a) and (b) above, (i) the
operations and assets of such Subsidiaries are non-essential to the core
operations of the Borrower and its Subsidiaries taken as a whole and (ii) such
Subsidiaries do not conduct television broadcasting operations or hold assets
used in the Borrower's television broadcasting operations (including, without
limitation, FCC Licenses or assets related to FCC Licenses, other than FCC
Licenses associated with the paging business held by Porta-Phone Paging Licensee
Corp.).
"Upstream Dividends" shall have the meaning ascribed thereto in Section
7.15 hereof.
Section 1.2 Interpretation. Except where otherwise specifically
restricted, reference to a party to this Agreement or any other Loan Document
includes that party and its successors and assigns. All capitalized terms used
herein which are defined in Article 9 of the Uniform Commercial Code in effect
in the State of Georgia on the date hereof and which are not otherwise defined
herein shall have the same meanings herein as set forth therein. Whenever any
agreement, promissory note or other instrument or document is defined in this
Agreement, such definition shall be deemed to mean and include, from and after
the date of any amendment, restatement, supplement, confirmation or modification
thereof, such agreement, promissory note or other instrument or document as so
amended, restated, supplemented, confirmed or modified. All terms defined in
this Agreement in the singular shall have comparable meanings when used in the
plural and vice versa. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
Section 1.3 Cross References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause in
such Article, Section or definition.
Section 1.4 Accounting Provisions. All accounting terms used in this
Agreement which are not expressly defined herein shall have the respective
meanings given to them in accordance with GAAP, all computations shall be made
in accordance with GAAP, and all balance sheets and other financial statements
shall be prepared in accordance with GAAP. All financial or accounting
calculations or determinations required pursuant to this Agreement,
27
unless otherwise expressly provided, shall be made on a consolidated basis for
the Borrower and its Restricted Subsidiaries.
ARTICLE 2
Loans and Letters of Credit
Section 2.1 The Loans.
(a) Revolving Loans. The Lenders who issued a Revolving Loan
Commitment agree, severally, in accordance with their respective Commitment
Ratios and not jointly, upon the terms and subject to the conditions of this
Agreement to lend to the Borrower, prior to the Revolving Loan Maturity Date,
amounts not at any one time outstanding to exceed, in the aggregate, the
Available Revolving Loan Commitment as then in effect. Subject to the terms and
conditions hereof, the Borrower may from time to time (i) Convert a Base Rate
Advance into a LIBOR Advance or a LIBOR Advance into a Base Rate Advance or (ii)
Continue a LIBOR Advance as a LIBOR Advance.
(b) Term Loan A. The Lenders who issued a Term Loan A Commitment
agree severally, in accordance with their respective Commitment Ratios, and not
jointly, upon the terms and subject to the conditions of this Agreement, to lend
to the Borrower on the Agreement Date an amount which does not exceed in the
aggregate the Term Loan A Commitment. Subject to the terms and conditions
hereof, the Borrower may from time to time (i) Convert a Base Rate Advance into
a LIBOR Advance or a LIBOR Advance into a Base Rate Advance or (ii) Continue a
LIBOR Advance as a LIBOR Advance; provided, however, that there shall be no
increase in the principal amount of the Term Loan A outstanding after the
Agreement Date.
(c) Term Loan B. The Lenders who issued a Term Loan B Commitment,
agree severally, in accordance with their respective Commitment Ratios, and not
jointly, upon the terms and subject to the conditions of this Agreement, to lend
to the Borrower on the Agreement Date an amount which does not exceed in the
aggregate the Term Loan B Commitment. Subject to the terms and conditions
hereof, the Borrower may from time to time (i) Convert a Base Rate Advance into
a LIBOR Advance or a LIBOR Advance into a Base Rate Advance or (ii) Continue a
LIBOR Advance as a LIBOR Advance; provided, however, that there shall be no
increase in the principal amount of the Term Loan B outstanding after the
Agreement Date.
(d) The Letters of Credit. Subject to the terms and conditions of
this Agreement, the Issuing Bank agrees to issue Letters of Credit for the
account of the Borrower (for itself and on behalf of its Restricted
Subsidiaries) pursuant to Section 2.14 hereof in an aggregate amount not to
exceed the Available Letter of Credit Commitment determined immediately prior to
giving effect to the issuance thereof.
Section 2.2 Manner of Borrowing and Disbursement.
28
(a) Choice of Interest Rate, Etc. Any Advance shall, at the option
of the Borrower, be made as a Base Rate Advance or a LIBOR Advance; provided,
however, that at such time as there shall have occurred and be continuing a
Default hereunder, the Borrower shall not have the right to receive, Convert an
Advance to or Continue an Advance as a LIBOR Advance. Any notice given to the
Administrative Agent in connection with a Request for Advance hereunder shall be
given to the Administrative Agent prior to 11:00 a.m. (Charlotte, North Carolina
time) on any Business Day in order for such Business Day to count toward the
minimum number of Business Days required.
(b) Base Rate Advances.
(i) Advances; Conversion. The Borrower shall give the
Administrative Agent, (A) in the case of a request for a Base Rate Advance
irrevocable telephonic notice on the date of such Advance and (B) in the case of
a request to Convert a Base Rate Advance to a LIBOR Advance, at least three (3)
Business Day's irrevocable prior telephonic notice, in each case, followed
immediately by a Request for Advance; provided, however, that the Borrower's
failure to confirm any telephonic notice with a Request for Advance shall not
invalidate any notice so given if acted upon by the Administrative Agent. Upon
receipt of such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender by telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. Subject to Section 2.1
hereof, the Borrower may repay or prepay a Base Rate Advance without regard to
its Payment Date and, (A) upon irrevocable telephonic notice on the date of such
repayment or prepayment, as applicable, followed immediately by a Request for
Advance, reborrow all or a portion of the principal amount of any Revolving
Loans previously repaid or prepaid as a Base Rate Advance, (B) upon at least
three (3) Business Days' irrevocable prior telephonic notice followed
immediately by a Request for Advance, reborrow all or a portion of the principal
of any Revolving Loan previously repaid or prepaid as one or more LIBOR
Advances, or (C) not reborrow all or any portion of such Base Rate Advance. On
the date indicated by the Borrower, such Base Rate Advance shall be so repaid
and, as applicable reborrowed. The failure to give timely notice hereunder with
respect to the Payment Date of any Base Rate Advance shall be considered a
request for a Base Rate Advance.
(c) LIBOR Advances.
(i) Advances. Upon request, the Administrative Agent, whose
determination in absence of manifest error shall be conclusive, shall determine
the available LIBOR Basis and shall notify the Borrower of such LIBOR Basis. The
Borrower shall give the Administrative Agent in the case of LIBOR Advances at
least three (3) Business Days' irrevocable prior telephonic notice followed
immediately by a Request for Advance; provided, however, that the Borrower's
failure to confirm any telephonic notice with a Request for Advance shall not
invalidate any notice so given if acted upon by the Administrative Agent. Upon
receipt of such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender by telephone or telecopy of the contents thereof.
29
(ii) Repayments; Conversion; Continuation. Subject to Section
2.1 hereof, at least three (3) Business Days prior to the Payment Date for each
LIBOR Advance, the Borrower shall give the Administrative Agent telephonic
notice followed immediately by a Request for Advance specifying whether all or a
portion of such LIBOR Advance (A) is to be Continued in whole or in part as one
or more LIBOR Advances, (B) is to be Converted in whole or in part to a Base
Rate Advance, or (C) is to be repaid and not Continued or Converted. The failure
to give such notice shall preclude the Borrower from Continuing such Advance as
a LIBOR Advance on its Payment Date and shall be considered a request for a
Conversion to a Base Rate Advance. Upon such Payment Date such LIBOR Advance
will, subject to the provisions hereof, be so repaid, Continued or Converted, as
applicable.
(d) Notification of Lenders. Upon receipt of a Request for Advance,
or a notice from the Borrower with respect to any outstanding Advance prior to
the Payment Date for such Advance, the Administrative Agent shall promptly, but
no later than, (i) with respect to LIBOR Advances, the close of business on the
day of such notice, and (ii) with respect to Base Rate Advances, 12:30 p.m.
(Charlotte, North Carolina time) notify each Lender (or, in the case of an
Advance under the Incremental Facility Commitment, each Lender having an
Incremental Facility Commitment) by telephone or telecopy of the contents
thereof and the amount of such Lender's portion of the Advance. With respect to
each Request for Advance, each Lender (or, in the case of an Advance under the
Incremental Facility Commitment, each Lender having an Incremental Facility
Commitment) shall, not later than 2:00 p.m. (Charlotte, North Carolina time) on
the date of borrowing specified in such Request for Advance, make available to
the Administrative Agent at the Administrative Agent's Office, or at such
account as the Administrative Agent shall designate, the amount of its portion
of any Advance which represents an additional borrowing hereunder in immediately
available funds.
(e) Disbursement.
(i) Prior to 3:00 p.m. (Charlotte, North Carolina time) on the
date of an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse the
amounts made available to the Administrative Agent by the Lenders in like funds
by (A) transferring the amounts so made available by wire transfer pursuant to
the Borrower's instructions, or (B) in the absence of such instructions,
crediting the amounts so made available to the account of the Borrower
maintained with the Administrative Agent.
(ii) Unless the Administrative Agent shall have received
notice from a Lender prior to 2:00 p.m. (Charlotte, North Carolina time) on the
date of any Advance that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Advance, the
Administrative Agent may assume that such Lender has made or will make such
portion available to the Administrative Agent on the date of such Advance and
the Administrative Agent may in its sole discretion and in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent the Lender does not make such ratable portion available to
the Administrative Agent, such Lender agrees to repay to the Administrative
Agent on demand such corresponding amount together with interest
30
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent, at
the Federal Funds Rate.
(iii) If such Lender shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Lender's
portion of the applicable Advance for purposes of this Agreement. If such Lender
does not repay such corresponding amount immediately upon the Administrative
Agent's demand therefor, the Administrative Agent shall notify the Borrower and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent, with interest at the Federal Funds Rate. The failure of
any Lender to fund its portion of any Advance shall not relieve any other Lender
of its obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Lender shall be responsible for
any such failure of any other Lender.
(iv) In the event that, at any time when the Borrower is not
in Default and has otherwise satisfied each of the conditions in Section 3.2
hereof, a Lender for any reason fails or refuses to fund its portion of an
Advance and such failure shall continue for a period in excess of thirty (30)
days, then, until such time as such Lender has funded its portion of such
Advance (which late funding shall not absolve such Lender from any liability it
may have to the Borrower), or all other Lenders have received payment in full
from the Borrower (whether by repayment or prepayment) or otherwise of the
principal and interest due in respect of such Advance, such non-funding Lender
shall not have the right (A) to vote regarding any issue on which voting is
required or advisable under this Agreement or any other Loan Document, and such
Lender's portion of the Loans shall not be counted as outstanding for purposes
of determining "Required Lenders" hereunder, and (B) to receive payments of
principal, interest or fees from the Borrower, the Administrative Agent or the
other Lenders in respect of its portion of the Loans.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate Advance shall
be computed on the basis of a 365/366-day year for the actual number of days
elapsed and shall be payable at the Base Rate Basis for such Advance, in arrears
on the applicable Payment Date. Interest on Base Rate Advances then outstanding
shall also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance shall be
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such LIBOR Advance shall also be
due and payable in arrears on every three-month anniversary of the beginning of
such Interest Period. Interest on LIBOR Advances then outstanding shall also be
due and payable on the Maturity Date.
(c) Interest if No Notice of Selection of Interest Rate Basis. If
the Borrower fails to give the Administrative Agent timely notice of its
selection of a LIBOR Basis, or if for
31
any reason a determination of a LIBOR Basis for any Advance is not timely
concluded, the Base Rate Basis shall apply to such Advance.
(d) Interest Upon Default. Subject to Section 8.2(f), (a)
automatically upon the occurrence and during the continuation of any Event of
Default under Section 8.1(b), (f) or (g) or (b) at the discretion of the
Administrative Agent or as directed by the Required Lenders, upon the occurrence
and during the continuance of an Event of Default not described in (a) above,
(i) the Borrower shall no longer have the option to request LIBOR Advances or
Letters of Credit, (ii) all outstanding LIBOR Advances shall bear interest at a
rate per annum of two percent (2%) in excess of the rate then applicable to
LIBOR Advances until the end of the applicable Interest Period and thereafter at
a rate equal to two percent (2%) in excess of the rate then applicable to Base
Rate Advances, and (iii) all outstanding Base Rate Advances and other
Obligations arising hereunder or under any other Loan Document shall bear
interest at a rate per annum equal to two percent (2%) in excess of the rate
then applicable to Base Rate Advances or such other Obligations arising
hereunder or under any other Loan Document. Such interest shall be payable on
demand by the Required Lenders and shall accrue until the earlier of (i) waiver
or cure of the applicable Event of Default, (ii) agreement by the Required
Lenders (or, if applicable to the underlying Event of Default, the Lenders) to
rescind the charging of interest at the Default Rate, or (iii) payment in full
of the Obligations. Interest shall continue to accrue on the Obligations after
the filing by or against the Borrower of any petition seeking any relief in
bankruptcy or under any act or law pertaining to insolvency or debtor relief,
whether state, federal or foreign.
(e) LIBOR Contracts. At no time may the number of outstanding LIBOR
Advances hereunder exceed eight (8) in the aggregate.
(f) Applicable Margin.
(i) Revolving Loans and Term A Loans. Until the third (3rd)
Business Day after the financial statements referred to in Section 6.1 hereof
and the Performance Certificate referred to in Section 6.4 hereof are furnished
to the Administrative Agent for the fiscal quarter ending June 30, 2005, the
Applicable Margin with respect to any Advance under the Revolving Loan
Commitment or the Term Loan A Commitment shall be 1.250% for all LIBOR Advances
and 0.00% for all Base Rate Advances. Thereafter, the Applicable Margin shall be
determined by the Administrative Agent with respect to any Advance under the
Revolving Loan Commitment based upon the Total Leverage Ratio as of the end of
the fiscal quarter most recently ended, effective as of the third (3rd) Business
Day after the financial statements referred to in Section 6.1 or 6.2 hereof, as
the case may be, and the Performance Certificate referred to in Section 6.4
hereof are furnished to the Administrative Agent for such fiscal quarter, as
follows:
Applicable Margin for Applicable Margin for
Level Total Leverage Ratio LIBOR Advances Base Rate Advances
----- -------------------------------- --------------------- ---------------------
I Greater than or equal to 6.00 to 1.500% 0.250%
1.00
32
II Greater than or equal to 5.00 to 1.250% 0.000%
1.00 but less than 6.00 to 1.00
III Greater than or equal to 4.00 to 1.000% 0.000%
1.00 but less than 5.00 to 1.00
IV Greater than or equal to 3.50 to 0.875% 0.000%
1.00 but less than 4.00 to 1.00
V Less than 3.50 to 1.00 0.750% 0.000%
Notwithstanding the foregoing, if the Borrower shall fail to timely
deliver to the Administrative Agent the financial statements and Performance
Certificate required for the calculation of the Total Leverage Ratio for any
fiscal quarter, then commencing with the Business Day after the date such
financial statements and Performance Certificate were due and continuing through
the third (3rd) Business Day following the date of delivery thereof, the Total
Leverage Ratio for such period shall be conclusively presumed to be, and the
Applicable Margin shall be calculated based upon, the highest Total Leverage
Ratio level listed in the table set forth above.
(ii) Term Loan B. The Applicable Margin with respect to any
Advance under the Term Loan B Commitment shall be 1.500% for all LIBOR Advances
and 0.250% for all Base Rate Advances
Section 2.4 Fees.
(a) Revolving Loan Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each of the Lenders, in accordance with
such Lender's respective Commitment Ratio for the Revolving Loan Commitment a
commitment fee on the Available Revolving Loan Commitment for each day from the
Agreement Date through the Revolving Loan Maturity Date. Until the third (3rd)
Business Day following the next date on which the financial statements referred
to in Section 6.1 hereof, as the case may be, and the Performance Certificate
referred to in Section 6.4 hereof are furnished to the Administrative Agent for
the fiscal quarter ending June 30, 2005, the commitment fee shall be in an
amount equal to the product of (i) the Available Revolving Loan Commitment
times, (ii) 0.300% from the Agreement Date and shall remain at that level.
Thereafter, the commitment fee shall be determined by the Administrative Agent
based upon the Total Leverage Ratio as of the end of the fiscal quarter most
recently ended, effective as of the third (3rd) Business Day after the financial
statements referred to in Section 6.1 or 6.2 hereof, as the case may be, and the
Performance Certificate referred to in Section 6.4 hereof are furnished to the
Administrative Agent for such fiscal quarter, as follows:
Level Total Leverage Ratio Commitment Fee - Percentage
----- ------------------------------------- ---------------------------
I Greater than or equal to 6.00 to 1.00 0.375%
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Level Total Leverage Ratio Commitment Fee - Percentage
----- ------------------------------------- ---------------------------
II Greater than or equal to 5.00 to 1.00 0.300%
but less than 6.00 to 1.00
III Greater than or equal to 4.00 to 1.00 0.250%
but less than 5.00 to 1.00
IV Greater than or equal to 3.50 to 1.00 0.200%
but less than 4.00 to 1.00
V Less than 3.50 to 1.00 0.200%
Such commitment fees shall be computed on the basis of a year of 360-days for
the actual number of days elapsed, shall be payable quarterly in arrears on the
last Business Day of each fiscal quarter commencing September 30, 2005, and
shall be fully earned when due and non-refundable when paid. A final payment of
all commitment fees then payable shall also be due and payable on the Revolving
Loan Maturity Date.
(b) Letter of Credit Fees. The Letters of Credit shall be issued for
a fee equal to the Applicable Margin for LIBOR Advances for Revolving Loans on a
per annum basis as in effect as of the date of issuance times the face amount of
each Letter of Credit, payable quarterly in arrears. The fee shall be payable to
the Administrative Agent for the benefit of the Lenders who issued a Revolving
Loan Commitment in accordance with their Commitment Ratios. If any Letter of
Credit is drawn upon prior to its expiration date, the Lenders shall reimburse
to the Borrower that portion of the fee allocable to the period from the date of
the draw to the expiration date, calculated in accordance with the Issuing
Bank's standard letter of credit procedures. In addition, the Borrower shall pay
to the Issuing Bank for its own account (i) a fronting fee in an amount equal to
0.125% on a per annum basis times the face amount of each Letter of Credit,
payable quarterly in arrears and (ii) its standard charges for the issuance,
transfer or other administration of letters of credit and for draws upon letters
of credit.
(c) Other Fees. The Borrower shall pay such other fees as are set
forth in any fee letter executed by the Borrower in connection with this
Agreement.
Section 2.5 [Intentionally Omitted].
Section 2.6 Voluntary Commitment Reductions. The Borrower shall have the
right, at any time and from time to time after the Agreement Date, upon at least
five (5) Business Days' prior written notice to the Administrative Agent,
without premium or penalty, to cancel or reduce permanently all or a portion of
the Revolving Loan Commitment, on a pro rata basis among the Lenders, provided,
however, that any such partial reduction shall be made in an amount not less
than $5,000,000.00 and in integral multiples of not less than $1,000,000.00. As
of the date of cancellation or reduction set forth in such notice, the Revolving
Loan Commitment shall be permanently reduced to the amount stated in the
Borrower's notice for all purposes herein, and the Borrower shall pay to the
Administrative Agent for the Lenders the amount necessary to
34
reduce the principal amount of the Revolving Loans then outstanding to not more
than the amount of the Revolving Loan Commitment as so reduced, together with
accrued interest on the amount so prepaid and commitment fees accrued through
the date of the reduction with respect to the amount reduced.
Section 2.7 Prepayments and Repayments.
(a) Prepayments. The principal amount of any Base Rate Advance may
be prepaid in full or ratably in part at any time without penalty and without
regard to the Payment Date for such Advance upon written notice, or telephonic
notice followed immediately by written notice, to the Administrative Agent on
the date of such prepayment; provided, however, that the Borrower's failure to
confirm any telephonic notice with a written notice shall not invalidate any
notice so given if acted upon by the Administrative Agent. LIBOR Advances may be
prepaid prior to the applicable Payment Date, upon three (3) Business Days'
prior written notice, or telephonic notice followed immediately by written
notice, to the Administrative Agent; provided, however, that the Borrower shall
reimburse the Lenders and the Administrative Agent, on the earlier of demand by
the applicable Lender or the Maturity Date, for any loss or reasonable
out-of-pocket expense incurred by any Lender or the Administrative Agent in
connection with such prepayment, as set forth in Section 2.10 hereof; provided
further, however, that the Borrower's failure to confirm any telephonic notice
with a written notice shall not invalidate any notice so given if acted upon by
the Administrative Agent. Any partial prepayment hereunder shall be in amounts
of not less than $500,000.00 and in integral multiples of $250,000.00. Revolving
Loans prepaid pursuant to this Section 2.7(a) may be reborrowed, subject to the
terms and conditions hereof. Any Term Loan A or Term Loan B or Incremental
Facility Loan, as applicable, prepaid pursuant to this Section 2.7(a) may not be
reborrowed. Amounts prepaid shall be paid together with accrued interest on the
amount so prepaid accrued through the date of such prepayment.
(b) Repayments. The Borrower shall repay the Loans as follows:
(i) Scheduled Repayments.
(A) Term Loan A. Commencing on September 30, 2007, the
principal balance of the Term Loan outstanding on September 29, 2007 shall be
repaid in consecutive quarterly installments on the last day of each fiscal
quarter ending during the periods set forth below until paid in full in such
amounts as follows:
Percentage of Principal of the Term Loan A
outstanding on March 30, 2007 Due on each
Repayment Dates Repayment Date
----------------------------------- -------------------------------------------
September 30, 2007 and December 31,
2007 2.50%
March 31, 2008, June 30, 2008,
September 30, 2008 and December 31,
2008 2.50%
35
Percentage of Principal of the Term Loan A
outstanding on March 30, 2007 Due on each
Repayment Dates Repayment Date
---------------------------------------- -------------------------------------------
March 31, 2009, June 30, 2009,
September 30, 2009 and December 31,
2009 2.50%
March 31, 2010, June 30, 2010,
September 30, 2010 and December 31,
2010 6.25%
March 31, 2011 and June 15, 2011 25.00%
(B) Term Loan B. Commencing on September 30, 2005, the
principal balance of the Term Loan shall be repaid in consecutive quarterly
installments on the last day of each fiscal quarter ending during the periods
set forth below until paid in full in such amounts as follows:
Percentage of Principal of the Term
Repayment Dates Loan B Due on each Repayment Date
---------------------------------------- -----------------------------------
September 30, 2005 and December 31, 2005 0.25%
March 31, 2006, June 30, 2006, 0.25%
September 30, 2006 and December 31, 2006
March 31, 2007, June 30, 2007, 0.25%
September 30, 2007 and December 31, 2007
March 31, 2008, June 30, 2008, 0.25%
September 30, 2008 and December 31, 2008
March 31, 2009, June 30, 2009, 0.25%
September 30, 2009 and December 31, 2009
March 31, 2010, June 30, 2010, 0.25%
September 30, 2010 and December 31, 2010
March 31, 2011, June 30, 2011,
September 30, 2011 and December 31, 2011 11.8125%
March 31, 2012, June 30, 2012,
September 30, 2012 and December 31, 2012 11.8125%
To the extent that pursuant to the terms hereof the Term Loan B Maturity Date
occurs on June 15, 2011, the Term Loan B shall be paid in full on such date.
