EXHIBIT 10.1
THIRD AMENDED AND RESTATED LOAN AGREEMENT
DATED AS OF SEPTEMBER 25, 2001
BY AND AMONG
XXXX COMMUNICATIONS SYSTEMS, INC.,
AS BORROWER;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
AS LENDERS;
AND
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT FOR THE LENDERS
WITH
BANC OF AMERICA SECURITIES LLC AND
FIRST UNION SECURITIES, INC.
AS CO-LEAD ARRANGERS AND
JOINT BOOK MANAGERS;
AND
FIRST UNION NATIONAL BANK,
AS SYNDICATION AGENT
POWELL, GOLDSTEIN, XXXXXX & XXXXXX LLP
ATLANTA, GEORGIA
THIRD AMENDED AND RESTATED
LOAN AGREEMENT
among
XXXX COMMUNICATIONS SYSTEMS, INC.,
as Borrower;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
as Lenders;
and
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
INDEX
Page
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ARTICLE 1 - DEFINITIONS 2
Section 1.1 Defined Terms............................................................2
Section 1.2 Interpretation..........................................................25
Section 1.3 Cross References........................................................25
Section 1.4 Accounting Provisions...................................................25
ARTICLE 2 - LOANS AND LETTERS OF CREDIT 26
Section 2.1 The Loans...............................................................26
Section 2.2 Manner of Borrowing and Disbursement....................................26
Section 2.3 Interest................................................................29
Section 2.4 Fees....................................................................32
Section 2.5 Mandatory Commitment Reductions.........................................33
Section 2.6 Voluntary Commitment Reductions.........................................34
Section 2.7 Prepayments and Repayments..............................................34
Section 2.8 Notes; Loan Accounts....................................................37
Section 2.9 Manner of Payment.......................................................38
Section 2.10 Reimbursement...........................................................39
Section 2.11 Pro Rata Treatment......................................................40
Section 2.12 Capital Adequacy........................................................41
Section 2.13 Lender Tax Forms........................................................41
Section 2.14 Letters of Credit.......................................................42
Section 2.15 Incremental Facility Loans..............................................47
ARTICLE 3 - CONDITIONS PRECEDENT 48
Section 3.1 Conditions Precedent to Effectiveness of Agreement......................48
Section 3.2 Conditions Precedent to Each Advance....................................51
Section 3.3 Conditions Precedent to Issuance of Letters of Credit...................52
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES 53
Section 4.1 Representations and Warranties..........................................53
Section 4.2 Survival of Representations and Warranties, etc.........................61
ARTICLE 5 - GENERAL COVENANTS 62
Section 5.1 Preservation of Existence and Similar Matters...........................62
Section 5.2 Business; Compliance with Applicable Law................................62
Section 5.3 Maintenance of Properties...............................................62
Section 5.4 Accounting Methods and Financial Records................................62
Section 5.5 Insurance...............................................................63
Section 5.6 Payment of Taxes and Claims.............................................63
Section 5.7 Compliance with ERISA...................................................64
Section 5.8 Visits and Inspections..................................................65
Section 5.9 Payment of Indebtedness; Loans..........................................65
Section 5.10 Use of Proceeds.........................................................65
Section 5.11 Indemnity...............................................................66
Section 5.12 Interest Rate Hedging...................................................66
Section 5.13 Covenants Regarding Formation of Subsidiaries and Acquisitions;
Partnership, Subsidiaries...............................................67
Section 5.14 Payment of Wages........................................................67
Section 5.15 Further Assurances......................................................67
Section 5.16 License Subs............................................................68
Section 5.17 Maintenance of Network Affiliations; Operating Agreements...............68
Section 5.18 Ownership Reports.......................................................68
Section 5.19 Environmental Compliance and Indemnity..................................69
ARTICLE 6 - INFORMATION COVENANTS 70
Section 6.1 Quarterly Financial Statements and Information..........................70
Section 6.2 Annual Financial Statements and Information.............................70
Section 6.3 Monthly Financial Information...........................................71
Section 6.4 Performance Certificates................................................71
Section 6.5 Copies of Other Reports.................................................71
Section 6.6 Notice of Litigation and Other Matters..................................72
ARTICLE 7 - NEGATIVE COVENANTS 73
Section 7.1 Indebtedness of the Borrower and its Subsidiaries.......................73
Section 7.2 Limitation on Liens.....................................................75
Section 7.3 Amendment and Waiver....................................................75
Section 7.4 Liquidation, Merger or Disposition of Assets............................76
Section 7.5 Limitation on Guaranties................................................76
Section 7.6 Investments and Acquisitions............................................76
Section 7.7 Restricted Payments; Restricted Purchases...............................79
Section 7.8 Senior Leverage Ratio...................................................80
Section 7.9 Interest Coverage Ratio.................................................81
Section 7.10 Fixed Charge Coverage Ratio.............................................81
Section 7.11 Leverage Ratio..........................................................81
Section 7.12 Affiliate Transactions..................................................81
Section 7.13 Real Estate.............................................................82
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Section 7.14 ERISA Liabilities.......................................................82
Section 7.15 No Limitation on Upstream Dividends by Subsidiaries.....................82
ARTICLE 8 - DEFAULT 82
Section 8.1 Events of Default.......................................................82
Section 8.2 Remedies................................................................86
Section 8.3 Payments Subsequent to Declaration of Event of Default..................87
ARTICLE 9 - THE ADMINISTRATIVE AGENT 88
Section 9.1 Appointment and Authorization...........................................88
Section 9.2 Interest Holders........................................................88
Section 9.3 Consultation with Counsel...............................................88
Section 9.4 Documents...............................................................89
Section 9.5 Administrative Agent and Affiliates.....................................89
Section 9.6 Responsibility of the Administrative Agent and the Issuing Bank.........89
Section 9.7 Action by the Administrative Agent and the Issuing Bank.................89
Section 9.8 Notice of Default or Event of Default...................................90
Section 9.9 Responsibility Disclaimed...............................................90
Section 9.10 Indemnification.........................................................91
Section 9.11 Credit Decision.........................................................91
Section 9.12 Successor Administrative Agent..........................................91
Section 9.13 Delegation of Duties....................................................92
Section 9.14 Co-Lead Arrangers and Joint Book Managers; Syndication Agent............92
ARTICLE 10 - CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES 92
Section 10.1 LIBOR Basis Determination Inadequate or Unfair..........................92
Section 10.2 Illegality..............................................................93
Section 10.3 Increased Costs.........................................................93
Section 10.4 Effect On Other Advances................................................94
ARTICLE 11 - MISCELLANEOUS 95
Section 11.1 Notices.................................................................95
Section 11.2 Expenses................................................................97
Section 11.3 Waivers.................................................................97
Section 11.4 Set-Off.................................................................97
Section 11.5 Assignment..............................................................98
Section 11.6 Accounting Principles..................................................101
Section 11.7 Counterparts...........................................................101
Section 11.8 Governing Law..........................................................101
Section 11.9 Severability...........................................................102
Section 11.10 Interest...............................................................102
Section 11.11 Table of Contents and Headings.........................................102
Section 11.12 Amendment and Waiver...................................................102
Section 11.13 Entire Agreement.......................................................103
Section 11.14 Other Relationships....................................................103
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Section 11.15 Directly or Indirectly.................................................103
Section 11.16 Reliance on and Survival of Various Provisions.........................103
Section 11.17 Senior Debt............................................................104
Section 11.18 Obligations Several....................................................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 - Form of Borrower Pledge Agreement
Exhibit C - Form of Borrower Security Agreement
Exhibit D - Form of Certificate of Financial Condition
Exhibit E - Form of Request for Advance
Exhibit F - Form of Request for Issuance of Letter of Credit
Exhibit G-1 - Form of Revolving Loan Note
Exhibit G-2 - Form of Term Loan Note
Exhibit G-3 - Form of Incremental Facility Note
Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of Subsidiary Pledge Agreement
Exhibit J - Form of Subsidiary Security Agreement
Exhibit K-1 - Form of Borrower Loan Certificate
Exhibit K-2 - Form of Subsidiary Loan Certificate
Exhibit L - Form of Performance Certificate
Exhibit M-1 - Form of Assignment of General Partner Interests
Exhibit M-2 - Form of Assignment of Limited Partner Interests
Exhibit N - Form of Notice of Incremental Facility Commitment
SCHEDULES
Schedule 1 Lender's Commitment Ratios and Notice Addresses
Schedule 2 Liens
Schedule 3 Stations, Newspapers, Porta-Phone Paging Business, Satellite
Broadcasting Business, Operating Agreements and Licenses
Schedule 4 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
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THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") is
entered into as of this 25th day of September, 2001 by and among XXXX
COMMUNICATIONS SYSTEMS, INC., a Georgia corporation (the "Borrower"), THE
FINANCIAL INSTITUTIONS SIGNATORY HERETO (the "Lenders") and BANK OF AMERICA,
N.A., as administrative agent (the "Administrative Agent"),
WITNESSETH:
WHEREAS, the Borrower and the Administrative Agent (as defined in the
Prior Loan Agreement as hereinafter defined), and certain of the Lenders are all
parties to the Prior Loan Agreement; and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders consent to certain amendments to the Prior Loan Agreement, as more
fully set forth in 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 (as defined in the Prior Loan
Agreement), for itself and on behalf of the Lenders (as defined in the Prior
Loan Agreement) pursuant to the Prior Loan Agreement and the Security Documents
(as defined in the Prior Loan Agreement) executed in connection therewith,
excluding the Mortgages (as defined in the Prior Loan Agreement), shall remain
outstanding and in full force and effect in accordance with the Prior Loan
Agreement 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
other Security Documents, excluding the Mortgages, executed in connection
therewith and the collateral pledged thereunder, excluding the Real Property (as
defined in the Prior Loan Agreement), shall secure, without interruption or
impairment of any kind, all existing Indebtedness under the Prior Loan Agreement
and the other Security Documents, excluding the Mortgages, 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 other
Security Documents, excluding the Mortgages, executed in connection therewith
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 other Security
Documents, excluding the Mortgages, executed in connection therewith; and
WHEREAS, the parties hereto intend that (i) 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; and (ii) the Notes (as
hereinafter defined) amend, renew, extend, modify, replace, are substituted for
and supersede in their entirety, but do not extinguish the indebtedness arising
under, the promissory notes issued pursuant to the Prior Loan Agreement;
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 Subsidiary of the
Borrower of any other Person, which Person shall then become consolidated with
the Borrower or any such Subsidiary in accordance with GAAP; (b) any acquisition
by the Borrower or any Subsidiary of the Borrower of all or substantially all of
the assets of any other Person; or (c) any other acquisition by the Borrower or
any Subsidiary of the Borrower of the assets of another Person which acquisition
is not in the ordinary course of business for the Borrower or such Subsidiary.
"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 $5,000,000.
"Administrative Agent" shall mean Bank of America, N.A., in its
capacity as Administrative Agent for the Lenders or any successor Administrative
Agent appointed pursuant to Section 9.12 hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at Agency Services, NC1-001-15-04, Independence
Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, or such other office as may
be designated pursuant to the provisions of Section 11.1 hereof.
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"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.
"Agreement" shall mean this Third 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 Section 2.3(f) hereof (or, with respect to
Incremental Facility Loans, as set forth in the Notice of Incremental Facility
Commitment).
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Sale" shall mean the sale, lease, transfer or other disposition
by the Borrower or any of its Subsidiaries to any Person of any of the stock,
partnership interests or other equity interests of any Subsidiary or any other
assets of the Borrower or any 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.
