EXHIBIT 10.9
THIRD AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of June 27, 1997
By and Among
SATELLINK COMMUNICATIONS, INC.,
a Georgia corporation formerly known as
Satellink Paging, Inc.,
as Parent
SATELLINK PAGING, LLC,
as Borrower
THE LENDERS NAMED HEREIN,
and
CREDITANSTALT-BANKVEREIN,
as Agent
TABLE OF CONTENTS
Page No.
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1. DEFINITIONS, TERMS AND REFERENCES...........................................2
1.1 CERTAIN DEFINITIONS.....................................................2
1.2 USE OF DEFINED TERMS...................................................15
1.3 ACCOUNTING TERMS; CALCULATIONS.........................................15
1.4 OTHER TERMS............................................................15
1.5 TERMINOLOGY............................................................15
1.6 EXHIBITS...............................................................15
2. THE LOANS..................................................................15
2.1 REVOLVING CREDIT LOANS.................................................15
2.2 TERM LOAN..............................................................16
2.3 BORROWING PROCEDURES...................................................17
2.4 LOAN ACCOUNT; STATEMENTS OF ACCOUNT....................................17
2.5 USE OF PROCEEDS........................................................18
2.6 SEVERAL OBLIGATIONS OF THE LENDERS; REMEDIES INDEPENDENT...............18
2.7 TERMINATION............................................................18
2.8 PAYMENTS...............................................................18
2.9 PRORATA TREATMENT......................................................19
2.10 PREPAYMENT; COMMITMENT REDUCTION......................................19
2.11 SHARING OF PAYMENTS...................................................20
2.12 CERTAIN NOTICES.......................................................21
3. FEES AND INTEREST..........................................................22
3.1 INTEREST...............................................................22
3.2 INTEREST PERIOD........................................................23
3.3 LIMITATIONS ON INTEREST PERIODS AND LOANS..............................24
3.4 CONVERSIONS AND CONTINUATIONS..........................................24
3.5 FEES...................................................................24
3.6 ILLEGALITY; INABILITY TO DETERMINE THE QUOTED RATE.....................24
3.7 INCREASED COSTS AND REDUCED RETURN.....................................25
3.8 INDEMNITY..............................................................26
3.9 NOTICE OF AMOUNTS PAYABLE TO LENDERS...................................26
3.10 INTEREST SAVINGS CLAUSE...............................................26
4. SECURITY INTEREST - COLLATERAL.............................................27
4.1 SECURITY INTEREST......................................................27
4.2 PERFECTION OF SECURITY INTEREST........................................27
4.3 RIGHT TO INSPECT; VERIFICATIONS........................................28
5. REPRESENTATIONS AND WARRANTIES.............................................28
5.1 CORPORATE EXISTENCE AND QUALIFICATION .................................28
5.2 CHIEF EXECUTIVE OFFICE; COLLATERAL LOCATIONS...........................29
5.3 CORPORATE AUTHORITY....................................................29
5.4 NO CONSENTS; VALIDITY AND BINDING EFFECT...............................29
5.5 NO MATERIAL LITIGATION.................................................29
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5.6 CORPORATE ORGANIZATION.................................................29
5.7 SOLVENCY...............................................................29
5.8 ADEQUACY OF INTANGIBLE ASSETS..........................................29
5.9 TAXES..................................................................30
5.10 ERISA.................................................................30
5.11 FINANCIAL INFORMATION.................................................30
5.12 TITLE TO ASSETS.......................................................31
5.13 VIOLATIONS OF LAW.....................................................31
5.14 ENVIRONMENTAL LAWS....................................................31
5.15 NO DEFAULT............................................................32
5.16 BONA FIDE ACCOUNTS....................................................32
5.17 AMOUNT OF ACCOUNTS; NO SETOFFS........................................32
5.18 RIGHT TO ASSIGN.......................................................32
5.19 CORPORATE AND TRADE OR FICTITIOUS NAMES...............................32
5.20 EQUIPMENT.............................................................32
5.21 INVENTORY.............................................................33
5.22 INVESTMENTS...........................................................33
5.23 TRADE RELATIONS.......................................................33
5.24 BROKER'S OR FINDER'S FEES.............................................33
5.25 SECURITY INTEREST.....................................................33
5.26 REGULATORY MATTERS....................................................33
5.27 DISCLOSURE............................................................34
5.28 BURDENSOME RESTRICTIONS...............................................34
5.29 LABOR MATTERS.........................................................34
5.30 EXISTING DEBT.........................................................34
5.31 REGULATION OF THE AGENT AND THE LENDERS...............................34
6. AFFIRMATIVE COVENANTS......................................................34
6.1 RECORDS RESPECTING COLLATERAL; LOCKBOX OR BLOCKED ACCOUNT ARRANGEMENT..35
6.2 REPORTING REQUIREMENTS.................................................35
6.3 TAX RETURNS............................................................36
6.4 COMPLIANCE WITH LAWS...................................................36
6.5 ENVIRONMENTAL LAWS.....................................................36
6.6 ERISA..................................................................37
6.7 BOOKS AND RECORDS......................................................37
6.8 NOTIFICATIONS TO THE LENDERS AND THE AGENT.............................37
6.9 INSURANCE..............................................................38
6.10 MAINTENANCE OF PROPERTY...............................................38
6.11 CONDUCT OF BUSINESS...................................................38
6.12 PRESERVATION OF CORPORATE OR LIMITED LIABILITY COMPANY EXISTENCE......38
6.13 EQUIPMENT.............................................................38
6.14 ASSIGNMENT OF LEASEHOLD INTERESTS.....................................39
6.15 COMPLIANCE WITH LICENSE REQUIREMENTS..................................39
6.16 OTHER INDEBTEDNESS....................................................39
6.17 TRANSFER OF AGREEMENTS, CONSENTS AND LICENSES.........................39
7. NEGATIVE COVENANTS.........................................................39
7.1 NO ENCUMBRANCES........................................................39
7.2 INDEBTEDNESS...........................................................40
7.3 ASSET SALES............................................................40
7.4 GUARANTIES.............................................................40
7.5 INVESTMENTS AND ACQUISITIONS...........................................40
7.6 CORPORATE OR LIMITED LIABILITY COMPANY STRUCTURE.......................41
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7.7 FISCAL YEAR............................................................41
7.8 ERISA..................................................................41
7.9 RELOCATIONS; USE OF NAME...............................................41
7.10 ARM'S-LENGTH TRANSACTIONS.............................................41
7.11 AMENDMENT OF DISTRIBUTION AGREEMENT...................................42
7.12 DIVIDENDS.............................................................42
7.13 OPERATING LEASES......................................................42
7.14 FM SUBCARRIER LEASE AGREEMENTS........................................42
8. FINANCIAL COVENANTS........................................................43
8.1 INTEREST COVERAGE RATIO................................................43
8.2 NET WORTH..............................................................43
8.3 SENIOR DEBT/CASH FLOW RATIO............................................44
8.4 TOTAL DEBT/CASH FLOW RATIO.............................................44
9. EVENTS OF DEFAULT..........................................................45
9.1 OBLIGATIONS............................................................45
9.2 MISREPRESENTATIONS.....................................................45
9.3 LOAN DOCUMENT DEFAULTS.................................................45
9.4 DISTRIBUTION AGREEMENT DEFAULT OR TERMINATION..........................45
9.5 OTHER DEBTS............................................................45
9.6 TAX LIEN...............................................................46
9.7 ERISA..................................................................46
9.8 VOLUNTARY BANKRUPTCY...................................................46
9.9 IN VOLUNTARY BANKRUPTCY................................................46
9.10 SUSPENSION OF BUSINESS................................................47
9.11 JUDGMENTS.............................................................47
9.12 MANAGEMENT............................................................47
9.13 RICO..................................................................47
9.14 SECURITY DOCUMENTS; FAILURE OF SECURITY...............................47
9.15 OWNERSHIP OF THE BORROWER'S CAPITAL STOCK.............................47
10. REMEDIES..................................................................47
10.1 DEFAULT RATE.........................................................48
10.2 TERMINATION; ACCELERATION OF THE OBLIGATIONS.........................48
10.3 SET-OFF..............................................................48
10.4 RIGHTS AND REMEDIES OF A SECURED PARTY...............................48
10.5 TAKE POSSESSION OF COLLATERAL........................................48
10.6 SALE OF COLLATERAL...................................................48
10.7 JUDICIAL PROCEEDINGS.................................................49
10.8 NOTICE...............................................................49
10.9 APPOINTMENT OF AGENT AS OBLIGORS' LAWFUL ATTORNEY....................49
11. CONDITIONS PRECEDENT......................................................50
11.1 CONDITIONS PRECEDENT TO INITIAL LOAN.................................50
11.2 ALL LOANS............................................................53
11.3 DELAY IN SATISFACTION OF CONDITIONS PRECEDENT........................53
12. THE AGENT.................................................................54
12.1 APPOINTMENT, POWERS AND IMMUNITIES...................................54
12.2 RELIANCE BY AGENT....................................................54
12.3 DEFAULTS.............................................................54
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12.4 RIGHTS AS A LENDER...................................................55
12.5 INDEMNIFICATION......................................................55
12.6 NON-RELIANCE ON AGENT AND OTHER LENDERS..............................55
12.7 FAILURE TO ACT.......................................................56
12.8 RESIGNATIN OR REMOVAL OF AGENG; CO-AGENT.............................56
12.9 COLLATERAL MATTERS...................................................57
12.10 BORROWER NOT A BENEFICIARY..........................................58
13. MISCELLANEOUS.............................................................58
13.1 WAIVER...............................................................58
13.2 SURVIVAL.............................................................59
13.3 ASSIGNMENTS; SUCCESSORS AND ASSIGNS..................................59
13.4 COUNTERPARTS.........................................................61
13.5 EXPENSE REIMBURSEMENT................................................61
13.6 SEVERABILITY.........................................................62
13.7 NOTICES..............................................................62
13.8 ENTIRE AGREEMENT; AMENDMENT..........................................62
13.9 TIME OF THE ESSENCE..................................................63
13.10 INTERPRETATION......................................................63
13.11 LENDERS, AGENT NOT JOINT VENTURERS..................................63
13.12 CURE OF DEFAULTS BY LENDERS.........................................63
13.13 INDEMNITY...........................................................63
13.14 TERMINATION STATEMENTS..............................................64
13.15 GOVERNING LAW; JURISDICTION.........................................64
13.16 WAIVER OF JURY TRIAL................................................64
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SCHEDULES AND EXHIBITS
Schedule 1.1 - FM Station Agreements
Schedule 1.2 - Lease Agreements
Schedule 1.3 - Permitted Liens
Schedule 5.2 - Chief Executive Office; Collateral Locations
Schedule 5.5 - Litigation
Schedule 5.8 - Intangible Assets
Schedule 5.9 - Taxes
Schedule 5.10 - ERISA Matters
Schedule 5.12 - Title to Assets
Schedule 5.19 - Corporate and Trade or Fictitious Names
Schedule 5.22 - Investments
Schedule 5.29 - Labor Matters
Schedule 5.30 - Existing Debt
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Term Note
Exhibit C - Form of Notice of Borrowing or Conversion/Continuation
Exhibit D - Form of Subcarrier Lease
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of Assignment and Acceptance Agreement
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THIRD AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is made and
entered into as of the 27th day of June, 1997, by and among SATELLINK
COMMUNICATIONS, INC., a Georgia corporation f/k/a Satellink Paging, Inc., having
a principal place of business at 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Parent"), SATELLINK PAGING, LLC, a
Georgia limited liability company, having a principal place of business at 0000
Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (herewith referred to as
"Borrower"; the Parent and the Borrower are sometimes collectively hereinafter
referred to as the "Obligors" and individually as an "Obligor") and an Austrian
banking corporation acting through its Connecticut (Federal) branch, with
offices at Two Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 and the financial
institutions from time to time party hereto (collectively, the "Lenders"), and
CREDITANSTALT-BANKVEREIN ("Creditanstalt"), an Austrian banking corporation
acting through its Connecticut (Federal) branch, with offices at Two Xxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, in its separate capacity as agent for the
Lenders (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the Parent and Creditanstalt entered into that certain Loan and
Security Agreement, dated as of December 23, 1992, as amended by that certain
First Amendment to Loan and Security Agreement dated as of December 31, 1993, as
further amended by that certain Second Amendment to Loan and Security Agreement
dated as of March 31, 1994, as further amended by that certain Consent, Waiver
and Third Amendment to Loan and Security Agreement dated as of December 23,
1994, as further amended by that certain Consent, Waiver and Fourth Amendment to
Loan and Security Agreement dated as of June 30, 1995, and as further amended by
that certain Fifth Amendment to Loan and Security Agreement dated as of October
24, 1995 (as so amended, the "Original Loan Agreement"), pursuant to which
Creditanstalt made available to the Parent a term loan and a revolving credit
facility; and
WHEREAS, the Parent and Creditanstalt entered into that certain Amended
and Restated Loan and Security Agreement, dated as of November 17, 1995, as
amended by that certain First Amendment to Amended and Restated Loan and
Security Agreement dated as of May 31, 1996 (as so amended, the "First Restated
Loan Agreement"), pursuant to which Creditanstalt and the Parent agreed, among
other things, to increase the principal amount of the term loan to $5,500,000
and to increase the revolving credit facility commitment to $8,500,000; and
WHEREAS, the Parent transferred substantially all of its assets and
liabilities to the Borrower, its direct, wholly-owned Subsidiary; and
WHEREAS, the Parent, the Borrower and Creditanstalt entered into that
certain Second Amended and Restated Loan and Security Agreement, dated as of
January 31, 1997, as amended
by that certain First Amendment to Second Amended and Restated Loan and Security
Agreement dated as of May 20, 1997 (as so amended, the "Second Restated Loan
Agreement") (i) to substitute the Borrower for the Parent as "Borrower"
thereunder, (ii) to increase the revolving line of credit provided for therein
to Seventeen Million Dollars ($17,000,000), (iii) to increase the amount of the
outstanding principal amount of term loan to Eight Million Dollars ($8,000,000),
and (iv) to make certain other changes thereto; and
WHEREAS, for the sake of convenience, the Obligors, the Lenders and the
Agent desire to restate in its entirety the Second Restated Loan Agreement; and
WHEREAS, this Agreement represents a continuation of the Original Loan
Agreement and the First Restated Loan Agreement, as previously amended and as
amended hereby, and is not a termination of the Original Loan Agreement nor a
replacement, satisfaction or repayment of the Indebtedness of Parent incurred
under the Original Loan Agreement or the First Restated Loan Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, to induce the
Lenders and the Agent to enter into this Agreement and to extend the financing
provided for herein, and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are acknowledged by the Obligors, the
Obligors, the Lenders and the Agent hereby agree as follows:
1. DEFINITIONS, TERMS AND REFERENCES
1.1 Certain Definitions. When used herein, the following terms shall have
the following respective meanings:
"Accounts" shall mean, as to either Obligor, all of such Obligor's
accounts, contract rights, chattel paper and instruments (whether now existing
or hereafter acquired or arising or in which such Obligor now has or hereafter
acquires any rights), including, without limitation, all present and future
rights to payments for goods, merchandise or Inventory sold or leased or for
services rendered, whether or not represented by instruments, chattel paper,
invoices or other billing, and whether or not earned by performance; proceeds of
any letter of credit on which such Obligor is a beneficiary and all forms of
obligations whatsoever owing to such Obligor, together with all instruments and
documents of title representing any of the foregoing, all rights in any goods,
merchandise or Inventory which any of the foregoing may represent, all rights in
any returned or repossessed goods, merchandise or Inventory, and all rights,
security and guaranties with respect to each of the foregoing, including,
without limitation, any rights of stoppage in transit.