36
(ii) Revolving Loans in Excess of Revolving Loan Commitment.
If, at any time, the sum of the aggregate amount of the Revolving Loans and
Letter of Credit Obligations outstanding shall exceed the Revolving Loan
Commitment, the Borrower shall make a repayment of the principal amount of the
Revolving Loans on such date in an aggregate amount equal to such excess,
together with any accrued interest with respect thereto.
(iii) Repayments From Net Proceeds of Asset Sales or Insurance
or Condemnation Proceedings. Within three (3) Business Days following the date
of receipt by the Borrower or any of its Restricted Subsidiaries of any Net
Proceeds (Asset Sales) (other than in connection with an Asset Sale permitted
under Section 7.4(a)(i) hereof), the Loans shall be automatically and
permanently prepaid in an amount equal to, in the aggregate, one-hundred percent
(100%) of any Net Proceeds (Asset Sales); provided, however, that no prepayment
under this Section 2.7(b)(iii) shall occur if such Net Proceeds (Asset Sales)
(A) are from an Asset Sale and are reinvested in a Permitted Business, or other
assets directly related thereto within the succeeding two hundred seventy (270)
day period, (B) are from an insurance or condemnation proceeding and are
reinvested in any Permitted Business or other assets directly related thereto
within the succeeding two hundred seventy (270) day period or (c) provided no
Event of Default has occurred and is continuing, are from an Asset Sale
permitted pursuant to Section 7.4(c) hereof. Repayments under this Section
2.7(b)(iii) shall be applied first, pro rata, to the principal of the Term Loan
A, the Term Loan B and, if applicable, the Incremental Facility Loans (applied
to reduce, on a pro rata basis, the remaining scheduled principal installments
of the Term Loan A, the Term Loan B and, if applicable, the Incremental Facility
Loans) and, second to the outstanding principal amount of the Revolving Loans.
Accrued interest on the principal amount of the Loans being repaid pursuant to
this Section 2.7(b)(iii) to the date of such repayment (together with any
additional amount owing under Section 2.10) will be paid by the Borrower
concurrently with such principal repayment.
(iv) Excess Cash Flow. On or prior to April 15, 2007, and on
or prior to each April 15th thereafter during the term of this Agreement, the
Loans shall be repaid in an amount equal to, in the aggregate, (A) forty percent
(40%) of Excess Cash Flow for the fiscal year ended on the immediately preceding
December 31st minus (B) $10,000,000; provided, however that no Excess Cash Flow
repayment shall be required if the Leverage Ratio is less than 6.00:1.00 at the
end of such fiscal year. Repayments under this Section 2.7(b)(iv) shall be
applied first, pro rata, to the principal of the Term Loan A, the Term Loan B
and, if applicable, the Incremental Facility Loans (applied to reduce, on a pro
rata basis, the remaining scheduled principal installments of the Term Loan A,
the Term Loan B and, if applicable, the Incremental Facility Loans) and, second
to the outstanding principal amount of the Revolving Loans. Accrued interest on
the principal amount of the Loans being repaid pursuant to this Section
2.7(b)(iv) to the date of such repayment (together with any additional amount
owing under Section 2.10) will be paid by the Borrower concurrently with such
principal repayment.
(v) Sale of Indebtedness. Within three (3) Business Days
following the date of receipt by the Borrower or any of its Restricted
Subsidiaries of any Net Proceeds (Indebtedness) arising from the issuance of
Indebtedness issued by the Borrower or any of its Restricted Subsidiaries after
the Agreement Date (excluding Indebtedness permitted under any subsection of
Section 7.1 hereof other than subsection (b) of Section 7.1), the Loans shall be
37
repaid in an amount equal to one hundred percent (100%) of the Net Proceeds
(Indebtedness) related thereto; provided, however, that no prepayment under this
Section 2.7(b)(v) shall occur if such Net Proceeds (Indebtedness) (A) are from
the incurrence of Subordinated Debt issued to pay all or a portion of the
purchase price in connection with an Acquisition or to consummate an Investment,
in each case as permitted pursuant to Section 7.6, and (B) the Borrower has
complied with the requirements of subsection (b) of Section 7.1. Repayments
under this Section 2.7(b)(v) shall be applied first, pro rata, to the principal
of the Term Loan A, the Term Loan B and, if applicable, the Incremental Facility
Loans (applied to reduce, on a pro rata basis, the remaining scheduled principal
installments of the Term Loan A, the Term Loan B and, if applicable, the
Incremental Facility Loans) and, second to the outstanding principal amount of
the Revolving Loans. Accrued interest on the principal amount of the Loans being
repaid pursuant to this Section 2.7(b)(v) to the date of such repayment
(together with any additional amount owing under Section 2.10) will be paid by
the Borrower concurrently with such principal repayment.
(vi) Notice; Refusal of Prepayments. Within two (2) Business
Days following the occurrence of any mandatory prepayment event under Section
2.7(b)(iii) through and including (v) above, the Borrower shall notify the
Administrative Agent (in writing or by telephone followed immediately by written
notice) and upon receipt of such notice, the Administrative Agent shall promptly
so notify the Lenders. Notwithstanding the terms of Section 2.7(b)(iv) and (v)
above to the contrary, upon the occurrence of any mandatory prepayment event
described therein and to the extent any principal of the Term Loan A or any
Incremental Facility Loans remain outstanding, each Lender holding the Term Loan
B shall have the right, upon written notice to the Administrative Agent, to
refuse its pro rata share of any such mandatory prepayment, at which time such
refused amount shall be applied pro rata to the principal of the Term Loan A
and, if applicable, the Incremental Facility Loans (applied to reduce, on a pro
rata basis, the remaining scheduled principal installments of the Term Loan A
and, if applicable, the Incremental Facility Loans). Any Lender holding the Term
Loan B which has not notified the Administrative Agent in writing of its
election to refuse such mandatory prepayment within two (2) Business Days
following notice from the Administrative Agent of such mandatory prepayment
event shall be deemed to have waived its right to refuse such mandatory
prepayment.
(vii) Revolving Loan Maturity Date. In addition to the
foregoing, a final payment of all Revolving Loans, together with accrued
interest and fees with respect thereto, shall be due and payable on the
Revolving Loan Maturity Date.
(viii) Term Loan A Maturity Date. In addition to the
foregoing, a final payment of the Term Loan A, together with accrued interest
and fees with respect thereto, shall be due and payable on the Term Loan A
Maturity Date.
(ix) Term Loan B Maturity Date. In addition to the foregoing,
a final payment of the Term Loan B, together with accrued interest and fees with
respect thereto, shall be due and payable on the Term Loan B Maturity Date.
38
(x) Incremental Facility Maturity Date. If applicable, in
addition to the foregoing, a final payment of the Incremental Facility Loans,
together with accrued interest and fees with respect thereto, shall be due and
payable on the Incremental Facility Maturity Date.
(c) Term Loans. Any Term Loan A, Term Loan B or Incremental Facility
Loan, as applicable, repaid pursuant to Section 2.7(b) hereof may not be
reborrowed.
(d) Hedging Agreements. No repayment or prepayment pursuant to this
Section 2.7 shall affect any of the Borrower's obligations under any Interest
Rate Hedge Agreement.
Section 2.8 Evidence of Indebtedness; Loan Accounts.
(a) Extensions of Credit. The Loans made by each Lender and the
Letters of Credit issued by the Issuing Bank shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in
the ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Loans made by the Lenders to the Borrower and the interest
and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrower hereunder
to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Revolving Loan Note, Term Note A or Term Note B and/or
Incremental Facility Note, as applicable, which shall evidence such Lender's
Revolving Loans, Term Loan A, Term Loan B and/or Incremental Facility Loan, as
applicable, in addition to such accounts or records. Each Lender may attach
schedules to its Notes and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.
(b) Participations. In addition to the accounts and records referred
to in subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit. In the event of
any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error.
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the Borrower on
account of the principal of or interest on the Loans, commitment fees and any
other amount owed to the Lenders or the Administrative Agent or any of them
under this Agreement or the Notes shall be made not later than 1:00 p.m.
(Charlotte, North Carolina time) on the date specified for payment under this
Agreement to the Administrative Agent at the Administrative Agent's Office, for
the account of the Lenders or the Administrative Agent, as the case may be, in
lawful money of the
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Xxxxxx Xxxxxx xx Xxxxxxx in immediately available funds. Any payment received by
the Administrative Agent after 1:00 p.m. (Charlotte, North Carolina time) shall
be deemed received on the next Business Day. Receipt by the Administrative Agent
of any payment intended for any Lender or Lenders hereunder prior to 1:00 p.m.
(Charlotte, North Carolina time) on any Business Day shall be deemed to
constitute receipt by such Lender or Lenders on such Business Day. In the case
of a payment for the account of a Lender, the Administrative Agent will
promptly, but no later than the close of business on the date such payment is
deemed received, thereafter distribute the amount so received in like funds to
such Lender. If the Administrative Agent shall not have received any payment
from the Borrower as and when due, the Administrative Agent will promptly notify
the Lenders accordingly. In the event that the Administrative Agent shall fail
to make distribution to any Lender as required under this Section 2.9, the
Administrative Agent agrees to pay such Lender interest from the date such
payment was due until paid at the Federal Funds Rate.
(b) The Borrower agrees to pay principal, interest, fees and all
other amounts due hereunder or under the Notes without set-off or counterclaim
or any deduction whatsoever. So long as the applicable Lender has complied with
Section 2.13 hereof, the Borrower agrees to pay principal, interest, fees and
all other amounts due hereunder, under the Notes or under any other Loan
Document free and clear of all taxes, levies and withholding. So long as the
applicable Lender has complied with Section 2.13 hereof, if the Borrower is
required by Applicable Law to deduct any taxes from or in respect of any sum
payable to the such Lender hereunder, under any Note or under any other Loan
Document: (i) the sum payable hereunder or thereunder, as applicable, shall be
increased to the extent necessary to provide that, after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.9(b)), the Administrative Agent or such Lender, as applicable,
receives an amount equal to the sum it would have received had no such
deductions been made; (ii) the Borrower shall make such deductions from such
sums payable hereunder or thereunder, as applicable, and pay the amount so
deducted to the relevant taxing authority as required by Applicable Law; and
(iii) the Borrower shall provide the Administrative Agent or such Lender, as
applicable, with evidence satisfactory to the Administrative Agent or such
Lender, as applicable, that such deducted amounts have been paid to the relevant
taxing authority. Before making any such deductions, such Lender shall designate
a different lending office and may take such alternative courses of action if
such designation or alternative courses of action will avoid the need for such
deductions and will not in the good faith judgment of such Lender be otherwise
disadvantageous to such Lender.
(c) Subject to any contrary provisions in the definition of Interest
Period, if any payment under this Agreement or any of the other Loan Documents
is specified to be made on a day which is not a Business Day, it shall be made
on the next Business Day, and such extension of time shall in such case be
included in computing interest and fees, if any, in connection with such
payment.
(d) Prior to the declaration of an Event of Default under Section
8.2 hereof, if some but less than all amounts due from the Borrower are received
by the Administrative Agent with respect to the Obligations, the Administrative
Agent shall (subject to Section 2.2(e) hereof) distribute such amounts in the
following order of priority, all in accordance where applicable
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with the respective Commitment Ratios of the Lenders for the applicable
Commitment: first, to the payment of any fees or expenses then due and payable
to the Administrative Agent, the Issuing Bank and the Lenders, or any of them
hereunder or under any of the other Loan Documents (on a pro rata basis, based
on all such amounts then due and payable); second, to the payment of interest
then due and payable on the Loans (on a pro rata basis, based on all such
amounts then due and payable); third, to the payment of all other amounts not
otherwise referred to in this Section 2.9(d) then due and payable to the
Administrative Agent, the Issuing Bank and the Lenders, or any of them,
hereunder or under the Notes, the Letters of Credit or any other Loan Document
(on a pro rata basis, based on all such amounts then due and payable); fourth,
to the payment of principal then due and payable on the Loans and any Interest
Rate Hedge Obligations (including any termination payments and any accrued and
unpaid interest thereon) (on a pro rata basis, based on all such amounts then
due and payable); fifth, to any other Obligations not otherwise referred to in
this Section 2.9(d) until all such Obligations are paid in full (on a pro rata
basis, based on all such amounts then due and payable); sixth, to damages
incurred by the Administrative Agent, the Issuing Bank or the Lenders, or any of
them, by reason of any breach hereof or of any other Loan Document (on a pro
rata basis, based on all such amounts then due and payable); and seventh, as
otherwise required by Applicable Law.
Section 2.10 Reimbursement.
(a) Whenever any Lender shall sustain or incur any losses or
reasonable out-of-pocket expenses in connection with (i) failure by the Borrower
to borrow, Continue or Convert any LIBOR Advance after having given notice of
its intention to borrow, Continue or Convert such Advance in accordance with
Section 2.2 hereof (whether by reason of the Borrower's election not to proceed
or the non-fulfillment of any of the conditions set forth in Article 3), or (ii)
prepayment (or failure to prepay after giving notice thereof) of any LIBOR
Advance in whole or in part for any reason, the Borrower agrees to pay to such
Lender, upon the earlier of such Lender's demand or the Maturity Date, an amount
sufficient to compensate such Lender for all such losses and out-of-pocket
expenses. Such Lender's good faith determination of the amount of such losses or
out-of-pocket expenses, as set forth in writing and accompanied by calculations
in reasonable detail demonstrating the basis for its demand, shall be
presumptively correct absent manifest error.
(b) Losses subject to reimbursement hereunder shall include, without
limitation, expenses incurred by any Lender or any participant of such Lender
permitted hereunder in connection with the re-employment of funds prepaid, paid,
repaid, not borrowed, or not paid, as the case may be, and will be payable
whether the Maturity Date is changed by virtue of an amendment hereto (unless
such amendment expressly waives such payment) or as a result of acceleration of
the Obligations.
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance under the Revolving Loan Commitment and,
if applicable, the Incremental Facility Commitments, from the Lenders hereunder
made on or after the Agreement Date, shall be made pro rata on the basis of the
respective Commitment Ratios of the Lenders. On the Agreement Date, each Advance
from the Lenders under the Term Loan A
41
Commitment or the Term Loan B Commitment shall be made pro rata on the basis of
the respective Commitment Ratios of the Lenders.
(b) Payments. Each payment and prepayment of principal of the Loans,
and, except as provided in each of Section 2.2(e) and Article 10 hereof, each
payment of interest on the Loans, shall be made to the Lenders pro rata on the
basis of their respective unpaid principal amounts outstanding immediately prior
to such payment or prepayment. If any Lender shall obtain any payment (whether
involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Loans in excess of its ratable share of the applicable Loans
under its applicable Commitment Ratio, such Lender shall forthwith purchase from
the other Lenders such participations in the portion of the applicable Loans
made by them as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery. The Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 2.11(b) may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
Section 2.12 Capital Adequacy. If after the date hereof, the adoption of
any Applicable Law regarding the capital adequacy of banks or bank holding
companies, or any change in Applicable Law (whether adopted before or after the
Agreement Date) or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender with any
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on any Lender's capital as a
consequence of its obligations hereunder with respect to the Loans and the
Revolving Loan Commitment (or, if applicable, Incremental Facility Commitments)
to a level below that which it could have achieved but for such adoption, change
or compliance (taking into consideration such Lender's policies with respect to
capital adequacy immediately before such adoption, change or compliance and
assuming that such Lender's capital was fully utilized prior to such adoption,
change or compliance) by an amount reasonably deemed by such Lender to be
material, then, upon the earlier of demand by such Lender or the Maturity Date,
the Borrower shall promptly pay to such Lender such additional amounts as shall
be sufficient to compensate such Lender for such reduced return, together with
interest on such amount from the fourth (4th) Business Day after the date of
demand or the Maturity Date, as applicable, until payment in full thereof at the
Default Rate. Notwithstanding the foregoing, the Borrower shall only be
obligated to compensate such Lender for any amount under this subsection arising
or occurring during (i) in the case of each such request for compensation, any
time or period commencing not more than ninety (90) days prior to the date on
which such Lender submits such request and (ii) any other time or period during
which, because of the unannounced retroactive application of such law,
regulation, interpretation, request or directive, such Lender could not have
known that the resulting reduction in return might arise. A certificate of such
Lender setting forth the amount to
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be paid to such Lender by the Borrower as a result of any event referred to in
this paragraph and supporting calculations in reasonable detail shall be
presumptively correct absent manifest error.
Section 2.13 Lender Tax Forms. On or prior to the Agreement Date, and
prior to the date on which any Person becomes a Lender hereunder, and from time
to time thereafter if required by Applicable Law due to a change in
circumstances or if reasonably requested by the Borrower or the Administrative
Agent (unless such Lender is unable to do so by reasons of change in Applicable
Law), each Lender organized under the laws of a jurisdiction outside the United
States shall provide the Administrative Agent and the Borrower with (i) an
accurate and duly completed United States Internal Revenue Service Form X-0XXX,
X-0XXX or Form W-9, as the case may be, or other applicable or successor form,
certificate or document prescribed by the United States Internal Revenue Service
certifying as to such Lender's entitlement to full exemption from United States
withholding tax with respect to all payments to be made to such Lender hereunder
or under any Note or other Loan Document, or, (ii) in the case of a Lender that
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, (A) an accurate and duly completed United States Internal
Revenue Service Form W-8BEN, W-8ECI, or other applicable or successor form,
certificate or document prescribed by the United States Internal Revenue Service
certifying to such Lender's foreign status and (B) a certificate certifying to
such Lender's entitlement to a complete exemption from United States withholding
tax with respect to all payments hereunder or under any Note or other Loan
Document. In the event that the Borrower withholds a portion of any payment
hereunder or under any Note or other Loan Document in accordance with this
Section 2.13, the Borrower shall provide evidence that such taxes of any nature
whatsoever in respect of this Agreement, any Loan or Note or other Loan Document
shall have been paid to the appropriate taxing authorities by delivery to the
Lender on whose account such payment was made of the official tax receipts or
notarized copies of such receipts within thirty (30) days after payment of such
tax. If the Borrower fails to make any such payment when due, the Borrower shall
indemnify the Lenders for any incremental taxes, interest or penalties that may
become payable by any Lender as a result of any such failure. For any period
with respect to which a Lender has failed to provide the Borrower with the
appropriate form described above (other than if such failure is due to a change
in Applicable Law occurring subsequent to the date on which a form originally
was required to be provided), such Lender shall not be entitled to
indemnification with respect to withholding taxes imposed by the United States
and the Borrower shall be allowed to deduct from payments to such Lender
hereunder and under any Note or other Loan Document, the amount of any such
withholding taxes paid by the Borrower.
Section 2.14 Letters of Credit.
(a) Subject to the terms and conditions hereof, the Issuing Bank, on
behalf of the Lenders, and in reliance on the agreements of the Lenders set
forth in Section 2.14(d) hereof, hereby agrees to issue one or more Letters of
Credit up to an aggregate face amount equal to the Available Letter of Credit
Commitment determined immediately prior to giving effect to the issuance
thereof; provided, however, that the Issuing Bank shall not issue any Letter of
Credit unless the conditions precedent to the issuance thereof set forth in
Section 3.3 hereof have been satisfied, and shall have no obligation to issue
any Letter of Credit if any Default then exists or
43
would be caused thereby or if, after giving effect to such issuance, the
Available Revolving Loan Commitment would be less than zero; and provided
further, however, that at no time shall the total Letter of Credit Obligations
outstanding hereunder exceed $30,000,000.00. Each Letter of Credit shall (i) be
denominated in United States Dollars, and (ii) expire no later than the earlier
to occur of (A) the fifth (5th) Business Day prior to the Revolving Loan
Maturity Date or (B) one (1) year after its date of issuance (but may contain
provisions for automatic renewal; provided that no Default or Event of Default
exists on the renewal date or would be caused by such renewal). Each Letter of
Credit shall be subject to the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500
and, to the extent not inconsistent therewith, the laws of the State of Georgia.
The Issuing Bank shall not at any time be obligated to issue, or cause to be
issued, any Letter of Credit if such issuance would conflict with, or cause the
Issuing Bank to exceed any limits imposed by, any Applicable Law. If a Letter of
Credit provides that it is automatically renewable unless notice is given by the
Issuing Bank that it will not be renewed, the Issuing Bank shall not be bound to
give a notice of non-renewal unless directed to do so by the Required Lenders at
least sixty-five (65) days prior to the then scheduled expiration date of such
Letter of Credit. The Existing Letters of Credit shall be deemed to be Letters
of Credit issued and outstanding under this Agreement on and after the Agreement
Date.
(b) The Borrower may from time to time request the issuance of, and
be provided with by the Issuing Bank, Letters of Credit. The Borrower shall
execute and deliver to the Administrative Agent and the Issuing Bank a Request
for Issuance of Letter of Credit for each Letter of Credit to be issued by the
Issuing Bank, not later than 12:00 noon (Charlotte, North Carolina time) on the
fifth (5th) Business Day preceding the date on which the requested Letter of
Credit is to be issued, or such shorter notice as may be acceptable to the
Issuing Bank and the Administrative Agent. Upon receipt of any such Request for
Issuance of Letter of Credit, subject to satisfaction of all conditions
precedent thereto as set forth in Section 3.3 hereof, the Issuing Bank shall
process such Request for Issuance of Letter of Credit and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly issue
the Letter of Credit requested thereby. The Issuing Bank shall furnish a copy of
such Letter of Credit to the Borrower and the Administrative Agent following the
issuance thereof. The Borrower shall pay or reimburse the Issuing Bank for
normal and customary costs and expenses incurred by the Issuing Bank in issuing,
effecting payment under, amending or otherwise administering the Letters of
Credit.
(c) At such time as the Administrative Agent shall be notified by
the Issuing Bank that the beneficiary under any Letter of Credit has drawn on
the same, the Administrative Agent shall promptly notify the Borrower and each
Lender, by telephone or telecopy, of the amount of the draw and, in the case of
each Lender, such Lender's portion of such draw amount as calculated in
accordance with its Revolving Loan Commitment Ratio.