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"Assignment of General Partner Interests" shall mean any Assignment of
General Partner Interests between the Borrower or any of its Subsidiaries, on
the one hand, and the Administrative Agent, on the other hand, or any supplement
thereto or confirmation thereof, in form and substance satisfactory to the
Administrative Agent, or any similar agreement substantially in form of Exhibit
M-1 attached hereto.
"Assignment of Limited Partner Interests" shall mean any Assignment of
Limited Partner Interests between the Borrower or any of its Subsidiaries, on
the one hand, and the Administrative Agent, on the other hand, or any supplement
thereto or confirmation thereof, in form and substance satisfactory to the
Administrative Agent, or any similar agreement substantially in the form of
Exhibit M-2 attached hereto.
"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) $15,000,000.00, 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%). 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
(i) the Base Rate and (ii) 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 Communications Systems, Inc., a Georgia
corporation.
"Borrower Pledge Agreement" shall mean, collectively, that certain
Borrower Pledge Agreement dated as of the Agreement Date by and between the
Borrower and the Administrative
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Agent, or any supplement thereto or confirmation thereof, in form and substance
satisfactory to the Administrative Agent, or any other similar agreement
substantially in the form of Exhibit B attached hereto, pursuant to which the
Borrower has pledged to the Administrative Agent, for itself and on behalf of
the Lenders, all of the Borrower's Ownership Interests in any of its
Subsidiaries existing on the Agreement Date or formed or acquired by the
Borrower after the Agreement Date.
"Borrower Security Agreement" shall mean, collectively, that certain
Borrower Security Agreement dated as of the Agreement Date by and between the
Borrower and the Administrative Agent, or any supplement thereto or confirmation
thereof, in form and substance satisfactory to the Administrative Agent, or any
other similar agreement substantially in the form of Exhibit C attached hereto.
"Broker/Dealer" shall mean, with respect to any Investment or
Acquisition permitted under Section 7.6 hereof, (a) any broker/dealer (acting as
principal) registered as a broker or a dealer under Section 15 of the Exchange
Act, the unsecured short-term debt obligations of which are rated "P-1" by
Xxxxx'x Investors Service, Inc. and at least "A-1" by Standard and Poor's
Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc., at the time of
entering into such Investment or Acquisition or (b) an unrated, broker/dealer,
acting as principal, that is a wholly-owned Subsidiary of a non-bank or bank
holding company, the unsecured short-term debt obligations of which are rated
"P-1" by Xxxxx'x Investors Service, Inc. and at least "A-1" by Standard and
Poor's Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc., at the time
of entering into such Investment or Acquisition.
"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
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 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
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 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.
"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
-5-
limitation, securities convertible into Capital Stock and rights, warrants or
options to acquire Capital Stock.
"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.
"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 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.
"Co-Lead Arranger and Joint Book Manager" shall mean each of Banc of
America Securities LLC and First Union Securities, Inc.
"Collateral" shall mean any property of any kind constituting
collateral for the Obligations under any of the Security Documents.
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"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
Subsidiaries by the Issuing Bank in accordance with the terms hereof.
"Commitments" shall mean, collectively, the Revolving Loan Commitment,
the Term Loan 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 after the Agreement Date,
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. As of the Agreement Date, the Commitment Ratios of the Lenders party
to this Agreement are as set forth on Schedule 1 attached hereto.
"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
Subsidiaries on a consolidated basis in respect of Indebtedness of the Borrower
and its 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 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%).
"Employee Pension Plan" shall mean any Plan which is maintained by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
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"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 (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials Activity, or
(iii) 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
X.X.X.xx. 9601 et seq.), the Hazardous Materials Transportation Act (49
U.S.C.ss.1801 et seq.), the Resource Conservation and Recovery Act of 1976, as
amended (42 X.X.X.xx. 6901 et seq.), the Federal Water Pollution Control Act (33
X.X.X.xx. 1251 et seq.), the Clean Air Act (42 X.X.X.xx. 7401 et seq.), the
Toxic Substances Control Act (15 X.X.X.xx. 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 X.X.X.xx. 136 et seq.), the
Occupational Safety and Health Act (29 X.X.X.xx. 651 et seq.), the Oil Pollution
Act (33 X.X.X.xx. 2701 et seq.) and the Emergency Planning and Community
Right-to-Know Act (42 X.X.X.xx. 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.
"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.
"Excess Cash Flow" shall mean, 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 by
the Borrower and its Subsidiaries during such fiscal year; (ii) Debt Service for
such fiscal year; (iii) cash taxes paid by the Borrower and its Subsidiaries
during such fiscal year; (iv) Restricted Payments or
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Restricted Purchases made during such fiscal year which are permitted under
Section 7.7 hereof; (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); and (vi) $2,000,000; in each
case, as determined in accordance with GAAP.
"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.
"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, as of any date, the weighted average
of the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"Fed Regulations" shall have the meaning ascribed thereto in Section
4.1(n) hereof.
"Fixed Charge Coverage Ratio" shall mean (a) on and prior to March 30,
2002, the ratio of (i) Operating Cash Flow for the quarter then ended or most
recently ended to (ii) Fixed Charges for the quarter then ended or most recently
ended; (b) as of March 31, 2002 through and including June 29, 2002, the ratio
of (i) Operating Cash Flow for the two (2) quarter period then ended or most
recently ended to (ii) Fixed Charges for the two (2) quarter period then ended
or most recently ended; (c) as of June 30, 2002 through and including September
29, 2002, the ratio of (i) Operating Cash Flow for the three (3) quarter period
then ended or most recently ended to (ii) Fixed Charges for the three (3)
quarter period then ended or most recently ended; and (d) on September 30, 2002
and thereafter, the ratio of (i) Operating Cash Flow for the four (4) quarter
period then ended or most recently ended to (ii) Fixed Charges for the four (4)
quarter period then ended or most recently ended.
"Fixed Charges" shall mean, as of any date, the sum of (a) all Interest
Expense, (b) all required principal payments of Revolving Loans made pursuant to
scheduled Revolving Commitment reductions under Section 2.5(a), (c) all required
principal payments due on the Term Loan made pursuant to scheduled Term Loan
repayments under Section 2.7(b)(i), (d) all
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principal payments required to be made by the Borrower and its Subsidiaries on
Total Debt (other than the Loans), (e) Capital Expenditures made by the Borrower
and its Subsidiaries, (f) any federal, state or local income taxes paid in cash
by the Borrower or any of its Subsidiaries, (g) any purchases of common stock of
the Borrower by the Borrower or any of its Subsidiaries, in each case, for or
during the quarter then ended or most recently ended, plus (h) dividends made by
the Borrower and its Subsidiaries in respect of the Ownership Interests of the
Borrower or such 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 (A) in an
amount not to exceed $30,000,000.00 in the aggregate from the Agreement Date to
the Maturity Date and (B) in an amount not to exceed $20,000,000.00 in any
fiscal year.
"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.
"Hazardous Materials" shall mean (i) 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 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);
(ii) any oil, petroleum, petroleum fraction or petroleum derived substance;
(iii) any drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal
resources; (iv) any flammable substances or explosives; (v) any radioactive
materials; (vi) any asbestos-containing materials; (vii) urea formaldehyde foam
insulation; (viii) electrical equipment which contains any oil or dielectric
fluid containing polychlorinated biphenyls; (ix) pesticides; and (x) 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.
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"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, and
evidenced by the Incremental Facility Notes.
"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 those certain Incremental
Facility Notes described in Section 2.15 hereof.
"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
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of such Person under conditional sale or other title retention agreements
relating to assets purchase 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 Guaranteed by such Person, (h) all Capitalized Lease
Obligations of such Person, (i) all 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 as of any date, the ratio of (a)
Operating Cash Flow for the four (4) fiscal quarter period then ended or most
recently ended to (b) Interest Expense for the same four (4) quarter period.
"Interest Expense" shall mean, for any period, the gross interest
expense accrued by the Borrower and its 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 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
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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 the obligations of any
Person pursuant to any arrangement 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.
"Investment" shall mean, with respect to the Borrower or any of its
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 Subsidiaries relating to the foregoing.
"Issuing Bank" shall mean Bank of America, N.A., 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).
"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.
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"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.
"Letter of Credit Reserve Account" shall mean any account maintained by
the Administrative Agent for the benefit of the Issuing Bank pursuant to the
terms hereof.
"Letters of Credit" shall mean either Standby Letters of Credit or
Commercial Letters of Credit issued by the Issuing Bank on behalf of the
Borrower or its Subsidiaries from time to time in accordance with the terms
hereof.
"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" shall mean, for any Interest Period, the average of the
interest rates per annum at which deposits in United States Dollars for such
Interest Period are offered to the Administrative Agent in the Eurodollar market
at approximately 11:00 a.m. (London, England time) two (2) Business Days before
the first day of such Interest Period, in an amount approximately equal to the
principal amount of, and for a length of time approximately equal to the
Interest Period for, the LIBOR Advance sought by the Borrower.
"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 $500,000.00.
"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 Eurodollar 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 twelve (12) months, and, once
determined, shall remain unchanged during the applicable Interest Period, except
for changes to reflect adjustments in the Eurodollar 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 Eurodollar 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.
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"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 satellite broadcasting or portable phone paging
operation, or any part of a television station or satellite broadcasting or
portable phone paging operation, or which is required for the acquisition,
ownership or operation of any Station, any Newspaper, the Porta-Phone Paging
Business or the Satellite Broadcasting Business, including, without limitation,
the FCC Licenses.
"License Sub" shall mean each 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 Interest Rate Hedge
Agreements between the Borrower, on the one hand, and the Administrative Agent,
the Lenders or their Affiliates, or any of them, on the other hand, all Notices
of Incremental Facility Commitments, all compliance certificates issued by the
Borrower or any of its 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.
"Loans" shall mean, collectively, the Revolving Loans, the Term Loan,
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.
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"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 Subsidiaries or on the
ability of the Borrower or any such Subsidiary to conduct its business, (b) the
ability of the Borrower, any of its 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, the Notes or any other
Loan Document, or (d) the rights or remedies of the Administrative Agent or the
Lenders under this Agreement, the Notes or any other Loan Document or at law or
in equity.
"Maturity Date" shall mean the Revolving Loan Maturity Date, the Term
Loan 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 Parent, the Borrower, any of its Subsidiaries
or any ERISA Affiliate is or has been required to contribute.
"Necessary Authorizations" shall mean all approvals and licenses from,
and all filings and registrations with, any governmental or other regulatory
authority, including, without limitation, all approvals, 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 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 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 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 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
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over time. Upon receipt by the Borrower or any of its 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 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 the
Borrower's Subsidiaries by the Borrower or the Borrower's 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.
"Newspapers" shall mean, as of any date, the newspapers owned or
operated by the Borrower or any of its Subsidiaries as of such date. As of the
Agreement Date, the Newspapers are set forth on Schedule 3 attached hereto.
"Non-US Lender" shall have the meaning ascribed thereto in Section
2.8(a) hereof.
"Notes" shall mean, collectively, the Revolving Loan Notes, the Term
Loan Notes, and, if applicable, the Incremental Facility Notes.
"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 N attached hereto and shall be delivered to
the Administrative Agent and the Lenders.
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Borrower, its 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 Obligations to
the Administrative Agent, any of the Lenders or any of their Affiliates under
the Interest Rate Hedge Agreements) 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.
"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
Subsidiaries relating to the operation of a Station, a Newspaper, the
Porta-Phone Paging Business or the Satellite Broadcasting Business, the
termination or adverse modification of which could reasonably be expected to
have a Material Adverse Effect.