"Account Debtor" shall mean any Person who is or may become obligated to
either Obligor on any Account.
"Affiliate" shall mean, as to any Person, any other Person which, directly
or indirectly, owns or controls, on an aggregate basis, including all beneficial
ownership and ownership or
2
control as a trustee, guardian or other fiduciary, at least five percent (5%) of
the outstanding shares of Capital Stock having ordinary voting power to elect a
majority of the board of directors or other governing body (irrespective of
whether, at the time, Capital Stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) of such Person or at least five percent (5%) of the partnership
or other ownership interest of such Person; or which controls, is controlled by
or is under common control with such Person; provided however, that in no event
shall either Obligor and any Lender or the Agent be deemed or regarded as
Affiliates of each other. For the purposes of this definition, "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of management and policies, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall mean this Third Amended and Restated Loan and Security
Agreement, as the same may be further amended, restated, supplemented or
otherwise modified from time to time.
"Amortization Date" shall mean, collectively, each March 31, June 30,
September 30 and December 31, commencing on June 30, 1998 and continuing to and
including March 31, 2002.
"Applicable Law" shall mean all provisions of statutes, rules, regulations
and orders of any Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality or any court, in each case,
whether of the United States or foreign, applicable to a Person, and all orders
and decrees of all courts and arbitrators in proceedings or actions in which the
Person in question is a party.
"Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978, as may be
amended from time to time.
"Base Lending Rate" shall mean an interest rate per annum, fluctuating
daily, equal to the higher of (a) the rate announced by the Creditanstalt from
time to time at its principal office in Greenwich, Connecticut, as its prime
rate for domestic (United States) commercial loans in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus one-half percent (1/2%).
The Base Lending Rate is not necessarily intended to be the lowest rate of
interest charged by the any Lender in connection with extensions of credit. Each
change in the Base Lending Rate shall result in a corresponding change in the
interest rate hereunder and such change shall be effective on the effective date
of such change in the Base Lending Rate.
"Base Rate Loan" shall mean a Loan bearing interest at a rate based on the
Base Lending Rate.
"Xxxx of Sale" shall mean that certain Xxxx of Sale and Assignment
Agreement dated as of January 31, 1997 between the Borrower and the Parent,
pursuant to which the Parent transferred to the Borrower substantially all of
the Parent's assets and liabilities.
3
"Borrower" shall mean Satellink Paging, LLC, a Georgia limited liability
company.
"Business Day" shall mean a day on which banks are not required or
authorized to close in Greenwich, Connecticut or New York City, New York.
"Capital Expenditures" shall mean, for any period, expenditures (including
the aggregate amount of Capital Lease obligations incurred during such period)
incurred (or assumed) by Borrower to acquire or construct fixed assets, plant
and equipment (including renewals, improvements and replacements, but excluding
repairs) during such period, computed for Borrower in accordance with GAAP.
"Capital Lease Obligations" shall mean, as to any Person, the obligations
of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP (including Statement of Financial Accounting
Standards No. 13 of the Financial Accounting Standards Board) and, for the
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP (including such
Statement No. 13).
"Capital Stock" shall mean, as to any Person, any and all shares,
interests, warrants, participations or other equivalents (however designated) of
corporate stock of such Person.
"Cash Flow" shall mean, for any period for which the same is computed,
determined on a consolidated basis for any Person, the sum of (a) Net Income for
such period plus (b) Interest Expense for such period plus (c) depreciation and
amortization for financial reporting purposes for such period; plus (d) income
tax expense for such period, computed in each case in accordance with GAAP.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder from time to time.
"Collateral" shall mean the property of Obligors described in Section 4.1,
or any part thereof, as the context shall require, in which Agent has, or is to
have, a security interest pursuant thereto, as security for payment of the
Obligations.
"Collateral Assignment Agreements" shall mean, collectively, (a) the
Second Amended and Restated Collateral Assignment and Agreement, of even date
herewith, by and between Parent and Agent, and (b) the Amended and Restated
Collateral Assignment and Agreement dated as of the date hereof by and between
the Borrower and the Agent, in each case as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Commitment" shall mean the aggregate obligation of the Lenders to make
Revolving Credit Loans to Borrower, subject to the terms and conditions hereof,
up to an aggregate principal amount not to exceed at any one time outstanding
for all the Lenders Seventeen Million Dollars ($17,000,000).
4
"Commitment Fee" shall mean that amount due and payable to the Lenders
from Borrower pursuant to and in the amount specified in Section 3.5 hereof.
"Commitment Percentage" shall mean, as to each Lender, that amount,
expressed as a percentage, equal to the ratio of the amount set forth opposite
the name of such Lender on the signature pages hereto under the heading
"Commitment" to the aggregate amount of the Commitment; provided that the
Commitment Percentage of each Lender shall be increased or decreased, as
appropriate, to reflect any assignments made by such Lender pursuant to Section
13.3(c) hereof.
"Compliance Certificate" shall have the meaning given to such term in
Section 6.2(e).
"Continue", "Continuation" and "Continued" shall refer to the continuation
pursuant to Section 3.4 hereof of a Eurodollar Loan as a Eurodollar Loan from
one Interest Period to the next Interest Period.
"Convert," "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 3.4 hereof of a Base Rate Loan into a Eurodollar Loan or of
a Eurodollar Loan into a Base Rate Loan.
"CUE" shall mean CUE Paging Corporation, a Delaware corporation.
"Default" shall mean the occurrence of any event or condition which, after
satisfaction of any requirement for the giving of notice or the lapse of time,
or both, would become an Event of Default.
"Default Rate" shall mean (a) with respect to any Eurodollar Loan or
portion thereof, an interest rate per annum equal to two percent (2%) above the
interest rate set forth for such Loan in Section 3.1(a) al hereof or (b) with
respect to any portion of the Obligations other than Eurodollar Loans, two
percent (2%) above the rate set forth in Section 3.l(a)(ii) hereof.
"Direct Link" shall mean Direct Link communications, L.L.C., a limited
liability company organized under the laws of Georgia.
"Distribution Agreement" shall mean, collectively, (a) the Distribution
Agreement, dated as of April 2, 1990, by and between Parent and CUE, as
heretofore amended, and (b) the Regional Affiliate Agreement, dated August 20,
1990, by and between CR, Inc. (Communications Resources), a Texas corporation
("Seller") and CUE, as amended prior to the Effective Date, and assigned, with
the consent of CUE, by Seller to Parent.
"Effective Date" shall mean the date that this Agreement has been signed
by the Obligors, the Lenders and the Agent and the conditions precedent set
forth in Section 11.1 have been satisfied or waived by the Lenders in writing.
5
"Environmental Laws" shall mean all federal, state, local and foreign laws
relating to pollution or protection of the environment, including laws relating
to emissions, discharges, releases or threatened releases of any Hazardous
Substance into the environment (including without limitation ambient air,
surface water, ground water or land), or otherwise relating to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of Hazardous Substances and any and all regulations,
codes, standards, plans, orders, decrees, writs, judgments, injunctions, notices
or demand letters issued, entered, promulgated or approved thereunder.
"Equipment" shall mean, as to either Obligor, all of such Obligor's
equipment, and leasehold improvements, whether now existing or hereafter
acquired or arising or in which such Obligor now has or hereafter acquires any
rights, including, without limitation, all furniture, machinery, and vehicles,
together with any and all accessories, accessions, parts and appurtenances
thereto, substitutions therefor and replacements thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules and regulations from time to time
issued or promulgated thereunder.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which, together with Borrower, is treated as a single employer
under Section 414(b), (c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean that portion of a Loan bearing interest at a
rate based on the Quoted Rate.
"Event of Default" shall mean any of the events or conditions described in
Article 9 hereof.
"Excess Cash Flow" shall mean, for any period, Cash Flow for the Parent
and its consolidated Subsidiaries for such period less the sum of (a) all
principal payments on the Term Notes made by Borrower, plus (b) Parent's
consolidated Interest Expense, plus (c) all taxes paid by Parent and its
Subsidiaries to any Federal, state or local government authority, plus (d)
Capital Expenditures, plus (e) any amount paid by Parent as dividends to holders
of its Preferred Stock, in each case, for the period for which Excess Cash Flow
is being calculated.
"FCC" shall mean the Federal Communications Commission, or any successor
agency or entity performing substantially the same functions.
"Federal Funds Rate" shall mean, for any day, the overnight federal funds
rate in New York City, New York, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) in the Federal Reserve
Statistical Release H.15 (519) or any successor publication, or if such rate is
not so published for any day which is a New York Business Day, the average of
the quotations for such day on overnight federal funds transactions in New York
City received by the Agent from three federal funds brokers of recognized
standing
6
selected by the Agent.
"FM Station Agreements" shall mean those agreements set forth on Schedule
1.1 attached hereto, together with each of the other lease arrangements for use
of broadcast channel entered into after the date hereof, whether in the form of
Exhibit D or otherwise.
"GAAP" shall mean generally accepted accounting principles consistently
applied and maintained throughout the period indicated and consistent with the
prior financial practice of Parent and the Borrower, as reflected in the
financial information referred to in Section 5.11 hereof.
"General Intangibles" shall mean, as to either Obligor, all of such
Obligor's general intangibles, whether now existing or acquired or arising or in
which such Obligor now has or hereafter acquires any rights, including, without
limitation, all choses in action, causes of action, corporate or other business
records, inventions, designs, patents, patent applications, service marks,
trademarks, trade names, trade secrets, good will, copyrights, registrations,
licenses, franchises, customer lists, agency and other contracts, (including,
without limitation, the FM Station Agreements, the Lease Agreements and the
Collateral Assignment Agreement) tax refund claims, computer programs, all
claims under guaranties, security interests or other security held by or granted
to such Obligor to secure payment of any of the Accounts by an Account Debtor,
all rights to indemnification, any membership interests or other ownership
interests in any other Person, and all other intangible property of every kind
and nature (other than Accounts).
"Guarantee" shall mean a guarantee, an endorsement, a contingent agreement
to purchase or to furnish funds for the payment or maintenance of, or otherwise
to be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the Capital
Stock or equity interests of any Person, or an agreement to purchase, sell or
lease (as lessee or lessor) property, products, materials, supplies or services
primarily for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"Guaranteed Obligations" shall have the meaning given to such term in the
Guaranty.