(d) The Borrower hereby agrees to immediately reimburse the Issuing
Bank for amounts paid by the Issuing Bank in respect of draws under a Letter of
Credit issued at the Borrower's request. In order to facilitate such repayment,
the Borrower hereby irrevocably requests the Lenders having a Revolving Loan
Commitment, and such Lenders hereby severally
44
agree, on the terms and conditions of this Agreement (other than as provided in
Article 2 hereof with respect to the amounts of, the timing of requests for, and
the repayment of Advances hereunder and in Section 3.3 hereof with respect to
conditions precedent to Advances hereunder), with respect to any drawing under a
Letter of Credit prior to the occurrence of an event described in Sections
8.1(f) or (g) hereof, to make an Advance (which Advance may be a LIBOR Advance
if the Borrower so requests in a timely manner or may be Converted to a LIBOR
Advance as provided in the Loan Agreement) to the Borrower on each day on which
a draw is made under any Letter of Credit and in the amount of such draw, and to
pay the proceeds of such Advance directly to the Issuing Bank to reimburse the
Issuing Bank for the amount paid by it upon such draw. Each Lender having a
Revolving Loan Commitment shall pay its share of such Advance by paying its
portion of such Advance to the Administrative Agent in accordance with Article 2
hereof and its Revolving Loan Commitment Ratio, without reduction for any
set-off or counterclaim of any nature whatsoever and regardless of whether any
Default or Event of Default (other than with respect to an event described in
Sections 8.1 (f) or (g) hereof) then exists or would be caused thereby. If at
any time that any Letters of Credit are outstanding, any of the events described
in Sections 8.1 (f) or (g) hereof shall have occurred and be continuing, then
each Lender having a Revolving Loan Commitment shall, automatically upon the
occurrence of any such event and without any action on the part of the Issuing
Bank, the Borrower, the Administrative Agent or such Lender, be deemed to have
purchased an undivided participation in the face amount of all Letters of Credit
then outstanding in an amount equal to such Lender's Revolving Loan Commitment
Ratio, and each Lender having a Revolving Loan Commitment shall, notwithstanding
such Default or Event of Default, upon a drawing under any Letter of Credit,
immediately pay to the Administrative Agent for the account of the Issuing Bank,
in immediately available funds, the amount of such Lender's participation (and
the Issuing Bank shall deliver to such Lender a loan participation certificate
dated the date of the occurrence of such event and in the amount of such
Lender's Revolving Loan Commitment Ratio). The disbursement of funds in
connection with a draw under a Letter of Credit pursuant to this Section 2.14(d)
shall be subject to the terms and conditions of Article 2 hereof. The obligation
of each Lender having a Revolving Loan Commitment to make payments to the
Administrative Agent, for the account of the Issuing Bank, in accordance with
this Section 2.14 shall be absolute and unconditional and no such Lender shall
be relieved of its obligations to make such payments by reason of noncompliance
by any other Person with the terms of the Letter of Credit or for any other
reason. The Administrative Agent shall promptly remit to the Issuing Bank the
amounts so received from the other Lenders. Any overdue amounts payable by the
Lenders having a Revolving Loan Commitment to the Issuing Bank in respect of a
draw under any Letter of Credit shall bear interest, payable on demand, at the
Federal Funds Rate.
(e) The Borrower agrees that any action taken or omitted to be taken
by the Issuing Bank in connection with any Letter of Credit, except for such
actions or omissions as shall constitute gross negligence or willful misconduct
on the part of the Issuing Bank, shall be binding on the Borrower as between the
Borrower and the Issuing Bank, and shall not result in any liability of the
Issuing Bank to the Borrower. The obligation of the Borrower to reimburse the
Lenders for Advances made to reimburse the Issuing Bank for draws under the
Letter of Credit shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, including, without limitation, the following
circumstances:
45
(i) any lack of validity or enforceability of any Loan
Document;
(ii) any amendment or waiver of or consent to any departure
from any or all of the Loan Documents;
(iii) any improper use which may be made of any Letter of
Credit or any improper acts or omissions of any beneficiary or transferee of any
Letter of Credit in connection therewith;
(iv) the existence of any claim, set-off, defense or any right
which the Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or Persons for whom any such beneficiary or
any such transferee may be acting) or any Lender (other than the defense of
payment to such Lender in accordance with the terms of this Agreement) or any
other Person, whether in connection with any Letter of Credit, any transaction
contemplated by any Letter of Credit, this Agreement or any other Loan Document,
or any unrelated transaction;
(v) any statement or any other documents presented under any
Letter of Credit proving to be insufficient, forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) the insolvency of any Person issuing any documents in
connection with any Letter of Credit;
(vii) any breach of any agreement between the Borrower and any
beneficiary or transferee of any Letter of Credit, provided that the same shall
not have resulted from the gross negligence or willful misconduct of the Issuing
Bank;
(viii) any irregularity in the transaction with respect to
which any Letter of Credit is issued, including, without limitation, any fraud
by the beneficiary or any transferee of such Letter of Credit, provided that the
same shall not be the result of the gross negligence or willful misconduct of
the Issuing Bank;
(ix) any errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, wireless or
otherwise, whether or not they are in code, provided that the same shall not be
the result of the gross negligence or willful misconduct of the Issuing Bank;
(x) any act, error, neglect, default, omission, insolvency or
failure of business of any of the correspondents of the Issuing Bank, provided
that the same shall not have constituted the gross negligence or willful
misconduct of the Issuing Bank;
(xi) any other circumstances arising from causes beyond the
control of the Issuing Bank;
46
(xii) payment by the Issuing Bank under any Letter of Credit
against presentation of a sight draft or a certificate which does not comply
with the terms of such Letter of Credit, provided that such payment shall not
have constituted gross negligence or willful misconduct of the Issuing Bank; and
(xiii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, provided that such other circumstances
or happenings shall not have been the result of gross negligence or willful
misconduct of the Issuing Bank.
(f) If any change in Applicable Law, any change in the
interpretation or administration thereof, or any change in compliance with
Applicable Law by the Issuing Bank or any Lender as a result of any official
request or directive of any governmental authority, central bank or comparable
agency (whether or not having the force of law) shall (i) impose, modify or deem
applicable any reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit, capital adequacy,
assessment or other requirements or conditions against Letters of Credit issued
by the Issuing Bank or against participations by any other Lender in the Letters
of Credit or (ii) impose on the Issuing Bank or any other Lender any other
condition regarding any Letter of Credit or any participation therein, and the
result of any of the foregoing in the reasonable determination of the Issuing
Bank or such Lender, as the case may be, is to increase the cost to the Issuing
Bank or such Lender of issuing or maintaining any Letter of Credit or purchasing
or maintaining any participation therein, as the case may be, by an amount
(which amount shall be reasonably determined) deemed by the Issuing Bank or such
Lender to be material, and the designation of a different lending office will
not avoid the need for additional compensation, then, on request by the Issuing
Bank or such Lender, the Borrower shall pay, within ten (10) days after demand,
the Issuing Bank or such Lender, as the case may be, such additional amount or
amounts as the Issuing Bank or such Lender, as the case may be, so determines
will compensate it for such increased costs. Notwithstanding the foregoing, the
Borrower shall only be obligated to compensate such Lender for any amount under
this subsection arising or occurring during (i) in the case of each such request
for compensation, any time or period commencing not more than ninety (90) days
prior to the date on which such Lender submits such request and (ii) any other
time or period during which, because of the unannounced retroactive application
of such law, regulation, interpretation, request or directive, such Lender could
not have known that the resulting reduction in return might arise. A certificate
of the Issuing Bank or such Lender setting forth the amount, and in reasonable
detail the basis for the Issuing Bank or such Lender's determination of such
amount, to be paid to the Issuing Bank or such Lender by the Borrower as a
result of any event referred to in this Section 2.14(f) shall, absent manifest
error, be conclusive.
(g) Each Lender having a Revolving Loan Commitment shall be
responsible for its pro rata share (based on such Lender's Revolving Loan
Commitment Ratio) of any and all reasonable out-of-pocket costs, expenses
(including, without limitation, reasonable legal fees) and disbursements which
may be incurred or made by the Issuing Bank in connection with the collection of
any amounts due under, the administration of, or the presentation or enforcement
of any rights conferred by any Letter of Credit, the Borrower's or any
guarantor's obligations to reimburse or otherwise. In the event the Borrower
shall fail to pay such expenses of the Issuing Bank within ten (10) days after
demand for payment by the Issuing Bank, each Lender having a
47
Revolving Loan Commitment shall thereupon pay to the Issuing Bank its pro rata
share (based on such Lender's Revolving Loan Commitment Ratio) of such expenses
within five (5) days from the date of the Issuing Bank's notice to the Lenders
having a Revolving Loan Commitment of the Borrower's failure to pay; provided,
however, that if the Borrower or any guarantor shall thereafter pay such
expense, the Issuing Bank will repay to each Lender having a Revolving Loan
Commitment Ratio the amounts received from such Lender hereunder.
(h) The Borrower agrees that each Advance by the Lenders having a
Revolving Loan Commitment to reimburse the Issuing Bank for draws under any
Letter of Credit, shall, for all purposes hereunder, be deemed to be an Advance
under the Revolving Loan Commitment to the Borrower and shall be payable and
bear interest in accordance with all other Revolving Loans to the Borrower.
(i) The Borrower will indemnify and hold harmless the Lead Arranger,
the Administrative Agent, the Issuing Bank and each other Lender and each of
their respective employees, representatives, officers and directors from and
against any and all claims, liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including reasonable attorneys'
fees, but excluding taxes) which may be imposed on, incurred by or asserted
against the Administrative Agent, the Issuing Bank or any such other Lender in
any way relating to or arising out of the issuance of a Letter of Credit, except
that the Borrower shall not be liable to the Administrative Agent, the Issuing
Bank or any such Lender for any portion of such claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Lead Arranger, the Administrative Agent, the Issuing Bank or
such Lender, as the case may be, as determined by a non-appealable judicial
order. This Section 2.14(i) shall survive termination of this Agreement.
Section 2.15 Incremental Facility Loans.
(a) Subject to the terms and conditions of this Agreement, the
Borrower may request the Incremental Facility Commitment; provided, that (i) the
Borrower may not request the Incremental Facility Commitment or an Incremental
Facility Advance after the occurrence and during the continuance of a Default,
including, without limitation, any Default that would result after giving effect
to any Incremental Facility Advance; (ii) the Borrower may request only seven
(7) Incremental Facility Commitments (although such commitments may be from more
than one Lender) and must request a minimum Incremental Facility Commitment of
$25,000,000.00, or if less, the remaining amount permitted pursuant to this
Section 2.15 after giving effect to any prior Incremental Facility Commitments
or Incremental Facility Loans and (iii) the sum of (A) all outstanding
Incremental Facility Commitments, plus (B) all outstanding Incremental Facility
Loans, shall not exceed $300,000,000.00. The maturity date for the Incremental
Facility Loans shall be no earlier than six (6) calendar months after the later
of (i) the Term Loan A Maturity Date or (ii) Term Loan B Maturity Date (or, if
no Term Loans are outstanding, the Incremental Facility Maturity Date of the
most recently funded Incremental Facility Loan outstanding at such time) and the
weighted average life of each Incremental Facility Loan shall be longer than the
weighted average life of
48
the longer of the Term Loan A or the Term Loan B (or, if no Term Loans are
outstanding, the most recently funded Incremental Facility Loan outstanding at
such time). The decision of any Lender to make an Incremental Facility
Commitment to the Borrower shall be at such Lender's sole discretion and shall
be made in writing. The Incremental Facility Commitment (x) must be in the form
of a term loan facility, (y) must not require principal repayment earlier, or in
amount larger (or percentage greater), than those set forth in the repayment
schedule for the Term Loans as set forth in Section 2.7(b) hereof (or, if no
Term Loans are outstanding, the repayment schedule set forth in the Notice of
Incremental Facility Commitment for the most recently funded Incremental
Facility Loan outstanding at such time) and (z) must be governed by this
Agreement and the other Loan Documents and be on terms and conditions no more
restrictive than those set forth herein and therein. Each Lender shall have the
right, but not the obligation, to participate in any Incremental Facility
Commitment on a pro rata basis. The Borrower may, at its own expense, solicit
Incremental Facility Commitments from third party financial institutions
reasonably acceptable to the Administrative Agent. Any such financial
institution (if not already a Lender hereunder) shall become a party to this
Agreement as a Lender, pursuant to a joinder agreement in form and substance
reasonably satisfactory to the Administrative Agent and the Borrower.
(b) Prior to the effectiveness of the Incremental Facility
Commitment, the Borrower shall (i) deliver to the Administrative Agent and the
Lenders a Notice of Incremental Facility Commitment in substantially the form of
Exhibit M attached hereto; and (ii) provide revised projections to the
Administrative Agent and the Lenders, which shall be in form and substance
reasonably satisfactory to the Administrative Agent and which shall demonstrate
the Borrower's ability to timely repay such Incremental Facility Commitment and
any Incremental Facility Loans thereunder and to comply with the covenants
contained in Sections 7.8, 7.9, 7.10 and 7.11.
(c) No Incremental Facility Commitment shall by itself result in any
reduction of the Commitment or of the Commitment Ratio of the Lender making such
Incremental Facility Commitment.
(d) Incremental Facility Loans (i) shall bear interest at the Base
Rate or LIBOR, in each case, plus an interest rate margin based on prevailing
market conditions at such time and as agreed upon between the Borrower and the
Lenders holding such Incremental Facility Commitments; (ii) subject to Section
2.15(a) hereof, shall be repaid as agreed to by the Borrower and the Lender
making such Incremental Facility Loans; (iii) shall for all purposes be Loans
and Obligations hereunder and under the Loan Documents; and (iv) shall rank pari
passu with the other Loans for purposes of Sections 2.9 and 8.2 hereof.
(e) Incremental Facility Advances shall be requested by the Borrower
pursuant to a request (which shall be in substantially the form of a Request for
Advance) delivered in the same manner as a Request for Advance, but shall be
funded pro rata only by those Lenders holding the Incremental Facility
Commitment.
Section 2.16 Increases to the Revolving Loan Commitment.
49
(a) Subject to the terms and conditions of this Agreement, the
Borrower may request increases to the Revolving Loan Commitment; provided that
(i) the Borrower may not request any increase to the Revolving Loan Commitment
after the occurrence and during the continuance of a Default, including, without
limitation, any Default that would result after giving effect to any increase to
the Revolving Loan Commitment; (ii) the Borrower may request only four (4)
increases to the Revolving Loan Commitment (although such increases to the
Revolving Loan Commitment may be from more than one Lender) and must request a
minimum increase to the Revolving Loan Commitment of $25,000,000.00, or if less,
the remaining amount permitted pursuant to this Section 2.16 after giving effect
to any prior increases to the Revolving Loan Commitment; and (iii) the aggregate
amount of increases to the Revolving Loan Commitment shall not exceed
$100,000,000.00. The decision of any Lender to commit to an increase in the
Revolving Loan Commitment shall be at such Lender's sole discretion and shall be
made in writing. Each Lender shall have the right, but not the obligation, to
participate in any increase in the Revolving Loan Commitment on a pro rata
basis. The Borrower may, at its own expense, solicit additional Revolving Loan
Commitments from third party financial institutions reasonably acceptable to the
Administrative Agent and the Borrower. Any such financial institution (if not
already a Lender hereunder) shall become a party to this Agreement as a Lender,
pursuant to a joinder agreement in form and substance reasonably satisfactory to
the Administrative Agent and the Borrower.
(b) Prior to the effectiveness of any increase to the Revolving Loan
Commitment, the Borrower shall deliver to the Administrative Agent and the
Lenders a Notice of Revolving Increase.
(c) Each increase in the Revolving Loan Commitment and all Revolving
Loans made in connection with such increase in the Revolving Loan Commitment (i)
shall be subject to the terms applicable to the Revolving Loan Commitment and
Revolving Loans in this Agreement (including, without limitation, the terms
applicable to pricing and maturity pursuant to Section 2.7(b) hereof); (ii)
shall for all purposes be Loans and Obligations hereunder and under the Loan
Documents; (iii) shall be represented by a replacement Revolving Loan Note which
shall be exchanged for the Revolving Loan Note of any Lender committing to an
increase in the Revolving Loan Commitment; and (iv) shall rank pari passu with
the other Loans for purposes of Sections 2.9 and 8.2 hereof.
(d) The outstanding Revolving Loans, Revolving Loan Commitment
Ratios and each Lender's share of the Letter of Credit Obligations will be
reallocated by the Administrative Agent on the effective date of any increase in
the Revolving Loan Commitment among the Lenders in accordance with their revised
Revolving Loan Commitment Ratios.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement. The
obligation of the Lenders to undertake the Commitments and the effectiveness of
this Agreement are subject to the prior or contemporaneous fulfillment of each
of the following conditions:
50
(a) The Administrative Agent and the Lenders shall have received
each of the following:
(i) this Agreement duly executed;
(ii) duly executed Notes in favor of each Lender requesting a
Note;
(iii) duly executed Reaffirmation Agreement;
(iv) the loan certificate of the Borrower dated as of the
Agreement Date, in substantially the form attached hereto as Exhibit J-1,
including a certificate of incumbency with respect to each Authorized Signatory
of such Person, together with the following items: (A) a true, complete and
correct copy of the Articles of Incorporation of the Borrower as in effect on
the Agreement Date, (B) a true, complete and correct copy of the By-laws of the
Borrower as in effect on the Agreement Date, (C) certificates of good standing
for the Borrower issued by the Secretary of State or similar state official for
the state of incorporation of the Borrower and, to the extent requested by the
Administrative Agent, for each state in which the Borrower is required to
qualify to do business, (D) a true, complete and correct copy of the corporate
resolutions of the Borrower authorizing the Borrower to execute, deliver and
perform this Agreement and the other Loan Documents and (E) a true, complete and
correct copy of any shareholders' agreements or voting agreements in effect with
respect to the Ownership Interests of the Borrower;
(v) a loan certificate of each Restricted Subsidiary of the
Borrower (including all License Subs existing as of the Agreement Date) dated as
of the Agreement Date, in substantially the form attached hereto as Exhibit J-2,
including a certificate of incumbency with respect to each Authorized Signatory
of such Person, together with the following items: (A) a true, complete and
correct copy of the Articles or Certificate of Incorporation or Formation of
such Person as in effect on the Agreement Date, (B) a true, complete and correct
copy of the By-laws or Operating Agreement of such Person as in effect on the
Agreement Date, (C) certificates of good standing for such Person issued by the
Secretary of State or similar state official for the state of incorporation or
formation of such Person and, to the extent requested by the Administrative
Agent, for each state in which such Person is required to qualify to do
business, (D) a true, complete and correct copy of the resolutions of such
Person (or another appropriate Person) authorizing such Person to execute,
deliver and perform the Loan Documents to which it is a party and (E) a true,
complete and correct copy of any shareholders' agreements or voting agreements
in effect with respect to the Ownership Interests of such Person;
(vi) copies of insurance binders or certificates covering the
assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting
the requirements of Section 5.5 hereof;
(vii) legal opinions of (A) Xxxxxxxx Xxxxxxx LLP, corporate
counsel to the Borrower and its Restricted Subsidiaries, and (B) FCC counsel to
the Borrower and its Restricted Subsidiaries, addressed to each Lender and the
Administrative Agent and dated as of
51
the Agreement Date which shall be in form and substance acceptable to the
Administrative Agent;
(viii) duly executed Certificate of Financial Condition for
the Borrower and its Restricted Subsidiaries on a consolidated basis as to the
financial condition, solvency, pro forma covenant compliance and related matters
in form and substance satisfactory to the Administrative Agent;
(ix) copies of (a) the unaudited financial statements of the
Borrower and its Restricted Subsidiaries for the fiscal period ended March 31,
2005, certified by the chief financial officer of the Borrower, (including,
without limitation, monthly financial statements for the month ended April 30,
2005, and (b) audited financial statements of the Borrower and its Subsidiaries
on a consolidated basis, for fiscal year 2004;
(x) projected financial statements and calculations of the
Borrower and its Restricted Subsidiaries covering the term of this Agreement, in
form and substance satisfactory to the Administrative Agent and the Lenders,
specifically demonstrating (x) the Borrower's pro forma compliance with Sections
7.8, 7.9, 7.10 and 7.11 hereof and (y) the Borrower's ability to meet its
repayment obligations hereunder through the Maturity Date; provided that, any
updates or modifications to the projected financial statements of the Borrower
and its Restricted Subsidiaries previously received by the Administrative Agent
shall be in form and substance reasonably satisfactory to the Administrative
Agent;
(xi) updated Uniform Commercial Code Lien and tax Lien search
results with respect to the Borrower and its Restricted Subsidiaries;
(xii) evidence satisfactory to the Administrative Agent and
the Lenders that there exists no Indebtedness for borrowed money of the Borrower
or its Restricted Subsidiaries (other than Indebtedness permitted under Section
7.1 hereof) and no Liens existing except for Permitted Liens and delivery to the
Administrative Agent of pay-off letters and other documents requested by the
Administrative Agent in form and substance satisfactory to it evidencing
repayment, termination, reconveyance and release of such Indebtedness or Liens;
(xiii) delivery to the Administrative Agent of all possessory
collateral, including, without limitation, any pledged notes or pledged stock,
together with the undated stock powers or note powers endorsed in blank, as
applicable;
(xiv) all such other documents as the Administrative Agent may
reasonably request, certified by an appropriate governmental official or an
Authorized Signatory if so requested.
(b) The Administrative Agent and the Lenders shall have received
evidence satisfactory to them that all Necessary Authorizations to the (i)
execution, delivery and performance of this Agreement and the other Loan
Documents and (ii) granting of Liens in all Operating Agreements and other
material contracts and leases of the Borrower and its Restricted Subsidiaries,
each of which shall be in form and substance satisfactory to the Administrative
52
Agent, have been obtained or made, are in full force and effect and are not
subject to any pending or, to the knowledge of the Borrower, threatened reversal
or cancellation.
(c) The Borrower shall certify to the Administrative Agent and the
Lenders that each of the representations and warranties in Article 4 hereof and
each other Loan Document are true and correct as of the Agreement Date and that
no Default or Event of Default then exists or is continuing.
(d) (i) There shall not exist as of the Agreement Date any action,
suit, proceeding or investigation pending against, or, to the knowledge of the
Borrower, threatened against or in any manner relating adversely to, the
Borrower, any of its Restricted Subsidiaries, any of their respective properties
or the transactions contemplated hereby, and (ii) no event shall have occurred
and no condition exist, in each case, which, in the reasonable judgment of the
Required Lenders, has had or could be expected to have a Materially Adverse
Effect.
(e) The Borrower shall have paid to the Administrative Agent for the
account of itself and each Lender the fees, expenses and other amounts due as
set forth in the fee letter dated May 6, 2005.