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"Operating Cash Flow" shall mean, 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 interest income, minus (c) any cash payments made in respect of
Programming Obligations, plus (d) 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), 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. ss. 73.3615,
or any comparable reports filed pursuant to any successor regulation thereto.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"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;
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(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;
(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 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) (i) Liens reflected by Uniform Commercial Code
financing statements filed in respect of Capitalized Lease Obligations permitted
pursuant to Section 7.1(i) hereof and true leases of the Borrower or any of its
Subsidiaries and (ii) Liens securing Indebtedness permitted by Sections 7.1(c)
and 7.1(g) hereof;
(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; and
(l) Liens securing Indebtedness permitted by Section
7.1(m) hereof.
"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.
"Porta-Phone Paging Business" shall mean, as of any date, the portable
telephone paging business owned or operated by the Borrower or any of its
Subsidiaries as of such date.
"Prior Loan Agreement" shall mean that certain Second Amended and
Restated Credit Agreement dated as of October 1, 1999 by and among Xxxx
Communications Systems, Inc., as Borrower, Bank of America, N.A., as
Administrative Agent, First Union National Bank, as Syndication Agent, Key
Corporate Capital, Inc., as Documentation Agent, and the Lenders party thereto.
"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.
"Program Payments" shall mean, as of any date for any period, the sum
of all cash payments actually made by or on behalf of the Borrower and its
Subsidiaries during the period involved with respect to or on account of
Programming Obligations.
"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
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(g)
hereof.
"Registered Noteholder" shall mean each Non-U.S. Lender that holds a
Registered Note pursuant to Section 2.8(a) hereof or registers its Loans
pursuant to Section 11.5(g) hereof.
"Registered Notes" shall mean those certain Notes that have been issued
in registered form in accordance with Sections 2.8(a) and 11.5(g) hereof and
each of which bears the following legend: "This is a Registered Note, and this
Registered Note and the Loans evidenced hereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer on the Register and in compliance with all other requirements provided
for in the Loan Agreement."
"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.
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"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, 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 certificate
signed by an Authorized Signatory of the Borrower requesting that the Issuing
Bank issue a Letter of Credit hereunder, which certificate shall be in
substantially the form of Exhibit F attached hereto 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 at
least fifty-one percent (51%) of the then aggregate unpaid principal amount of
the Loans, or, if no Loan is then outstanding, the Lenders having at least
fifty-one percent (51%) of the Commitments.
"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 Subsidiaries) on account of any Ownership Interests of
the Borrower or any of its 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
Subsidiaries to any of their respective Affiliates (other than such fees and
interest payable to (1) the Borrower or any of its Subsidiaries or (2) Bull Run
Corporation).
"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 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 Subsidiaries or any loan, advance, release or forgiveness of
Indebtedness by the Borrower or any
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of its Subsidiaries to any partner, shareholder or Affiliate (other than to the
Borrower or any of its Subsidiaries) of any such Person.
"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 $50,000,000.00, pursuant to the terms hereof, as
such obligations may be reduced from time to time pursuant to the terms hereof.
"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 and evidenced by the Revolving
Loan Notes.
"Revolving Loan Maturity Date" shall mean December 31, 2008 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 certain amended
and restated promissory notes in the aggregate original principal amount of
$50,000,000.00, and issued to each of the Lenders by the Borrower with respect
to the Revolving Loan Commitment, each one substantially in the form of Exhibit
G-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.
"Satellite Broadcasting Business" shall mean, as of any date, the
satellite broadcasting business owned or operated by the Borrower or any of its
Subsidiaries on such date.
"Security Documents" shall mean, collectively, the Borrower Pledge
Agreement, the Borrower Security Agreement, any Subsidiary Guaranty, any
Subsidiary Pledge Agreement, any Subsidiary Security Agreement, any Assignment
of General 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.
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"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 Subsidiaries incurred in the ordinary
course of business, and which is not a Commercial Letter of Credit.
"Station" shall mean, collectively (i) each of the television stations
owned and operated by the Borrower and its Subsidiaries on the Agreement Date as
set forth in Schedule 3 attached hereto and (ii) any television station acquired
after the Agreement Date by the Borrower or any of its 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
Co-Lead Arrangers, in each case, as of such date.
"Subordinated Note Indenture" shall mean that certain Indenture dated
as of September 25, 1996 by and among the Borrower, all of its Subsidiaries and
Bankers Trust Company in respect of the Borrower's 10-5/8% Senior Subordinated
Notes due 2006, 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
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Subsidiaries of the Borrower unless otherwise specified. The Subsidiaries of the
Borrower as of the Agreement Date are set forth on Schedule 4 hereto, except as
otherwise noted thereon.
"Subsidiary Guaranty" shall mean any Subsidiary Guaranty, in favor of
the Administrative Agent and the Lenders, given by each Subsidiary of the
Borrower, or any supplement thereto or confirmation thereof, in form and
substance satisfactory to the Administrative Agent, or any similar agreement
substantially in the form of Exhibit H attached hereto.
"Subsidiary Pledge Agreement" shall mean any Subsidiary Pledge
Agreement 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, or any supplement thereto or confirmation thereof, in form and
substance satisfactory to the Administrative Agent, or any similar agreement
substantially in the form of Exhibit I attached hereto.
"Subsidiary Security Agreement" shall mean any Subsidiary Security
Agreement between any of the Borrower's Subsidiaries, on the one hand, and the
Administrative Agent, on the other hand, or any supplement thereto or
confirmation thereof, in form and substance satisfactory to the Administrative
Agent, or any similar agreement substantially in the form of Exhibit J attached
hereto.
"Syndication Agent" shall mean First Union National Bank.
"Term Loan" shall mean, collectively, the amounts advanced by the
Lenders to the Borrower under the Term Loan Commitment and evidenced by the Term
Loan Notes.
"Term Loan 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 Maturity Date" shall mean September 30, 2009 or such earlier
date as payment of the Term Loan shall be due (whether by acceleration or
otherwise).
"Term Loan Notes" shall mean, collectively, those certain amended and
restated promissory notes in the aggregate original principal amount of
$200,000,000.00, and issued to each of the Lenders by the Borrower with respect
to the Term Loan Commitment, each one substantially in the form of Exhibit G-2
attached hereto, any other promissory note issued by the Borrower to evidence
the Term Loan pursuant to this Agreement, and any extensions, renewal, or
amendments to, or replacements of, the foregoing.
"Total Debt" shall mean, as of any date, the sum of, without
duplication, (a) all Indebtedness of the Borrower and its Subsidiaries for
borrowed money (excluding Indebtedness permitted by Section 7.1(m) hereof),
including, without limitation, the Loans, (b) all Capitalized Lease Obligations
of the Borrower and its Subsidiaries, (c) all other Indebtedness of the Borrower
or any of its Subsidiaries represented by notes or drafts representing
extensions of
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credit on which interest is typically charged, (d) all obligations of the
Borrower or any of its 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 Subsidiaries
is subject, whether or not the obligation secured thereby shall have been
assumed), (e) all obligations of the Borrower or any of its Subsidiaries under
conditional sale or other title retention agreements relating to purchased
assets, (f) all obligations of the Borrower or any of its 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 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
Subsidiary under such agreement, and (i) all obligations of the Borrower or any
of its 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.
"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.
"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
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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, unless otherwise expressly provided, shall be made
on a consolidated basis for the Borrower and its 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. The Lenders who issued a Term 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 on the Agreement Date an amount which does
not exceed in the aggregate the Term Loan 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 outstanding after the
Agreement Date.
(c) 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 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.
(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.
(Atlanta,
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Georgia 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 LIBOR Advance to a Base
Rate 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 thereof 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 thereof 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 Bases and shall notify
the Borrower of such LIBOR Bases. 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.
(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
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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. (Atlanta, Georgia 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. (Atlanta, Georgia 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. (Atlanta, Georgia 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. (Atlanta, Georgia
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
thereon, for each day from the
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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.
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(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 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. Immediately upon the
occurrence of an Event of Default hereunder, the outstanding principal balance
of the Loans shall bear interest at the Default Rate. 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.
(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. For the six (6) month
period commencing on the Agreement Date, the Applicable Margin with
respect to any Advance under the Revolving Loan Commitment shall be
3.000% for all LIBOR Advances and 1.750% 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:
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Total Leverage Ratio Applicable Margin for Applicable Margin for
-------------------- Base Rate Advances LIBOR Advances
------------------ --------------
Greater than or equal to 7.0:1.0. 1.750% 3.000%
Greater than or equal to 6.50:1.0, but less 1.500% 2.750%
than 7.0:1.0.
Greater than or equal to 6.00:1.0, but less 1.250% 2.500%
than 6.50:1.0.
Greater than or equal to 5.50:1.0, but less 1.000% 2.250%
than 6.00:1.0.
Greater than or equal to 5.00:1.0, but less 0.750% 2.000%
than 5.50:1.0.
Greater than or equal to 4.50:1.0, but less 0.500% 1.750%
than 5.00:1.0.
Less than 4.50:1.0. 0.250% 1.500%
(ii) Term Loan. From the Agreement Date through
and including September 30, 2002, the Applicable Margin with respect to
any Advance under the Term Loan Commitment shall be 3.250% for all
LIBOR Advances and 2.000% for all Base Rate Advances. Thereafter, the
Applicable Margin shall be determined by the Administrative Agent with
respect to any Advance under the Term 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:
Total Leverage Ratio Applicable Margin for Applicable Margin for
-------------------- Base Rate Advances LIBOR Advances
------------------ --------------
Greater than or equal to 5.5:1.0. 2.000% 3.250%
Less than 5.5:1.0. 1.750% 3.000%
Notwithstanding the foregoing Sections 2.3(f)(i) and (ii), if the
Borrower shall fail to timely deliver to the Administrative Agent the financial
statements and performance certificate required for the calculation of the
Leverage Ratio for any fiscal quarter, then commencing with
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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 in Section 2.3(f)(i) or (ii), as applicable.
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 as follows:
(a) if the Total Leverage Ratio is greater than or equal to 6.00:1.00 on such
date, then the commitment fee shall be equal to the product of (i) the Available
Revolving Loan Commitment times (ii) one-half of one percent (0.50%); (b) if the
Total Leverage Ratio is less than 6.00:1.00 but greater than or equal to
4.50:1.00 on such date, then the commitment fee shall be equal to the product of
(i) the Available Revolving Loan Commitment times (ii) three-eighths of one
percent (0.375%); and (c) if the Total Leverage Ratio is less than 4.50:1.0 on
such date, then the commitment fee shall be equal to the product of (i) the
Available Revolving Loan Commitment times (ii) one-quarter of one percent
(0.25%). Such commitment fees shall be determined by the Administrative Agent
based upon the Total Leverage Ratio as of the end of the fiscal quarter most
recently ended in the manner specified in Section 2.3(f) hereof, 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, 2001, 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 at issuance and (ii) its standard charges for the
issuance of letters of credit and for draws upon letters of credit, which
charges, as of the Agreement Date, are as follows: (A) $200 per Letter of
Credit, payable upon issuance; and (B) $100 per Letter of Credit, payable upon a
draw under such Letter 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.
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Section 2.5 Mandatory Commitment Reductions.