"Guaranty" shall mean that certain Amended and Restated Guaranty and
Agreement dated as of the date hereof and executed by the Parent in favor of the
Lenders and the Agent, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Hazardous Substances" shall mean any pollutant, contaminant, hazardous,
toxic or dangerous waste, substance or material, or any other substance or
material regulated or controlled pursuant to any Environmental Law, including,
without limiting the generality of the foregoing, asbestos, PCBS, petroleum
products (including crude oil, natural gas, natural gas
7
liquids, liquefied natural gas or synthetic gas) or any other substance defined
as a "hazardous substance," "extremely hazardous waste," "restricted hazardous
waste," "hazardous material," "hazardous chemical," "hazardous waste,"
"regulated substance," "toxic chemical," `toxic substance" or other similar term
in any Environmental Law.
"Indebtedness" shall mean, as applied to any Person at any time, (a) all
indebtedness, obligations or other liabilities of such Person (i) for borrowed
money or evidenced by debt securities, debentures, acceptances, notes or other
similar instruments, and any accrued interest, fees and charges relating
thereto; (ii) under profit payment agreements or similar agreements; (iii) with
respect to letters of credit issued for such Person's account; (iv) to pay the
deferred purchase price of property or services, except unsecured accounts
payable and accrued expenses arising in the ordinary course of business which
are less than 60 days past due; or (v) Capital Lease Obligations; (b) all
indebtedness, obligations or other liabilities of such Person or others secured
by a Lien on any property of such Person, whether or not such indebtedness,
obligations or liabilities are assumed by such Person, all as of such time; (c)
all indebtedness, obligations or other liabilities of such Person in respect of
any foreign exchange contract or Interest Hedge Agreement, net of liabilities
owed to such Person by the counterparties thereon; (d) all Capital Stock of such
Person subject (upon the occurrence of any contingency or otherwise) to
mandatory redemption prior to the first anniversary of the Maturity Date (but
excluding, in the case of the Parent, the Series A Preferred Stock and the
Series C Preferred Stock); and (e) indebtedness of others Guaranteed by such
Person.
"Interest Coverage Ratio" shall mean, for any fiscal quarter of Parent and
its consolidated Subsidiaries for which the same is computed, the ratio of (a)
Cash Flow for such fiscal quarter to (b) Interest Expense for such fiscal
quarter, in each case calculated in accordance with GAAP.
"Interest Expense" shall mean, for any period, total interest expense,
whether paid, accrued or capitalized (including the interest component of
Capital Lease obligations), of the Parent and its consolidated Subsidiaries,
including, but not limited to, all origination and other fees and the net amount
payable under any interest rate swap, cap or collar or similar agreement between
Parent or any of its Subsidiaries and any Person, all as calculated in
accordance with GAAP but excluding any and all original issue discounts.
"Interest Hedge Agreement" shall mean, for any Person, an interest rate
swap, cap or collar agreement or similar arrangement between such Person and one
or more financial institutions providing for the transfer or mitigation of
interest risks either generally or under specific contingencies.
"Interest Period" shall mean, in connection with any Eurodollar Loan, the
period beginning on the date such Eurodollar Loan is made, Continued or
Converted and continuing for one (1), two (2), three (3) or six (6) months as
selected by Borrower in its Notice of Borrowing or Conversion/Continuation.
Notwithstanding the foregoing, however, (a) 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 such Business Day falls in another
calendar
8
month, in which case such Interest Period shall end on the immediately preceding
Business Day; and (b) any applicable Interest Period 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 (a) above) end on
the last day of such calendar month.
"Inventory" shall mean, as to either Obligor, all of such Obligor's
inventory, whether now existing or acquired or arising or in which such Obligor
now has or hereafter acquires any rights, including, without limitation, any and
all goods, merchandise and other personal property, wheresoever located and
whether or not in transit, which is or may at any time be held for sale or lease
or to be furnished under any contract of service or held as raw materials, work
in process, finished goods or materials, and supplies of any kind, nature or
description used or consumed in such Obligor's business, including, without
limitation, all such property, the sale or other disposition of which has given
rise to an Account and which may have been returned to or repossessed or stopped
in transit by such Obligor.
"Investment Property" shall mean, as to either Obligor, all "investment
property" of such Obligor, as such term is defined in Section 9-115 of the
Uniform Commercial Code, as promulgated by the Permanent Editorial Board for the
Uniform Commercial Code, whether now owned or existing or hereafter acquired or
arising, and, in any event, shall include all of the following: (a) all
securities of such Obligor, whether certificated or uncertificated; (b) any
share, participation or other interest in another Person or in property or in an
enterprise of such other Person held directly or indirectly by such Obligor
which is, or is of a type, dealt in or traded on financial markets, or which is
recognized in any area in which it is issued or dealt in as a medium for
investment; (c) all commodity futures contracts of such Obligor, options on any
commodity futures contract held by such Obligor, all commodity options or other
contracts of such Obligor that are traded on, or subject to the rules of, a
board of trade that has been designated as a contract market for such contracts
pursuant to the federal commodities laws or which are traded on one or more
foreign commodity boards of trade, exchanges, or markets and are carried on the
books of registered futures commodity merchant or on the books of a Person
providing clearance or settlement services for a board of trade that has been
designated as a contract market for such a contract pursuant to the federal
commodities laws; (d) any of the foregoing held, directly or indirectly, in the
name of any other Person to the extent such other Person has expressly agreed to
treat such Obligor as the Person entitled to exercise the rights comprising the
foregoing; and (e) all right, title and interest of such Obligor in any account
to which any of the foregoing have been credited.
"Lease Agreements" shall mean, collectively, those agreements set forth on
Schedule 1.2 attached hereto.
"Lien" shall mean any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security interest
under the UCC or
9
comparable law of any jurisdiction).
"LLC Pledge Agreement" shall mean the Amended and Restated Limited
Liability Company Membership Interest Pledge Agreement, in form and substance
satisfactory to the Agent, executed by Parent and pursuant to which Parent
pledges all of the ownership interest of the Borrower to the Agent to secure the
performance and satisfaction of the Guaranteed Obligations, as such agreement
may be amended, restated, supplemented or otherwise modified from time to time.
"Loan" shall mean either a Revolving Credit Loan or a Term Loan, and
"Loans" shall mean, collectively, all Revolving Credit Loans and the Term Loans.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, the documents executed by Borrower, Parent or any other Person
pursuant to Section 11.1 hereof, any financing statements covering portions of
the Collateral or any other collateral securing any of the Obligations and any
and all other instruments, documents, and agreements now or hereafter executed
and/or delivered by Borrower, its Affiliates or any other Person in connection
herewith, or any one, more, or all of the foregoing, as the context shall
require, and "Loan Document" shall mean any one of the Loan Documents.
"Loans/Cash Flow Ratio" shall mean, for any fiscal quarter of the Parent
and its consolidated Subsidiaries, the ratio of (a) the outstanding principal
balance of all Loans as of the end of such quarter to (b) four (4) times the
Cash Flow for such quarter, calculated on a pro forma basis as if any
acquisition made by the Parent or any Subsidiary of the Parent during such
fiscal quarter had been made on the first day of such fiscal quarter.
"Majority Lenders" shall mean, subject to the terms of the last paragraph
of Section 13.8 hereof, Lenders holding at least sixty-seven percent (67%) of
the aggregate outstanding principal amount of the Loans or, if no Loans are
outstanding at such time, Lenders holding at least sixty-seven percent (67%) of
the Commitment.
"Material Adverse Effect" shall mean any event or condition which, alone
or when taken with other events or conditions occurring or existing concurrently
therewith (a) has or is reasonably expected to have a material adverse effect on
the business, operations, condition (financial or otherwise), assets,
liabilities, properties or prospects of either Obligor, or the industry in which
either Obligor operates; (b) has or is reasonably expected to have any material
adverse effect whatsoever on the validity or enforceability of this Agreement or
any Loan Document; (c) materially impairs or is reasonably expected to
materially impair the ability of Borrower to pay and perform the Obligations or
the ability of Parent to pay and perform the Guaranteed Obligations; (d)
materially impairs or is reasonably expected to materially impair the ability of
the Lenders and the Agent to enforce their respective rights and remedies under
this Agreement and the Loan Documents; or (e) has or is reasonably expected to
have any material adverse effect on the Collateral, the Lien of the Agent in the
Collateral or the priority of such Lien.
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"Maturity Date" shall mean March 31, 2002.
"MPPAA" shall mean the Multiemployer Pension Plan Amendments Act of 1980,
amending Title V of ERISA.
"Multiemployer Plan" shall have the same meaning as set forth in Section
4001(a)(3) of ERISA.
"Nations Link" shall mean Nations Link Ltd., a limited partnership
organized under the laws of the State of Texas.
"Net Income" shall mean, for any period and for any Person, the income (or
loss) of such Person for the period in question, after deducting therefrom all
operating expenses, provisions for all taxes and reserves and all other proper
deductions, all determined in accordance with GAAP.
"Net Worth" shall mean, with respect to the Parent and its consolidated
Subsidiaries, at any time, the excess of total assets over Total Liabilities,
excluding, however, from the definition of assets the amount of (a) any write-up
in the book value of any asset resulting from a revaluation thereof subsequent
to the later to occur of (i) the Effective Date and (ii) the date any such
Person acquired such asset; (b) treasury stock; (c) receivables from Affiliates;
and (d) unamortized debt discount, all determined in accordance with GAAP on a
consolidated basis for the Parent and its Subsidiaries.
"Notes" shall mean, collectively, the Revolving Credit Note and the Term
Notes.
"Notice of Borrowing or Conversion/Continuation" shall have the meaning
given to such term in Section 2.12(a) hereof.
"Obligations" shall mean the Loans and any and all other indebtedness,
liabilities and obligations of Borrower to the Lenders and the Agent of every
kind and nature (including, without limitation, interest, charges, expenses,
attorneys' fees and other sums chargeable to Borrower by the Lenders and the
Agent and future advances made to or for the benefit of Borrower), arising under
this Agreement or under any of the other Loan Documents, or acquired by any
Lender or the Agent from any other source, whether arising by reason of an
extension of credit, opening of a letter of credit, loan, lease, credit card
arrangement, guaranty, indemnification or in any other manner, direct or
indirect, absolute or contingent, primary or secondary, due or to become due,
now existing or hereafter acquired.
"Original Revolving Credit Loans" shall have the meaning given to such
term in Section 2.1(b).
"Original Term Loans" shall have the meaning given such term in Section
2.2 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
under ERISA,
11
or any successor agency or Person performing substantially the same functions.
"Permitted Investments" shall have the meaning given to such term in
Section 7.5.
"Permitted Liens" shall mean: (a) those Liens existing on the date hereof
described on Schedule 1.3 attached hereto; (b) Liens in favor of the Agent; (c)
Liens arising out of legal proceedings, so long as such proceedings are being
contested in good faith by appropriate proceedings diligently conducted and so
long as execution is stayed on all judgments resulting from any such
proceedings; (d) Liens arising with respect to Capital Lease Obligations to the
extent permitted under Section 7.2, provided such Liens attach only to the
property subject to the lease under which such Capital Lease Obligations arise
and the amounts of such Capital Lease Obligations does not exceed 100% of the
fair market value of such property; and (e) Liens for (i) property taxes not
delinquent, (ii) taxes not yet subject to penalties, (iii) pledges or deposits
made under Workmen's Compensation, Unemployment Insurance, Social Security and
similar legislation, or in connection with appeal or surety bonds incident to
litigation, or to secure statutory obligations, and (iv) mechanics' and
materialmen's Liens with respect to liabilities which are not yet due or which
are being contested in good faith.
"Person" shall mean and include any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, limited liability company, limited liability partnership,
institution, entity, party or government (whether national, federal, state,
county, city, municipal, or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
"Plan" shall mean any employee benefit plan, program, arrangement,
practice or contract, maintained by or on behalf of either Obligor or an ERISA
Affiliate, which provides benefits or compensation to or on behalf of employees
or former employees, whether formal or informal, whether or not written,
including, but not limited to, the following types of plans:
(i) Executive Arrangements - any bonus, incentive compensation, stock
option, deferred compensation, commission, severance, "golden parachute," "rabbi
trust," or other executive compensation plan, program, contract, arrangement or
practice ("Executive Arrangements");
(ii) ERISA Plans - any "employee benefit plan", except any Multiemployer
Plan, as defined in Section 3(3) of ERISA, whether maintained by or for a single
employee or by or for multiple employees, including, but not limited to, any
defined benefit pension plan, profit sharing plan, money purchase plan, savings
or thrift plan, stock bonus plan, employee stock ownership plan, or any plan,
fund, program, arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness, disability, or
life insurance benefits ("ERISA Plans");
(iii) other Employee Fringe Benefits - any stock purchase, vacation,
scholarship, day care, prepaid legal services, severance pay or other fringe
benefit plan, program, arrangement, contract or practice ("Fringe Benefit
Plans") and
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(iv) Multiemployer Plan - any Multiemployer Plan.
"Preferred Stock" shall mean, collectively, the Series A Preferred Stock,
the Series B Preferred Stock and the Series C Preferred Stock.