Section 3.2 Conditions Precedent to Each Advance. The obligation of the
Lenders to make, Convert or Continue each Advance on or after the Agreement Date
is subject to the fulfillment of each of the following conditions immediately
prior to or contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower under
this Agreement and the other Loan Documents (including, without limitation, all
representations and warranties with respect to the Restricted Subsidiaries),
which, pursuant to Section 4.2 hereof, are made at and as of the time of such
Advance (except to the extent previously fulfilled in accordance with the terms
hereof and to the extent relating specifically to a specific prior date), shall
be true and correct at such time in all material respects, both before and after
giving effect to the application of the proceeds of such Advance, and after
giving effect to any updates to information provided to the Lenders in
accordance with the terms of such representations and warranties, and no Default
hereunder shall then exist or be caused thereby.
(b) With respect to Advances which, if funded, would increase the
aggregate principal amount of the Loans outstanding hereunder, the
Administrative Agent shall have received a duly executed Request for Advance.
(c) The Administrative Agent and the Lenders shall have received all
such other certificates, reports, statements, opinions of counsel (if such
Advance is in connection with an Acquisition) or other documents as the
Administrative Agent or any Lender may reasonably request.
(d) With respect to any Advance relating to any Acquisition or the
formation of any Restricted Subsidiary which is permitted hereunder, the
Administrative Agent and the Lenders shall have received certified documents and
instruments relating to such Acquisition or
53
such formation of a new Restricted Subsidiary as are described in Section 5.13
hereof or otherwise required herein.
(e) No event shall have occurred and no condition exist, in each
case, which, in the reasonable judgment of the Required Lenders, has had or
could be expected to have a Materially Adverse Effect.
(f) On the date of such Advance, after giving effect to the Advance
requested, the Borrower shall be in compliance on a pro forma basis with the
covenants set forth in Sections 7.8, 7.9, 7.10 and 7.11 hereof and that no
Default or Event of Default shall be caused hereunder by such Advance.
The acceptance of proceeds of any Advance which would increase the
aggregate principal amount of Loans outstanding shall be deemed to be a
representation and warranty by the Borrower as to compliance with this Section
3.2 on the date any such Loan is made.
Section 3.3 Conditions Precedent to Issuance of Letters of Credit. The
obligation of the Issuing Bank to issue each Letter of Credit hereunder is
subject to the fulfillment of each of the following conditions immediately prior
to or contemporaneously with such issuance:
(a) All of the representations and warranties of the Borrower under
this Agreement and the other Loan Documents (including, without limitation, all
representations and warranties with respect to the Restricted Subsidiaries),
which, pursuant to Section 4.2 hereof, are made at and as of the time of such
Advance (except to the extent previously fulfilled in accordance with the terms
hereof and to the extent relating specifically to a specific prior date), shall
be true and correct at such time in all material respects, both before and after
giving effect to the issuance of the Letter of Credit, and after giving effect
to any updates to information provided to the Lenders in accordance with the
terms of such representations and warranties, and no Default hereunder shall
then exist or be caused thereby;
(b) The Administrative Agent shall have received a duly executed
Request for Issuance of Letter of Credit;
(c) The Administrative Agent and the Lenders shall have received all
such other certificates, reports, statements, opinions of counsel (if such
Letter of Credit is in connection with an Acquisition) or other documents as the
Administrative Agent or any Lender may reasonably request;
(d) No event shall have occurred and no condition exist, in each
case, which, in the reasonable judgment of the Required Lenders, has had or
could be expected to have a Materially Adverse Effect.
(e) On the date of issuance of such Letter of Credit, after giving
effect to the Letter of Credit requested, the Borrower shall be in compliance on
a pro forma basis with the covenants set forth in Sections 7.8, 7.9, 7.10 and
7.11 of this Agreement and that no Default or Event of Default shall be caused
hereunder by such Letter of Credit.
54
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby agrees,
represents and warrants, upon the Agreement Date, in favor of the Administrative
Agent and each Lender, that:
(a) Organization; Ownership; Power; Qualification. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Georgia. The Borrower has the corporate power and authority to
own its properties and to carry on its business as now being and as proposed
hereafter to be conducted. Each Restricted Subsidiary of the Borrower is a
Person duly organized, validly existing and in good standing under the laws of
the state of its incorporation or formation and has the power and authority to
own its properties and to carry on its business as now being and as proposed
hereafter to be conducted. The Borrower and its Restricted Subsidiaries are duly
qualified, in good standing and authorized to do business in each jurisdiction
in which the character of their respective properties or the nature of their
respective businesses requires such qualification or authorization, except where
failure to be so qualified, in the aggregate, could not reasonably be expected
to have a Materially Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the corporate
power and has taken all necessary corporate action to authorize it to borrow
hereunder, and the Borrower has the corporate power and has taken all necessary
corporate action to execute, deliver and perform this Agreement and each of the
other Loan Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by the Borrower and is, and each
of the other Loan Documents to which the Borrower is party is, a legal, valid
and binding obligation of the Borrower, enforceable against the Borrower, in
accordance with its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity.
(c) Restricted Subsidiaries: Authorization; Enforceability. The
Borrower's Restricted Subsidiaries, and the Borrower's direct and indirect
ownership thereof, in each case as of the Agreement Date, are as set forth on
Schedule 4 attached hereto, and the Borrower has the unrestricted right to vote
the issued and outstanding Ownership Interests of the Restricted Subsidiaries
shown thereon; such Ownership Interests of such Restricted Subsidiaries have
been duly authorized and issued and are fully paid and nonassessable. Each
Restricted Subsidiary of the Borrower has the power and has taken all necessary
action to authorize it to execute, deliver and perform each of the Loan
Documents to which it is a party in accordance with their respective terms and
to consummate the transactions contemplated by this Agreement and by such Loan
Documents. Each of the Loan Documents to which any Restricted Subsidiary of the
Borrower is party is a legal, valid and binding obligation of such Restricted
Subsidiary
55
enforceable against such Restricted Subsidiary in accordance with its terms,
subject, as enforcement of remedies, to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity. The Borrower's Ownership Interest in each of its
Restricted Subsidiaries represents a direct or indirect controlling interest of
such Restricted Subsidiary for purposes of directing or causing the direction of
the management and policies of each Restricted Subsidiary.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and by the Borrower and its
Restricted Subsidiaries of each of the other Loan Documents to which they are
respectively party, and the consummation of the transactions contemplated hereby
and thereby, do not and will not (i) require any consent or approval,
governmental or otherwise, not already obtained, (ii) violate any Applicable Law
respecting the Borrower or any of its Restricted Subsidiaries, (iii) conflict
with, result in a breach of, or constitute a default under the certificate or
articles of incorporation or by-laws or partnership agreements or operating
agreements or trust agreements, as the case may be, as amended, of the Borrower
or of any of its Restricted Subsidiaries, or under any material Operating
Agreement, or any other material indenture, agreement, or other instrument, to
which the Borrower or any of its Restricted Subsidiaries is a party or by which
any of them or their respective properties may be bound, including, without
limitation, the Subordinated Note Indenture, or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Borrower or any of its Restricted
Subsidiaries, except for Permitted Liens.
(e) Business. The Borrower, together with its Restricted
Subsidiaries, is engaged only in the Permitted Businesses.
(f) Licenses; Operating Agreements.
(i) Each of the Borrower and its Restricted Subsidiaries has
all requisite power and authority, material Operating Agreements and Licenses to
own and operate its properties and to carry on its businesses as now conducted
and as proposed to be conducted. Schedule 3 annexed hereto, as it may be
supplemented, correctly describes each of the Stations and each such Permitted
Business and sets forth all of the material Operating Agreements and Licenses of
the Borrower and its Restricted Subsidiaries and correctly sets forth the
termination date, if any, of each such Operating Agreements and License. A true,
correct and complete copy of each material Operating Agreement and License has
been made available to the Administrative Agent. Each material Operating
Agreement and License was duly and validly issued pursuant to procedures which
comply in all material respects with all requirements of Applicable Law. As of
the Agreement Date and at all times thereafter, the Borrower and its Restricted
Subsidiaries have the right to use all material Licenses required in the
ordinary course of business for all Stations and any Permitted Business, and
each such License is in full force and effect. Each of the Borrower and it
Restricted Subsidiaries has taken all material actions and performed all of its
material obligations that are necessary to maintain all material Licenses
without adverse modification or impairment. Except as shown on Schedule 3, no
event has
56
occurred which (i) results in, or after notice or lapse of time or both would
result in, revocation, suspension, adverse modification, non-renewal,
impairment, restriction or termination of or any order of forfeiture with
respect to, any material License or (ii) materially and adversely affects or
could reasonably be expected in the future to materially adversely affect any of
the rights of the Borrower or any of its Restricted Subsidiaries thereunder.
Except as set forth on Schedule 3, each FCC License is held by a License Sub.
Except as set forth in Schedule 3, none of the FCC Licenses requires that any
present stockholder, director, officer or employee of the Borrower or any of its
Restricted Subsidiaries remain a stockholder or employee of such Person, or that
any transfer of control of such Person must be approved by any public or
governmental body other than the FCC.
(ii) Except as shown on Schedule 3, neither the Borrower nor
any of its Restricted Subsidiaries is a party to or has knowledge of any
investigation, notice of apparent liability, violation, forfeiture or other
order or complaint issued by or before any court or regulatory body, including
the FCC, or of any other proceedings (other than proceedings relating to the
radio or television industries generally) which could in any manner materially
threaten or adversely affect the validity or continued effectiveness of the
Licenses of any such Person. Neither the Borrower nor any of its Restricted
Subsidiaries has any reason to believe that any material Licenses listed and
described in Schedule 3 will not be renewed in the ordinary course. Each of the
Borrower and its Restricted Subsidiaries, as applicable, (a) has duly filed in a
timely manner all material filings, reports, applications, documents,
instruments and information required to be filed by it under the Communication
Act or pursuant to FCC Regulations or requests of any regulatory body having
jurisdiction over any of its Licenses, (b) has submitted to the FCC on a timely
basis all required equal employment opportunity reports, and (c) is in
compliance in all material respects with the Communications Act, including all
FCC Regulations relating to the broadcast of television signals, all FCC
Regulations concerning the limits on the duration of advertising in children's
programming and the record keeping obligations relating to such advertising, the
Children's Television Act and all FCC Regulations promulgated thereunder and all
equal employment opportunity-related FCC Regulations. The Borrower and its
Restricted Subsidiaries maintain appropriate public files at the Stations and at
any other Permitted Business in a manner that complies in all material respects
with all FCC Regulations.
(iii) The Ownership Reports filed by the Borrower and its
Restricted Subsidiaries with the FCC are true, correct and complete in all
material respects and there have been no changes in the ownership of the
Borrower or any Restricted Subsidiary of the Borrower since the filing of such
Ownership Reports other than as described in information filed with the FCC and
made available for examination by the Administrative Agent.
(g) Compliance with Law. The Borrower and its Restricted
Subsidiaries are in compliance with all Applicable Law, except where the failure
to be in compliance would not individually or in the aggregate have a Materially
Adverse Effect.
(h) Title to Assets. The Borrower and its Restricted Subsidiaries
have good, legal and marketable title to, or a valid leasehold interest in, all
of their respective material assets. None of the properties or assets of the
Borrower or any of its Restricted Subsidiaries is subject to any Liens, except
for Permitted Liens. Except for financing statements evidencing
57
Permitted Liens, no financing statement under the Uniform Commercial Code as in
effect in any jurisdiction and no other filing which names the Borrower or any
of its Restricted Subsidiaries as debtor or which covers or purports to cover
any of the assets of the Borrower or any of its Restricted Subsidiaries is
currently effective and on file in any state or other jurisdiction, and neither
the Borrower nor any of its Restricted Subsidiaries has signed any such
financing statement or filing or any security agreement authorizing any secured
party thereunder to file any such financing statement or filing.
(i) Litigation. Except as set forth on Schedule 5 hereto, there is
no action, suit, proceeding or investigation pending against, or, to the
knowledge of the Borrower, threatened against or in any other manner relating
adversely to, the Borrower or any of its Restricted Subsidiaries or any of their
respective properties, including, without limitation, the Licenses, in any court
or before any arbitrator of any kind or before or by any governmental body which
could reasonably be expected to have a Materially Adverse Effect. No action,
suit, proceeding or investigation (i) calls into question the validity of this
Agreement or any other Loan Document, or (ii) individually or collectively
involves the possibility of any judgment or liability not fully covered by
insurance which, if determined adversely to the Borrower or any of its
Restricted Subsidiaries, would have a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the Borrower,
each of its Restricted Subsidiaries required by law to be filed have been duly
filed and all federal, state and other taxes, including, without limitation,
withholding taxes, assessments and other governmental charges or levies required
to be paid by the Borrower or by any of its Restricted Subsidiaries or imposed
upon the Borrower or any of its Restricted Subsidiaries or any of their
respective properties, income, profits or assets, which are due and payable,
have been paid, except any such taxes (i) (A) the payment of which the Borrower
or any of its Restricted Subsidiaries is diligently contesting in good faith by
appropriate proceedings, (B) for which adequate reserves have been provided on
the books of the Borrower or the Restricted Subsidiary of the Borrower involved,
and (C) as to which no Lien other than a Permitted Lien has attached and no
foreclosure, distraint, sale or similar proceedings have been commenced, or (ii)
which may result from audits not yet conducted. The charges, accruals and
reserves on the books of the Borrower and each of its Restricted Subsidiaries in
respect of taxes are, in the reasonable judgment of the Borrower, adequate.
(k) Financial Statements; Projections.
(i) The Borrower has furnished or caused to be furnished to
the Administrative Agent and the Lenders a Form 10-K for the Borrower and its
Restricted Subsidiaries on a consolidated basis for the fiscal year ended
December 31, 2004, audited financial statements for the fiscal year ended
December 31, 2004 and unaudited financial statements for the quarter ended March
31, 2005 and the month ended April 30, 2005, which, together with other
financial statements furnished to the Lenders subsequent to the Agreement Date
have been prepared in accordance with GAAP and present fairly in all material
respects the financial position of the Borrower and its Restricted Subsidiaries
on a consolidated and consolidating basis, as the case may be, on and as at such
dates and the results of operations for the periods then ended (subject, in the
case of unaudited financial statements, to normal year-end
58
and audit adjustments). None of the Borrower or any of its Restricted
Subsidiaries has any material liabilities, contingent or otherwise, other than
as disclosed in the financial statements most recently delivered on the
Agreement Date or pursuant to Section 6.1, 6.2 or 6.3 hereof, and there are no
material unrealized losses of the Borrower and its Restricted Subsidiaries taken
as a whole and no material anticipated losses of the Borrower and its Restricted
Subsidiaries taken as a whole other than those which have been previously
disclosed in writing to the Administrative Agent and the Lenders and identified
as such.
(ii) The Borrower has delivered to the Administrative Agent
and the Lenders projections for fiscal years 2005 through 2012. Such projections
were prepared by the Borrower in good faith on the basis of assumptions the
Borrower believes were reasonable in light of the conditions existing at the
time of preparation thereof and remain reasonable as of the date hereof, and as
of the date hereof no facts which are known to the Borrower which the Borrower
believes would cause a material adverse change in such projections.
(l) No Material Adverse Change. There has occurred no event since
December 31, 2004 which has or which could reasonably be expected to have a
Materially Adverse Effect.
(m) ERISA. The Borrower and each of its Subsidiaries and each of
their respective Plans are in material compliance with ERISA and the Code, and
neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any material accumulated funding deficiency with
respect to any such Plan within the meaning of ERISA or the Code. Neither the
Borrower nor any of its Subsidiaries has made any promises of retirement or
other benefits to employees, except as set forth in the Plans, in written
agreements with such employees, or in the Borrower's employee handbook and
memoranda to employees. Neither the Borrower nor any of its ERISA Affiliates,
including its Subsidiaries, has incurred any material liability to PBGC in
connection with any such Plan. The assets of each such Plan which is subject to
Title IV of ERISA are sufficient to provide the benefits under such Plan, the
payment of which PBGC would guarantee if such Plan were terminated, and such
assets are also sufficient to provide all other "benefit liabilities" (within
the meaning of Section 4041 of ERISA) due under the Plan upon termination. No
Reportable Event has occurred and is continuing with respect to any such Plan.
No such Plan or trust created thereunder, or party in interest (as defined in
Section 3(14) of ERISA), or any fiduciary (as defined in Section 3(21) of
ERISA), has engaged in a "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would subject such Plan
or any other Plan of the Borrower or any of its Subsidiaries, any trust created
thereunder, or any such party in interest or fiduciary, or any party dealing
with any such Plan or any such trust, to the tax or penalty on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code.
Neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, is or has been obligated to make any payment to a Multiemployer
Plan.
(n) Compliance with Regulations T, U and X. Neither the Borrower nor
any of its Restricted Subsidiaries is engaged principally or as one of its
important activities in the business of extending credit for the purpose of
purchasing or carrying, and neither the Borrower nor any of its Restricted
Subsidiaries owns or presently intends to acquire, any "margin security"
59
or "margin stock" (the "margin stock") as defined in Regulations T, U, and X (12
C.F.R. Parts 220, 221 and 224) of the Board of Governors of the Federal Reserve
System (the "Fed Regulations") which would result in any violation of the Fed
Regulations. None of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of said
Regulations, in each case which would result in any violation of the Fed
Regulations. The Borrower has not taken, caused or authorized to be taken, and
will not take any action which might cause this Agreement to violate any Fed
Regulation or any other regulation of the Board of Governors of the Federal
Reserve System or to violate the Securities Exchange Act of 1934, in each case
as now in effect or as the same may hereafter be in effect. If so requested by
the Administrative Agent, the Borrower will furnish the Administrative Agent
with (i) a statement or statements in conformity with the requirements of the
applicable Federal Reserve Forms referred to in Regulation U of said Board of
Governors and (ii) other documents evidencing its compliance with the margin
regulations, reasonably requested by the Administrative Agent. Neither the
making of the Loans nor the use of proceeds thereof will violate, or be
inconsistent with, the provisions of any Fed Regulation.
(o) Investment Company Act. Neither the Borrower nor any of its
Restricted Subsidiaries is required to register under the provisions of the
Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Borrower and its Restricted Subsidiaries of this Agreement
and the Loan Documents violates any provision of such Act or requires any
consent, approval or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body or authority
pursuant to any provisions of such Act.
(p) Governmental Regulation. Neither the Borrower nor any of its
Restricted Subsidiaries is required to obtain any consent, approval,
authorization, permit or license which has not already been obtained from, or
effect any filing or registration which has not already been effected with, any
federal, state or local regulatory authority in connection with the execution
and delivery of this Agreement or any other Loan Document. Neither the Borrower
nor any of its Restricted Subsidiaries is required to obtain any consent,
approval, authorization, permit or license which has not already been obtained
from, or effect any filing or registration which has not already been effected
with, any federal, state or local regulatory authority in connection with the
performance, in accordance with their respective terms, of this Agreement or any
other Loan Document, other than filing of appropriate Uniform Commercial Code
financing statements and mortgages.
(q) Absence of Default, Etc. The Borrower and its Restricted
Subsidiaries are in material compliance in all respects with all of the
provisions of their respective partnership agreements, operating agreements,
certificates or articles of incorporation and by-laws, as the case may be, and
no event has occurred or failed to occur (including, without limitation, any
matter which could create a Default hereunder by cross-default) which has not
been remedied or waived, the occurrence or non-occurrence of which constitutes,
(i) a Default or (ii) a material default by the Borrower or any of its
Restricted Subsidiaries under any indenture, agreement or other instrument
relating to Indebtedness of the Borrower or any of its Restricted Subsidiaries
in
60
the amount of $1,000,000.00 or more in the aggregate, any material license, or
any judgment, decree or order to which the Borrower or any of its Restricted
Subsidiaries is a party or by which the Borrower or any of its Restricted
Subsidiaries or any of their respective properties may be bound or affected.
(r) Accuracy and Completeness of Information. All information,
reports, prospectuses and other papers and data relating to the Borrower or any
of its Subsidiaries and furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or the Lenders, taken as a whole, were,
at the time furnished, true, complete and correct in all material respects to
the extent necessary to give the Administrative Agent and the Lenders true and
accurate knowledge of the subject matter. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by the Borrower to be reasonable and
attainable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results.
(s) Agreements with Affiliates. Except for agreements or
arrangements with Affiliates wherein the Borrower or one or more of its
Restricted Subsidiaries provides services to such Affiliates for fair
consideration or which are set forth on Schedule 6 attached hereto, neither the
Borrower nor any of its Restricted Subsidiaries has (i) any written agreements
or binding arrangements of any kind with any Affiliate or (ii) any management or
consulting agreements of any kind with any Affiliate.
(t) Payment of Wages. The Borrower and each of its Restricted
Subsidiaries are in compliance with the Fair Labor Standards Act, as amended, in
all material respects, and to the knowledge of the Borrower and each of its
Restricted Subsidiaries, such Persons have paid all minimum and overtime wages
required by law to be paid to their respective employees.
(u) Priority. The Security Interest is a valid and perfected first
priority security interest (subject to Permitted Liens) in the Collateral in
favor of the Administrative Agent, for the benefit of itself and the Lenders,
securing, in accordance with the terms of the Security Documents, the
Obligations, and the Collateral is subject to no Liens other than Permitted
Liens. The Liens created by the Security Documents are enforceable as security
for the Obligations in accordance with their terms with respect to the
Collateral subject, as to enforcement of remedies, to the following
qualifications: (i) an order of specific performance and an injunction are
discretionary remedies and, in particular, may not be available where damages
are considered an adequate remedy at law, and (ii) enforcement may be limited by
bankruptcy, insolvency, liquidation, reorganization, reconstruction and other
similar laws affecting enforcement of creditors' rights generally (insofar as
any such law relates to the bankruptcy, insolvency or similar event of the
Borrower or any of its Restricted Subsidiaries, as the case may be).
(v) Indebtedness. Except as described on Schedule 7 attached hereto
none of the Borrower nor any of its Restricted Subsidiaries has outstanding, as
of the Agreement Date,
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and after giving effect to the initial Advances hereunder on the Agreement Date,
any Indebtedness.
(w) Solvency. As of the Agreement Date and after giving effect to
the transactions contemplated by the Loan Documents (i) the property of the
Borrower, at a fair valuation, will exceed its debt; (ii) the capital of the
Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature; and (iv) the present fair salable
value of the assets of the Borrower will be greater than the amount that will be
required to pay its probable liabilities (including debts) as they become
absolute and matured. For purposes of this Section 4.1(w), "debt" means any
liability on a claim, and "claim" means (i) the right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
(x) Patents, Trademarks, Franchises, etc. The Borrower and each of
its Restricted Subsidiaries owns, possesses, or has the right to use all
necessary patents, trademarks, trademark rights, trade names, trade name rights,
service marks, copyrights and franchises, and rights with respect thereof,
necessary to conduct its respective business as now conducted, without known
conflict with any patent, trademark, trade name, service xxxx, franchise, or
copyright of any other Person, and in each case, subject to no mortgage, pledge,
Lien, lease, encumbrance, charge, security interest, title retention agreement
or option, other than Permitted Liens. All such patents, trademarks, trademark
rights, trade names, trade name rights, service marks, copyrights, and
franchises are listed as of the Agreement Date on Schedule 8 attached hereto and
are in full force and effect, the holder thereof is in full compliance in all
material respects with all of the provisions thereof, and no such asset or
agreement is subject to any pending or, to the best of the Borrower's knowledge,
threatened attack or revocation.