(a) Scheduled Reductions under the Revolving Loan
Commitment. Commencing on March 31, 2004 and at the end of each fiscal quarter
thereafter, the Revolving Loan Commitment as of March 30, 2004 shall be
automatically and permanently reduced by the percentage amount set forth below
for and on the dates indicated (which reductions are in addition to those set
forth elsewhere in this Agreement):
Percentage Reduction
to Revolving Loan
Commitment as of
Reduction Dates September 29, 2004
--------------- ------------------
March 31, 2004, June 30, 2004, September 30, 2004
and December 31, 2004 2.500%
March 31, 2005, June 30, 2005, September 30, 2005
and December 31, 2005 2.500%
March 31, 2006, June 30, 2006, September 30, 2006
and December 31, 2006 5.000%
March 31, 2007, June 30, 2007, September 30, 2007
and December 31, 2007 5.000%
March 31, 2008, June 30, 2008, September 30, 2008
and December 31, 2008 10.000%
(b) Reduction From Net Proceeds of Asset Sales or
Insurance or Condemnation Proceedings. The Revolving Loan Commitment shall be
automatically and permanently reduced by an amount equal to the repayment of
Revolving Loans required under Section 2.7(b)(iii) hereof; provided, however,
that if there are no Loans then outstanding, the Revolving Loan Commitment shall
be reduced by an amount equal to Net Proceeds (Asset Sales) (excluding any Net
Proceeds (Asset Sales) reinvested pursuant to Section 2.7(b)(iii)). Reductions
to the Revolving Loan Commitment under this Section 2.5(b) shall be applied to
the reductions set forth in Section 2.5(a) hereof pro rata across the reductions
set forth therein.
(c) Reduction From Excess Cash Flow. The Revolving Loan
Commitment shall be automatically and permanently reduced by an amount equal to
the repayment of Revolving Loans required under Section 2.7(b)(iv) hereof;
provided, however, that if there are no Loans then outstanding, then the
Revolving Loan Commitment shall be reduced by an amount equal to such Excess
Cash Flow. Reductions to the Revolving Loan Commitment under this Section 2.5(c)
shall be applied to the reductions set forth in Section 2.5(a) hereof pro rata
across the reductions set forth therein.
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(d) Reduction from Net Proceeds of Sale of Indebtedness.
The Revolving Loan Commitment shall be automatically and permanently reduced by
an amount equal to the repayment of Revolving Loans required under Section
2.7(b)(v) hereof; provided, however, that if there are no Loans then
outstanding, the Revolving Loan Commitment shall be reduced by an amount equal
to such Net Proceeds (Indebtedness). Reductions to the Revolving Loan Commitment
under this Section 2.5(d) shall be applied to the reductions set forth in
Section 2.5(a) hereof pro rata across the reductions set forth therein.
(e) Reduction Upon Failure to Renew or Replace
Subordinated Note Indenture. In the event that the Subordinated Note Indenture
is not replaced or renewed on or before April 30, 2006 with Subordinated Debt
having a maturity no earlier than 91 days after the Term Loan Maturity Date, and
on terms and conditions reasonably satisfactory to the Co-Lead Arrangers, the
Revolving Loan Commitment shall be automatically and permanently terminated on
May 31, 2006.
(f) No repayment or prepayment pursuant to this Section
2.5 shall affect any of the Borrower's obligations under any Interest Rate Hedge
Agreement.
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 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. Reductions to the Revolving
Loan Commitment under this Section 2.6 shall be applied to the reductions set
forth in Section 2.5(a) hereof pro rata across maturities.
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,
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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 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 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.
Term Loan. Commencing on March 31, 2003, the
principal balance of the Term Loan outstanding on March 30, 2003 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 outstanding on
Repayment Dates March 30, 2003 Due on each Repayment Date
--------------- -----------------------------------------
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 0.250%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 0.250%
March 31, 2005, June 30, 2005,
September 30, 2005 and December 31, 2005 0.250%
March 31, 2006, June 30, 2006,
September 30, 2006 and December 31, 2006 0.250%
March 31, 2007, June 30, 2007,
September 30, 2007 and December 31, 2007 0.250%
March 31, 2008, June 30, 2008
September 30, 2008 and December 31, 2008 0.250%
March 31, 2009 and June 30, 2009 31.333%
September 30, 2009 31.334%
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(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. On the Business Day following
the date of receipt by the Borrower or any of its Subsidiaries of any
Net Proceeds (Asset Sales) (other than in connection with an Asset Sale
permitted under Section 7.4(a) (i) or (ii) 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 Stations, Newspapers or other
assets directly related thereto within the succeeding two hundred
seventy (270) day period or (B) are from an insurance or condemnation
proceeding and are reinvested in Stations, Newspapers, the Porta Phone
Paging Business, the Satellite Broadcasting Business or other assets
directly related thereto within the succeeding two hundred seventy
(270) day period. Repayments under this Section 2.7(b)(iii) shall be
applied first, pro rata, to the principal of the Term Loan and, if
applicable, the Incremental Facility Loans, in inverse order of
maturity and, second to 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,
2003, 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, fifty percent (50%) of Excess Cash Flow for the fiscal year
ended on the immediately preceding December 31st; provided, however
that no Excess Cash Flow repayment shall be required if the Leverage
Ratio is less than 5.50:1.00 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, and if applicable, the Incremental Facility
Loans, in inverse order of maturity and, second to 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. On the Business Day
following the date of receipt by the Borrower or any of the Borrower's
Subsidiaries of any Net Proceeds (Indebtedness) arising from the
issuance of Indebtedness issued by the Borrower or any of Borrower's
Subsidiaries after the Agreement Date (other than Indebtedness
permitted under Section 7.1 hereof), the Loans shall be repaid in an
amount equal to one hundred
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percent (100%) of the Net Proceeds (Indebtedness) related thereto.
Repayments under this Section 2.7(b)(v) shall be applied first, pro
rata, to the principal of the Term Loan and, if applicable, the
Incremental Facility Loans, in inverse order of maturity and, second to
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) Failure to Renew or Replace Subordinated
Note Indenture. In the event that the Subordinated Note Indenture is
not replaced or renewed on or before April 30, 2006 with Subordinated
Debt having a maturity no earlier than 91 days after the Term Loan
Maturity Date and on terms and conditions reasonably satisfactory to
the Co-Lead Arrangers, all Revolving Loans, together with accrued
interest and fees with respect thereto, shall be due and payable in
full on May 31, 2006 and the Term Loan, together with accrued interest
and fees with respect thereto (and, if applicable, all Incremental
Facility Loans, together with accrued interest and fees with respect
thereto), shall be due and payable in full on June 30, 2006. Accrued
interest on the principal amount of the Loans being repaid pursuant to
this Section 2.7(b)(vi) 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.
(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 Maturity Date. In addition to the
foregoing, a final payment of the Term Loan, together with accrued
interest and fees with respect thereto, shall be due and payable on the
Term Loan Maturity Date.
(ix) 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) 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 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein and shall be evidenced by the Notes. One
(1) Revolving Loan Note, one (1) Term Loan Note, and, if applicable, one (1)
Incremental Facility Note shall be payable to the order of each Lender, in
accordance with such Lender's respective applicable Commitment Ratio. The
Revolving Loan Notes, Term Loan Notes, and, if applicable, the Incremental
Facility Notes shall be issued by the Borrower to the Lenders and shall be duly
executed and delivered by
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one (1) or more Authorized Signatories. Any Lender (i) which is not a United
States Person (a "Non-U.S. Lender") and (ii) which would become completely
exempt from withholding of United States federal income taxes in respect of
payment of any obligations due to such Lender hereunder or under the Notes or
any other Loan Document relating to any of its Loans if such Loans were in
registered form for United States federal income tax purposes may request the
Borrower (through the Administrative Agent), and the Borrower agrees thereupon,
at the cost and expense of such Lender, to register such Loans as provided in
Section 11.5(g) hereof and to issue to such Lender Notes evidencing such Loans
as Registered Notes or to exchange Notes evidencing such Loans for new
Registered Notes, as applicable. Registered Notes may not be exchanged for Notes
that are not in registered form.
(b) Each Lender may open and maintain on its books in the
name of the Borrower a loan account with respect to its portion of the Loans and
interest thereon. Each Lender which opens such a loan account shall debit such
loan account for the principal amount of its portion of each Advance made by it
and accrued interest thereon, and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Lender with respect to the loan account maintained by it shall be prima facie
evidence of its portion of the Loans and accrued interest thereon absent
manifest error, but the failure of any Lender to make any such notations or any
error or mistake in such notations shall not affect the Borrower's repayment
obligations with respect to such Loans.
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.
(Atlanta, Georgia 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 United States of America in immediately available funds. Any
payment received by the Administrative Agent after 1:00 p.m. (Atlanta, Georgia
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. (Atlanta, Georgia 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
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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 distribute such amounts in the following order of
priority, all in accordance where applicable 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; second, to the payment of interest
then due and payable on the Loans; 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;
fourth, to the payment of principal then due and payable on the Loans; fifth, to
any other Obligations not otherwise referred to in this Section 2.9(d) until all
such Obligations are paid in full; 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; 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
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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 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 under
the applicable Notes 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.
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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 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 4224 or
Form 1001, as the case may be, and 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
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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 any 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 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
$15,000,000.00. Each Letter of Credit shall (1) be denominated in United States
dollars, and (2) expire no later than the earlier to occur of (A) the Revolving
Loan Maturity Date or (B) 364-days 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.
(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
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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 (Atlanta, Georgia 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 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
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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:
(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;
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(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;
(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
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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 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
Administrative Agent, the Issuing Bank and each other Lender and each of their
respective employees, representatives,
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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 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 on any
Business Day on or prior to December 31, 2003; provided, however, that 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; and provided, further, that the Borrower
may request only five (5) Incremental Facility Commitments (although such
commitments may be from more than one Lender) and must request a minimum
Incremental Facility Commitment of $20,000,000.00. The aggregate amount of the
Incremental Facility Commitments and outstanding Incremental Facility Loans
shall not exceed $100,000,000.00. The maturity date for the Incremental Facility
Loans shall be no earlier than six (6) calendar months after the Term Loan
Maturity Date and the average life of each Incremental Facility Loan shall be
longer than the average life of the Term Loan. 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 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.
(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 N 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.
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(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 Basis or the LIBOR Basis; (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; (iv) shall be represented by
an Incremental Facility Note in substantially the form of Exhibit G-3 attached
hereto; and (v) 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.
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:
(a) The Administrative Agent and the Lenders shall have
received each of the following:
(i) this Agreement duly executed;
(ii) duly executed Notes;
(iii) duly executed Borrower Pledge Agreement;
(iv) duly executed Borrower Security Agreement,
together with duly executed appropriate Uniform Commercial Code
financing statement forms to the extent requested by the Administrative
Agent;
(v) duly executed Subsidiary Guaranties;
(vi) duly executed Subsidiary Pledge Agreements;
(vii) duly executed (A) Assignments of General
Partner Interests and (B) Assignments of Limited Partner Interests,
each together with duly executed
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appropriate Uniform Commercial Code financing statement forms to the
extent requested by the Administrative Agent;
(viii) duly executed Subsidiary Security
Agreements, together with duly executed appropriate Uniform Commercial
Code financing statement forms to the extent requested by the
Administrative Agent;
(ix) the loan certificate of the Borrower dated
as of the Agreement Date, in substantially the form attached hereto as
Exhibit K-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 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;
(x) a loan certificate of each 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 K-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 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;
(xi) copies of insurance binders or certificates
covering the assets of the Borrower and its Subsidiaries, and otherwise
meeting the requirements of Section 5.5 hereof;
(xii) legal opinions of (A) Xxxxxxxx Xxxxxxx LLP,
corporate counsel to the Borrower and its Subsidiaries, and (B) FCC
counsel to the Borrower and its Subsidiaries, addressed to each Lender
and the Administrative Agent and dated as of the
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Agreement Date which shall be in form and substance acceptable to the
Administrative Agent;
(xiii) duly executed Certificate of Financial
Condition for the Borrower and its Subsidiaries on a consolidated
basis;
(xiv) copies of the financial statements of the
Borrower and its Subsidiaries for the period ended June 30, 2001,
certified by the chief financial officer of the Borrower;
(xv) financial projections and calculations, 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;
(xvi) Uniform Commercial Code lien, tax and
judgment search results with respect to the Borrower and its
Subsidiaries;
(xvii) evidence satisfactory to the Administrative
Agent and the Lenders that there exists no Indebtedness for borrowed
money of the Borrower, its Subsidiaries or the Guarantors (other than
Indebtedness permitted under Section 7.1 hereof) and no liens existing
except for Permitted Liens;
(xviii) delivery to the Administrative Agent of all
possessory collateral, including, without limitation, any pledged notes
or pledged stock, together with the undated stock powers endorsed in
blank, as applicable; and
(xix) 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
execution, delivery and performance of this Agreement and the other Loan
Documents and to the granting of Liens in all Operating Agreements and other
material contracts and leases of the Borrower and its Subsidiaries, each of
which shall be in form and substance satisfactory to the Administrative 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, and the Administrative Agent and the Lenders shall have received a
certificate of an Authorized Signatory so stating.