"Quoted Rate" shall mean, when used with respect to an Interest Period for
a Eurodollar Loan, the quotient of (i) the offered rate quoted by Creditanstalt
in the interbank Eurodollar market in New York City, New York or London, England
on or about 10:00 p.m. (New York or London time, as the case may be) two
Business Days prior to such Interest Period for U.S. dollar deposits of an
aggregate amount comparable to the principal amount of the Eurodollar Loan to
which the Quoted Rate is to be applicable and for a period comparable to such
Interest Period, divided by (ii) one minus the Reserve Percentage. For purposes
of this definition, (a) "Reserve Percentage" shall mean with respect to any
Interest Period, the percentage which is in effect on the first day of such
Interest Period under Regulation D as the maximum reserve requirement for member
banks of the Federal Reserve System in New York City with deposits comparable in
amount to those of Creditanstalt against Eurocurrency Liabilities and (b)
"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation
D, as in effect from time to time. The Quoted Rate for the applicable period
shall be adjusted automatically on and as of the effective date of any change in
the applicable Reserve Percentage.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as it may be amended from time to time.
"Reportable Event" shall have the meaning set forth in Section 4043 of
ERISA.
"Revolving Credit Loans" shall have the meaning given to such term in
Section 2.1 hereof.
"Revolving Credit Note" shall have the meaning given to such term in
Section 2.1 hereof.
"Security Documents" shall mean, collectively, (i) the Collateral
Assignments and Agreements, (ii) the LLC Pledge Agreement, and (v) each of the
other security documents executed in connection with this Agreement from time to
time, and "Security Document" shall mean any one of the foregoing.
"Senior Debt" shall mean, at any time, the aggregate principal amount of
all Indebtedness of Parent and its consolidated Subsidiaries (including, but not
limited to, the Loans) which has not been subordinated in right of payment to
the Obligations on terms and conditions satisfactory to the Lenders and the
Agent, excluding, however, any Indebtedness in respect of the Borrower's
Preferred Stock.
"Senior Debt/Cash Flow Ratio" shall mean, for any fiscal quarter or other
three-month period of the Parent and its consolidated Subsidiaries, the ratio of
(a) Senior Debt as of the end
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of such quarter or period to (b) four (4) times the Cash Flow for the such
quarter or period, calculated on a pro forma basis as if any acquisition made by
the Parent or any Subsidiary of the Parent during such fiscal quarter or period
had been made on the first day of such fiscal quarter or period.
"Series A Preferred Stock" shall mean the Series A Cumulative Convertible
Preferred Stock of Parent, $.01 par value per share.
"Series B Preferred Stock" shall mean the Series B Preferred Stock of
Parent, $.01 par value per share.
"Series C Preferred Stock" shall mean the Series C Convertible Preferred
Stock of the Parent, $.01 par value per share.
"Solvent" shall mean, as to any Person, that such Person (a) has capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage and (b) is able to pay its debts as
they mature.
"Subordinated Debt" shall mean Indebtedness of either Obligor which has
been subordinated to the Guaranteed Obligations on terms and conditions
satisfactory to the Lenders and the Agent.
"Subsidiary" shall mean, as to any Person, any other Person, of which more
than fifty percent (50%) of the outstanding shares of Capital Stock or other
ownership interest having ordinary voting power to elect a majority of the board
of directors of such corporation or similar governing body of such other Person
(irrespective of whether or not at the time stock or other ownership interests
of any other class or classes of such other Person shall have or might have
voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or by one or more
Subsidiaries of such Person.
"Term Loan" shall have the meaning given to such term in Section 2.2
hereof
"Term Note" shall have the meaning given to such term in Section 2.2
hereof.
"Termination Date" shall mean the earliest of (a) the Maturity Date; (b)
the date the Commitment is reduced to zero pursuant to Section 2.10 hereof; and
(c) the date the Commitment is terminated pursuant to Section 10.2 hereof.
"Total Debt/Cash Flow Ratio" shall mean, for any fiscal quarter or other
three-month period of the Parent and its consolidated Subsidiaries, the ratio of
(a) Indebtedness as of the end of such quarter or period to (b) four (4) times
the Cash Flow for the such quarter or period, calculated on a pro forma basis as
if any acquisition made by the Parent or any Subsidiary of the Parent during
such fiscal quarter or period had been made on the first day of such fiscal
quarter or period.
14
"Total Liabilities" shall mean, with respect to the Parent and its
consolidated Subsidiaries, all obligations, Indebtedness or other liabilities of
any kind or nature, fixed or contingent, due or not due, which, in accordance
with GAAP, would be classified as a liability on the consolidated balance sheet
of such Person, together with any obligation, indebtedness or other liability of
any kind or nature, fixed or contingent, due or not due, which, in accordance
with GAAP, would be classified as a liability on the balance sheet of the any
Person other than the Parent and its consolidated Subsidiaries and which has
been guaranteed by such the Parent and its consolidated Subsidiaries.
"UCC" shall mean the Uniform Commercial Code as in effect in the State of
New York.
1.2 Use of Defined Terms. All terms defined in this Agreement and the
Exhibits hereto shall have the same defined meanings when used in any other Loan
Document, unless the context shall require otherwise.
1.3 Accounting Terms; Calculations. All accounting terms not specifically
defined herein shall have the meanings generally attributed to such terms under
GAAP. Calculations hereunder shall be made and financial data required hereby
shall be prepared, both as to classification of items and as to amounts, in
accordance with GAAP, consistently applied (except as otherwise specifically
required herein).
1.4 Other Terms. All other terms used in this Agreement which are not
specifically defined herein but which are defined in the UCC shall have the
meanings set forth therein.
1.5 Terminology. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural, and the plural shall include the
singular. Titles of Articles and Sections in this Agreement are for convenience
only, and neither limit nor amplify the provisions of this Agreement, and all
references in this Agreement to Articles, Sections, Subsections, paragraphs,
clauses, subclauses, Exhibits or Schedules shall refer to the corresponding
Article, Section, Subsection, paragraph, clause, subclause of, Exhibit or
Schedule attached to, this Agreement, unless specific reference is made to the
articles, sections or other subdivisions of, Exhibits or Schedules to, another
document or instrument. All references to any instrument, document or agreement
shall, unless the context otherwise requires, refer to such instrument, document
or agreement as the same may be, from time to time, amended, modified,
supplemented, renewed, extended, replaced or restated.
1.6 Exhibits. All Exhibits and Schedules attached hereto are by reference
made a part hereof.
2. THE LOANS
2.1 Revolving Credit Loans. (a) Subject to the terms and conditions hereof
and provided that there exists no Default or Event of Default, each, of the
Lenders, severally but not jointly, agrees to make revolving loans (the
"Revolving Credit Loans") as requested by
15
Borrower in accordance with the provisions of Section 2.3 hereof, to Borrower
from time to time on and after the date hereof and up to, but not including, the
Termination Date in an aggregate amount not to exceed at any one time
outstanding an amount equal to such Lender's Commitment Percentage of the
Commitment, provided, however, that no Lender shall be required to make any
Revolving Credit Loan if, after giving effect to the making of such Loan, the
Senior Debt/Cash Flow Ratio during the period in which such Loan would be made
shall be greater than the applicable maximum ratio permitted under Section 8.3
hereof. The Revolving Credit Loans made by each Lender shall be evidenced by a
promissory note, substantially in the form of Exhibit A attached hereto, payable
to such Lender in the principal face amount of such Lender's Commitment (each
such promissory note, together with any and all amendments, modifications and
supplements thereto, and any renewals, replacements or extensions thereof, in
whole or in part, a "Revolving Credit Note"). Prior to the Termination Date,
Revolving Credit Loans may be borrowed, repaid and reborrowed in accordance with
the terms hereof. All Revolving Credit Loans shall become due and payable in
full on the Termination Date.
(b) Prior to the Effective Date, certain of the Lenders from time to time
made certain revolving credit loans to the Parent (which loans were subsequently
assigned to, and assumed by, the Borrower) and to the Borrower (collectively,
the "Original Revolving Credit Loans"). This Agreement shall not constitute a
novation of the Original Revolving Credit Loans; any such Original Revolving
Credit Loans outstanding shall for all purposes constitute Revolving Credit
Loans under this Agreement.
2.2 Term Loans.
(a) Prior to the Effective Date, certain of the Lenders had made
certain term loans to the Parent (which term loans subsequently were assigned
to, and assumed by, the Borrower) and to the Borrower, in an aggregate principal
amount of Eight Million Dollars ($8,000,000), the outstanding principal balance
of which, as of the date hereof, is $8,000,000 (collectively, the "Original Term
Loans"). This Agreement shall not constitute a novation of the Original Term
Loans; any such Original Term Loans outstanding shall for all purposes
constitute Term Loans under this Agreement, but shall be deemed funded by the
applicable Lender in accordance with Section 2.3(c) hereof on the Effective Date
(each a "Term Loan" and collectively, the "Term Loans"). The Term Loans, shall
be evidenced by one or more promissory notes, substantially in the form of
Exhibit B attached hereto (each such promissory note, together with any and all
amendments, modifications and supplements thereto, and any renewals,
replacements or extensions thereof, in whole or in part, the "Term Note"), and
shall be payable to the Lenders in the respective principal amounts set forth on
Schedule I attached hereto.
(b) The aggregate principal amount of the Term Loans shall be
repayable in sixteen (16) quarterly installments of principal, payable on each
Amortization Date commencing on June 30, 1998, with the first eight such
principal installments each being in the amount of $400,000; the ninth through
twelfth such installments each being in the amount of $500,000; the thirteenth
through fifteenth such installments each being in the amount of $700,000; and
the
16
sixteenth and final such installment being be in an amount equal to the
outstanding principal balance of such Term Loan, payable on the Maturity Date.
2.3 Borrowing Procedures.
(a) Borrower shall give the Agent notice of each request for a Loan
hereunder in accordance with Section 2.12 hereof. The Agent shall promptly
notify each Lender of any Notice of Borrowing received hereunder. Not later than
1:00 p.m. (Greenwich, Connecticut time) on the date specified for each borrowing
hereunder, each Lender shall make available to the Agent the amount of the Loan
to be made by such Lender in accordance with such Lender's Commitment
Percentage, in immediately available funds at an account with Creditanstalt
designated by the Agent. The Agent shall, subject to the terms and conditions of
this Agreement, not later than 2:00 p.m. (Greenwich, Connecticut time) on the
Business Day specified for such borrowing, make such amount available to
Borrower in same day funds in Greenwich, Connecticut.
(b) Unless the Agent shall have been notified by any Lender at least
one Business Day prior to the date on which any Eurodollar Loan is to be made to
Borrower and not later than 11:00 am. (Greenwich, Connecticut time) on the date
any Base Rate Loan is to be made, that such Lender does not intend to make
available to the Agent such Lender's Commitment Percentage of such Loan, the
Agent may assume that such Lender has made such amount available to the Agent on
the date of such Loan and the Agent may, in reliance upon such assumption, make
available to Borrower a corresponding amount. If such corresponding amount is
not in fact made available to Agent by such Lender, the Agent shall be entitled
to recover such corresponding amount on demand from such Lender, which demand
shall be made in a reasonably prompt manner. If such Lender does not pay such a
corresponding amount forthwith upon the Agent's demand therefor, the Agent shall
promptly notify Borrower and Borrower shall pay such corresponding amount to the
Agent. The Agent shall also be entitled to recover from such Lender interest on
such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to Borrower to the date
such corresponding amount as recovered by the Agent at a rate per annum equal to
the Federal Funds Rate, for the first two Business Days, and then thereafter at
the rate per annum then in effect with respect to Base Rate Loans. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment Percentage of the Commitment hereunder or to prejudice any rights
which the Agent or Borrower may have against any Lender as a result of any
Default by such Lender hereunder.
(c) Borrower agrees that, on the Effective Date, it shall borrow
Loans from the Lenders who are not party to the Second Restated Loan Agreement
and repay Loans of the other Lenders such that, after giving effect thereto, the
Loans (including, without limitation, the principal amounts, types and (if
applicable) Interest Periods thereof) shall be held by the Lenders ratably in
accordance with their Commitment Percentage by reference to the principal
amounts of the Loans. Borrower shall not incur any fees or costs pursuant to
Section 2.10 or Section 3.8 in connection with such deemed borrowing.
2.4 Loan Account; Statements of Account. The Agent will maintain one or
more
17
loan accounts for Borrower to which the Agent will charge all amounts advanced
to or for the benefit of Borrower hereunder or under any of the other Loan
Documents and to which the Agent will credit all amounts collected under each
such credit facility from or on behalf of the Borrower. The Agent will account
to Borrower periodically with a statement of charges and payments made pursuant
to this Agreement, and each such account statement shall be deemed final,
binding and conclusive unless the Agent is notified by Borrower in writing to
the contrary within thirty (30) days of the date of each account statement. Any
such notice shall only be deemed an objection to those items specifically
objected to therein. The unpaid principal amount of the Loans, the unpaid
interest accrued thereon, the interest rate or rates applicable to such unpaid
principal amount and the accrued and unpaid fees, premiums and other amounts due
hereunder shall at all times be ascertained from the records of the Agent and
such records shall constitute prima facie evidence of the amounts so due and
payable.