(y) Collective Bargaining. None of the employees of the Borrower or
any of its Restricted Subsidiaries is a party to any collective bargaining
agreement with the Borrower or any of its Restricted Subsidiaries except as set
forth on Schedule 9 attached hereto, and, to the best knowledge of the Borrower
and its officers, there are no material grievances, disputes, or controversies
with any union or any other organization of the employees of the Borrower or any
of its Restricted Subsidiaries or threats of strikes, work stoppages, or any
asserted pending demands for collective bargaining by any union or other
organization except as set forth on Schedule 9 attached hereto.
(z) Environmental Protection.
(i) Except as set forth in Schedule 10 attached hereto,
neither the Borrower nor any of its Restricted Subsidiaries nor any of their
respective Real Property or operations are subject to any outstanding written
order, consent decree or settlement agreement with any Person relating to (A)
any Environmental Law, (B) any Environmental Claim or (C) any Hazardous
Materials Activity;
62
(ii) Neither the Borrower nor any of its Restricted
Subsidiaries has received any letter or request for information under Section
104 of the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. Section 9604) or any comparable state law.
(iii) There are no and, to the Borrower's knowledge, have been
no conditions, occurrences, or Hazardous Materials Activities which could
reasonably be expected to form the basis of an Environmental Claim against the
Borrower or any of its Restricted Subsidiaries that, individually or in the
aggregate, could reasonably be expected to have a Materially Adverse Effect;
(iv) Neither the Borrower nor any of its Restricted
Subsidiaries, nor, to the Borrower's knowledge, any predecessor of the Borrower
or any of its Restricted Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment of Hazardous Materials on
any Real Property, and neither the Borrower nor any of its Restricted
Subsidiaries' operations involves the generation, transportation, treatment,
storage or disposal of hazardous waste (other than Hazardous Materials used in
the ordinary course of business, the use of which is immaterial and not
reasonably likely to materially adversely affect the Real Property or have a
Materially Adverse Effect), as defined under 40 C.F.R. Parts 260-270 or any
state equivalent; and
(v) Compliance with all current requirements pursuant to or
under Environmental Laws will not, individually or in the aggregate, have a
reasonable possibility of giving rise to a Materially Adverse Effect.
Notwithstanding anything in this Section 4.1(z) to the contrary, no event
or condition has occurred or is occurring with respect to the Borrower or any of
its Restricted Subsidiaries relating to any Environmental Law, any release of
Hazardous Materials, or any Hazardous Materials Activity which individually or
in the aggregate has had or could reasonably be expected to have a Materially
Adverse Effect.
(aa) OFAC. None of the Borrower, any Restricted Subsidiary of the
Borrower or any Affiliate of the Borrower: (i) is a Sanctioned Person, (ii) has
a substantial portion of its assets in Sanctioned Entities, or (iii) derives a
substantial portion of its operating income from investments in, or transactions
with Sanctioned Persons or Sanctioned Entities. The proceeds of any Loan will
not be used and have not been used to fund any operations in, finance any
investments or activities in, or make any payments to, a Sanctioned Person or a
Sanctioned Entity.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date of the
making, Continuation or Conversion of each Advance or issuance of Letter of
Credit, except to the extent relating specifically to the Agreement Date. All
representations and warranties made under this Agreement and the other Loan
Documents shall survive, and not be
63
waived by, the execution hereof by the Lenders and the Administrative Agent, any
investigation or inquiry by any Lender or the Administrative Agent, or the
making, Continuation or Conversion of any Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled), and unless the Required Lenders, or
such greater number of Lenders as may be expressly provided herein, shall
otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Except as
permitted under Section 7.4 hereof, the Borrower will, and will cause each of
its Restricted Subsidiaries to:
(a) preserve and maintain its existence, and its material rights,
franchises, Licenses and privileges; and
(b) qualify and remain qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, except for such failure
to so qualify and be so authorized as could not reasonably be expected to have a
Materially Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrower will,
and will cause each of its Restricted Subsidiaries to, (a) engage only in
Permitted Businesses, and (b) comply in all material respects with the
requirements of all Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will, and will cause
each of its Restricted Subsidiaries to, maintain or cause to be maintained in
the ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than obsolete equipment or
unused assets, and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower will,
and will cause each of its Restricted Subsidiaries on a consolidated and
consolidating basis to, maintain a system of accounting established and
administered in accordance with GAAP, keep adequate records and books of account
in which complete entries will be made in accordance with GAAP and reflecting
all transactions required to be reflected by GAAP and keep accurate and complete
records of their respective properties and assets. The Borrower and its
Restricted Subsidiaries will maintain a fiscal year ending on December 31st.
Section 5.5 Insurance. The Borrower will, and will cause each of its
Restricted Subsidiaries to:
64
(a) maintain insurance, including, without limitation, business
interruption coverage and public liability coverage insurance from responsible
companies in such amounts and against such risks to the Borrower and each of its
Restricted Subsidiaries as is prudent for similarly situated companies engaged
in the television broadcast industry or same industry as any other Permitted
Business, as applicable, and as is reasonably acceptable to the Administrative
Agent;
(b) keep their respective assets insured by insurers on terms and in
a manner reasonably acceptable to the Administrative Agent against loss or
damage by fire, theft, burglary, loss in transit, explosions and hazards insured
against by extended coverage, in amounts which are prudent for companies in
similarly situated industries and reasonably satisfactory to the Administrative
Agent, all premiums thereon to be paid by the Borrower and its Restricted
Subsidiaries; and
(c) require that each insurance policy provide for at least thirty
(30) days' prior written notice to the Administrative Agent of any termination
of or proposed cancellation or nonrenewal of such policy, and name the
Administrative Agent as additional named lender loss payee and, as appropriate,
additional insured, to the extent of the Obligations.
In addition to the foregoing, in the event that any insurer distributes
insurance proceeds, a condemnation award, or any other disbursement in
connection with any of the foregoing insurance policies, the Administrative
Agent is authorized to collect such distribution and, if received by the
Borrower or any of its Restricted Subsidiaries, such distribution shall be paid
over to the Administrative Agent; provided that all such proceeds shall be paid
over to the Borrower unless an Event of Default has occurred and is continuing.
Any such distribution shall be applied to prepay the Loans as set forth in
Section 2.7(b)(iii) hereof.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and will cause
each of its Restricted Subsidiaries to, pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges or
levies required to be paid by them or imposed upon them or their income or
profits or upon any properties belonging to them, prior to the date on which
penalties attach thereto, and all lawful claims for labor, materials and
supplies which, if unpaid, might become a Lien or charge upon any of their
properties; provided, however, except that no such tax, assessment, charge, levy
or claim need be paid which is being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the appropriate books, but only so long as such tax, assessment,
charge, levy or claim does not become a Lien or charge other than a Permitted
Lien and no foreclosure, distraint, sale or similar proceedings shall have been
commenced. The Borrower will, and will cause each of its Restricted Subsidiaries
to, timely file all information returns required by federal, state or local tax
authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrower will, and will cause its Subsidiaries to, make all
contributions to any Employee Pension Plan when such contributions are due and
not incur any "accumulated funding deficiency" within the meaning of Section
412(a) of the Code, whether or
65
not waived, and will otherwise comply with the requirements of the Code and
ERISA with respect to the operation of all Plans, except to the extent that the
failure to so comply could not have a Materially Adverse Effect.
(b) The Borrower will furnish to Administrative Agent (i) within
thirty (30) days after any officer of the Borrower obtains knowledge that a
"prohibited transaction" (within the meaning of Section 406 of ERISA or Section
4975 of the Code) has occurred with respect to any material Plan of the Borrower
or its ERISA Affiliates, including its Subsidiaries, that any Reportable Event
has occurred with respect to any Employee Pension Plan or that PBGC has
instituted or will institute proceedings under Title IV of ERISA to terminate
any Employee Pension Plan or to appoint a trustee to administer any Employee
Pension Plan, a statement setting forth the details as to such prohibited
transaction, Reportable Event or termination or appointment proceedings and the
action which it (or any other Employee Pension Plan sponsor if other than the
Borrower) proposes to take with respect thereto, together with a copy of the
notice of such Reportable Event given to PBGC if a copy of such notice is
available to the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates, (ii) promptly after receipt thereof, a copy of any notice the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates or the sponsor
of any Plan receives from PBGC, or the Internal Revenue Service or the
Department of Labor which sets forth or proposes any action or determination
with respect to such Plan, (iii) promptly after the filing thereof, any annual
report required to be filed pursuant to ERISA in connection with each Plan
maintained by the Borrower or any of its ERISA Affiliates, including the
Subsidiaries, and (iv) promptly upon the Administrative Agent's request
therefor, such additional information concerning any such Plan as may be
reasonably requested by the Administrative Agent.
(c) The Borrower will promptly notify the Administrative Agent of
any excise taxes which have been assessed or which the Borrower, any of its
Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries.
(d) Within the time required for notice to the PBGC under Section
302(f)(4)(A) of ERISA, the Borrower will notify the Administrative Agent of any
Lien arising under Section 302(f) of ERISA in favor of any Plan of the Borrower
or its ERISA Affiliates, including its Subsidiaries.
(e) The Borrower will not, and will not permit any of its
Subsidiaries or any of its ERISA Affiliates to take any of the following actions
or permit any of the following events to occur if such action or event together
with all other such actions or events would subject the Borrower, any of its
Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or other
liabilities which could have a Materially Adverse Effect:
(i) engage in any transaction in connection with which the
Borrower, any of its Subsidiaries or any ERISA Affiliate could be subject to
either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax
imposed by Section 4975 of the Code;
66
(ii) terminate any Employee Pension Plan in a manner, or take
any other action, which could result in any liability of the Borrower, any of
its Subsidiaries or any ERISA Affiliate to the PBGC;
(iii) fail to make full payment when due of all amounts which,
under the provisions of any Plan, the Borrower, any of its Subsidiaries or any
ERISA Affiliate is required to pay as contributions thereto, or permit to exist
any accumulated funding deficiency within the meaning of Section 412(a) of the
Code, whether or not waived, with respect to any Employee Pension Plan; or
(iv) permit the present value of all benefit liabilities under
all Employee Pension Plans which are subject to Title IV of ERISA to exceed the
present value of the assets of such Plans allocable to such benefit liabilities
(within the meaning of Section 4041 of ERISA), except as may be permitted under
actuarial funding standards adopted in accordance with Section 412 of the Code.
Section 5.8 Visits and Inspections. The Borrower will, and will cause each
of its Restricted Subsidiaries to, permit representatives of the Administrative
Agent and any of the Lenders, prior to the occurrence of an Event of Default
upon reasonable notice and at any time upon the occurrence and during the
continuance of an Event of Default, to (i) visit and inspect the properties of
the Borrower or any of its Restricted Subsidiaries during business hours, (ii)
inspect and make extracts from and copies of their respective books and records,
and (iii) discuss with their respective principal officers their respective
businesses, assets, liabilities, financial positions, results of operations and
business prospects. The Borrower and each of its Restricted Subsidiaries will
also permit representatives of the Administrative Agent and any of the Lenders
to discuss with their respective accountants the Borrower's and its Restricted
Subsidiaries' businesses, assets, liabilities, financial positions, results of
operations and business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any provisions
herein or in any other Loan Document, the Borrower will, and will cause each of
its Restricted Subsidiaries to, pay any and all of their respective Indebtedness
when and as it becomes due, other than amounts diligently disputed in good faith
and for which adequate reserves have been set aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the aggregate proceeds
of all Advances under the Loans directly or indirectly: (a) to refinance
Indebtedness under the Prior Loan Agreement; (b) to the extent permitted
hereunder, for working capital needs, Capital Expenditures, Acquisitions,
Investments, Restricted Payments, Restricted Purchases and other general
corporate purposes of the Borrower and its Restricted Subsidiaries which do not
otherwise conflict with this Section 5.10 (including, without limitation, the
payment of the fees and expenses incurred in connection with the execution and
delivery of this Agreement); and (c) to refinance the Loans made hereunder. No
proceeds of Advances hereunder shall be used for the purchase or carrying or the
extension of credit for the purpose of purchasing or carrying, any margin stock
which would result in the violation of the Fed Regulations.
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Section 5.11 Indemnity. The Borrower, for itself and on behalf of each of
its Restricted Subsidiaries, agrees to indemnify and hold harmless the Lead
Arranger, each Lender, the Administrative Agent, and each of their respective
affiliates, employees, representatives, shareholders, officers, directors,
agents, trustees and advisors (any of the foregoing shall be an "Indemnitee")
from and against any and all claims, obligations, judgments, suits, liabilities,
losses, damages, penalties, actions, reasonable attorneys' fees and expenses and
demands by any party, including, without limitation, the costs of investigating
and defending such claims, whether or not the Borrower, any Restricted
Subsidiary of the Borrower or the Person seeking indemnification is the
prevailing party: (a) resulting from any breach or alleged breach by the
Borrower or any Restricted Subsidiary of the Borrower of any representation or
warranty made under any Loan Document; or (b) otherwise arising out of (i) the
Commitments, the Loans or otherwise under this Agreement, any Loan Document or
any transaction contemplated hereby or thereby, including, without limitation,
the use of the proceeds of Loans hereunder in any fashion by the Borrower or the
performance of their respective obligations under the Loan Documents by the
Borrower or any of its Restricted Subsidiaries, (ii) allegations of any
participation by the Lenders and the Administrative Agent, or any of them, in
the affairs of the Borrower or any of its Restricted Subsidiaries, or
allegations that any of them has any joint liability with the Borrower or any of
its Restricted Subsidiaries for any reason, (iii) any claims against the Lenders
and the Administrative Agent, or any of them, by any shareholder or other
investor in or lender to the Borrower or any of its Restricted Subsidiaries, by
any brokers or finders or investment advisers or investment bankers retained by
the Borrower or by any other third party, arising out of the Commitments or
otherwise under this Agreement; (c) in connection with taxes (not including
federal or state income or franchise taxes or other taxes based solely upon the
revenues or income of such Persons), fees and other charges payable in
connection with the Loans, or the execution, delivery and enforcement of this
Agreement, the Security Documents, the other Loan Documents and any amendments
thereto or waivers of any of the provisions thereof or (d) any claim (including,
without limitation, any civil penalties or fines assessed by OFAC, unless the
Person seeking indemnification hereunder is determined in such case to have
acted with gross negligence or willful misconduct, in any case, by a final,
non-appealable judicial order. The obligations of the Borrower under this
Section 5.11 are in addition to, and shall not otherwise limit, any liabilities
which the Borrower might otherwise have in connection with any warranties or
similar obligations of the Borrower in any other Loan Document.
Section 5.12 Interest Rate Hedging. Within ninety (90) days immediately
following the Agreement Date, and at all times until December 15, 2006, the
Borrower shall maintain one (1) or more Interest Rate Hedge Agreements, or
otherwise fix the interest rate, with respect to the Borrower's interest
obligations on an aggregate principal amount of not less than forty percent
(40%) of Total Debt outstanding from time to time as determined in a manner
satisfactory to the Administrative Agent. Such Interest Rate Hedge Agreements
shall provide interest rate protection in conformity with International Swap
Dealers Association standards. All Obligations of the Borrower to the
Administrative Agent or any of the Lenders or any of their Affiliates pursuant
to any Interest Rate Hedge Agreement permitted hereunder and all Liens granted
to secure such Obligations shall rank pari passu with all other Obligations and
Liens securing such other Obligations; and any Interest Rate Hedge Agreement
between the Borrower and any other Person shall be unsecured.
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Section 5.13 Covenants Regarding Formation of Restricted Subsidiaries and
Acquisitions; Partnership, Restricted Subsidiaries. At the time of (i) any
Acquisition permitted hereunder, (ii) the purchase by the Borrower or any of its
Restricted Subsidiaries of any interests in any Restricted Subsidiary of the
Borrower, or (iii) the formation of any new Restricted Subsidiary of the
Borrower or any of its Restricted Subsidiaries which is permitted under this
Agreement, the Borrower will, and will cause its Restricted Subsidiaries, as
appropriate, to: (a) provide to the Administrative Agent an executed supplement
to the Subsidiary Security Agreement for any new Restricted Subsidiary, which
shall authorize the filing of appropriate Uniform Commercial Code financing
statements, as well as an executed Subsidiary Guaranty for such new Restricted
Subsidiary, which shall constitute both Security Documents and Loan Documents
for purposes of this Agreement, as well as a loan certificate for such new
Restricted Subsidiary, substantially in the form of Exhibit J-2 attached hereto,
together with appropriate attachments; (b) pledge to the Administrative Agent
all of the Ownership Interests of such Restricted Subsidiary or Person which is
acquired or formed, beneficially owned by the Borrower or any of its Restricted
Subsidiaries, as the case may be, as additional Collateral for the Obligations
to be held by the Administrative Agent in accordance with the terms of the
Borrower Pledge Agreement, or a new Subsidiary Pledge Agreement and execute and
deliver to the Administrative Agent all such documentation for such pledge as,
in the reasonable opinion of the Administrative Agent, is appropriate; and (c)
provide to the Administrative Agent all other documentation, including one or
more opinions of counsel, which are satisfactory to the Administrative Agent and
which in its opinion is appropriate with respect to such Acquisition. Any
document, agreement or instrument executed or issued pursuant to this Section
5.13 shall be a "Loan Document" for purposes of this Agreement.
Section 5.14 Payment of Wages. The Borrower will, and will cause each of
its Restricted Subsidiaries to, at all times comply in all material respects,
with the material requirements of the Fair Labor Standards Act, as amended,
including, without limitation, the provisions of such Act relating to the
payment of minimum and overtime wages as the same may become due from time to
time.
Section 5.15 Further Assurances. The Borrower will promptly cure, or cause
to be cured, defects in the execution and delivery of the Loan Documents
(including this Agreement), resulting from any acts or failure to act by the
Borrower or any of the its Restricted Subsidiaries or any employee or officer
thereof. The Borrower, at its expense, will promptly execute and deliver to the
Administrative Agent and the Lenders, or cause to be executed and delivered to
the Administrative Agent and the Lenders, all such other and further documents,
agreements and instruments in compliance with or accomplishment of the covenants
and agreements of the Borrower and its Restricted Subsidiaries in the Loan
Documents, including, without limitation, this Agreement, or to correct any
omissions in the Loan Documents, or more fully to state the obligations set out
herein or in any of the Loan Documents, or to obtain any consents, all as may be
necessary or appropriate in connection therewith and as may be reasonably
requested.
Section 5.16 License Subs. At the time of any Acquisition permitted
hereunder, the Borrower shall cause each of the FCC Licenses being acquired by
the Borrower or any of its Restricted Subsidiaries to be transferred to one or
more License Subs, each of which License Subs shall have as its sole asset or
assets the FCC Licenses of the Borrower or any of its
69
Restricted Subsidiaries and a management agreement with the Borrower and such of
its Restricted Subsidiaries subject to such FCC License or FCC Licenses, such
that from and after such applicable date neither the Borrower nor its Restricted
Subsidiaries (other than License Subs) shall hold any FCC Licenses other than
through one or more duly created and existing License Subs. The Borrower shall
not permit the License Subs to have any business activities, operations, assets,
Indebtedness, Guaranties or Liens (other than holding FCC Licenses and owning
the Ownership Interests of other License Subs, and other than pursuant to a
Subsidiary Guaranty and Subsidiary Security Agreement issued in connection
herewith or any agreement referred to in the preceding sentence). Promptly after
the transfer of the FCC Licenses to the License Subs, the Borrower shall provide
to the Administrative Agent copies of any required consents to such transfer
from the FCC and any other governmental authority, together with a certificate
of an Authorized Signatory stating that all Necessary Authorizations relating to
such transfer have been obtained or made, are in full force and effect and are
not subject to any pending or threatened reversal or cancellation.
Section 5.17 Maintenance of Network Affiliations; Operating Agreements.
The Borrower will, and will cause each of its Restricted Subsidiaries to,
maintain a network affiliation with ABC, CBS, NBC, FOX, UPN, Warner Brothers,
PAX or other network reasonably satisfactory to the Required Lenders at all
times for each Station. The Borrower will, and will cause each of its Restricted
Subsidiaries to maintain, and not breach or violate, any and all Operating
Agreements and other material contracts and rights necessary to operate the
Stations and any other Permitted Business in all material respects.
Section 5.18 Ownership Reports. The Borrower will file Ownership Reports
for any Station acquired after the Agreement Date (reflecting such Acquisition
by the Borrower) with the FCC within thirty (30) days after the date of the
consummation of such Acquisition.
Section 5.19 Environmental Compliance and Indemnity.
(a) The Borrower will, and will cause each of its Restricted
Subsidiaries to, comply in all material respects with all Environmental Laws,
including, without limitation, all Environmental Laws in jurisdictions in which
the Borrower or any of its Restricted Subsidiaries owns or operates a facility
or site, arranges for disposal or treatment of Hazardous Materials, solid waste
or other wastes, accepts for transport any Hazardous Materials, solid wastes or
other wastes or holds any interest in Real Property or otherwise. Neither the
Borrower nor any of its Restricted Subsidiaries shall cause or allow the release
of Hazardous Materials, solid waste or other wastes on, under or to any Real
Property in which the Borrower or such Restricted Subsidiary holds any interest
or performs any of its operations, in material violation of any Environmental
Law. The Borrower shall notify the Lenders promptly after its receipt of notice
thereof, of any Environmental Claim which the Borrower receives involving any
potential or actual material liability of the Borrower or any of its Restricted
Subsidiaries arising in connection with any noncompliance with or violation of
the requirements of any Environmental Law or a material Release or threatened
Release of any Hazardous Materials, solid waste or other waste into the
environment. The Borrower shall promptly notify the Lenders (i) of any material
release of Hazardous Material on, under or from the Real Property in which the
Borrower or any of its Restricted Subsidiaries holds or has held an interest,
upon the Borrower's learning thereof
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by receipt of notice that the Borrower or any of its Restricted Subsidiaries is
or may be liable to any Person as a result of such Release or that the Borrower
or such Restricted Subsidiary has been identified as potentially responsible
for, or is subject to investigation by any governmental authority relating to,
such Release, and (ii) of the commencement or threat or any judicial or
administrative proceeding alleging a violation of any Environmental Laws.
(b) If the Administrative Agent at any time has a reasonable basis
to believe that there may be a violation of any Environmental Law by, or any
liability arising thereunder of, the Borrower or any of its Restricted
Subsidiaries or related to any real property owned, leased or operated by the
Borrower or any of its Restricted Subsidiaries or real property adjacent to such
Real Property, which violation or liability could reasonably be expected to have
a Materially Adverse Effect, then the Borrower shall, upon request from the
Administrative Agent, provide the Administrative Agent with such reports,
certificates, engineering studies or other written material or data as the
Administrative Agent may require so as to satisfy the Administrative Agent that
the Borrower or such Restricted Subsidiary is in material compliance with all
applicable Environmental Laws.