(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.
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(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 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 each Lender the fees, expenses and other amounts due as
set forth in those letter agreements dated the Agreement Date in favor of each
Lender.
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 Borrower's
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 Subsidiary which is permitted hereunder, the
Administrative Agent and the Lenders shall have received certified documents and
instruments relating to such Acquisition or such formation of a new Subsidiary
as are described in Section 5.13 hereof or otherwise required herein.
(e) (i) There shall not exist 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 Subsidiaries, any of their respective properties or the
transactions contemplated hereby, and (ii) no event shall have occurred and no
condition
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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 Borrower's
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) (i) There shall not exist 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 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) 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.
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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 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 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) Subsidiaries: Authorization; Enforceability. The
Borrower's Subsidiaries, and the Borrower's direct and indirect ownership
thereof 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 Subsidiaries shown thereon; such
Ownership Interests of such Subsidiaries have been duly authorized and issued
and are fully paid and nonassessable. Each 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 Subsidiary of the Borrower is party is a legal, valid and binding
obligation of such Subsidiary enforceable against such Subsidiary in accordance
with its terms, subject, as enforcement of
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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 Subsidiaries
represents a direct or indirect controlling interest of such Subsidiary for
purposes of directing or causing the direction of the management and policies
of each 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
the Notes, and by the Borrower and its 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 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 Subsidiaries, or under any material Operating
Agreement, or any other material indenture, agreement, or other instrument, to
which the Borrower or any of its 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 Subsidiaries, except
for Permitted Liens.
(e) Business. The Borrower, together with its
Subsidiaries, is engaged in the business of owning and operating the Stations,
Newspapers, the Porta-Phone Page Business, the Satellite Broadcasting Business
and other media-related businesses.
(f) Licenses; Operating Agreements.
(i) Each of the Borrower and its 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, the Newspapers, the Porta-Phone Page Business and the
Satellite Broadcasting Business and sets forth all of the material
Operating Agreements and Licenses of the Borrower and its 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 Subsidiaries have the right to use all material
Licenses required in the ordinary course of business for all Stations,
the Newspapers, the Porta-Phone Paging Business and the Satellite
Broadcasting Business, and each such License is in full force and
effect. Each of the Borrower and it Subsidiaries has taken all
material actions and performed all of its material obligations that
are necessary to
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maintain all material Licenses without adverse modification or
impairment. Except as shown on Schedule 3, no event has 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
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
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 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 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 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 Subsidiaries maintain appropriate
public files at the Stations, the Porta-Phone Paging Business and the
Satellite Broadcasting Business in a manner that complies in all
material respects with all FCC Regulations.
(iii) The Ownership Reports filed by the Borrower
and its 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 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
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.
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(h) Title to Assets. The Borrower and its 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 Subsidiaries is subject to any Liens, except for
Permitted Liens. Except for financing statements evidencing 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
Subsidiaries as debtor or which covers or purports to cover any of the assets
of the Borrower or any of its Subsidiaries is currently effective and on file
in any state or other jurisdiction, and neither the Borrower nor any of its
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 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 Subsidiaries, would have a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of
the Borrower, each of its 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 Subsidiaries or
imposed upon the Borrower or any of its 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 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 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 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 Subsidiaries on a consolidated basis for the
fiscal year ended December 31, 2000, audited financial statements for
the fiscal year ended December 31, 2000 and unaudited for the quarter
ended June 30, 2001 and the month ended July 31, 2001, which, together
with other financial statements furnished to the Lenders subsequent to
the Agreement Date have
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been prepared in accordance with GAAP and present fairly in all
material respects the financial position of the Borrower and its
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 and audit adjustments). None of the
Borrower or any of its 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 Subsidiaries taken as a
whole and no material anticipated losses of the Borrower and its
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 2001
through 2009. 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, 2000 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
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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 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 Subsidiaries
owns or presently intends to acquire, any "margin security" 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"). 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. The Borrower has not taken, caused or authorized to be taken, and
will not take any action which might cause this Agreement or the Notes 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 Federal Reserve Forms G-3 and/or U-1 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 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 Subsidiaries of this Agreement and the Loan
Documents nor the issuance of the Notes 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 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 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.
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(q) Absence of Default, Etc. The Borrower and its
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
Subsidiaries under any indenture, agreement or other instrument relating to
Indebtedness of the Borrower or any of its Subsidiaries in 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 Subsidiaries is a party or
by which the Borrower or any of its 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
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 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
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
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
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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 Subsidiaries, as the case may be).
(v) Indebtedness. Except as described on Schedule 7
attached hereto none of the Borrower nor any of its Subsidiaries has
outstanding, as of the Agreement Date, 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 Parent and 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 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. 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 Subsidiaries is a party to any collective bargaining
agreement with the Parent, the Borrower or any of its 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 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.
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(z) Environmental Protection.
(i) Except as set forth in Schedule 10 attached
hereto, neither the Borrower nor any of its 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;
(ii) Neither the Borrower nor any of its
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. ss. 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
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
Subsidiaries, nor, to the Borrower's knowledge, any predecessor of the
Borrower or any of its 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 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 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.
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
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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 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 Subsidiaries to, (a) engage in the
business of owning and operating Stations, Newspapers, the Porta-Phone Paging
Business, the Satellite Broadcasting Business and other media-related
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 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 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 Subsidiaries will maintain a fiscal year ending on December 31st.
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Section 5.5 Insurance. The Borrower will, and will cause each
of its Subsidiaries to:
(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 Subsidiaries as is prudent for similarly situated companies
engaged in the television or satellite broadcast, portable telephone paging,
newspaper or other media related industry, 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
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 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 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 Subsidiaries to,
timely file all information returns required by federal, state or local tax
authorities.
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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 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
Parent, 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
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Parent, 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;
(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 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 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 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 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 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; and (b) to the extent
permitted hereunder, for working capital needs, Capital
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Expenditures, Acquisitions, Investments, Restricted Payments, Restricted
Purchases and other general corporate purposes of the Borrower and its
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). 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 within the meaning
of the Fed Regulations.
Section 5.11 Indemnity. The Borrower, for itself and on behalf of
each of its Subsidiaries, agrees to indemnify and hold harmless each Lender,
the Administrative Agent, and each of their respective affiliates, employees,
representatives, shareholders, officers and directors (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 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 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 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 Subsidiaries, or
allegations that any of them has any joint liability with the Borrower or any
of its 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 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; or (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; 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 sixty (60) days
immediately following the Agreement Date, and at all times until September 25,
2003, 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 fifty
percent (50%) 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
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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.
Section 5.13 Covenants Regarding Formation of Subsidiaries and
Acquisitions; Partnership, Subsidiaries. At the time of (i) any Acquisition
permitted hereunder, (ii) the purchase by the Borrower or any of its
Subsidiaries of any interests in any Subsidiary of the Borrower, or (iii) the
formation of any new Subsidiary of the Borrower or any of its Subsidiaries
which is permitted under this Agreement, the Borrower will, and will cause its
Subsidiaries, as appropriate, to: (a) provide to the Administrative Agent an
executed Subsidiary Security Agreement for any new Subsidiary, together with
appropriate Uniform Commercial Code financing statements, as well as an
executed Subsidiary Guaranty for such new Subsidiary, which shall constitute
both Security Documents and Loan Documents for purposes of this Agreement, as
well as a loan certificate for such new Subsidiary, substantially in the form
of Exhibit K-2 attached hereto, together with appropriate attachments; (b)
pledge to the Administrative Agent all of the Ownership Interests of such
Subsidiary or Person which is acquired or formed, beneficially owned by the
Borrower or any of its 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) for Acquisitions with a purchase
price in excess of $10,000,000.00, provide 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, 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, certified by the chief financial officer of the
Borrower, together with a statement by such Person that no Default or Event of
Default exists or would be caused by such Acquisition, and 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 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 creation and issuance of any of the Notes
and the execution and delivery of
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the Loan Documents (including this Agreement), resulting from any acts or
failure to act by the Borrower or any of the its 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
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 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 Subsidiaries and a
management agreement with the Borrower and such of its Subsidiaries subject to
such FCC License or FCC Licenses, such that from and after such applicable date
neither the Borrower nor its 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 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
Subsidiaries to maintain, and not breach or violate, any and all Operating
Agreements and other material contracts and rights necessary to operate the
Stations, the Newspapers, the Porta-Phone Paging Business, the Satellite
Broadcasting Business and its other media-related businesses 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.
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Section 5.19 Environmental Compliance and Indemnity.
(a) The Borrower will, and will cause each of its
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 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 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 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
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 Subsidiaries holds or has held an interest, upon the
Borrower's learning thereof by receipt of notice that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a result of such Release
or that the Borrower or such 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
Subsidiaries or related to any real property owned, leased or operated by the
Borrower or any of its 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 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
Subsidiaries or any property owned or leased by the Borrower or any of its
Subsidiaries with any Environmental Law, or (ii) any investigatory or remedial
action involving the Borrower, any of its Subsidiaries or any property owned or
leased by the Borrower or any of its 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
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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 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 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
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 forty-five (45) days after the last day of each of the first three (3)
quarters of each fiscal year of the Borrower, the balance sheets and the
related statements of operations of the Borrower on a consolidated and
consolidating basis with its Subsidiaries as at the end of such quarter and as
of the end of the preceding fiscal year and 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 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.
Section 6.2 Annual Financial Statements and Information. Within
ninety (90) days after the end of each fiscal year of the Borrower, 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
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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.
Section 6.3 Monthly Financial Information. Within forty-five
(45) days after the end of each month for the first eleven (11) months of
fiscal year, and within ninety (90) 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, each Newspaper, the Porta-Phone Paging Business and
the Satellite Broadcasting Business, 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 L:
(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,
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financial position, projections, results of operations or business prospects of
the Borrower or any of its Subsidiaries, as the Administrative Agent or any
Lender may reasonably request.
(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 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
Subsidiary of the Borrower to its security holders other than the Borrower or
another Subsidiary of the Borrower, (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 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
Subsidiaries to the public concerning material developments in the business of
the Borrower or any of its Subsidiaries, (iv) any material non-routine
correspondence or official notices received by the Borrower, or any of its
Subsidiaries from the FCC or other communications regulatory authority, and (v)
all material information filed by the Borrower or any of its 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 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 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
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
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 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
Subsidiaries under any material agreement other than this Agreement and the
other Loan Documents to which the Borrower or any Subsidiary of the Borrower 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 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 Subsidiaries.