2.5 Use of Proceeds. The proceeds of the Revolving Credit Loans shall be
used (a) for acquisitions expressly permitted under Section 7.5 hereof or
acquisitions otherwise expressly consented to in writing by the Agent and the
Majority Lenders, and (b) to provide for the general working capital needs of
Borrower. No portion of the proceeds of any Loan may be used by the Borrower in
any manner which would cause such Loan or the application of the proceeds
thereof to violate any of Regulations G, T, U or X of the Board of Governors of
the Federal Reserve System.
2.6 Several Obligations of the Lenders; Remedies Independent. The failure
of any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make any Loan to be made
by it on such date, but neither any Lender nor the Agent shall be responsible
for the failure of any other Lender to make a Loan to be made by such other
Lender. The amounts payable by the Borrower at any time hereunder and under the
Notes to each Lender shall be a separate and independent debt and each Lender
shall be entitled to protect and enforce its rights arising out of this
Agreement and its Note, and it shall not be necessary for any other Lender or
the Agent to consent to, or be joined as an additional party in, any proceeding
for such purposes.
2.7 Termination. This Agreement shall terminate upon the later to occur of
(a) the Termination Date, or (b) the repayment and satisfaction of all
Obligations.
2.8 Payments. Each payment by Borrower pursuant to this Agreement or any
of the Notes shall be made prior to 1:00 p.m. (Greenwich, Connecticut time) on
the date due and shall be made without set-off or counterclaim to the Agent at
such account or at such other place or places as the Agent may designate from
time to time in writing to Borrower and in such amounts as may be necessary in
order that all such payments (after withholding for or on account of any present
or future taxes, levies, imposts, duties or other similar charges of whatsoever
nature imposed by any government or any political subdivision or taxing
authority thereof, other than any tax on or measured by the net income of the
Agent or any Lender, as applicable, pursuant to the income tax laws of the
jurisdiction where the Agent's, or such Lender's, as applicable, principal or
lending office is located) shall not be less than the amounts otherwise
specified to be paid under this Agreement and the Notes. Except as otherwise set
forth herein or in the Notes,
18
the principal amount of each such payment shall be an integral multiple of
$100,000. Each such payment shall be in lawful currency of the United States of
America and in immediately available funds. If the due date of any payment
hereunder or under any of the Notes would otherwise fall on a day which is not a
Business Day, then such payment shall be due on the next succeeding Business Day
and interest shall be payable on the principal amount of such payment for the
period of such extension. The Agent shall remit to each Lender such Lender's
share of any payment received by the Agent from the Borrower on the date
received if any such payment is received prior to 1:00 p.m.; otherwise the Agent
will remit such payment to such Lender on the next succeeding Business Day. If
the Agent has not received any payment due hereunder by the close of business on
the date such payment is due, Borrower authorizes the Lenders, at their option,
to charge such payment as a Revolving Credit Loan. If the Agent does not remit
to any Lender the amount due to such Lender within the time period provided
above, the Agent shall remit such amount to such Lender on demand and such
Lender shall be entitled to recover from the Agent interest on such amount in
respect of each day from the date such amount was due until the date remitted to
such Lender at a rate per annum equal to the Federal Funds Rate, for the first
two (2) Business Days, and then thereafter at the rate per annum then in effect
with respect to Base Rate Loans.
2.9 Prorata Treatment. Except to the extent otherwise provided herein: (a)
each borrowing from the Lenders under Section 2.1 and the deemed borrowings
under Section 2.2 hereof shall be made from the Lenders and each payment of
Commitment Fee under Section 3.5 hereof shall be made to the Agent for the
account of the Lenders, prorata according to the unused amounts of their
respective Commitment Percentage of the Commitment; (b) each termination or
reduction of the amount of the Commitment under Section 2.10 hereof shall be
applied to the Lenders, prorata according to their Commitment Percentage of the
Commitment; (c) the making, Conversion and Continuation of Loans of a particular
type shall be made prorata among the relevant Lenders according to their
Commitment Percentage of the Commitment and the then current Interest Period for
each Eurodollar Loan shall be coterminous; (d) each payment or prepayment of
principal of Loans by Borrower shall be made for the account of relevant Lenders
prorata in accordance with their Commitment Percentages; provided that if
immediately prior to giving effect to any such payment in respect of any Loans
the outstanding principal amount of the Loans shall not be held by the Lenders
prorata in accordance with their Commitment Percentage in effect at the time
such Loans were made (by reason of a failure of a Lender to make a Loan
hereunder in the circumstances described in the last paragraph of Section 13.8
hereof), then such payment shall be applied to the Loans in such manner as shall
result, as nearly as is practicable, in the outstanding principal amount of the
Loans being held by the Lenders prorata in accordance with their respective
Commitment Percentages; and (e) each payment of interest on Loans by Borrower
shall be made for account of the Lenders prorata in accordance with the amounts
of interest on such Loans then due and payable to the respective Lenders.
2.10 Prepayment; Commitment Reduction.
(a) Upon written notice to the Agent in accordance with Section
2.12(a) hereof, Borrower may, at its option, reduce the Commitment, in whole or
in part, on the date specified in such notice, by paying to the Agent for the
benefit of the Lenders the accrued
19
amount of the Commitment Fee applicable to the amount of Commitment reduction,
and, if such reduction occurs prior to January 31, 1999, a premium equal to one
percent (1%) of the amount by which the Commitment is reduced. In no event may
Borrower reduce the Commitment below the aggregate principal amount of Revolving
Credit Loans outstanding thereunder.
(b) Upon written notice to the Agent in accordance with Section
2.12(a) hereof, Borrower may, at its option, prepay the Term Loan, in whole or
in part, on the date specified in such notice, by paying to Agent for the
benefit of the Lenders the amount of such prepayment, and, if such prepayment
occurs prior to January 31, 1999, a premium equal to one percent (1%) of the
amount of such repayment.
(c) The Commitment shall be automatically reduced to zero on the
Maturity Date.
(d) The Commitment, once terminated or reduced, may not be
reinstated.
(e) All prepayments of the Term Loan shall be applied to the
principal installments thereof in the inverse order of their maturities.
(f) Borrower may not prepay any Loan which is a Eurodollar Loan
prior to the last day of the Interest Period applicable to such Eurodollar Loan
unless Borrower pays to the Agent, for the benefit of the Lenders, concurrently
with such prepayment, all amounts payable to the Lenders pursuant to Section 3.8
hereof.
(g) Notwithstanding the terms of Section 2.10(a) and Section 2.10(b)
hereof, Borrower may, without premium or penalty, in whole or part, reduce the
Commitment as a result of, or prepay the Term Loan, in whole or in part, from
the proceeds of, a sale of Capital Stock of Borrower other than Capital Stock
constituting Indebtedness.
2.11 Sharing of Payments, Etc.
(a) Borrower agrees that, in addition to (and without limitation of)
any right of set-off, banker's lien or counterclaim a Lender may otherwise have,
each Lender shall be entitled, at its option, to offset balances held by it for
account of Borrower at any of its offices, in dollars or in any other currency,
against any principal of or interest on any of such Lender's Loans or any other
amount payable to such Lender hereunder, that is not paid when due, after giving
effect to any applicable grace periods (regardless of whether such balances are
then due to Borrower), in which case it shall promptly notify Borrower and the
Agent thereof, provided that such Lender's failure to give such notice shall not
affect the validity thereof.
(b) If any Lender shall obtain from Borrower payment of any
principal of or interest on any Loan owing to it or payment of any other amount
under this Agreement through the exercise of any right of set-off, banker's lien
or counterclaim or similar right or otherwise (other than from the Agent as
provided herein), and, as a result of such payment, such Lender shall have
received more than its Commitment Percentage of the principal of or interest on
the Loans or such other
20
amounts then due hereunder by Borrower, it shall promptly notify the Agent of
such payment and promptly purchase from such other Lenders participations in
(or, if and to the extent specified by such Lender, direct interests in) the
Loans or such other amounts, respectively, owing to such other Lenders (or in
interest due thereon, as the case may be) in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such excess payment (net of any expenses that
may be incurred by such Lender in obtaining or preserving such excess payment)
prorata in accordance with the unpaid principal of and/or interest on the Loans
or such other amounts, respectively, owing to each of the Lenders, provided that
if at the time of such payment the outstanding principal amount of the Loans
shall not be held by the Lenders prorata in accordance with their respective
Commitment Percentages in effect at the time such Loans were made (by reason of
a failure of a Lender to make a Loan hereunder in the circumstances described in
the last paragraph of Section 13.8 hereof), then such purchases of
participations and/or direct interests shall be made in such manner as will
result, as nearly as is practicable, in the outstanding principal amount of the
Loans being held by the Lenders prorata according to each Lender's Commitment
Percentage. To such end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored.
(c) Borrower agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of Borrower. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 2.11 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 2.11 to
share in the benefits of any recovery on such secured claim.
2.12 Certain Notices.
(a) All notices given by Borrower to the Agent hereunder of terminations
or reductions of the Commitment, or of borrowings, Conversions, Continuations or
prepayments of Loans hereunder shall either be oral, with prompt written
confirmation, which may be by telecopy, or in writing, with such written
confirmation or writing, in the case of a borrowing or in the case of an
Conversion or Continuation, to be substantially in the form of Exhibit C
attached hereto (a "Notice of Borrowing or Conversion/Continuation"); shall be
irrevocable; shall be effective only if received by Agent prior to 10:00 am.
(New York time) on a Business Day which is: (i) at least fifteen (15) days prior
to such termination or reduction of the Commitment; (ii) not later than the date
such Loan is to be made as, Converted to or Continued as a Base Rate Loan; (iii)
at least three (3) Business Days prior to the date such Loan is to be made as,
Converted to or Continued as a Eurodollar Loan; (iv) at least five (5) days
prior to any such prepayment, in the case of a prepayment of a Eurodollar Loan;
or (v) not later than the date
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of any such prepayment, in the case of a prepayment of a Base Rate Loan. Each
such notice to reduce the Commitment or to prepay the Loans shall specify the
amount of the Commitment to be reduced or of the Loans to be prepaid and the
date of such reduction or prepayment. Each Notice of Borrowing or
Conversion/Continuation shall specify: (1) the amount of such borrowing
Conversion or Continuation; (2) whether such Loan will be made, Converted or
Continued as a Eurodollar Loan or as a Base Rate Loan; (3) the date such Loan is
to be made, Converted or Continued (which shall be a Business Day and, if such
notice is to Convert or Continue a Eurodollar Loan then outstanding, shall not
be prior to the last day of the then current Interest Period for such
outstanding Loan); and (4) if such Loan is a Eurodollar Loan, the duration of
the Interest Period with respect thereto. If Borrower fails to specify the
duration of the Interest Period for any Eurodollar Loan, Borrower shall instead
be deemed to have requested that such Loan be made as, Converted to or Continued
as a Base Rate Loan. Each request for a borrowing, Conversion or Continuation of
a Loan or for any other financial accommodation by Borrower pursuant to this
Agreement or the other Loan Documents shall constitute (x) an automatic warranty
and representation by Borrower to the Agent and the Lenders that there does not
then exist a Default or Event of Default or any event or condition which, with
the making of such Loan, would constitute a Default or Event of Default and (y)
an affirmation that as of the date of such request all of the representations
and warranties of Borrower contained in this Agreement and the other Loan
Documents are true and correct in all material respects, both before and after
giving effect to the making, Conversion or Continuation of such Loan. If, on the
last day of the Interest Period of any Eurodollar Loan hereunder, the Agent has
not received a timely notice hereunder to Convert, Continue or prepay such Loan,
Borrower shall be deemed to have submitted a notice to Convert such Loan to a
Base Rate Loan.
(b) Except for mandatory prepayments made pursuant to Section 7.12 hereof,
each borrowing, Conversion and partial prepayment of principal of Loans shall be
in a minimum principal amount of $100,000, shall be in an integral multiple of
$100,000 in excess thereof, and if a Eurodollar Loan, shall be in a minimum
principal amount of $100,000 (borrowings, Conversions or prepayments of or into
Loans of different types or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each type of
Loan or Interest Period).
3. FEES AND INTEREST
3.1 Interest.
(a) Subject to modification pursuant to Subsection (b) below and Section
10.1 hereof, the average daily outstanding principal amount of the Loans and all
other sums payable by Borrower hereunder shall bear interest, calculated on the
basis of a 360-day year and actual days elapsed, from the date thereof until
paid in full at the following rates:
(i) the outstanding Principal amount of each Eurodollar Loan shall
bear interest at a fixed rate of interest per annum equal to the Quoted
Rate for the then-current Interest Period for such Loan plus four percent
(4%); and
22
(ii) the outstanding principal amount of each Base Rate Loan and all
other sums payable by Borrower hereunder shall bear interest at a
fluctuating rate per annum equal to the Base Lending Rate plus two percent
(2%).