(c) The Borrower shall defend, indemnify and hold the Administrative
Agent and the Lenders and their respective officers, directors, shareholders,
employees, agents, affiliates, successors and assigns harmless from and against
all costs, expenses, claims, demands, damages, penalties and liabilities of
every kind or nature whatsoever incurred by them (including, without limitation,
reasonable attorney fees and expenses) arising out of, resulting from or
relating to (i) the noncompliance of the Borrower, any of its Restricted
Subsidiaries or any property owned or leased by the Borrower or any of its
Restricted Subsidiaries with any Environmental Law, or (ii) any investigatory or
remedial action involving the Borrower, any of its Restricted Subsidiaries or
any property owned or leased by the Borrower or any of its Restricted
Subsidiaries and required by Environmental Laws or by order of any governmental
authority having jurisdiction under any Environmental Laws, or (iii) any injury
to any Person whatsoever or damage to any property arising out of, in connection
with or in any way relating to the breach of any of the environmental warranties
or covenants in this Agreement or any facts or circumstances that cause any of
the environmental representations or warranties contained in this Agreement to
cease to be true, or (iv) the existence, treatment, storage, Release,
generation, transportation, removal, manufacture or other handling of any
Hazardous Material on or affecting any property owned or leased by the Borrower
or any of its Restricted Subsidiaries, or (v) the presence of any
asbestos-containing material or underground storage tanks, whether in use or
closed, under or on any property owned or leased by the Borrower or any of its
Restricted Subsidiaries; provided, however, that the foregoing indemnity shall
not apply to any such costs, expenses, claims, demands, damages, penalties or
liabilities that are determined in a final non-appealable order of a court of
competent jurisdiction to have arisen solely out of the gross negligence or
willful misconduct of the indemnified person.
ARTICLE 6
Information Covenants
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So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled), and unless the Required Lenders shall
otherwise consent in writing, the Borrower will furnish or cause to be furnished
to the Administrative Agent (with, for the reports required under Sections 6.1,
6.2, 6.3 and 6.4 hereof, sufficient copies for each Lender):
Section 6.1 Quarterly Financial Statements and Information. Within fifty
(50) days (or five (5) days following such shorter period as required by
Applicable Law) after the last day of each of the first three (3) quarters of
each fiscal year of the Borrower (a) (i) the balance sheets and the related
statements of operations of the Borrower and its Subsidiaries on a consolidated
basis and (ii) the balance sheets and the related statements of operations of
the Borrower on a consolidating basis with its Restricted Subsidiaries and
Unrestricted Subsidiaries, in each case, as at the end of such quarter and as of
the end of the preceding fiscal year and (b) the related statements of cash
flows of the Borrower on a consolidated basis with its Subsidiaries for such
quarter and for the elapsed portion of the year ended with the last day of such
quarter, each of which shall set forth in comparative form such figures as at
the end of and for such quarter and appropriate prior period and shall be
certified by the chief financial officer, chief accounting officer or controller
of the Borrower to have been prepared in accordance with GAAP and to present
fairly in all material respects the financial position of the Borrower on a
consolidated and consolidating basis with its Subsidiaries, Restricted
Subsidiaries or Unrestricted Subsidiaries, as applicable, as at the end of such
period and the results of operations for such period, and for the elapsed
portion of the year ended with the last day of such period, subject only to
normal year-end and audit adjustments; and
Section 6.2 Annual Financial Statements and Information. Within
ninety-five (95) days (or five (5) days following such shorter period as
required by Applicable Law) after the end of each fiscal year of the Borrower:
(a) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and the related audited
consolidated statements of operations for such fiscal year and for the previous
fiscal year, the related audited consolidated statements of cash flow and
members' equity for such fiscal year and for the previous fiscal year, each of
which shall be accompanied by an opinion of independent certified public
accountants of recognized national standing acceptable to the Administrative
Agent (without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of the audit), together with a
statement of such accountants that in connection with their audit, nothing came
to their attention that caused them to believe that the Borrower was not in
compliance with or was otherwise in Default under the terms, covenants,
provisions or conditions of Articles 7 and 8 hereof insofar as they relate to
accounting or financial matters; and
(b) the unaudited consolidating balance sheet of the Borrower and its
Restricted Subsidiaries and Unrestricted Subsidiaries as of the end of such
fiscal year and the related unaudited consolidating statements of operations for
such fiscal year and for the previous fiscal year, the related unaudited
consolidating statement of members' equity for such fiscal year and for the
previous fiscal year, each of which shall set forth in comparative form such
figures as at the end of and for such fiscal year and appropriate prior period
and shall be certified by the chief financial officer, chief accounting officer
or controller of the Borrower to have been prepared in
72
accordance with GAAP and to present fairly in all material respects the
financial position of the Borrower on a consolidated and consolidating basis
with its Restricted Subsidiaries and Unrestricted Subsidiaries, as applicable,
as at the end of such period and the results of operations for such period,
subject only to normal year-end and audit adjustments.
Section 6.3 Monthly Financial Information. Within fifty (50) days after
the end of each month for the first eleven (11) months of fiscal year, and
within ninety-five (95) days after the end of the last month of each fiscal
year, the Borrower shall furnish unaudited statements of income and expense for
each Station, and each other Permitted Business and for the Unrestricted
Subsidiaries, which shall contain a comparison with budget or projections for
such period and a comparison to the comparable period for the prior year, and
which shall be certified by the chief financial officer, chief accounting
officer or controller of the Borrower.
Section 6.4 Performance Certificates. At the time the financial statements
are furnished pursuant to Sections 6.1 and 6.2, a certificate of the president,
chief financial officer, chief accounting officer or controller of the Borrower
as to its financial performance, in substantially the form attached hereto as
Exhibit K (each, a "Performance Certificate"):
(a) setting forth as and at the end of such quarterly period or
fiscal year, as the case may be, the arithmetical calculations required to
establish (i) any adjustment to the Applicable Margins, as provided for in
Section 2.3(f) and (ii) whether or not the Borrower was in compliance with the
requirements of Sections 7.8, 7.9, 7.10 and 7.11 hereof;
(b) stating that, to the best of his or her knowledge, no Default
has occurred as at the end of such quarterly period or year, as the case may be,
or, if a Default has occurred, disclosing each such Default and its nature, when
it occurred, whether it is continuing and the steps being taken by the Borrower
with respect to such Default; and
(c) containing a list of all Acquisitions, Investments (other than
Cash Equivalents), Restricted Payments, Restricted Purchases and Asset Sales, in
each case, which exceed $1,000,000.00 per transaction or series of related
transactions, for the four (4) quarter period then ended or most recently ended,
together with the total amount for each of the foregoing categories.
Section 6.5 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower by the Borrower's independent public accountants
regarding the Borrower, including, without limitation, any management report
submitted to the board of directors of the Borrower prepared in connection with
the annual audit referred to in Section 6.2 hereof.
(b) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the business, assets, liabilities, financial position, projections, results of
operations or business prospects of the Borrower or any of its Restricted
Subsidiaries, as the Administrative Agent or any Lender may reasonably request.
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(c) Annually, certificates of insurance indicating that the
requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with, upon request, copies of any new or replacement insurance policies
obtained during such year.
(d) Within sixty (60) days of the beginning of each fiscal year, the
annual budget for the Borrower and its Restricted Subsidiaries on a quarter by
quarter basis.
(e) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made
available generally by the Borrower to its security holders or by any Restricted
Subsidiary to its security holders other than the Borrower or another Restricted
Subsidiary, (ii) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses, if any,
filed by the Borrower or any of its Restricted Subsidiaries with any securities
exchange or with the Securities and Exchange Commission or any governmental or
private regulatory authority, (iii) all press releases and other statements made
available generally by the Borrower or any of its Restricted Subsidiaries to the
public concerning material developments in the business of the Borrower or any
of its Restricted Subsidiaries, (iv) any material non-routine correspondence or
official notices received by the Borrower, or any of its Restricted Subsidiaries
from the FCC or other communications regulatory authority, and (v) all material
information filed by the Borrower or any of its Restricted Subsidiaries with the
FCC (including all Ownership Reports and amendments or supplements to any
Ownership Report).
(f) Promptly upon (i) receipt of notice of (A) any forfeiture,
non-renewal, cancellation, termination, revocation, suspension, impairment or
material modification of any material License held by the Borrower or any of its
Restricted Subsidiaries, or any notice of default or forfeiture with respect to
any such License, or (B) any refusal by any governmental agency or authority
(including the FCC) to renew or extend any such License, a certificate
specifying the nature of such event, the period of existence thereof, and what
action the Borrower and its Restricted Subsidiaries are taking and propose to
take with respect thereto, and (ii) any Acquisition of any Station, a written
notice setting forth with respect to such Station all of the data required to be
set forth in Schedule 3 with respect to such Stations and the Licenses required
in connection with the ownership and operation of such Station (it being
understood that such written notice shall be deemed to supplement Schedule 3
attached hereto for all purposes of this Agreement).
Section 6.6 Notice of Litigation and Other Matters. Notice specifying the
nature and status of any of the following events, promptly, but in any event not
later than fifteen (15) days after the occurrence of any of the following events
becomes known to the Borrower:
(a) the commencement of all proceedings and investigations by or
before any governmental body and all actions and proceedings in any court or
before any arbitrator against the Borrower or any Restricted Subsidiary, or, to
the extent known to the Borrower, which could reasonably be expected to have a
Materially Adverse Effect;
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(b) any material adverse change with respect to the business,
assets, liabilities, financial position, annual budget, results of operations,
business prospects or projections of the Borrower and its Restricted
Subsidiaries, taken as a whole, other than changes in the ordinary course of
business which have not had and would not reasonably be expected to have a
Materially Adverse Effect and other than changes in the industry in which the
Borrower or any of its Restricted Subsidiaries operate which would not
reasonably be expected to have a Materially Adverse Effect;
(c) any Default or the occurrence or non-occurrence of any event (i)
which constitutes, or which with the passage of time or giving of notice or both
would constitute a default by the Borrower or any of its Restricted Subsidiaries
under any material agreement other than this Agreement and the other Loan
Documents to which the Borrower or any Restricted Subsidiary is party or by
which any of their respective properties may be bound, including, without
limitation, the Subordinated Note Indenture or any License, Operating Agreement
or other material contract, or (ii) which could have a Materially Adverse
Effect, giving in each case a description thereof and specifying the action
proposed to be taken with respect thereto;
(d) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) with respect to any Plan of the Borrower or any of its Restricted
Subsidiaries or the institution or threatened institution by PBGC of proceedings
under ERISA to terminate or to partially terminate any such Plan or the
commencement or threatened commencement of any litigation regarding any such
Plan or naming it or the trustee of any such Plan with respect to such Plan or
any action taken by the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate of the Borrower to withdraw or partially withdraw from any Plan or to
terminate any Plan; and
(e) the occurrence of any event subsequent to the Agreement Date
which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section 4.1(m) of
this Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled), and unless the Required Lenders, or
such greater number of Lenders as may be expressly provided herein, shall
otherwise give their prior consent in writing:
Section 7.1 Indebtedness of the Borrower and its Restricted Subsidiaries.
The Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to, create, assume, incur or otherwise become or remain obligated in respect of,
or permit to be outstanding, any Indebtedness except:
(a) the Obligations;
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(b) (i) Subordinated Debt incurred pursuant to the terms of the
Subordinated Note Indenture as in effect on the Agreement Date; and (ii) other
Subordinated Debt incurred on terms and conditions satisfactory to the
Administrative Agent (provided that any Subordinated Debt incurred on terms and
conditions substantially similar to the Subordinated Note Indenture shall be
deemed satisfactory to the Administrative Agent); provided, in each case, the
Net Proceeds (Indebtedness) of such Subordinated Debt are applied pursuant to
Section 2.7(b)(v), other than the Net Proceeds (Indebtedness) of any
Subordinated Debt incurred to pay all or a portion of the purchase price in
connection with an Acquisition or to consummate an Investment, in each case as
permitted pursuant to Section 7.6; provided that (i) the Administrative Agent
has received prior written notice of the incurrence of such Subordinated Debt at
the time of any notice required pursuant to Section 7.6, (ii) such Subordinated
Debt is incurred not more than 60 days prior to the consummation of such
Acquisition or Investment and (iii) no Default or Event of Default has occurred
and is continuing at the time of such incurrence or would exist after giving
effect thereto; and
(c) other Indebtedness; provided that (i) the Borrower and its Restricted
Subsidiaries shall be in pro forma compliance with the financial covenants set
forth in Sections 7.8, 7.9, 7.10 and 7.11 both before and after giving effect to
the incurrence of such Indebtedness, (ii) no Default or Event of Default has
occurred and is continuing both before and after giving effect to the incurrence
of such Indebtedness, (iii) the Administrative Agent shall have approved the
terms and conditions for each incurrence of Indebtedness in excess of
$25,000,000.00 and (iv) no such Indebtedness shall be to or on behalf of any
Unrestricted Subsidiary or shall be a Guaranty of any Indebtedness of any
Unrestricted Subsidiary.
Section 7.2 Limitation on Liens. The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its properties or assets, whether now owned or
hereafter acquired, except for Permitted Liens. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to undertake, covenant or
agree with any third party that it will not create, assume, incur or permit to
exist any Lien in the favor the Administrative Agent or the Lenders securing the
Obligations on any of its assets or properties, whether now owned or hereafter
acquired, except for Permitted Liens.
Section 7.3 Amendment and Waiver. The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, enter into any amendment of, or
agree to or accept or consent to any waiver of any of the provisions of its
articles or certificate of incorporation, or its partnership agreement or its
by-laws, as appropriate, any License or Operating Agreement or any of the
documents evidencing Subordinated Debt, in each case, in any respect materially
adverse to the Administrative Agent or any Lender or any of their rights or
claims under any of the Loan Documents.
Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, make any Asset Sale; provided,
however, that the Borrower and its
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Restricted Subsidiaries, or any of them, may make Asset Sales if such Asset
Sales (i) are in the ordinary course of business of assets held for resale in
the ordinary course of business or the trade in or replacement of assets in the
ordinary course of business, (ii) (A) do not exceed, for any transaction or
series of related transactions, $6,000,000.00 per fiscal year and (B) the
proceeds of such Asset Sales are applied pursuant to Section 2.7(b)(iii) hereof
or (iv) arise on account of the disposition of any Interest Rate Hedge
Agreement.
(b) Liquidation or Merger. The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, at any time liquidate or dissolve
itself (or suffer any liquidation or dissolution) or otherwise wind up, or enter
into any merger, other than (so long as no Default exists or would be caused
thereby): (i) a merger or consolidation among the Borrower and one or more of
its Restricted Subsidiaries, provided the Borrower is the surviving corporation,
or (ii) a merger between or among two or more Restricted Subsidiaries of the
Borrower, or (iii) in connection with an Acquisition permitted hereunder
effected by a merger in which the Borrower or, in a merger in which the Borrower
is not a party, a Restricted Subsidiary of the Borrower is the surviving
corporation or the surviving corporation becomes a Restricted Subsidiary of the
Borrower.
(c) Unrestricted Subsidiaries. Notwithstanding the foregoing
provisions of this Section 7.4, the Ownership Interests of any Unrestricted
Subsidiary may be sold, transferred (including, without limitation, through a
dividend permitted pursuant to Section 7.7(d)), liquidated, wound up or
dissolved, or may sell, lease, transfer or otherwise dispose of any or all of
its assets; provided that any such sale or disposition (i) is made at fair
market value and the Administrative Agent shall have received a copy of any
fairness opinion delivered in connection therewith and (ii) approved by the
Board of Directors of the Borrower.
Section 7.5 Limitation on Guaranties. The Borrower shall not, and shall
not permit any of its Restricted Subsidiaries to, at any time Guaranty, assume,
be obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than: (a) a guaranty by endorsement of
negotiable instruments for collection in the ordinary course of business; (b) as
may be contained in any Loan Document; or (c) Guaranties of Indebtedness
incurred as permitted pursuant to Section 7.1 hereof and the Borrower provides
to the Administrative Agent and the Lenders calculations in form and substance
reasonably satisfactory to the Administrative Agent, specifically demonstrating
compliance with Sections 7.8, 7.9, 7.10 and 7.11 hereof after giving effect to
such Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly
make any Acquisition or Investment; provided, however, that so long as no
Default or Event of Default exists or would be caused thereby the Borrower and
its Restricted Subsidiaries may:
(a) make Investments in Cash Equivalents;
(b) make Investments in Restricted Subsidiaries;
(c) make Acquisitions subject to satisfaction of the following
conditions:
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(i) such Acquisition is in a Permitted Business;
(ii) the Borrower complies with Section 5.13 and 5.16 hereof;
and
(iii) for any Acquisition with aggregate consideration
(including all cash payments, equity issuances and Indebtedness in connection
therewith) in excess of $10,000,000:
(A) the Borrower shall have given to the Administrative
Agent written notice of such Acquisition at least fifteen (15) days
prior to executing any binding commitment with respect thereto,
which notice shall state the additional amounts, if any, of Liens to
be incurred in connection therewith, and the structure of the
transaction shall be in form and substance reasonably acceptable to
the Administrative Agent;
(B) the Borrower shall have provided to the
Administrative Agent five (5) days prior to the consummation of the
proposed Acquisition the agreement governing such Acquisition (and
all related documents and instruments to the extent requested by the
Administrative Agent); and
(C) the Borrower shall have provided to the
Administrative Agent and the Lenders within ten (10) days prior to
the consummation of the proposed Acquisition an acquisition report
signed by an executive officer of the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent, which
shall include, without limitation, (X) financial calculations
specifically demonstrating the Borrower's pro forma compliance with
Sections 7.8, 7.9, 7.10 and 7.11 hereof after giving effect to such
Acquisition and (Y) financial projections for the Borrower for a
five (5) year period after the closing of such Acquisition after
giving effect to such Acquisition, including, without limitation, a
statement of sources and uses of funds for such Acquisition showing,
among other things, the sources of financing for such Acquisition,
and demonstrating Borrower's ability to meet its repayment
obligations hereunder through the Maturity Date;
(d) make such other Acquisitions as may be approved from time to
time by the Required Lenders in their sole discretion;
(e) make Investments in the form of Interest Rate Hedge Agreements
permitted pursuant to Section 7.1; and
(f) make other Investments in joint ventures or similar business
arrangements; provided, that on or prior to the consummation of any such
Investment or series of related Investments in excess of $5,000,000, the
Borrower shall provide to the Administrative Agent, (i) in form and substance
satisfactory to the Administrative Agent, financial calculations specifically
demonstrating the Borrower's pro forma compliance with Sections 7.8, 7.9, 7.10,
and 7.11 hereof
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after giving effect to such Investment, (ii) in form and substance satisfactory
to the Administrative Agent, financial projections for the Borrower for a five
(5) year period after the closing of such Investment after giving effect to such
Investment, including, without limitation, a statement of sources and uses of
funds for such Investment showing, among other things, the sources of financing
for such Investment, and demonstrating Borrower's ability to meet its repayment
obligations hereunder through the Maturity Date, (iii) certification that no
Default or Event of Default exists or will be caused by such Investment and (iv)
copies of the documentation governing such Investment.
Section 7.7 Restricted Payments; Restricted Purchases. The Borrower shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly declare or make any Restricted Payment or Restricted Purchase;
provided, however, that:
(a) any Restricted Subsidiary of the Borrower may make Restricted
Payments to the Borrower or to a wholly-owned Restricted Subsidiary of the
Borrower;
(b) the Borrower may purchase subordinated notes in the open market
issued under the Subordinated Note Indenture so long as no Default or Event of
Default exists at the time of making such purchase or would exist after giving
effect thereto;
(c) the Borrower may make payments of current interest on the senior
subordinated notes issued pursuant to and in accordance with the Subordinated
Note Indenture;
(d) the Borrower may make Restricted Payments in the form of
dividends of the Ownership Interests of the Unrestricted Subsidiaries; and
(e) the Borrower and its Restricted Subsidiaries may make Restricted
Payments and Restricted Purchases, provided that (i) the Borrower and its
Restricted Subsidiaries shall be in pro forma compliance with the financial
covenants set forth in Sections 7.8, 7.9, 7.10 and 7.11 after giving effect to
such Restricted Payment or Restricted Purchase, (ii) no Default or Event of
Default exists at the time of making such Restricted Payment or Restricted
Purchase or would exist after giving effect thereto, and (iii) if requested by
the Administrative Agent, the Borrower shall deliver financial projections to
the Administrative Agent, in form and substance satisfactory thereto,
demonstrating pro forma compliance with the financial covenants for such period
as reasonably requested by the Administrative Agent.
Section 7.8 Senior Leverage Ratio. At all times, the Borrower shall not
permit its Senior Leverage Ratio to exceed the ratios set forth below during the
periods indicated:
Period Senior Leverage Ratio
------ ---------------------
Agreement Date through December 30, 2006 5.50:1.00
December 31, 2006 through December 30, 2008 5.25:1.00
December 31, 2008 and thereafter 5.00:1.00
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Section 7.9 Interest Coverage Ratio. At all times, the Borrower shall not
permit its Interest Coverage Ratio to be less than the ratio set forth below for
the periods indicated:
Period Interest Coverage Ratio
------ -----------------------
Agreement Date through December 30, 2006 2.00:1.00
December 31, 2006 through December 30, 2008 2.25:1.00
December 31, 2008 and thereafter 2.50:1.00
Section 7.10 Fixed Charge Coverage Ratio. At all times, the Borrower shall
not permit its Fixed Charge Coverage Ratio to be less than 1.10:1.00.
Section 7.11 Leverage Ratio. At all times, the Borrower shall not permit
its Leverage Ratio to exceed the ratios set forth below during the periods
indicated:
Period Leverage Ratio
------ --------------
Agreement Date through December 30, 2006 6.50:1.00
December 31, 2006 through December 30, 2008 6.25:1.00
December 31, 2008 and thereafter 6.00:1.00
Section 7.12 Affiliate Transactions. Except as specifically provided
herein and as may be described on Schedule 6 attached hereto, the Borrower shall
not, and shall not permit any of its Restricted Subsidiaries to, at any time
engage in any transaction with an Affiliate, or make an assignment or other
transfer of any of its properties or assets to any Affiliate on terms no less
advantageous to the Borrower or such Restricted Subsidiary than would be the
case if such transaction had been effected with a non-Affiliate.
Section 7.13 Real Estate. Neither the Borrower nor any of its Restricted
Subsidiaries shall purchase any real estate or enter into any sale-leaseback
transaction except (a) as contemplated in an Acquisition permitted under Section
7.6 hereof and (b) real estate purchases useful in connection with the
Borrower's business made in the ordinary course of business.