The Borrower shall not, and shall not permit any of its 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) accounts payable, accrued expenses (including taxes)
and customer advance payments incurred in the ordinary course of business;
(c) Indebtedness secured by Permitted Liens which,
together with Indebtedness permitted under Sections 7.1(f), (g), (h) and (i)
(other than obligations incurred pursuant to an Acquisition as may be permitted
in such Sections), shall not exceed $12,500,000.00 in the aggregate at any time
outstanding;
(d) obligations under Interest Rate Hedge Agreements;
(e) unsecured Indebtedness of the Borrower or any of its
Subsidiaries to the Borrower or any other Subsidiary of the Borrower so long as
the corresponding debt instruments are pledged to the Administrative Agent as
security for the Obligations;
(f) Guaranties constituting Indebtedness permitted under
Section 7.5 hereof which, together with Indebtedness permitted under Sections
7.1(c), (g), (h) and (i), (other than obligations incurred pursuant to an
Acquisition as may be permitted in such Sections) shall not exceed
$12,500,000.00 in the aggregate at any time outstanding;
(g) with respect to any Indebtedness relating to
personal property, any conditional sale obligation, any purchase money
obligation, any rental obligation, any purchase money security interest or any
other arrangement for the use of personal property of any other Person, which
in any such case has an unexpired term of not less than one (1) year, other
than an arrangement constituting a Capitalized Lease Obligation, provided that
the aggregate amount payable by the Borrower and its Subsidiaries pursuant to
all such Indebtedness in any fiscal year, together with Indebtedness permitted
under Section 7.1(c), (f), (h) and (i), (other than obligations incurred
pursuant to a Permitted Acquisition as may be permitted in such Sections) shall
not exceed $12,500,000.00 in the aggregate at any time outstanding, plus the
amount of any such obligations incurred pursuant to an Acquisition permitted
under Section 7.6 hereof;
(h) any lease or rental obligation for real property
which has an unexpired term of not less than one (1) year, provided that the
aggregate amount payable in respect of all such arrangements by the Borrower
and its Subsidiaries in any fiscal year, together with Indebtedness permitted
under Sections 7.1(c), (f), (g) and (i) (other than obligations incurred
pursuant to a Permitted Acquisition as may be permitted in such Sections) shall
not exceed $12,500,000.00 in the aggregate at any time outstanding, plus the
amount of any such obligations incurred pursuant to an Acquisition permitted
under Section 7.6 hereof;
(i) Capitalized Lease Obligations, provided that the
aggregate amount payable by the Borrower and its Subsidiaries in respect of all
such Capitalized Lease Obligations in any fiscal year, together with
Indebtedness permitted under Sections 7.1(c), (f), (g) and (h), (other than
obligations incurred pursuant to a Permitted Acquisition as may be permitted in
such Sections) shall not exceed $12,500,000.00 in the aggregate at any time
outstanding, plus the
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amount of any such obligations incurred pursuant to an Acquisition permitted
under Section 7.6 hereof;
(j) (X) Subordinated Debt incurred pursuant to the terms
of the Subordinated Note Indenture as in effect on the Agreement Date or
Indebtedness incurred in refinancing such Subordinated Debt, in a principal
amount not to exceed (1) on or prior to September 30, 2002, $200,000,000 and
(2) on or after October 1, 2002, $300,000,000, provided such refinancing
Indebtedness is on terms and conditions satisfactory to the Co-Lead Arrangers;
and (Y) other Subordinated Debt incurred on or after October 1, 2002 on terms
and conditions satisfactory to the Co-Lead Arrangers in an aggregate principal
amount, together with Subordinated Debt permitted under Section 7.1(j)(X) not
to exceed $300,000,000.
(k) Indebtedness of the Borrower and its Subsidiaries
existing as of the Agreement Date as set forth on Schedule 7 attached hereto;
(l) the Incremental Facility; and
(m) 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.
Section 7.2 Limitation on Liens. The Borrower shall not, and
shall not permit any of its 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 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 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.
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Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and
shall not permit any of its Subsidiaries to, make any Asset Sale; provided,
however, that the Borrower and its 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) do not exceed,
for any transaction or series of related transactions, $3,000,000.00 per fiscal
year, (iii) (A) involve the disposition of substantially all of the assets of
the Porta-Phone Paging Business or the Satellite Broadcasting Business 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 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 Subsidiaries, provided the Borrower is the surviving corporation,
or (ii) a merger between or among two or more 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 Subsidiary of the Borrower is the surviving corporation or the
surviving corporation becomes a Subsidiary of the Borrower.
Section 7.5 Limitation on Guaranties. The Borrower shall not,
and shall not permit any of its 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(f) 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 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 Subsidiaries may:
(a) make Investments in Cash Equivalents;
(b) make Investments in Subsidiaries;
(c) provided that the Borrower complies with Sections
5.13 and 5.16 hereof in connection therewith, and provides 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
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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, the Borrower and
its Subsidiaries may make Acquisitions of Stations or Newspapers subject to
satisfaction of the following conditions:
(i) 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, by which the Borrower proposes to increase the dollar limitations
set forth in Sections 7.1(g), (h) and (i) hereof; and the structure of
the transaction shall be in form and substance acceptable to the
Administrative Agent;
(ii) the agreement governing such Acquisition
and all related documents and instruments shall be in form and
substance satisfactory to the Administrative Agent;
(d) acquire from Bull Run Corporation a seventy-three
percent (73%) economic interest and a thirty-three and one-half percent (33.5%)
voting interest in Xxxxxx Xxxxxxx for a purchase price of $10,000,000.00 plus
transaction and related costs (such purchase price and costs to be obtained
either (A) from the proceeds of the issuance of preferred stock or other junior
securities, on terms and conditions reasonably satisfactory to the Co-Lead
Arrangers, or (B) from the proceeds of an Advance hereunder provided that the
Leverage Ratio is less than 5.50:1.00 both before and after giving effect to
such Investment) and options for the purchase of certain of the Borrower's
stock; provided, that on or prior to the consummation of such Investment, the
Borrower shall provide to the Administrative Agent, in form and substance
satisfactory the Administrative Agent, (i) evidence that the Borrower has
pledged such economic and voting interests as additional collateral securing
the Obligations under the Loan Agreement, (ii) 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 Investment, (iii)
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, (iv) certification that no
Default or Event of Default exists or will be caused by such Investment, and
(v) evidence of consummation of such Investment on substantially the terms and
conditions set forth in that certain Stock Option Agreement dated as of
February 28, 1999 between the Borrower and Bull Run Corporation, as amended
with the prior written consent of the Co-Lead Arrangers; and
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(e) provided that the Borrower complies with Sections
5.13 and 5.16 hereof in connection therewith, and provides 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,
the Borrower and its Subsidiaries may make Acquisitions of or Investments in
Stations or Newspapers in an aggregate amount not to exceed $1,000,000.00 per
transaction or series of related transactions per fiscal year;
(f) make an Investment in XxXxxx Communications not to
exceed $1,100,000.00; provided, that on or prior to the consummation of such
Investment, the Borrower shall provide to the Administrative Agent, in form and
substance satisfactory to the Administrative Agent, (i) evidence that the
Borrower has pledged such economic and voting interests as additional
collateral securing the Obligations under the Loan Agreement, (ii) 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
Investment, (iii) 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 and (iv) certification that no
Default or Event of Default exists or will be caused by such Investment;
(g) the Borrower may make such other Acquisitions as may
be approved from time to time by the Required Lenders in their sole discretion;
(h) Investments in the form of Interest Rate Hedge
Agreements permitted pursuant to Section 7.1; and
(i) other Investments in joint ventures or similar
business arrangements, on terms and conditions satisfactory to the Co-Lead
Arrangers; provided, that on or prior to the consummation of such Investment,
the Borrower shall provide to the Administrative Agent, in form and substance
satisfactory to the Administrative Agent, (i) 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 Investment, (ii)
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
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Borrower's ability to meet its repayment obligations hereunder through the
Maturity Date and (iii) certification that no Default or Event of Default
exists or will be caused by such Investment.
Section 7.7 Restricted Payments; Restricted Purchases. The
Borrower shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly declare or make any Restricted Payment or Restricted Purchase;
provided, however, that:
(a) any Subsidiary of the Borrower may make Restricted
Payments to the Borrower or to a wholly-owned 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) (i) the Borrower may redeem up to $7,000,000.00 of
its existing preferred stock with the proceeds from the issuance of preferred
stock or other junior securities, on terms and conditions reasonably
satisfactory to the Co-Lead Arrangers so long as no Default or Event of Default
has occurred and is continuing at the time of such redemption or would exist
after giving effect thereto; and (ii) the Borrower may redeem (other than as
set forth above in clause (d)(i) of this Section 7.7) up to $1,000,000.00 of
its existing preferred or common stock from the Agreement Date through the
Maturity Date so long as the Restricted Payments and Restricted Purchases made
pursuant to this Section 7.7(d)(ii) and Section 7.7 (e) shall not exceed the
amounts set forth in Section 7.7(e) in any fiscal year and no Default or Event
of Default has occurred and is continuing at the time of any such redemption or
would exist after giving effect thereto; and (iii) the Borrower may redeem its
existing preferred or common stock so long as the Leverage Ratio is less than
5.50:1.00 both before and after giving effect to such redemption and no Default
or Event of Default has occurred and is continuing at the time of such
redemption or would exist after giving effect thereto; and
(e) the Borrower may make Restricted Payments and
Restricted Purchases (other than as set forth above in clause (a), (b), (c) or
(d) of this Section 7.7), provided that: (i) prior to making any such payment
or purchase, the Borrower shall have demonstrated to the satisfaction of the
Administrative Agent that the Borrower will be in compliance with all of the
covenants contained herein after giving effect to such payment or purchase;
(ii) no Default or Event of Default exists at the time of making such payment
or purchase or would exist after giving effect thereto; (iii) prior to making
any such payment or purchase, the Borrower shall have delivered to the
Administrative Agent a certificate of its chief financial officer, chief
accounting officer or controller in form and substance satisfactory to the
Administrative Agent which shall contain calculations demonstrating on a pro
forma basis the Borrower's compliance with Sections 7.8, 7.9, 7.10 and 7.11
hereof after giving effect to such payment or purchase; (iv) Restricted
Payments in the form of dividends or distributions on common stock made
pursuant to this Section 7.7(e) shall not exceed, (A) so long as the Leverage
Ratio is equal to or greater than
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5.50:1.00 both before and after giving effect to such Restricted Payments,
$0.08 per common share and (B) so long as the Leverage Ratio is less than
5.50:1.00 both before and after giving effect to such Restricted Payments,
$0.10 per common share, in each case, as adjusted for common stock splits; (v)
so long as the Leverage Ratio is equal to or greater than 5.50:1.00 both before
and after giving effect to such Restricted Payments, Restricted Payments in the
form of dividends or distributions made pursuant to this Section 7.7(e) shall
not exceed in the aggregate in any fiscal year the sum of (A) $2,500,000.00
plus (B) dividends in an amount up to $2,000,000.00 payable on preferred stock
or junior securities issued pursuant to Section 7.6(d), Section 7.7(d)(i) or
otherwise issued on terms and conditions reasonably satisfactory to the Co-Lead
Arrangers plus (C) dividends payable on common stock resulting from the
exercise of options or warrants outstanding on the Agreement Date in an amount
up to $250,000.00; provided further, that Restricted Payments and Restricted
Purchases made pursuant to Section 7.7(d)(ii) and this Section 7.7 (e)(v) shall
not exceed $4,000,000.00 in the aggregate in any fiscal year and (vi) so long
as the Leverage Ratio is less than 5.50:1.00 both before and after giving
effect to such Restricted Payments, Restricted Payments in the form of
dividends or distributions made pursuant to this Section 7.7(e) shall not
exceed in the aggregate in any fiscal year the sum of (A) $2,500,000.00 plus
(B) dividends in an amount up to $2,000,000.00 payable on preferred stock or
junior securities issued pursuant to Section 7.6(d), Section 7.7(d)(i) or
otherwise issued on terms and conditions reasonably satisfactory to the Co-Lead
Arrangers plus (C) dividends payable on common stock resulting from the
exercise of options or warrants outstanding on the Agreement Date in an amount
up to $250,000.00 plus (D) dividends payable on common stock issued as
consideration for Acquisitions permitted pursuant to Section 7.6(c) hereof
consummated during such fiscal year; provided further, that Restricted Payments
and Restricted Purchases made pursuant to Section 7.7(d)(ii) and this Section
7.7 (e)(vi)(A), (B) and (C) shall not exceed $4,000,000.00 in the aggregate in
any fiscal year.