(b) If no Default or Event of Default has occurred and is continuing and
if, on the last date of any month of the Parent, the Senior Debt/Cash Flow Ratio
for such month is less than or equal to 2.5 to 1.0 for the three month period
then ended, then, subject to delivery by a senior financial officer of Parent of
financial statements for that month as required pursuant to Section 6.2(a)
hereof, together with a certificate of the chief executive officer or chief
financial officer of Parent certifying as to the Senior Debt/Cash Flow Ratio,
the rate of interest payable on the Loans shall be adjusted, from the date of
the Agent's receipt of such financial statements and certificate until the date
on which the next following monthly financial statements are required to be
delivered to the Agent and the Lenders, such that the average daily outstanding
principal amount of the Loans and all other sums payable by Borrower hereunder
shall bear interest, calculated daily on the basis of a 360-day year and actual
days elapsed, at the following rates:
(i) the outstanding principal amount of each Eurodollar Loan shall
bear interest at a fixed rate of interest per annum equal to the Quoted
Rate for the then-current Interest Period for such Loan plus three and
one-half percent (3-1/2%); and
(ii) the outstanding principal amount of each Base Rate Loan and all
other sums payable by Borrower hereunder shall bear interest at a
fluctuating rate per annum equal to the Base Lending Rate plus one and
one-half percent (1-1/2%).
If Borrower does not qualify for an adjustment in interest rates as set forth in
clause (b) above for any given month or if no certificate and monthly financial
statements are delivered by the required date, the-interest rates applicable
hereunder shall be those set forth in Section 3.1(a) above.
(c) The outstanding principal balance of any Loans or other Obligations
which are not paid in full when due shall bear interest at the Default Rate.
(d) Accrued interest shall be payable (i) in the case of Base Rate Loans,
monthly on the first day of each month hereafter for the previous month,
commencing July 1, 1997; (ii) in the case of a Eurodollar Loan, on the last day
of each Interest Period; provided, however, that if any Interest Period in
respect of a Eurodollar Loan is longer than three (3) months, such interest
prior to maturity shall be paid on the last Business Day of each three (3) month
interval within such Interest Period as well as on the last day of such Interest
Period; (iii) in the case of any Loan, upon the payment or prepayment thereof;
(iv) in the case of any other sum payable hereunder as set forth elsewhere in
this Agreement or, if not so set forth, on demand; and (v) in the case of
interest payable at the Default Rate, on demand.
3.2 Interest Period. The Interest Period for any Eurodollar Loan shall
commence on the date such Loan is made, Converted or Continued as specified in
the Notice of Borrowing or
23
Conversion/Continuation applicable thereto and shall continue for a period of
one (1), two (2), three (3) or six (6) months, as specified in such notice for
such Eurodollar Loan. If Borrower fails to specify the duration of the Interest
Period for any Eurodollar Loan in the Notice of Borrowing or
Conversion/Continuation applicable thereto, such Loan shall instead be made or
Converted, as appropriate, as a Base Rate Loan.
3.3 Limitations on Interest Periods and Loans. Borrower may not select any
Interest Period for any Eurodollar Loan which extends beyond the Maturity Date
or, in the case of the Term Loan, beyond any Amortization Date, unless, in the
case of Interest Periods extending beyond an Amortization Date, after giving
effect to such Interest Period, the aggregate outstanding principal amount of
the Term Loan which consists of Eurodollar Loans having Interest Periods
extending beyond such Amortization Date is not greater than the aggregate
principal amount of the Term Loan scheduled to be outstanding immediately
following such Amortization Date. Notwithstanding any other provision hereof to
the contrary, Borrower shall not have, in the aggregate for all Loans
outstanding, more than four (4) different Interest Periods at any given time
during the term of this Agreement (for which purpose (x) Interest Periods for
Revolving Credit Loans shall be deemed different from Interest Periods for the
Term Loan, even if they are otherwise identical and (y) Base Rate Loans shall be
counted as an Interest Period).
3.4 Conversions and Continuations. So long as there then exists no Default
or Event of Default hereunder, Borrower shall have the right, on any Business
Day, from time to time, upon written notice in accordance with Section 2.12(a)
hereof, to Convert Loans of one type to Loans of the other type and to Continue
Loans of one type as Loans of the same type; provided that a Eurodollar Loan may
not be Converted to a Base Rate Loan prior to the end of the Interest Period
applicable thereto. Borrower agrees that, if it shall fail to repay any Loan or
portion thereof when due (whether by acceleration or otherwise) and the Loan at
such maturity is being maintained as a Eurodollar Loan, the Lenders, without
limiting the rights of the Lenders hereunder or under the Notes evidencing such
Loan, may at any time and from time to time after such due date Convert to
another type of Loan or Continue such Loan as a Loan of the same type.
3.5 Fees. Borrower shall pay to the Agent for the account of each Lender a
commitment fee (the "Commitment Fee"), calculated on the basis of a 360-day year
and actual days elapsed, equal to one-half of one percent (1/2 of 1 %) per annum
of the average daily unused amount such Lender's Commitment Percentage of the
Commitment, payable on the first day of each calendar quarter for the previous
calendar quarter or portion thereof (commencing on July 1, 1997) and on the
Termination Date.
3.6 Illegality; Inability to Determine the Quoted Rate. Notwithstanding
any other provision of this Agreement to the contrary, in the event that (a) it
shall become unlawful for any Lender to obtain funds in the London interbank
market or for such Lender to maintain a Eurodollar Loan; or (b) by reason of
circumstances affecting the London interbank market, the Agent determines (which
determination shall be conclusive) that quotations of interest rates for the
relevant deposits referred to in the definition of "Quoted Rate" herein are not
being provided in the relevant amounts or for the relevant maturities for the
purpose of determining rates of
24
interest for a Eurodollar Loan, then such Lender or the Agent, as the case may
be, shall promptly notify Borrower thereof whereupon (i) the right of Borrower
to request any Eurodollar Loan shall thereupon terminate and (ii) Borrower
shall, on the earlier of the date required by law or the last day of the then
applicable Interest Period, either (A) pay each Eurodollar Loan then outstanding
in full, or (B) Convert each Eurodollar Loan then outstanding to a Base Rate
Loan.
3.7 Increased Costs and Reduced Return.
(a) If any event shall occur (whether in the form of a reserve requirement
(not included in the definition of the Quoted Rate), exchange control
regulations, governmental charges, compliance with any guideline or request from
any central bank or other Governmental Authority, changes in the interbank
eurodollar market or the position of any Lender in such market or otherwise) and
the result of any such event is, in such Lender's reasonable judgment, to
increase the costs which such Lender determines are attributable to its making
or maintaining any Eurodollar Loan, or its obligation to make available any
Eurodollar Loan or to reduce the amount of any sum received or receivable by
such Lender under this Agreement or either of such Lender's Notes with respect
to any Eurodollar Loan, then, within ten (10) days after demand by such Lender,
Borrower hereby agrees to pay to such Lender such additional amount or amounts
as will compensate such Lender for such increased cost or reduction.
(b) In addition to any amounts payable Pursuant to Section 3.7(a) above,
if any Lender shall have determined that the applicability of any law, rule,
regulation or guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and Capital
Standards," or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the enforcement or interpretation or administration of any of
the foregoing by any court or any central bank or other Governmental Authority,
charged with the enforcement or interpretation or administration thereof, or
compliance by such Lender (or any lending office of such Lender) or such
Lender's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of its making or maintaining any Loan or its
incurring any obligations under this Agreement to a level below that which such
Lender or such Lender's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy) by an amount deemed by such Lender to be material, then,
upon demand by such Lender, the Borrower hereby agrees to pay to such Lender
from time to time such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) If any Lender shall seek payment of any amounts from Borrower pursuant
to paragraph's (a) or (b) of this Section 3.7, such Lender shall notify promptly
the Borrower of any event occurring after the Effective Date entitling such
Lender to compensation thereunder, but in
25
any event within 180 days after such Lender receives actual knowledge thereof;
provided, that if such Lender fails to give such notice within 180 days after it
receives actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 3.7 in respect of any costs
resulting from such event, be entitled to payment under this Section 3.7 only
for costs incurred from and after the date 180 days prior to the date that such
Lender gives such notice.
3.8 Indemnity. Borrower hereby indemnifies and agrees to hold harmless the
Agent and each Lender from and against any and all losses or expenses which any
of them may sustain or incur as a consequence of failure by Borrower to
consummate any notice of prepayment, borrowing, conversion or continuation made
by Borrower, including, without limitation, any such loss or expense arising
from interest or fees payable by the Agent or any Lender to lenders of funds
obtained by it in order to maintain any Eurodollar Loan. Borrower hereby further
indemnifies and agrees to hold harmless each Lender from and against any and all
losses or expenses which it may sustain or incur as a consequence of prepayment
of any Eurodollar Loan on other than the last day of the Interest Period for
such Loan (including, without limitation, any prepayment pursuant to Sections
2.10 and 3.6 hereof). Borrower's obligations under this Section shall survive
the termination of this Agreement and the repayment of the obligations.
3.9 Notice of Amounts Payable to Lenders. If any Lender shall seek payment
of any amounts from Borrower pursuant to Sections 2.8, 3.7 or 3.8 hereof, it
shall notify Borrower of the amount payable by Borrower to such Lender
thereunder. A certificate of such Lender seeking payment pursuant to Sections
2.8, 3.7 or 3.8 hereof, setting forth in reasonable detail the factual basis for
and the computation of the amounts specified, shall be conclusive and binding on
all parties for all purposes, absent manifest error, as to the amounts owed.
Borrower's obligations under this Section shall survive the termination of this
Agreement and the repayment of the obligations.
3.10 Interest Savings Clause. Nothing contained in this Agreement or in
any of the Notes or in any of the other Loan Documents shall be construed to
permit any Lender to receive at any time interest, fees or other charges in
excess of the amounts which such Lender is legally entitled to charge and
receive under any law to which such interest, fees or charges are subject. In no
contingency or event whatsoever shall the compensation payable to any Lender by
Borrower, howsoever characterized or computed, hereunder or under either of the
Notes or under any other agreement or instrument evidencing or relating to the
obligations, exceed the highest rate permissible under any law to which such
compensation is subject. There is no intention that any Lender shall contract
for, charge or receive compensation in excess of the highest lawful rate, and,
in the event it should be determined that any excess has been charged or
received, then, ipso facto, such rate shall be reduced to the highest lawful
rate so that no amounts shall be charged which are in excess thereof; and such
Lender shall apply such excess against the Loans then outstanding (with such
application being made first against the Loans, and then to any other
obligations hereunder) and, to the extent of any amounts remaining thereafter,
refund such excess to Borrower.
26
4. SECURITY INTEREST - COLLATERAL
4.1 Security Interest. As security for the Obligations and the Guaranteed
Obligations, each Obligor hereby grants to the Agent, for the benefit of the
Lenders, a continuing, first priority Lien in the following described property
of such Obligor, whether now owned or existing or hereafter acquired or arising
or in which such Obligor now has or hereafter acquires any rights and
wheresoever located (sometimes herein collectively referred to as "Collateral"):
(a) Accounts;
(b) Inventory;
(c) Equipment;
(d) General Intangibles;
(e) Investment Property;
(f) all licenses, permits and authorizations issued or otherwise afforded
to such Obligor, and all products and proceeds of such licenses, permits and
authorizations;
(g) all of such Obligor's rights under the Distribution Agreement;
(h) all monies, residues and property of any kind of such Obligor, now or
at any time or times hereafter, in the possession or under the control of the
Agent or any Lender or a bailee of the Agent or any Lender;
(i) all accessions to, substitutions for and all replacements, products
and proceeds of the foregoing, including, without limitation, proceeds of
insurance policies insuring the Collateral;
(j) all books and records (including, without limitation, customer lists,
credit files, computer programs, print-outs and other computer materials and
records) of such Obligor pertaining to any of the foregoing;
(k) any and all other property of such Obligor; and
(l) all products and proceeds of any of the foregoing.
4.2 Perfection of Security Interest. Until the termination of this
Agreement and the payment and satisfaction in full of all Obligations, whichever
last occurs, the Agent's security interest in the Collateral and all products
and proceeds thereof, shall continue in full force and effect. The Obligors
shall perform any and all steps requested by the Agent to perfect, maintain and
protect the Agent's security interest in the Collateral, including, without
limitation, executing
27
and filing financing or continuation statements, or amendments thereof, in form
and substance satisfactory to the Agent; delivering to the Agent upon the
Agent's request therefor all documents, instruments or chattel paper included in
the Collateral, the possession of which is necessary or appropriate to perfect
the Agent's security interest therein; delivering to the Agent all letters of
credit on which either Obligor is named as a beneficiary; and obtaining and
delivering such consents and waivers from such landlords, developers or other
Persons as the Agent may request. The Agent may file one or more financing
statements disclosing the Agent's security interest under this Agreement without
either Obligor's signature appearing thereon and the Obligors, jointly and
severally, agree to pay the costs of, or incidental to, any recording or filing
of any financing statements concerning the Collateral. The Obligors agree that a
carbon, photographic, photostatic, or other reproduction of this Agreement or of
a financing statement is sufficient as a financing statement.