Section 7.14 ERISA Liabilities. The Borrower shall not, and shall cause
each of its ERISA Affiliates not to, (i) permit the assets of any of their
respective Plans to be materially less than the amount necessary to provide all
accrued benefits under such Plans, or (ii) enter into any Multiemployer Plan.
Section 7.15 No Limitation on Upstream Dividends by Restricted
Subsidiaries. The Borrower shall not permit any Restricted Subsidiary to enter
into or agree, or otherwise become subject (other than pursuant to Applicable
Law), to any agreement, contract or other arrangement
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with any Person pursuant to the terms of which (a) such Restricted Subsidiary is
or would be prohibited from or limited in declaring or paying any cash dividends
or distributions on any class of its Ownership Interests owned directly or
indirectly by the Borrower or from making any other distribution on account of
any class of any such Ownership Interests (herein referred to as "Upstream
Dividends") or (b) the declaration or payment of Upstream Dividends by a
Restricted Subsidiary to the Borrower or to another Restricted Subsidiary, on an
annual or cumulative or other basis, is or would be otherwise limited or
restricted.
Section 7.16 Nature of Business. The Borrower shall not, and shall cause
each of its Restricted Subsidiaries not to alter in any material respect the
character or conduct of the business conducted by the Borrower and its
Restricted Subsidiaries as of the Agreement Date.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement shall
prove incorrect or misleading in any material respect when made or deemed to be
made pursuant to Section 4.2 hereof;
(b) The Borrower shall default in the payment of: (i) any interest
on the Loans or fees or other amounts payable to the Lenders and the
Administrative Agent under any of the Loan Documents, or any of them, when due,
and such Default shall not be cured by payment in full within three (3) Business
Days from the due date; or (ii) any principal on the Loans when due;
(c) The Borrower shall default in the performance or observance of
any agreement or covenant contained in Sections 5.2(a), 5.10, 5.13 or 5.16
hereof or in Articles 6 or 7 hereof;
(d) The Borrower shall default in the performance or observance of
any other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 8.1, and such default shall not be cured
within a period of thirty (30) days from the occurrence of such Default;
(e) There shall occur any default in the performance or observance
of any agreement or covenant or breach of any representation or warranty
contained in any of the Loan Documents (other than this Agreement or as
otherwise provided in Section 8.1 hereof) by the Borrower, any of its Restricted
Subsidiaries, or any other obligor thereunder, which shall not be cured within a
period of thirty (30) days from the occurrence of such Default;
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(f) There shall be entered and remain unstayed a decree or order for
relief in respect of the Borrower or any of its Restricted Subsidiaries under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other applicable federal or state bankruptcy law or other similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official of the Borrower or any of its Restricted Subsidiaries, or of
any substantial part of their respective properties, or ordering the winding-up
or liquidation of the affairs of the Borrower, or any of its Restricted
Subsidiaries; or an involuntary petition shall be filed against the Borrower or
any of its Restricted Subsidiaries and a temporary stay entered, and (i) such
petition and stay shall not be diligently contested, or (ii) any such petition
and stay shall continue undismissed for a period of sixty (60) consecutive days;
(g) The Borrower or any of its Restricted Subsidiaries shall file a
petition, answer or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable federal
or state bankruptcy law or other similar law, or the Borrower or any of its
Restricted Subsidiaries shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment or taking
of possession of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Borrower or any of its Restricted
Subsidiaries or of any substantial part of their respective properties, or the
Borrower or any of its Restricted Subsidiaries shall fail generally to pay their
respective debts as they become due or shall be adjudicated insolvent; the
Borrower shall suspend or discontinue its business; the Borrower or any of its
Restricted Subsidiaries shall have concealed, removed any of its property with
the intent to hinder or defraud its creditors or shall have made a fraudulent or
preferential transfer under any applicable fraudulent conveyance or bankruptcy
law, or the Borrower or any of its Restricted Subsidiaries shall take any action
in furtherance of any such action;
(h) A judgment not covered by insurance or indemnification, where
the indemnifying party has agreed to indemnify and is financially able to do so,
shall be entered by any court against the Borrower or any of its Restricted
Subsidiaries for the payment of money which exceeds singly or in the aggregate
with other such judgments, $5,000,000.00, or a warrant of attachment or
execution or similar process shall be issued or levied against property of the
Borrower or any of its Restricted Subsidiaries which, together with all other
such property of the Borrower or any of its Restricted Subsidiaries subject to
other such process, exceeds in value $5,000,000.00 in the aggregate, and if,
within thirty (30) days after the entry, issue or levy thereof, such judgment,
warrant or process shall not have been paid or discharged or stayed pending
appeal or removed to bond, or if, after the expiration of any such stay, such
judgment, warrant or process shall not have been paid or discharged or removed
to bond;
(i) There shall be at any time any material "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan maintained by the Borrower or any of its Restricted Subsidiaries or any
ERISA Affiliate, or to which the Borrower or any of its Restricted Subsidiaries
or any ERISA Affiliate has any liabilities, or any trust created thereunder; or
a trustee shall be appointed by a United States District Court to administer any
such Plan; or PBGC shall institute proceedings to terminate any such Plan; or
the Borrower or any of its Restricted Subsidiaries or any ERISA Affiliate shall
incur any liability to PBGC in connection with the termination of any such Plan;
or any Plan or trust created under any Plan of
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the Borrower or any of its Restricted Subsidiaries or any ERISA Affiliate shall
engage in a "prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) which would subject any such Plan, any trust
created thereunder, any trustee or administrator thereof, or any party dealing
with any such Plan or trust to the tax or penalty on "prohibited transactions"
imposed by Section 502 of ERISA or Section 4975 of the Code;
(j) There shall occur (i) any default under any instrument, document
or agreement relating to any Indebtedness of the Borrower or any of its
Restricted Subsidiaries in an aggregate principal amount exceeding
$5,000,000.00; (ii) any event or condition the occurrence of which would permit
such acceleration of such Indebtedness, or which, as a result of a failure to
comply with the terms thereof, would make such Indebtedness otherwise due and
payable, and which event or condition has not been cured within any applicable
cure period or waived in writing prior to any declaration of an Event of Default
or acceleration of the Loans hereunder; or (iii) any material default under any
Interest Rate Hedge Agreement which would permit the obligation of the Borrower
to make payments to the counterparty thereunder to be then due and payable;
(k) Any Loan Document or any material provision thereof, shall at
any time and for any reason be declared by a court of competent jurisdiction to
be null and void, or a proceeding shall be commenced by the Borrower or any of
its Restricted Subsidiaries or by any governmental authority having jurisdiction
over the Borrower or any of its Restricted Subsidiaries seeking to establish the
invalidity or unenforceability thereof (exclusive of questions of interpretation
of any provision thereof), or the Borrower or any of its Restricted Subsidiaries
shall deny that it has any liability or obligation for the payment of principal
or interest purported to be created under any Loan Document;
(l) Any Security Document shall for any reason, fail or cease
(except by reason of lapse of time) to create a valid and perfected and
first-priority Lien on or Security Interest in any portion of the Collateral
purported to be covered thereby, subject only to Permitted Liens;
(m) (i) Any Person (or group of Persons) is or becomes the
"beneficial owner" (within the meaning of Rules 13d-3 and 13d-5 under the
federal Securities Exchange Act of 1934, as amended), directly or indirectly, of
a percentage of the voting Ownership Interests of the Borrower greater than
thirty-five percent (35%), other than J. Xxxx Xxxxxxxx or Xxxxxx X. Xxxxxxx,
Xx., the spouse and lineal descendants or either such individual, the estate,
executor, administrator, or other personal representative of either such
individual, or any trust created for either such individual or for the spouse or
lineal descendants of either such individual; or (ii) during any period of
twenty-four (24) consecutive months, individuals who at the beginning of such
period constituted the Board of Directors of the Borrower (together with any new
directors whose election by such Board or whose nomination for election by the
stockholders of the Borrower was approved by a majority of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in office; or
(iii) except as permitted pursuant to this Agreement, the Borrower shall cease
or fail to own, directly or indirectly, beneficial and legal title to all of the
issued and outstanding
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Ownership Interests of each of its Restricted Subsidiaries or any Restricted
Subsidiary of the Borrower shall cease to be a wholly-owned Restricted
Subsidiary of the Borrower;
(n) Any material License shall be cancelled, terminated, rescinded,
revoked, suspended, impaired, otherwise finally denied renewal, or otherwise
modified in any material adverse respect, or shall be renewed on terms that
materially and adversely affect the economic or commercial value or usefulness
thereof; or any material License shall cease to be in full force and effect; or
the grant of any material License shall have been stayed, vacated or reversed,
or modified in any material adverse respect by judicial or administrative
proceedings; or any administrative law judge or other representative of the FCC
shall have issued an initial decision in any non-comparative material License
renewal, material License revocation or any comparative (multiple applicant)
proceeding to the effect that any material License should be revoked or not be
renewed; or any other proceeding shall have been instituted by the FCC or shall
have been commenced before any court, the FCC or any other regulatory body that
could reasonably be expected to result in (i) cancellation, termination,
rescission, revocation, material impairment, suspension or denial of renewal of
a material License, (ii) a modification of a material License in a material
adverse respect or a renewal thereof on terms that materially and adversely
affect the economic or commercial value or usefulness thereof or (iii) the
forfeiture (within the meaning of 47 C.F.R. Section 1.80 of the FCC Regulations)
or other materially adverse effect on or with respect to any material License
that would result in a Material Adverse Effect on the Borrower as a result of
the failure by the Borrower or any Restricted Subsidiary thereof to comply with
any FCC Regulation regarding digital television broadcasting;
(o) Any Operating Agreement or any other agreement which is
necessary to the operation of a Station or any other Permitted Business shall be
revoked or terminated or materially, adversely modified and not replaced by a
substitute acceptable to the Required Lenders within thirty (30) days of such
revocation, termination or modification;
(p) The Borrower's on-the-air broadcast operations at any Station
shall be interrupted at any time for more than forty-eight (48) hours, whether
or not consecutive, during any period of five (5) consecutive days, and such
interruption could reasonably be expected to have a Materially Adverse Effect;
or
(q) The Borrower or any holder of Subordinated Debt shall fail to
comply with the agreement or instrument governing or evidencing such
Subordinated Debt or any separate subordination agreement, and the
Administrative Agent shall have determined that such failure to comply could
reasonably be expected to have a material adverse effect on the Borrower or any
of its Restricted Subsidiaries or on its ability to perform its obligations
hereunder or under any of the Loan Documents or on the rights and remedies of
the Administrative Agent and the Lenders hereunder or under the Loan Documents.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1 hereof (other
than an Event of Default under Section 8.1(f) or (g) hereof) shall have occurred
and shall be continuing, the Administrative Agent, at the request of the
Required Lenders subject to Section 9.9 hereof, shall
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(i) (A) terminate the Commitments, and/or (B) declare the principal of and
interest on the Loans and all other amounts owed to the Lenders and the
Administrative Agent under this Agreement, the Notes and any other Loan
Documents to be forthwith due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived, anything
in this Agreement, the Notes or any other Loan Document to the contrary
notwithstanding, and the Commitments shall thereupon forthwith terminate and
(ii) require the Borrower to, and the Borrower shall thereupon, deposit in an
interest bearing account with the Administrative Agent, as cash collateral for
the Obligations, an amount equal to the maximum amount currently or at any time
thereafter to be drawn on all outstanding Letters of Credit, and the Borrower
hereby pledges to the Administrative Agent, the Lenders and the Issuing Bank and
grants to them a security interest in, all such cash as security for the
Obligations.
(b) Upon the occurrence and continuance of an Event of Default
specified in Section 8.1(f) or (g) hereof, all principal, interest and other
amounts due hereunder, and all other Obligations (other than Interest Rate Hedge
Obligations), shall thereupon and concurrently therewith become due and payable
and the Commitments shall forthwith terminate and the principal amount of the
Loans outstanding hereunder shall bear interest at the Default Rate, and the
Borrower shall thereupon, deposit in an interest bearing account with the
Administrative Agent, as cash collateral for the Obligations, an amount equal to
the maximum amount currently or at any time thereafter to be drawn on all
outstanding Letters of Credit, all without any action by the Administrative
Agent, the Lenders, the Required Lenders and the Issuing Bank, or any of them,
and without presentment, demand, protest or other notice of any kind, all of
which are expressly waived, anything in this Agreement or in the other Loan
Documents to the contrary notwithstanding, and the Borrower hereby pledges to
the Administrative Agent, the Lenders and the Issuing Bank and grants to them a
security interest in, all such cash as security for the Obligations.
(c) Upon acceleration of the Obligations (other than Interest Rate
Hedge Obligations), as provided in subsection (a) or (b) of this Section 8.2,
the Administrative Agent and the Lenders shall have all of the post-default
rights granted to them, or any of them, as applicable under the Loan Documents
and under Applicable Law.
(d) Upon acceleration of the Obligations (other than Interest Rate
Hedge Obligations), as provided in subsection (a) or (b) of this Section 8.2,
the Administrative Agent shall have the right (but not the obligation) upon the
request of the Lenders to operate the business of the Borrower and its
Restricted Subsidiaries in accordance with the terms of the Licenses and
pursuant to the terms and subject to any limitations contained in the Security
Documents and, within guidelines established by the Required Lenders, to make
any and all payments and expenditures necessary or desirable in connection
therewith, including, without limitation, payment of wages as required under the
Fair Labor Standards Act, as amended, and of any necessary withholding taxes to
state or federal authorities. In the event the Required Lenders fail to agree
upon the guidelines referred to in the preceding sentence within six (6)
Business Days after the Administrative Agent has begun to operate the business
of the Borrower, the Administrative Agent may, after giving three (3) days'
prior written notice to the Lenders of its intention to do so, make such
payments and expenditures as it deems reasonable and advisable in its sole
discretion to maintain the normal day-to-day operation of such business. Such
payments
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and expenditures in excess of receipts shall constitute Advances under this
Agreement, not in excess of the amount of the Commitments. Advances made
pursuant to this Section 8.2(d) shall bear interest as provided in Section
2.3(d) hereof and shall be payable on demand. The making of one or more Advances
under this Section 8.2(d) shall not create any obligation on the part of the
Lenders to make any additional Advances hereunder. No exercise by the
Administrative Agent of the rights granted to it under this Section 8.2(d) shall
constitute a waiver of any other rights and remedies granted to the
Administrative Agent and the Lenders, or any of them, under this Agreement or at
law. The Borrower hereby irrevocably appoints the Administrative Agent as agent
for the Lenders, the true and lawful attorney of the Borrower, in its name and
stead and on its behalf, to execute, receipt for or otherwise act in connection
with any and all contracts, instruments or other documents in connection with
the operation of the Borrower's business in the exercise of the Administrative
Agent's and the Lenders' rights under this Section 8.2(d). Such power of
attorney is coupled with an interest and is irrevocable. The rights of the
Administrative Agent under this Section 8.2(d) shall be subject to its prior
compliance with Applicable Law to the extent applicable to the exercise of such
rights.
(e) Upon acceleration of the Obligations (other than Interest Rate
Hedge Obligations), as provided in subsection (a) or (b) of this Section 8.2,
the Administrative Agent, upon request of the Required Lenders, shall have the
right to the appointment of a receiver for the properties and assets of the
Borrower and its Restricted Subsidiaries, and the Borrower, for itself and on
behalf of its Restricted Subsidiaries, hereby consents to such rights and such
appointment and hereby waives any objection the Borrower or any Restricted
Subsidiary may have thereto or the right to have a bond or other security posted
by the Administrative Agent on behalf of the Lenders, in connection therewith.
The rights of the Administrative Agent under this Section 8.2(e) shall be
subject to its prior compliance with Applicable Law to the extent applicable to
the exercise of such rights.
(f) The rights and remedies of the Administrative Agent and the
Lenders hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments under this Agreement made to the Administrative Agent and the
Lenders or otherwise received by any of such Persons (from realization on
Collateral for the Obligations or otherwise) shall be paid over to the
Administrative Agent (if necessary) and distributed by the Administrative Agent
as follows: first, to the Administrative Agent's reasonable costs and expenses,
if any, incurred in connection with the collection of such payment or
prepayment, including, without limitation, any reasonable costs incurred by it
in connection with the sale or disposition of any Collateral for the Obligations
and all amounts under Section 11.2(b) and (c) hereof; second, to the Lenders,
the Issuing Bank or the Administrative Agent on a pro rata basis, based on all
such amounts then due and payable for any fees and expenses hereunder or under
any of the other Loan Documents then due and payable; third, to the Lenders pro
rata, to the payment of any unpaid interest which may have accrued on the
Obligations; fourth, to the Lenders on a pro rata basis, based on the Loans and
Letter of Credit Obligations then outstanding until all Loans and Letter of
Credit Obligations have been paid in full (and, for purposes of this clause,
Interest Rate Hedge Obligations shall be paid to the counterparty thereof on a
pro rata basis with the Loans); provided that the portion of
86
such payment allocated to any outstanding undrawn Letters of Credit shall be
deposited as set forth in Section 8.2(a) or (b) hereof; fifth, to the Lenders on
a pro rata basis, based on the Loans outstanding to the payment of any other
unpaid Obligations; sixth, to damages incurred by the Administrative Agent, the
Issuing Bank and the Lenders, or any of them, by reason of any breach hereof or
of any other Loan Document (on a pro rata basis, based on all such amounts then
due and payable); and seventh, to the Borrower or as otherwise required by law.
ARTICLE 9
The Administrative Agent
Section 9.1 Appointment and Authority. Each of the Lenders and the Issuing
Bank hereby irrevocably appoints Wachovia to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the Issuing Bank, and neither the Borrower
nor any Restricted Subsidiary shall have rights as a third party beneficiary of
any of such provisions.
Section 9.2 Rights as a Lender. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Restricted Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.
Section 9.3 Exculpatory Provisions. The Administrative Agent shall not
have any duties or obligations except those expressly set forth herein and in
the other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or Applicable Law; and
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(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of their
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Section 11.5(g) and Section 8.2) or (ii) in the
absence of its own gross negligence or willful misconduct as determined by a
court of competent jurisdiction by final nonappealable judgment. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent by
the Borrower, a Lender or the Issuing Bank.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article 3 or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
Section 9.4 Reliance by the Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the Issuing
Bank, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the Issuing Bank unless the Administrative Agent shall have
received notice to the contrary from such Lender or the Issuing Lender prior to
the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Section 9.5 Delegation of Duties. The Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions
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of this Article shall apply to any such sub-agent and to the Related Parties of
the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Section 9.6 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its
resignation to the Lenders, the Issuing Lender and the Borrower. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent meeting the qualifications set
forth above provided that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that
in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the
retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the Issuing Lender directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this paragraph. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 5.11
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
(b) Any resignation by Wachovia as Administrative Agent pursuant to this
Section shall also constitute its resignation as Issuing Bank. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Issuing Bank, (b) the retiring
Issuing Bank shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor
Issuing Bank shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such
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succession or make other arrangement satisfactory to the retiring Issuing Bank
to effectively assume the obligations of the retiring Issuing Bank with respect
to such Letters of Credit.
Section 9.7 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender and the Issuing Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Section 9.8 No Other Duties, etc. Anything herein to the contrary
notwithstanding, none of the syndication agents, documentation agents,
co-agents, book manager, lead manager, arranger, lead arranger or co-arranger
listed on the cover page or signature pages hereof shall have any powers, duties
or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
the Issuing Bank hereunder.
Section 9.9 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios and Incremental Facility
Commitment Ratios, from and against any and all liabilities, obligations, losses
(other than the loss of principal and interest hereunder in the event of a
bankruptcy or out-of-court "work-out" of the Loans), damages, penalties,
actions, judgments, suits, costs, expenses (including reasonable fees and
expenses of experts, agents, consultants and counsel), or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement or any other Loan Document or any action taken or omitted by the
Administrative Agent under this Agreement, any other Loan Document, or any other
document contemplated by this Agreement, except that no Lender shall be liable
to the Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from the gross negligence or willful misconduct of the
Administrative Agent as determined by a final, non-appealable judicial order of
a court having jurisdiction over the subject matter.
Section 9.10 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any Collateral granted to or held by the
Administrative Agent, for the ratable benefit of itself and the Lenders, under
any Loan Document (i) upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses
hereunder, the termination of the Lenders' Commitments and the expiration or
termination of all Letters of Credit, (ii) that is sold or to be sold as part of
or
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in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 11.5(g), if approved, authorized or
ratified in writing by the Required Lenders; and
(b) to subordinate any Lien on any Collateral granted to or held by
the Administrative Agent under any Loan Document to the holder of any Lien on
such Collateral that is permitted by clause (n) of the definition of "Permitted
Liens"; and
(c) to release any Restricted Subsidiary from its obligations under
the Subsidiary Guaranty if such Restricted Subsidiary ceases to be a Restricted
Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Restricted Subsidiary from its obligations under the Subsidiary Guaranty
pursuant to this Section.
Section 9.11 Release of Unrestricted Subsidiaries. In connection with this
Agreement, the Lenders (a) agree that each of the Unrestricted Subsidiaries are
released from their respective obligations under the Loan Documents and (b)
authorize the Administrative Agent to deliver and file such releases,
terminations and other documents deemed necessary or desirable by the
Administrative Agent to evidence such release.
ARTICLE 10
Change in Circumstances Affecting LIBOR Advances
Section 10.1 LIBOR Basis Determination Inadequate or Unfair. If with
respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender to make its portion of such LIBOR Advances shall be
suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Lender to make, maintain or fund its portion of LIBOR
Advances, such Lender shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower. Before giving any notice to the Administrative Agent pursuant
to this Section 10.2, such Lender shall designate a different lending office if
such designation will avoid the
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need for giving such notice and will not, in the sole reasonable judgment of
such Lender, be otherwise materially disadvantageous to such Lender. Upon
receipt of such notice, notwithstanding anything contained in Article 2 hereof,
the Borrower shall repay in full the then outstanding principal amount of such
Lender's portion of each affected LIBOR Advance, together with accrued interest
thereon, on either (a) the last day of the then current Interest Period
applicable to such affected LIBOR Advances if such Lender may lawfully continue
to maintain and fund its portion of such LIBOR Advance to such day or (b)
immediately if such Lender may not lawfully continue to fund and maintain its
portion of such affected LIBOR Advances to such day. Concurrently with repaying
such portion of each affected LIBOR Advance, the Borrower may borrow a Base Rate
Advance from such Lender, whether or not it would have been entitled to effect
such borrowing and such Lender shall make such Advance, if so requested, in an
amount such that the outstanding principal amount of the affected Loan held by
such Lender shall equal the outstanding principal amount of such Loan or Loans
immediately prior to such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any Applicable Law, or
any change in any Applicable Law (whether adopted before or after the Agreement
Date), or any interpretation or change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency:
(i) shall subject any Lender to any tax, duty or other charge
with respect to its obligation to make its portion of LIBOR Advances, or its
portion of existing Advances, or shall change the basis of taxation of payments
to any Lender of the principal of or interest on its portion of LIBOR Advances
or in respect of any other amounts due under this Agreement, in respect of its
portion of LIBOR Advances or its obligation to make its portion of LIBOR
Advances (except for changes in the rate or method of calculation of tax on the
revenues or net income of such Lender); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding any included in an applicable LIBOR
Reserve Percentage), special deposit, capital adequacy, assessment or other
requirement or condition against assets of, deposits with or for the account of,
or commitments or credit extended by, any Lender or shall impose on any Lender
or the London interbank borrowing market any other condition affecting its
obligation to make its portion of such LIBOR Advances or its portion of existing
Advances;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Lender under this Agreement
with respect thereto, then, within ten (10) days after demand by such Lender,
the Borrower agrees to pay to such Lender such additional amount or amounts as
will compensate such Lender for such increased costs. Each Lender will promptly
notify the Borrower and the Administrative Agent of any event of which it has
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knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 10.3 and will designate a different
lending office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole reasonable judgment of such
Lender made in good faith, be otherwise disadvantageous to such Lender.