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 March 30, 2002 4.60:1.00
March 31, 2002 through September 29, 2002 4.50:1.00
September 30, 2002 through June 29, 2004 4.25:1.00
June 30, 2004 through December 30, 2004 4.00:1.00
December 31, 2004 and thereafter 3.75:1.00
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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 September 29, 2002 1.40:1.00
September 30, 2002 through December 30, 2002 1.45:1.00
December 31, 2002 through June 29, 2004 1.50:1.00
June 30, 2004 through December 30, 2004 1.60:1.00
December 31, 2004 and thereafter 1.75:1.00
Section 7.10 Fixed Charge Coverage Ratio. Commencing December 31,
2001 and at all times thereafter, the Borrower shall not permit the Fixed
Charge Coverage Ratio to be less than 1.05:1.00.
Section 7.11 Leverage Ratio. Commencing September 30, 2002 and at
all times thereafter, the Borrower shall not permit its Leverage Ratio to
exceed the ratios set forth below during the periods indicated:
Period Leverage Ratio
September 30, 2002 through December 30, 2002 6.75:1.00
December 31, 2002 through June 29, 2004 6.50:1.00
June 30, 2004 through December 30, 2004 6.25:1.00
December 31, 2004 and thereafter 5.75:1.00
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 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 Subsidiary than would be the case if
such transaction had been effected with a non-Affiliate.
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Section 7.13 Real Estate. Neither the Borrower nor any of its
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 Subsidiaries.
The Borrower shall not permit any Subsidiary to enter into or agree, or
otherwise become subject (other than pursuant to Applicable Law), to any
agreement, contract or other arrangement with any Person pursuant to the terms
of which (a) such 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 Subsidiary to the Borrower or to another Subsidiary,
on an annual or cumulative or other basis, is or would be otherwise limited or
restricted.
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 under any of the Notes 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 under any of
the Notes when due;
(c) The Parent or the Borrower shall default in the
performance or observance of any agreement or covenant contained in Sections
5.2(a), 5.10, 5.13, 5.16 or 5.20 hereof or in Articles 6 or 7 hereof;
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(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
Subsidiaries, or any other obligor thereunder, which shall not be cured within
a period of thirty (30) days from the occurrence of such Default;
(f) There shall be entered and remain unstayed a decree
or order for relief in respect of the Borrower or any of its 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 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 Subsidiaries; or an
involuntary petition shall be filed against the Borrower or any of its
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 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
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 Subsidiaries or of any
substantial part of their respective properties, or the Borrower or any of its
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 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 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 Subsidiaries for the payment of money which exceeds singly or in
the aggregate with other such judgments, $1,000,000.00, or a warrant of
attachment or execution or similar process shall be issued or levied against
property of the Borrower or any of its Subsidiaries which, together with all
other such property of the Borrower or any of its Subsidiaries subject to other
such process, exceeds in value $1,000,000.00 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
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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 Subsidiaries or
any ERISA Affiliate, or to which the Borrower or any of its 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 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 the Borrower or any of its 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 Subsidiaries in an aggregate principal amount exceeding
$1,000,000.00; (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 Subsidiaries or by any governmental authority having
jurisdiction over the Borrower or any of its 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
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
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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
Ownership Interests of each of its Subsidiaries or any Subsidiary of the
Borrower shall cease to be a wholly-owned 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 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 or shall have been commenced before any court, the 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, or (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;
(o) Any Operating Agreement or any other agreement which
is necessary to the operation of a Station, a Newspaper, the Porta-Phone Paging
Business or the Satellite Broadcasting 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
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failure to comply could reasonably be expected to have a material adverse
effect on the Borrower or any of its 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 9.8(a) hereof, shall (i) (A)
terminate the Commitments, and/or (B) declare the principal of and interest on
the Loans and the Notes 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 under the Notes, and all other 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 Notes, 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 Notes, 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 Subsidiaries in accordance
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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 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 Notes, 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 Subsidiaries,
and the Borrower, for itself and on behalf of its Subsidiaries, hereby consents
to such rights and such appointment and hereby waives any objection the
Borrower or any 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
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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 for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to be deposited as set forth in Section
8.2(a) or (b) hereof; fourth, to the Lenders pro rata (except as provided in
Section 2.2(e)hereof), to the payment of any unpaid interest which may have
accrued on the Obligations; fifth, to the Lenders pro rata based on the Loans
then outstanding until all Loans have been paid in full (and, for purposes of
this clause, obligations under Interest Rate Hedge Agreements with the Lenders
or any of them shall be paid on a pro rata basis with the Loans); sixth, to the
Lenders pro rata based on the Loans outstanding to the payment of any other
unpaid Obligations; seventh, 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; and eighth, to the Borrower or as
otherwise required by law.
ARTICLE 9
The Administrative Agent
Section 9.1 Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Note
irrevocably to appoint and authorize, the Administrative Agent to take such
actions as its agent on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto.
Neither the Administrative Agent, nor any of its respective directors,
officers, employees or agents, shall be liable for any action taken or omitted
to be taken by it or them hereunder or in connection herewith, except for its
or their own gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat
each Lender, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Lender in
its portion of the Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice
of transfer, in form and substance reasonably satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent
may consult with Powell, Goldstein, Xxxxxx & Xxxxxx LLP, Atlanta, Georgia,
special counsel to the Administrative Agent, or with other legal counsel
selected by it and shall not be liable for any action taken or suffered by it
in good faith in consultation with the Required Lenders and in reasonable
reliance on such consultations.
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Section 9.4 Documents. The Administrative Agent shall be under
no duty to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in
connection herewith, and the Administrative Agent shall be entitled to assume
that they are valid, effective and genuine, have been signed or sent by the
proper parties and are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to
the Commitments and the Loans, the Administrative Agent shall have the same
rights and powers hereunder as any other Lender and the Administrative Agent
and Affiliates of the Administrative Agent may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower, any of its
Subsidiaries or any Affiliates of, or Persons doing business with the Borrower,
as if they were not affiliated with the Administrative Agent and without any
obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent and the
Issuing Bank. The duties and obligations of the Administrative Agent and the
Issuing Bank under this Agreement are only those expressly set forth in this
Agreement. Each of the Administrative Agent and the Issuing Bank shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified in writing by
the Borrower, of such fact, or has been notified by a Lender in writing that
such Lender considers that a Default or an Event of Default has occurred and is
continuing, and such Lender shall specify in detail the nature thereof in
writing. Each of the Administrative Agent and the Issuing Bank shall not be
liable hereunder for any action taken or omitted to be taken except for its own
respective gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court of competent jurisdiction. The
Administrative Agent and the Issuing Bank shall provide each Lender with copies
of such documents received from the Borrower as such Lender may reasonably
request.
Section 9.7 Action by the Administrative Agent and the Issuing
Bank.
(a) Each of the Administrative Agent and the Issuing
Bank shall be entitled to use its discretion with respect to exercising or
refraining from exercising any rights which may be vested in it by, and with
respect to taking or refraining from taking any action or actions which it may
be able to take under or in respect of, this Agreement, unless the
Administrative Agent or the Issuing Bank shall have been instructed by the
Required Lenders to exercise or refrain from exercising such rights or to take
or refrain from taking such action; provided that neither the Administrative
Agent nor the Issuing Bank shall exercise any rights under Section 8.2(a)
hereof without the request of the Required Lenders (or, where expressly
required, all of the Lenders) unless time is of the essence. Each of the
Administrative Agent and the Issuing Bank shall incur no liability under or in
respect of this Agreement with respect to anything which it may do or refrain
from doing in the reasonable exercise of its judgment or which may seem to it
to be necessary or desirable in the circumstances, except for its own
respective gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court having jurisdiction over the subject
matter.
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(b) Neither the Administrative Agent nor the Issuing
Bank shall be liable to the Lenders, or to any Lender, or the Borrower or any
its Subsidiaries in acting or refraining from acting under this Agreement or
any other Loan Document in accordance with the instructions of the Required
Lenders (or, where expressly required, all of the Lenders), and any action
taken or failure to act pursuant to such instructions shall be binding on all
Lenders, except for its own respective gross negligence or willful misconduct
as determined by a final, non-appealable judicial order of a court having
jurisdiction over the subject matter. Neither the Administrative Agent nor the
Issuing Bank shall be obligated to take any action which is contrary to law or
which would in such Person's reasonable opinion subject such Person to
liability.
Section 9.8 Notice of Default or Event of Default. In the event
that the Administrative Agent, the Issuing Bank or any Lender shall acquire
actual knowledge, or shall have been notified, of any Default or Event of
Default, the Administrative Agent, the Issuing Bank or such Lender shall
promptly notify the Lenders (provided failure to give such notice shall not
result in any liability on the part of such Lender, the Issuing Bank or
Administrative Agent), and the Administrative Agent and the Issuing Bank shall
take such action and assert such rights under this Agreement and the other Loan
Documents as the Required Lenders shall request in writing, and neither the
Administrative Agent nor the Issuing Bank shall be subject to any liability by
reason of its acting pursuant to any such request. If the Required Lenders
shall fail to request the Administrative Agent and the Issuing Bank to take
action or to assert rights under this Agreement or any other Loan Documents in
respect of any Default or Event of Default within ten (10) days after their
receipt of the notice of any Default or Event of Default from the
Administrative Agent, the Issuing Bank or any Lender, or shall request
inconsistent action with respect to such Default or Event of Default, the
Administrative Agent and the Issuing Bank, or either of them, may, but shall
not be required to, take such action and assert such rights (other than rights
under Article 8 hereof) as it deems in their or its respective discretion to be
advisable for the protection of the Lenders, except that, if the Required
Lenders have instructed the Administrative Agent and the Issuing Bank not to
take such action or assert such right, in no event shall the Administrative
Agent and the Issuing Bank act contrary to such instructions unless time is of
the essence.
Section 9.9 Responsibility Disclaimed. The Administrative Agent
shall not be under any liability or responsibility whatsoever as Administrative
Agent:
(a) To the Borrower or any other Person as a consequence
of any failure or delay in performance by or any breach by, any Lender or
Lenders of any of its or their obligations under this Agreement;
(b) To any Lender or Lenders, as a consequence of any
failure or delay in performance by, or any breach by, (i) the Borrower of any
of its obligations under this Agreement or the Notes or any other Loan
Document, or (ii) any Subsidiary of the Borrower or any other obligor under any
other Loan Document;
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(c) To any Lender or Lenders, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(d) To any Person for any act or omission other than
that arising from gross negligence or willful misconduct of the Administrative
Agent as determined by a final, non-appealable judicial order of a court of
competent jurisdiction.