4.3 Right to Inspect; Verifications. The Agent (or any person or persons
designated by it), in its sole discretion, shall have the right to call at any
place of business or property location of either Obligor at any reasonable time,
and, without hindrance or delay, to inspect the Collateral and to inspect,
audit, check and make extracts from either Obligor's books, records, journals,
orders, receipts and any correspondence and other data relating to the
Collateral, to either Obligor's business or to any other transactions between
the parties hereto and to discuss any of the foregoing with any of the Obligors'
officers, directors, managers and employees and with the independent accountants
for the Obligors. Additionally, the Agent may, at any time and from time to time
in its sole discretion, require the Obligors to verify the individual Accounts
immediately upon its request therefor; provided however that unless and until
there occurs an Event of Default, the Agent agrees not to contact directly any
Account Debtor for purposes of account verification except with the prior
consent of either Obligor. To facilitate the foregoing, upon request from the
Agent made at any time and from time to time hereafter, each Obligor shall
furnish the Agent with a then current Account Debtor address list.
5. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this Agreement
and to make Loans hereunder, each Obligor, jointly and severally, hereby makes
the following representations and warranties to the Agent and the Lenders which
shall be true and correct on the date hereof and shall continue to be true and
correct at the time of the making of any Loan and until the Loans have been
repaid in full:
5.1 Corporate Existence and Qualification. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia and is duly qualified as a foreign corporation in good standing in each
other state wherein the conduct of its business or the ownership of its property
requires such qualification. Borrower is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Georgia and is duly qualified as a foreign limited liability company in good
standing in each other state wherein the conduct of its business or the
ownership of its property requires such qualification.
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5.2 Chief Executive office; Collateral Locations. Each Obligor's principal
place of business, chief executive office and office where it keeps all of its
books and records is set forth on Schedule 5.2 attached hereto, and neither
Obligor has had any other chief executive office or principal place of business
except as set forth on Schedule 5.2 attached hereto during the five (5) years
immediately preceding the date hereof. Schedule 5.2 attached hereto and
incorporated herein by reference sets forth a true, correct and complete list of
all places of business and all locations at which any Collateral is located.
5.3 Corporate Authority. Each Obligor has the organizational power and
authority to execute, deliver and perform its obligations under this Agreement
and the Loan Documents to which it is a party, and to borrow hereunder, and has
taken all necessary and appropriate organizational action to authorize the
execution, delivery and performance by each Obligor of this Agreement and such
Loan Documents.
5.4 No Consents; Validity and Binding Effect. The execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party and the consummation of the transactions contemplated thereby and hereby
are not in contravention of any provisions of law or any agreement or indenture
by which either Obligor is bound or of the Articles of Incorporation or By-laws
of the Parent or the Articles of Organization or Operating Agreement of the
Borrower and do not require authorization, consent, approval or other action by
any governmental body, agency, authority or other Person which has not been
obtained and a copy thereof furnished to the Agent and the Lenders. This
Agreement and the other Loan Documents to which each Obligor is a party
constitute the valid and legally binding obligations of such Obligor,
enforceable against such Obligor in accordance with their respective terms.
5.5 No Material Litigation. Except as set forth on Schedule 5.5 hereto,
there are no proceedings pending or threatened before any court or
administrative agency which might have a Material Adverse Effect.
5.6 Corporate or Limited Liability Company Organization. The Articles of
Incorporation and By-laws of the Parent and the Articles of Organization and
Operating Agreement of the Borrower are in full force and effect under the laws
of Georgia and all amendments to said documents and agreements have been duly
and properly made under and in accordance with all applicable laws.
5.7 Solvency. Giving effect to the execution and delivery of this
Agreement, the Loan Documents, the consummation of the transactions contemplated
hereby and thereby and the making of the initial Loans hereunder, each Obligor
is Solvent.
5.8 Adequacy of Intangible Assets. Each Obligor possesses all intellectual
property licenses, patents, patent applications, copyrights, trademarks,
trademark applications, and trade names and all governmental registrations and
licenses necessary to continue to conduct its business as heretofore conducted
by it, and all such intellectual property licenses, patents, patent
applications, copyrights, trademarks, trademark applications, trade names,
licenses and registrations are listed on Schedule 5.8 attached hereto and, in
the case of the Borrower, shall be
29
deemed General Intangibles for the purposes of this Agreement.
5.9 Taxes. Each Obligor has filed all federal, state, local and foreign
tax returns, reports and estimates which are required to be filed by it and all
taxes (including penalties and interest, if any) shown on such returns, reports
and estimates as being due and payable or which are otherwise due and payable
have been fully paid. Such tax returns properly and correctly reflect the income
and taxes of the such Obligor for the periods covered thereby. Each Obligor's
federal tax identification number is set forth on Schedule 5.9 attached hereto.
5.10 ERISA.
(a) Identification of Plans. Except as disclosed on Schedule 5.10 attached
hereto, neither Obligor nor any ERISA Affiliate maintains or contributes to, or
has maintained or contributed to, any Plan or Multiemployer Plan that is subject
to regulation by Title IV of ERISA;
(b) Compliance. Each Plan has at all times been maintained, by its terms
and in operation, in accordance with all applicable laws, except for such
noncompliance (when taken as a whole) that will not have a Materially Adverse
Effect;
(c) Liabilities. Neither Obligor nor any ERISA Affiliate is currently or
to the best knowledge of either Obligor or any ERISA Affiliate will become
subject to any liability (including withdrawal liability), tax or penalty
whatsoever to any person whomsoever with respect to any Plan, including, but not
limited to, any tax, penalty or liability arising under Title I or Title IV of
ERISA or Chapter 43 of the Code, except such liabilities (when taken as a whole)
as will not have a Material Adverse Effect;
(d) Funding. Each Obligor and each ERISA Affiliate have made full and
timely payment of (i) all amounts required to be contributed under the terms of
each Plan and applicable law and (ii) all material amounts required to be paid
as expenses of each Plan. No Plan has any "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA); and
(e) Insolvency: Reorganization No Plan is insolvent (within the meaning of
Section 4245 of ERISA) or in reorganization (within the meaning of Section 4241
of ERISA).
5.11 Financial Information
(a) The audited financial statements of Parent for the fiscal years ending
July 31, 1995 and July 31, 1996, in each case consisting of a balance sheet and
statements of income and cash flow, copies of which have been delivered by
Parent to the Agent and the Lenders, are true and correct in all material
respects and contain no material misstatement or omission, and fairly present
the financial position, assets and liabilities of Parent as of the respective
dates thereof and the results of operations of Parent for-the respective periods
then ended, and as of the date thereof there were no liabilities of either
Obligor, fixed or contingent, which are material that were not reflected in such
financial statements.
30
(b) The consolidated and consolidating projected cash flow statement,
balance sheet and operating budget for Parent and its Subsidiaries delivered to
Agent and the Lenders prior to the date of this Agreement, if any, (the
"Projections"), (i) disclose all assumptions made with respect to costs, general
economic conditions, and financial and market conditions in formulating the
Projections; (ii) are based on reasonable estimates and assumptions; and (iii)
reflected, as of the date prepared, and continue to reflect, as of the date of
this Agreement, the reasonable estimate of Parent of the results of operations
and other information projected therein for the periods covered thereby.
(c) Since the date of the audited financial statements for the fiscal year
ending on July 31, 1996, there has been no material adverse change in the
condition, financial or otherwise, assets, business, liabilities, or results of
operations of the Parent, and neither the Parent nor any of its Subsidiaries,
since such date, has (i) incurred any obligation or liability, fixed or
contingent, which would have a Material Adverse Effect; (ii) incurred any
Indebtedness for borrowed money or Capital Lease Obligations other than the
Obligations, in the case of Borrower, and the Guaranteed Obligations, in the
case of the Parent, or incurred any other Indebtedness other than trade payables
and other liabilities arising in the ordinary course of the business of Parent;
or (iii) Guaranteed the obligations of any other Person, provided, however, that
the Parent will Guarantee the payment and performance of the Obligations
pursuant to the Guaranty.
5.12 Title to Assets. Except as set forth on Schedule 5.12 attached
hereto, Borrower has good and marketable title to and ownership of the
Collateral and all of its other assets, free and clear of all Liens and claims,
except for Permitted Liens.
5.13 Violations of Law. Neither Parent nor any of its Subsidiaries is in
violation of any applicable statute, regulation or ordinance of any governmental
entity, or of any agency thereof, which violation might have a Material Adverse
Effect.
5.14 Environmental Laws.
(a) Each of the Parent and its Subsidiaries has obtained all permits,
licenses and other authorizations, if any, which are required under
Environmental Laws, and each such Person is in compliance in all material
respects with all terms and conditions of required permits, licenses and
authorizations, and are also in compliance in all material respects with all
other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, notifications, schedules and timetables contained in
the Environmental Laws;
(b) Neither the Parent nor any of its Subsidiaries is aware of, nor has
any such Person received notice of, the disposal or release or presence of
Hazardous Substances on any of its properties, or of any past, present or future
events, conditions, circumstances, activities, practices, incidents, actions or
plans which may interfere with or prevent compliance or continued compliance on
the part of any such Person in any material respect with Environmental Laws, or
may give rise to any material common law or legal liability, or otherwise form
the
31
basis of any material claim, action, demand, suit, Lien, proceeding, hearing,
study or investigation, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling, or the
emission, discharge, release or threatened release into the environment, of any
Hazardous Substance;
(c) All assets of Parent and its Subsidiaries are free from Hazardous
Substances except for Hazardous Substances used, maintained or handled by Parent
and its Subsidiaries in the ordinary course of business and the use and disposal
of any and all such Hazardous Substances is effected by Parent and its
subsidiaries in compliance with all applicable Environmental Laws; and
(d) There is not pending or threatened against Parent or any of its
Subsidiaries, and neither Parent nor any Subsidiary of the Borrower knows of any
facts or circumstances that might give rise to, any civil, criminal or
administrative action, suit, demand, claim, hearing, notice or demand letter,
notice of violation, environmental Lien, investigation, or proceeding relating
in any way to Environmental Laws.
5.15 No Default. Neither Parent nor any of its Subsidiaries is in default
with respect to (a) any note, indenture, loan agreement, guaranty, mortgage,
lease, deed or other similar agreement relating to Indebtedness to which such
Person is a party or by which such Person is bound or (b) any other instrument,
document or agreement to which such Person is a party or by which such Person or
any of such Person's properties are bound, the default of which would have a
Material Adverse Effect.
5.16 Bona Fide Accounts. Each Account now or hereafter shown on any
schedule or aging of Accounts provided to the Agent hereunder arises or will
arise under a contract between an Obligor and the Account Debtor in each case
providing for the bona fide performance of services by Borrower for or on behalf
of the Account Debtor except to the extent otherwise expressly indicated on such
schedule or aging of accounts.
5.17 Amount of Accounts; No Setoffs. The amount of the face value of any
Accounts shown on any schedule or aging of Accounts provided to the Agent are
actually and absolutely owing to the applicable Obligor, are not contingent for
any reason and, except as otherwise expressly noted on such schedule or aging of
accounts, there are no setoffs, counterclaims, disputes or deductions existing
or asserted with respect thereto.
5.18 Right to Assign. Borrower has full right, power and authority to
assign the accounts receivable included in the Accounts.
5.19 Corporate and Trade or Fictitious Names. Except as disclosed on
Schedule 5.19 attached hereto, during the five (5) years immediately preceding
the date of this Agreement, neither Obligor has been known as or used any
corporate, trade or fictitious name other than its current corporate name as
such name is set forth on the first page of this Agreement.
5.20 Equipment. The Equipment is and shall remain in good condition,
normal wear
32
and tear excepted, meets all standards imposed by any governmental agency, or
department or division thereof having regulatory authority over such material
and its use and is currently usable in the normal course the Obligors' business.
5.21 Inventory. The Inventory is and shall remain in good condition, meets
all standards imposed by any governmental agency, or department or division
thereof having regulatory authority over such goods, their use and/or sale, is
either currently usable or currently saleable in the normal course of the
Obligors' business and is not subject to any output contract or similar
agreement between either Obligor, or both of them, and any other Person.
5.22 Investments. Neither Obligor has made any loans or advances or other
financial accommodations or extensions of credit to any other Person. Schedule
5.22 is a complete list of all Subsidiaries, Investment Property and other
Investments in any Person by the Obligors, including but not limited to, all
interests in any partnership or joint venture. Except as otherwise disclosed on
Schedule 5.22, all shares of stock in any corporation or other Person held by
Parent or any of its Subsidiaries are evidenced by stock certificates or other
ownership certificates issued in the name of Parent or such Subsidiary and all
other Investment Property of either Obligor is held directly in the name of such
Obligor and is not held in any brokerage or similar account or in the name of
any financial institution or nominee name.
5.23 Trade Relations. There exists no actual nor, to the best of the
Obligors' knowledge, threatened limitation of the business relationship of
Parent or any of its Subsidiaries with any material customer, supplier, landlord
or with any company whose contracts or projected contracts with such Person
would be material to the operations of such Person; and there exists no
condition or state of facts or circumstances which would have a Material Adverse
Effect or prevent either Obligor from conducting its business after the
consummation of the transactions contemplated by this Agreement as such business
is conducted or proposed to be conducted in the Projections and other
information furnished to Agent and the Lenders by Parent.