(b) Any Lender claiming compensation under this Section 10.3 shall
provide the Borrower with a written certificate setting forth the additional
amount or amounts to be paid to it hereunder and calculations therefor in
reasonable detail. Such certificate shall be presumptively correct absent
manifest error. Notwithstanding the foregoing, the Borrower shall only be
obligated to compensate such Lender for any amount under this subsection arising
or occurring during (i) in the case of each such request for compensation, any
time or period commencing not more than ninety (90) days prior to the date on
which such Lender submits such request and (ii) any other time or period during
which, because of the unannounced retroactive application of such law,
regulation, interpretation, request or directive, such Lender could not have
known that the resulting reduction in return might arise. In determining such
amount, such Lender may use any reasonable averaging and attribution methods. If
any Lender demands compensation under this Section 10.3, the Borrower may at any
time, upon at least five (5) Business Days' prior notice to such Lender, prepay
in full such Lender's portion of the then outstanding LIBOR Advances, together
with accrued interest thereon to the date of prepayment, along with any
reimbursement required under Section 2.10 hereof. Concurrently with prepaying
such portion of LIBOR Advances the Borrower may, whether or not then entitled to
make such borrowing, borrow a Base Rate Advance, or a LIBOR Advance not so
affected, from such Lender, and such Lender shall, if so requested, make such
Advance in an amount such that the outstanding principal amount of the affected
Loan or Loans held by such Lender shall equal the outstanding principal amount
of such Loan or Loans immediately prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given pursuant
to Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any Lender to
make its portion of any type of LIBOR Advance, or requiring such Lender's
portion of LIBOR Advances to be repaid or prepaid, then, unless and until such
Lender notifies the Borrower that the circumstances giving rise to such
repayment no longer apply, all amounts which would otherwise be made by such
Lender as its portion of LIBOR Advances shall, unless otherwise notified by the
Borrower, be made instead as Base Rate Advances.
Section 10.5 Claims for Increased Costs and Taxes. In the event that any
Lender (a) shall decline to make LIBOR Advances pursuant to Sections 10.1 and
10.2 hereof, (b) shall have notified the Borrower that it is entitled to claim
compensation pursuant to Sections 10.3, 2.12 or 2.14(f) hereof, (c) is unable to
complete the form required or subject to withholding as provided in Section 2.13
hereof or (d) has failed to consent to a proposed amendment, waiver, discharge
or termination which, pursuant to the terms of Section 11.12 or any other
provision of any Loan Document, requires the consent of all Lenders or all
affected Lenders and with respect to which the Required Lenders shall have
granted their consent (each such lender being an "Affected Lender"), the
Borrower at its own cost and expense may designate a replacement lender (a
"Replacement Lender") to assume the Commitment and the obligations of any such
Affected Lender hereunder, and to purchase the outstanding Loans of such
Affected Lender and such
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Affected Lender's rights hereunder and with respect thereto, and within ten (10)
Business Days of such designation the Affected Lender shall (a) sell to such
Replacement Lender, without recourse upon, warranty by or expense to such
Affected Lender, by way of an Assignment and Assumption Agreement substantially
in the form of Exhibit A attached hereto, for a purchase price equal to (unless
such Lender agrees to a lesser amount) the outstanding principal amount of the
Loans of such Affected Lender, plus all interest accrued and unpaid thereon and
all other amounts owing to such Affected Lender hereunder, and (b) assign the
Commitment of such Affected Lender and upon such assumption and purchase by the
Replacement Lender, such Replacement Lender shall be deemed to be a "Lender" for
purposes of this Agreement and such Affected Lender shall cease to be a "Lender"
for purposes of this Agreement and shall no longer have any obligations or
rights hereunder (other than any obligations or rights which according to this
Agreement shall survive the termination of the Commitment).
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) Except as otherwise expressly provided herein, all notices and
other communications under this Agreement and the other Loan Documents (unless
otherwise specifically stated therein) shall be in writing and shall be deemed
to have been given three (3) Business Days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, or one (1)
Business Day after being entrusted to a reputable commercial overnight delivery
service for next day delivery, or when sent on a Business Day prior to 5:00 p.m.
(Charlotte, North Carolina time) by telecopy addressed to the party to which
such notice is directed at its address determined as provided in this Section
11.1. All notices and other communications under this Agreement shall be given
to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
Xxxx Television, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxx, Esq.
Telecopy: (000) 000-0000
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(ii) If to the Administrative Agent, to it at:
Wachovia Bank, National Association
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Wachovia Bank, National Association
Portfolio Management
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 28288-0760
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(iii) If to the Lenders, to them at the addresses set forth
in the Register.
The failure to provide copies shall not affect the validity of the notice given
to the primary recipient.
(b) Any party hereto may change the address to which notices shall
be directed under this Section 11.1 by giving ten (10) days' written notice of
such change to the other parties.
Section 11.2 Expenses. The Borrower and its Restricted Subsidiaries will
promptly pay, or reimburse:
(a) all reasonable out-of-pocket expenses of the Administrative
Agent and the Lead Arranger in connection with the preparation, negotiation,
execution, delivery and administration of this Agreement, the other Loan
Documents and any amendment or waiver with respect thereto, and the transactions
contemplated hereunder and thereunder and the making of the initial Advance
hereunder (whether or not such Advance is made), including, but not limited to,
the reasonable fees and disbursements of counsel for the Administrative Agent
and the Lead Arranger and the costs and expenses associated with the syndication
of this facility; and
(b) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders of enforcement under this Agreement or the
other Loan Documents and all reasonable out-of-pocket costs and expenses of
collection if an Event of Default occurs in the payment of the Loans, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Lenders.
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Section 11.3 Waivers. The rights and remedies of the Administrative Agent
and the Lenders under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent, the Required
Lenders, or the Lenders, or any of them, in exercising any right, shall operate
as a waiver of such right. The Administrative Agent and the Lenders expressly
reserve the right to require strict compliance with the terms of this Agreement
in connection with any future funding of a Request for Advance. In the event the
Lenders decide to fund a Request for Advance at a time when the Borrower is not
in strict compliance with the terms of this Agreement, such decision by the
Lenders shall not be deemed to constitute an undertaking by the Lenders to fund
any further Request for Advance or preclude the Lenders or the Administrative
Agent from exercising any rights available under the Loan Documents or at law or
equity. Any waiver or indulgence granted by the Administrative Agent, the
Lenders, or the Required Lenders, shall not constitute a modification of this
Agreement or any other Loan Document, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of dealing at variance with
the terms of this Agreement or any other Loan Document such as to require
further notice of their intent to require strict adherence to the terms of this
Agreement or any other Loan Document in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, the
Administrative Agent and each of the Lenders are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Lender or Administrative Agent, to or for the
credit or the account of the Borrower or any of its Restricted Subsidiaries,
against and on account of the obligations and liabilities of the Borrower to the
Lenders and the Administrative Agent, including, without limitation, all
Obligations and any other claims of any nature or description arising out of or
connected with this Agreement or any other Loan Document, irrespective of
whether (a) any Lender or Administrative Agent shall have made any demand
hereunder or (b) any Lender or Administrative Agent shall have declared the
principal of and interest on the Loans and other amounts due hereunder to be due
and payable as permitted by Section 8.2 hereof and although such obligations and
liabilities or any of them shall be contingent or unmatured. Upon direction by
the Administrative Agent with the consent of all of the Lenders each Lender
holding deposits of the Borrower or any of its Restricted Subsidiaries shall
exercise its set-off rights as so directed.
Section 11.5 Successors and Assigns; Participations.
(a) Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that
neither the Borrower nor any Restricted Subsidiary may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in
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accordance with the provisions of paragraph (b) of this Section 11.5, (ii) by
way of participation in accordance with the provisions of paragraph (d) of this
Section 11.5 or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section 11.5 (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in paragraph (d)
of this Section 11.5 and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one
or more Eligible Assignees (such Person, a "Purchasing Lender") all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date) shall not be less than
$1,000,000, unless (A) such assignment is made to an existing Lender, to an
Affiliate thereof, or (with respect to any Term Loan) to an Approved Fund, in
which case no minimum amount shall apply, or (B) each of the Administrative
Agent and, so long as no Default or Event of Default has occurred and is
continuing, the Borrower otherwise consent (each such consent not to be
unreasonably withheld or delayed); provided that the Borrower shall be deemed to
have given its consent five (5) Business Days after the date written notice
thereof has been delivered by the assigning Lender (through the Administrative
Agent) unless such consent is expressly refused by the Borrower prior to such
fifth (5th) Business Day;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned, except that
this clause (ii) shall not prohibit any Lender from assigning all or a portion
of its rights and obligations among separate Facilities on a non-pro rata basis;
(iii) any assignment of a Revolving Credit Commitment must be
approved by the Administrative Agent and the Issuing Bank unless the Person that
is the proposed assignee is itself a Lender with a Revolving Credit Commitment
(whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.10, 2.12 and 2.13 and Article X
with respect to facts and circumstances occurring prior to the effective date of
such assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at one of its offices in
Charlotte, North Carolina, a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Restricted Subsidiaries) (each, a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver or modification described in Section
11.12 that directly affects such Participant. Subject to paragraph (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.10 and 2.12 and Article X, 10.1, 10.2, 10.3, 10.4 and
10.5 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
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permitted by law, each Participant also shall be entitled to the benefits of
Section 11.4 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.11 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 2.10, 2.12, 10.3 and 10.5
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower's prior written consent. A
Participant that is organized under the laws of a jurisdiction outside the
United States shall not be entitled to the benefits of Section 10.3 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
10.5(e) as though it were a Lender.
(f) Disclosure of Information; Confidentiality. Each of the
Administrative Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by, or required to be disclosed to,
any rating agency, or regulatory or similar authority (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by Applicable Laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies under this Agreement or under any
other Loan Document (or any Interest Rate Hedge Agreement with a Lender or the
Administrative Agent) or any action or proceeding relating to this Agreement or
any other Loan Document (or any Interest Rate Hedge Agreement with a Lender or
the Administrative Agent) or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any Purchasing Lender, proposed Purchasing Lender,
Participant or proposed Participant, (ii) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the Borrower
and its obligations, (iii) to an investor or prospective investor in an Approved
Fund that also agrees that Information shall be used solely for the purpose of
evaluating an investment in such Approved Fund, (iv) to a trustee, collateral
manager, servicer, backup servicer, noteholder or secured party in an Approved
Fund in connection with the administration, servicing and reporting on the
assets serving as collateral for an Approved Fund, or (v) to a nationally
recognized rating agency that requires access to information regarding the
Borrower and its Subsidiaries, the Loans and Loan Documents in connection with
ratings issued with respect to an Approved Fund, (g) with the consent of the
Borrower, (h) to Gold Sheets and other similar bank trade publications, such
information to consist of deal terms and other information customarily found in
such publications, or (i) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrower or (j) to governmental regulatory
authorities in connection with any regulatory examination of the Administrative
Agent or any Lender or in accordance with the Administrative Agent's or any
Lender's regulatory compliance policy if the Administrative Agent or such Lender
deems necessary for the mitigation of claims by those authorities against the
Administrative Agent or such Lender or any of its subsidiaries or affiliates.
For purposes of
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this Section, "Information" means all information received from the Borrower or
its Subsidiaries relating to the Borrower or its Subsidiaries or any of their
respective businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower or its Subsidiaries; provided that, in the case of
information received from the Borrower or its Subsidiaries after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
(g) Certain Pledges or Assignments. Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement or any other Loan Document to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release
such Lender from any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.
Section 11.6 Accounting Principles. All references in this Agreement to
GAAP shall be to such principles as in effect from time to time. All accounting
terms used herein without definition shall be used as defined under GAAP. All
references to the financial statements of the Borrower and to its Total Debt,
Senior Debt and Fixed Charges, and other such terms shall be deemed to refer to
such items of the Borrower and its Restricted Subsidiaries, on a fully
consolidated basis.
Section 11.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Governing Law. This Agreement, and the other Loan Documents,
unless otherwise expressly set forth therein, shall be governed by, construed
and enforced in accordance with the laws of the State of Georgia applicable to
agreements made to be performed in Georgia. If any action or proceeding shall be
brought by the Administrative Agent or any Lender hereunder or under any other
Loan Document in order to enforce any right or remedy under this Agreement or
any other Loan Document, the Borrower hereby consents and will, and the Borrower
will cause each Restricted Subsidiary to, submit to the jurisdiction of any
state or federal court of competent jurisdiction sitting within the area
comprising the Northern District of Georgia on the date of this Agreement. The
Borrower, for itself and on behalf of its Restricted Subsidiaries, hereby agrees
that, to the extent permitted by Applicable Law, service of the summons and
complaint and all other process which may be served in any such suit, action or
proceeding may be effected by mailing by registered mail a copy of such process
to the offices of the Borrower at the address given in Section 11.1 hereof and
that personal service of process shall not be required. Nothing herein shall be
construed to prohibit service of process by any other method permitted by law,
or the bringing of any suit, action or proceeding in any other jurisdiction. The
Borrower agrees that final judgment in such suit, action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by Applicable Law.
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Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable
hereunder exceed the maximum rate of interest allowed by Applicable Law, and in
the event any such payment is inadvertently made by the Borrower or
inadvertently received by the Administrative Agent or any Lender, then such
excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the Administrative Agent or such Lender, in writing, that it elects
to have such excess sum returned forthwith. It is the express intent hereof that
the Borrower not pay and the Administrative Agent and the Lenders not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base Rate and the
LIBOR as reference rates for the determination of interest on the Loans, the
Lenders shall be under no obligation to obtain funds from any particular source
in order to charge interest to the Borrower at interest rates related to such
reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents and
the headings of the various subdivisions used in this Agreement are for
convenience only and shall not in any way modify or amend any of the terms or
provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any term
hereof may be amended orally, nor may any provision hereof be waived orally but
only by an instrument in writing signed by the Required Lenders and the
Administrative Agent at the direction of the Required Lenders and, in the case
of an amendment, by the Borrower, except that in the event of (a) any increase
in the amount of any Commitment or any increase in any Lender's Commitment
Ratio, (b) any waiver, delay, extension or extension in the terms or events of
repayment of the Loans or any mandatory reductions in either Commitment provided
in Sections 2.5 or 2.7(b) hereof, (c) any reduction in principal, interest or
fees due hereunder or postponement of the payment thereof (including, without
limitation, any postponement or extension of the Maturity Date) without a
corresponding payment by the Borrower (other than with respect to the Default
Rate as provided in Section 2.3(d) hereof), (d) any release of any material
portion of the Collateral for the Loans, except in connection with a merger,
sale or other disposition otherwise permitted hereunder (in which case such
release shall require no further approval by the Lenders), (e) any waiver of any
Default due to the failure by the Borrower to pay any sum due to any of the
Lenders hereunder, (f) any release of any Guaranty of all or any portion of the
Obligations, except in connection with a merger, sale or other disposition
otherwise permitted hereunder (in which case, such release shall require no
further approval by the Lenders) or (g) any amendment of this Section 11.12, the
definition of Required Lenders or
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of any Section or definition herein to the extent that such Section or
definition requires action by all Lenders, any such amendment or waiver or
consent may be made only by an instrument in writing signed by each of the
Lenders and the Administrative Agent and, in the case of an amendment, by the
Borrower. Any amendment to Section 2.9(d), Section 2.11 or Section 8.3 may be
made only by an instrument in writing signed by each of the Lenders affected
thereby, the Administrative Agent and the Borrower. Any amendment to any
provision hereunder governing the rights, obligations or liabilities of the
Administrative Agent may be made only by an instrument in writing signed by the
Administrative Agent and by each of the Lenders. No term or provision of any
Security Document may be amended or waived orally, but only by an instrument in
writing signed by the Administrative Agent with the direction of the Required
Lenders and, in the case of an amendment, by such of the Borrower and the
Borrower's Restricted Subsidiaries as are party thereto; provided, however, that
the written consent of all of the Lenders shall be required with respect to any
amendment to or waiver of the provisions of any Security Document which would
have the effect of (i) releasing any material portion of the Collateral for the
Loans, other than in connection with any merger, sale or other disposition
otherwise permitted hereunder (which shall require no further approval by the
Lenders) or (ii) releasing any guarantor from all or any portion of the
Obligations, except in connection with a merger, sale or other disposition
otherwise permitted hereunder (in which case, such release shall require no
further approval by the Lenders). Notwithstanding anything in this Agreement to
the contrary, no waiver or modification of any provision of this Agreement that
has the effect (either immediately or at some later time) of enabling the
Borrower to satisfy a condition precedent to the making of a Revolving Loan
shall be effective against the Revolving Lenders for purposes of the Revolving
Commitments unless the Required Revolving Lenders shall have concurred with such
waiver or modification.
Section 11.13 Entire Agreement. Except as otherwise expressly provided
herein, this Agreement and the other documents described or contemplated herein
will embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Lender to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this Agreement
refers to any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (a) shall be deemed to have been
relied upon by the Administrative Agent and each of the Lenders notwithstanding
any investigation heretofore or hereafter made by them, and (b) shall survive
the execution and delivery of the Loan Documents and shall continue in full
force and effect so long as any Obligation is outstanding and unpaid. Any right
to
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indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.10, 2.12, 2.14, 5.11, 10.3 and 11.2 hereof, shall survive the
termination of this Agreement and the payment and performance of all
Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the Security
Documents and are intended by the parties hereto to be in parity with the
Interest Rate Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of the Administrative
Agent and each of the Lenders hereunder are several, not joint.
Section 11.19 Survival of Indemnities. Notwithstanding any termination of
this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XI and any other
provision of this Agreement and the other Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
Section 11.20 Term of Agreement. This Agreement shall remain in effect
from the Agreement Date through and including the date upon which all
Obligations arising hereunder or under any other Loan Document shall have been
indefeasibly and irrevocably paid and satisfied in full and all Commitments have
been terminated. The Administrative Agent is hereby permitted to release all
Liens on the Collateral in favor of the Administrative Agent, for the ratable
benefit of itself and the Lenders, upon repayment of the outstanding principal
of and all accrued interest on the Loans, payment of all outstanding fees and
expenses hereunder and the termination of the Lender's Commitments unless the
Administrative Agent has received written notice prior to such release from the
holder of any Interest Rate Hedge Obligations that such Interest Rate Hedge
Obligation remains outstanding. No termination of this Agreement shall affect
the rights and obligations of the parties hereto arising prior to such
termination or in respect of any provision of this Agreement which survives such
termination.
Section 11.21 Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement with its counsel.
Section 11.22 No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
Section 11.23 Amendment and Restatement; No Novation. This Agreement
constitutes an amendment and restatement of the Prior Loan Agreement effective
from and after the Agreement Date. The execution and delivery of this Agreement
shall not constitute a novation of any indebtedness or other obligations owing
to the Lenders or the Administrative Agent under the Prior Loan Agreement based
on any facts or events occurring or existing prior to the execution and delivery
of this Agreement. On the Agreement Date, (a) the credit facilities described in
the Prior Loan Agreement shall be amended and supplemented by the facilities
103
described herein, (b) all Revolving Loans outstanding as of such date under the
Prior Loan Agreement shall be deemed to be Revolving Loans outstanding hereunder
and the Administrative Agent shall make such transfers of funds as are necessary
in order that the outstanding balance of such Revolving Loans, together with any
Revolving Loans funded hereunder on the Agreement Date, reflect the Revolving
Loan Commitments of the Lenders hereunder, (c) all Incremental Loans outstanding
as of such date under the Prior Loan Agreement shall be converted to Term Loans
hereunder or repaid and the Administrative Agent shall make such transfers of
funds as are necessary in order that the outstanding balance of the Term Loans
on the Agreement Date reflect the Term Loan A Commitments and Term Loan B
Commitments of the Lenders hereunder and (d) all Letters of Credit outstanding
as of such date under the Prior Loan Agreement shall be deemed to be Letters of
Credit outstanding hereunder, in each case, without further action by any
Person.
Section 11.24 USA Patriot Act. The Administrative Agent and each Lender
hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower which information includes the name and address of each
Borrower and other information that will allow such Lender to identify such
Borrower in accordance with the Act.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND ON BEHALF
OF EACH OF ITS RESTRICTED SUBSIDIARIES AND THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE AND HEREBY WAIVE
THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY
TYPE IN WHICH THE BORROWER, ANY OF THE BORROWER'S RESTRICTED SUBSIDIARIES, ANY
OF THE LENDERS, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE SUCCESSORS
OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS
AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 12.1. EXCEPT AS
PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS AGREEMENT (a) CERTIFIES THAT
NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY
LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR
ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (b) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN
104
THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCLOSED BY AND TO
THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS
IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF
THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER:
XXXX TELEVISION, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer and Sr. V.P.
[Fifth Amended and Restated Credit Agreement - Xxxx Television, Inc.]
ADMINISTRATIVE AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, as an Issuing
Bank and as a Lender, on behalf of
itself and certain other Lenders
pursuant to written authorization
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Fifth Amended and Restated Credit Agreement - Xxxx Television, Inc.]
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
[Fifth Amended and Restated Credit Agreement - Xxxx Television, Inc.]
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Documentation Agent and as a Lender
By: /s/ Xxxxx X. XxXxxxx
----------------------
Name: Xxxxx X. XxXxxxx
Title: Director
By: /s/ Xxxxx Xxxxxx
----------------------
Name: Xxxxx Xxxxxx
Title: Vice President
[Fifth Amended and Restated Credit Agreement - Xxxx Television, Inc.]
ALLIED IRISH BANKS PLC,
as Documentation Agent and as a Lender
By: /s/ Xxxx Xxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
[Fifth Amended and Restated Credit Agreement - Xxxx Television, Inc.]
KEYBANK NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ Xxxxxxxx X'Xxxxx
-------------------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Vice President and Portfolio Manager
[Fifth Amended and Restated Credit Agreement - Xxxx Television, Inc.]