Section 9.10 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 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 9.11 Credit Decision. Each Lender represents and warrants
to each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement
and to make its portion of the Loans, it has independently taken whatever steps
it considers necessary to evaluate the financial condition and affairs of the
Borrower, that it has made an independent credit judgment, and that it has not
relied upon the Administrative Agent or information provided by the
Administrative Agent (other than information provided to the Administrative
Agent by the Borrower and forwarded by the Administrative Agent to the
Lenders); and
(b) So long as any portion of the Loans remains
outstanding or such Lender has an obligation to make its portion of Advances
hereunder, it will continue to make its own independent evaluation of the
financial condition and affairs of the Borrower.
Section 9.12 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower and may
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be removed at any time for cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent which appointment shall, prior to a Default, be
subject to the consent of the Borrower, acting reasonably. If (a) no successor
Administrative Agent shall have been so appointed by the Required Lenders or
(b) if appointed, no successor Administrative Agent shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gave notice of resignation or the Required Lenders removed the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be any Lender
or a commercial bank organized under the laws of the United States or any
political subdivision thereof which has combined capital and reserves in excess
of $250,000,000.00 and which shall be reasonably acceptable to the Borrower.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent the provisions
of this Article 9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent. In the event that the Administrative Agent or any of its
respective affiliates ceases to be a Lender hereunder, such Person shall resign
its agency hereunder.
Section 9.13 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care, and shall be entitled to advice
of counsel concerning all matters pertaining to such duties.
Section 9.14 Co-Lead Arrangers and Joint Book Managers;
Syndication Agent. Each of the Co-Lead Arrangers and Joint Book Managers and
the Syndication Agent in its capacity as Co-Lead Arrangers and Joint Book
Managers and Syndication Agent, respectively, shall have no duties or
responsibilities under this Agreement or any other Loan Document.
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.
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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 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 Note held by such Lender shall
equal the outstanding principal amount of such Note or Notes 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:
(1) 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
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve
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System, but excluding any included in an applicable Eurodollar 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 or
under its Note 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 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 Note or Notes held by such Lender
shall equal the outstanding principal amount of such Note or Notes 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
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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 shall decline to make LIBOR Advances pursuant to Sections 10.1
and 10.2 hereof or shall have notified the Borrower that it is entitled to
claim compensation pursuant to Section 10.3, 2.12 or 2.14(f) hereof or is
unable to complete the form required or subject to withholding as provided in
Section 2.13 hereof (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 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. (Atlanta, Georgia 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:
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(i) If to the Borrower, to it at:
Xxxx Communications Systems, 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
(ii) If to the Administrative Agent, to it at:
Bank of America, N.A.
Agency Services
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
with a copy to:
Bank of America, N.A.
Financial Strategies Group
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx and Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
and with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
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(iii) If to the Lenders, to them at the addresses
set forth on Schedule 1 hereto.
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 will promptly pay, or
reimburse:
(a) all reasonable out-of-pocket expenses of the Co-Lead
Arrangers in connection with the preparation, negotiation, execution and
delivery of this Agreement and the other Loan Documents, 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 Co-Lead Arrangers; 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 Notes, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Lenders.
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
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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 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, the
Notes 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 Subsidiaries shall exercise its set-off rights as so
directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder, under the Notes or under any other Loan
Document without the prior written consent of each Lender.
(b) Each Lender may sell (i) assignments of any amount
of its interest hereunder to any other Lender, or (ii) assignments or
participations of up to one hundred percent (100%) of its interest hereunder to
(A) one or more wholly-owned Affiliates of such Lender (provided that, if such
Affiliate is not a financial institution, such Lender shall be obligated to
repurchase such assignment if such Affiliate is unable to honor its obligations
hereunder) or to an Approved Fund of any Lender, or (B) any Federal Reserve
Bank as collateral security pursuant to Regulation A of the Board of Governors
of the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank, provided that no such assignment shall relieve such Lender of its
rights and obligations hereunder, or (C) in the case of any Lender that is a
fund that invests in bank loans, such Lender may assign or pledge all or any
portion of its Loans and Notes to any holder of, trustee for, or any other
representative of, holders of obligations owed or securities issued, by such
fund, as security for such obligations or securities; provided that any
foreclosure or similar action by such trustee or representatives shall be
subject to the provisions of this Section 11.5(b) concerning assignments; and
provided, that a copy of any such assignment or participation is provided to
the Administrative Agent prior to, or simultaneous with, the effectiveness
thereof.
(c) Each of the Lenders may at any time enter into
assignment agreements or participations with one or more other banks or other
Persons pursuant to which each Lender may assign or participate its interest
under this Agreement and the other Loan Documents, including, its interest in
any particular Advance or portion thereof, provided, that (1) all assignments
(other than assignments described in clause (b) hereof) shall be in minimum
principal amounts of the
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lesser of (x) the entire remaining amount of such Lender's Loans and
Commitments, (y) $1,000,000.00 and (z) such other amount as may be agreed to in
writing by the Administrative Agent and Borrower, and (2) all assignments
(other than assignments described in clause (b) hereof) and participations
hereunder shall be subject to the following additional terms and conditions:
(i) No assignment (except assignments permitted
in Section 11.5(b) hereof) shall be sold without the prior consent of
the Administrative Agent and prior to the occurrence and continuation
of an Event of Default, the consent of the Borrower, which consents
shall not be unreasonably withheld or delayed;
(ii) Any Person purchasing a participation or an
assignment of any portion of the Loans from any Lender shall be
required to represent and warrant that its purchase shall not
constitute a "prohibited transaction" (as defined in Section 4.1(m)
hereof);
(iii) The Borrower, the Lenders, and the
Administrative Agent agree that assignments permitted hereunder
(including the assignment of any Advance or portion thereof) may be
made with all voting rights, and shall be made pursuant to an
Assignment and Assumption Agreement. An administrative fee of
$3,500.00 shall be payable to the Administrative Agent by the
assigning Lender at the time of any assignment under this Section
11.5(c);
(iv) No participation agreement shall confer any
rights under this Agreement or any other Loan Document to any
purchaser thereof, or relieve any issuing Lender from any of its
obligations under this Agreement, and all actions hereunder shall be
conducted as if no such participation had been granted; provided,
however, that any participation agreement may confer on the
participant the right to approve or disapprove decreases in the
interest rate, increases in the principal amount of the Loans
participated in by such participant, decreases in fees, extensions of
the Revolving Loan Maturity Date, the Term Loan Maturity Date and
Incremental Facility Maturity Date as applicable, or other principal
payment date for the Loans or of the scheduled reduction of the
Revolving Loan Commitment (and, if applicable, the Incremental
Facility Commitments) and releases of Collateral;
(v) Each Lender agrees to provide the
Administrative Agent and the Borrower with prompt written notice of
any issuance of participations in or assignments of its interests
hereunder;
(vi) No assignment, participation or other
transfer of any rights hereunder or under the Notes shall be effected
that would result in any interest requiring registration under the
Securities Act of 1933, as amended, or qualification under any state
securities law;
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(vii) No such assignment may be made to (A) any
bank or other financial institution (excluding funds) unless (1) such
bank or other financial institution either (x) has a minimum capital
and surplus of $500,000,000.00, or (y) is "adequately capitalized" (as
such term is defined in 12 USCA Section 1831(b)(1)(B) as in effect on
the Agreement Date) and (2) a receiver or conservator (including,
without limitation, the Federal Deposit Insurance Corporation, the
Resolution Trust Company or the Office of Thrift Supervision) has not
been appointed with respect to such bank or other financial
institution, (B) any fund unless such fund either (1) invests in
commercial loans or (2) has total assets in excess of $125,000,000.00,
or (C) any other Person unless such Person either (1) is an
"accredited investor" (as defined in Regulation D of the Securities
Act of 1933, as amended, and the rules and regulations promulgated
thereunder) or (2) has total assets in excess of $100,000,000.00;
(viii) If applicable, each Lender shall, and shall
cause each of its assignees to, provide to the Administrative Agent on
or prior to the effective date of any assignment an appropriate
Internal Revenue Service form as required by Applicable Law supporting
such Lender's or assignee's position that no withholding by the
Borrower or the Administrative Agent for United States income tax
payable by such Bank or assignee in respect of amounts received by it
hereunder is required. For purposes of this Agreement, an appropriate
Internal Revenue Service form shall mean Form 1001 (Ownership
Exemption or Reduced Rate Certificate of the United States Department
of Treasury), or Form 4224 (Exemption from Withholding of Tax on
Income Effectively Connected with the Conduct of a Trade or Business
in the United States), or any successor or related forms adopted by
the relevant United States taxing authorities; and
(ix) Any Lender making an assignment of its
rights and obligations under the Revolving Loan Commitment shall also
make an assignment of an equal percentage of its outstanding Revolving
Loans.
(d) Except as specifically set forth in Section 11.5(b)
or (c) hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(e) In the case of any participation, all amounts
payable by the Borrower under the Loan Documents shall be calculated and made
in the manner and to the parties hereto as if no such participation had been
sold.
(f) The provisions of this Section 11.5 shall not apply
to any purchase of participations among the Lenders pursuant to Section 2.11
hereof.
(g) The Administrative Agent, acting, for this purpose
only, as agent of the Borrower shall maintain, at no extra charge or cost to
the Borrower, a register (the "Register") at the address to which notices to
the Administrative Agent are to be sent under Section 11.1 hereof
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on which Register the Administrative Agent shall enter the name, address and
taxpayer identification number (if provided) of the registered owner of the
Loans evidenced by a Registered Note or, upon the request of the registered
owner, for which a Registered Note has been requested. A Registered Note and
the Loans evidenced thereby may be assigned or otherwise transferred in whole
or in part only by registration of such assignment or transfer of such
Registered Note and the Loans evidenced thereby on the Register. Any assignment
or transfer of all or part of such Loans and the Registered Note evidencing the
same shall be effective upon recordation in the Register and shall be
registered on the Register only upon compliance with the other provisions of
this Section 11.5 and surrender for registration of assignment or transfer of
the Registered Note evidencing such Loans, duly endorsed by (or accompanied by
a written instrument of assignment or transfer duly executed by) the Registered
Noteholder thereof, and thereupon one or more new Registered Notes in the same
aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s) and, if less than the aggregate principal amount of such
Registered Notes is thereby transferred, the assignor or transferor. Prior to
the due presentment for registration of transfer of any Registered Note, the
Borrower and the Administrative Agent shall treat the Person in whose name such
Loans and the Registered Note evidencing the same is registered as the owner
thereof for the purpose of receiving all payments thereon and for all other
purposes, notwithstanding any notice to the contrary.
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 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 Notes shall be
construed in accordance with and governed by the internal laws of the State of
Georgia applicable to agreements made and 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 under any Note or any other Loan Document, the
Borrower hereby consents and will, and the Borrower will cause each 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 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
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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.
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 or under the Notes 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 delay or extension in the terms 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 without a corresponding
payment by the Borrower, (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
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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 of any
Section herein to the extent that such Section 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 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 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).
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 (i) 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
(ii) shall survive the execution and delivery of the Notes and shall continue
in full force and effect so long as any Note is outstanding and unpaid. Any
right to 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.
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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.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND
ON BEHALF OF EACH OF ITS 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 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 (i) 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 (ii) 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 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 COMMUNICATIONS SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------------------
Name: /s/ Xxxxx X. Xxxx
--------------------------------------
Title: Vice President and
Chief Financial Officer
-------------------------------------
ADMINISTRATIVE AGENT, BANK OF AMERICA, N.A., as Administrative
SYNDICATION AGENT Agent and as a Lender
AND LENDERS:
By: /s/ Xxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxx X. Xxxx
--------------------------------------
Title: Senior Vice President
-------------------------------------
FIRST UNION NATIONAL BANK, as Syndication Agent
and as a Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title: Director
-------------------------------------