5.24 Broker's or Finder's Fees. No broker's or finder's fees or
commissions have been incurred or will be payable by Parent or any of its
Subsidiaries to any Person in connection with the transactions contemplated by
this Agreement.
5.25 Security Interest. This Agreement creates a valid security interest
in the Collateral securing payment of the Obligations and the Guaranteed
Obligations, subject only to Permitted Liens, and all filings and other actions
necessary or desirable to perfect and protect such security interest have been
taken, and the Agent has a valid and perfected first priority security interest
in the Collateral.
5.26 Regulatory Matters. Neither the Parent nor any of its Subsidiaries is
subject to regulation under the Investment Company Act of 1940, as amended, the
Public Utility Holding Company Act of 1935, as amended, the Federal Power Act,
the Interstate Commerce Act or any other federal or state statute or regulation
which limits its ability to incur indebtedness or its ability to consummate the
transactions contemplated hereby.
33
5.27 Disclosure. Neither this Agreement nor any other instrument,
document, agreement, financial statement or certificate furnished to the Agent
and the Lenders, or any of them, by or on behalf of either Obligor in connection
herewith contains an untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or omits to state any
fact which may in the future have a Material Adverse Effect.
5.28 Burdensome Restrictions. Neither any contract, lease, indenture,
agreement or other instrument, or corporate restriction, judgment, decree, or
order to which Parent or any of its Subsidiaries is a party or by which Parent
or any of its Subsidiaries is bound, nor any provision of applicable law or
governmental regulation, has or is reasonably likely to have a Material Adverse
Effect.
5.29 Labor Matters. Schedule 5.29 attached hereto sets forth each written
employment agreement covering management of Parent and/or its subsidiaries and
each collective bargaining agreement and every other written labor agreement
which covers any employees of the Parent or any of its Subsidiaries as of the
date of this Agreement, and sets forth the respective expiration date of such
agreement. Except as set forth on Schedule 5.29 attached hereto, there are no
written employment agreements covering management of Parent or any of its
Subsidiaries, collective bargaining agreements or other written labor agreements
covering any employees of Parent or its Subsidiaries as of the date of this
Agreement, and no material claims due to termination of any such agreement.
Except as otherwise listed on Schedule 5.29 attached hereto, no strikes or other
labor disputes are pending or threatened against Parent or any of its
Subsidiaries. Hours worked by and payment made to employees of Parent have not
been in violation of any provision of the Fair Labor Standards Act or any other
applicable law dealing with such matters. All payments due from Parent and its
Subsidiaries on account of employee health and welfare insurance have been paid
or, if not due, have been accrued as liabilities on the books of such Person.
5.30 Existing Debt. Set forth on Schedule 5.30 attached hereto is a
complete and accurate list of all existing Indebtedness of Parent and its
Subsidiaries.
5.31 Regulation of the Agent and the Lenders. None of the Lenders and the
Agent will by reason of the execution, delivery and performance (other than the
enforcement of remedies) of any of the Loan Documents, be subject to the
regulation or control of either the FCC or any regulatory authority having
jurisdiction over Parent or any of its Subsidiaries.
6. AFFIRMATIVE COVENANTS
Each Obligor, jointly and severally covenants to the Agent and the Lenders
that from and after the date hereof, and until the termination of this Agreement
and the payment and satisfaction in full of the Obligations, it will, and will
cause each of its Subsidiaries to, unless the Majority Lenders otherwise consent
in writing:
34
6.1 Records Respecting Collateral; Lockbox or Blocked Account Arrangement.
Keep all records with respect to the Collateral at its office set forth on
Schedule 5.2 attached hereto and not remove such records from such address
without the prior written consent of the Agent and the Lenders and, upon request
of the Agent or the Majority Lenders after the occurrence of an Event of Default
hereunder, enter into such lockbox or blocked account arrangement with respect
to collection of the Accounts and execute and deliver such documents in
connection therewith as the Agent may reasonably require.
6.2 Reporting Requirements. Furnish or cause to be furnished to the Agent
and the Lenders:
(a) As soon as practicable, and in any event within 30 days after the end
of each month, interim unaudited consolidated financial statements of Parent and
its Subsidiaries, including a balance sheet and statements of income and cash
flow, for the month and year-to-date period then ended, prepared in accordance
with GAAP, consistent with the past practice of Parent, and certified as to
truth and accuracy thereof by the chief financial officer of Parent;
(b) As soon as available, and in any event within 120 days after the end
of each fiscal year of Parent, consolidated audited annual financial statements
of Parent and its Subsidiaries, including balance sheets and statements of
income and cash flow for the fiscal year then ended, prepared in accordance with
GAAP, in comparative form and accompanied by the unqualified opinion of a
nationally recognized firm of independent certified public accountants retained
by Parent and acceptable to the Majority Lenders and the Agent.
(c) Together with the annual financial statements referred to in clause
(b) above, a statement from such independent certified public accountants that,
in making their examination of such financial statements, they obtained no
knowledge of any Default or an Event of Default or, in lieu thereof, a statement
specifying the nature and period of existence of any such Default or an Event of
Default disclosed by their examination;
(d) Together with the annual or interim financial statements referred to
in clauses (a) and (b) above, a certificate of the chief executive officer and
chief financial officer of Parent certifying that, to the best of their
knowledge, no Default or an Event of Default has occurred and is continuing or,
if a Default or an Event of Default has occurred and is continuing, a statement
as to the nature thereof and the action which is proposed to be taken with
respect thereto;
(e) As soon as available, and in any event within thirty (30) days after
the end of each fiscal quarter (i) an accounts receivable aging, showing
separately for Parent, Borrower and each Subsidiary the aggregate dollar value
of the Accounts and the accounts of each such Subsidiary and indicating the
aggregate value of such Accounts that are past due and whether such Accounts are
thirty (30), sixty (60) or ninety (90) or more days past due and containing such
other information regarding such Accounts as the Agent, on its behalf and on
behalf of the Lenders, may request (including, without limitation, an accounts
receivable aging showing the age of each individual Account as of the last day
of the preceding quarter (segregating such items in such
35
manner and to such degree as the Agent, on behalf of the Lenders, may request,
including the type and dollar value of the Accounts and the location of the
Account Debtor thereon as of the end of the preceding quarter)); and (ii) a
certificate (a "Compliance Certificate") signed by the Chief Financial Officer
of the Parent certifying as to Obligors' compliance with the financial covenants
set forth in Section 8 hereof, substantially in the form of Exhibit E, including
or accompanied by information sufficient to enable the Agent and the Lenders to
verify the calculations set forth therein;
(f) Promptly after the sending or filing thereof, as the case may be,
copies of any definitive proxy statements, financial statements or reports which
either Obligor sends to its shareholders and copies of any regular periodic and
special reports or registration statements which either Obligor files with the
Securities and Exchange Commission (or any governmental agency substituted
therefor), including, but not limited to, all Form 10-K and Form 10-Q reports,
or any report or registration statement which either Obligor files with any
national securities exchange;
(g) Promptly after the filing thereof, copies of any report or documents
which either Obligor sends to any federal, state or local regulatory agency; and
(h) Such other information respecting the condition or operations,
financial or otherwise, of Parent and its Affiliates as the Agent, on behalf of
the Lenders, may from time to time reasonably request.
6.3 Tax Returns. File all federal, state and local tax returns and other
reports that Parent or any Subsidiary of the Parent is required by law to file,
maintain adequate reserves for the payment of all taxes, assessments,
governmental charges and levies imposed upon them, their income, or their
profits, or upon any property belonging to them, and pay and discharge all such
taxes, assessments, governmental charges and levies prior to the date on which
penalties attach thereto, except where the same may be contested in good faith
by appropriate proceedings and for which adequate reserves have been
established.
6.4 Compliance with Laws. (a) Comply with all laws, statutes, rules,
regulations and ordinances of any governmental entity, or of any agency thereof,
applicable either Obligor, and any such laws, statutes, rules, regulations or
ordinances regarding the collection, payment, and deposit of employees' income,
unemployment, and Social Security taxes and with respect to pension liabilities,
and (b) obtain and maintain all licenses, permits and other governmental
authorizations and approvals necessary to own, acquire or dispose of its
property, to conduct its business or to comply with the FCC's or any other
regulatory authority's construction, operating and reporting requirements, the
violation of which or the failure to obtain or maintain which could have a
Material Adverse Effect.
6.5 Environmental Laws. Comply with all Environmental Laws and, in the
event of any "release" or "threatened release" of any Hazardous Substance onto,
at or under the property of such Person which requires or may require
notification, response, assessment, investigation or remedial action pursuant to
any Environmental Law, notify the Agent and the Lenders and all
36
appropriate governmental agencies thereof, and proceed with due diligence and,
at such Person's cost and expense, to respond appropriately, in accordance with
all requirements of the Environmental Laws.
6.6 ERISA.
(a) At all times make prompt payment of contributions required to meet the
minimum funding standards set forth in Sections 302 and 305 of ERISA with
respect to each Plan and otherwise comply with ERISA and all rules and
regulations promulgated thereunder in all material respects;
(b) Promptly after the occurrence thereof with respect to any Plan, or any
trust established thereunder, notify the Agent and the Lenders of (i) a
"reportable event" described in Section 4043 of ERISA and the regulations issued
from time to time thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations), or (ii) any
other event which could subject either Obligor or any ERISA Affiliate to any
tax, penalty or liability under Title I or Title IV of ERISA or Chapter 43 of
the Code;
(c) At the same time and in the same manner as such notice must be
provided to the PBGC, or to a Plan participant, beneficiary or alternative
payee, give the Agent and the Lenders any notice required under Section 101(d),
302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) or ERISA or under Section
401(a)(29) or 412 of the Code with respect to any Plan;
(d) Furnish to the Agent and the Lenders, promptly upon the request
therefor, (i) true and complete copies of any and all documents, government
reports and determination or opinion letters for any Plan; and (ii) a current
statement of withdrawal liability, if any, for each Multiemployer Plan; and
(e) Furnish to the Agent and the Lenders, promptly upon the request
therefor, such additional information concerning any Plan as may be reasonably
requested.
6.7 Books and Records. Keep adequate records and books of account with
respect to its business activities in which proper entries are made in
accordance with GAAP reflecting all its financial transactions.
6.8 Notifications to the Lenders and the Agent. Notify the Lenders and the
Agent immediately by telephone (with each such notice to be confirmed in writing
within three (3) Business Days): (a) upon such Person's obtaining knowledge
thereof, of any litigation affecting such Person or any of its Affiliates
claiming damages of $100,000 or more, individually or when aggregated with other
litigation pending against such Person or its Affiliates, whether or not covered
by insurance, and of the threat or institution of any suit or administrative
proceeding against such Person or any of its Affiliates which, if adversely
determined, might have a Material Adverse Effect, and establish such reasonable
reserves with respect thereto as the Agent and the Lenders, or any of them, may
request; (b) upon occurrence thereof, of any Default or Event of Default
hereunder; (c) upon occurrence thereof, of any event or condition which would
have a
37
Material Adverse Effect; and (d) upon the occurrence thereof, of such Person's
or any Affiliate's default under (i) any note, indenture, loan agreement,
mortgage, lease, deed or other similar agreement relating to any indebtedness of
such Person or any of its Affiliates or (ii) any other instrument, document or
agreement to which such Person or any of its Affiliates is a party or by which
such Person or any of its Affiliates or any of their respective property is
bound (including without limitation, the Distribution Agreement).
6.9 Insurance. Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers; maintain such other
insurance, to such extent and against such risks under "special" or "all risk"
forms of coverage, including fire and other risks insured against by extended
coverage, as is customary with companies in the same or similar businesses,
including public liability insurance against claims or personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law. The Obligors shall cause such policies
referred to in this Section to name the Agent the loss payee and as additional
insured as its interests may appear. The Obligors shall furnish to the Agent by
December 15 of each year a schedule listing the insurance policies in effect for
the next succeeding year, the nature of the coverage, the annual premium cost,
the insurer for each policy and the rating of each insurer as is listed in all
of which shall be reasonably satisfactory to the Agent. In the event of any
termination or notice of non-payment by any insurer with respect to any policy
or any lapse in the coverage thereunder, the Obligors shall give prompt written
notice to Xxxxxxx Xxxxxx, Senior Vice President, Creditanstalt-Bankverein, Two
Xxxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 of the occurrence of
such termination, nonpayment or lapse.
6.10 Maintenance of Property. Keep all General Intangibles in full force
and effect except for immaterial General Intangibles allowed to lapse by either
Obligor in the ordinary course of business of such Obligor and any other General
Intangible for such Obligor has obtained a substantially similar substitution
and the lapse of which, because of such substitution, does not have a Material
Adverse Effect, and maintain all of its other property necessary or useful in
the proper conduct of its business in good working condition, ordinary wear and
tear excepted.
6.11 Conduct of Business. Continue to engage in an efficient and
economical manner in business of the same general type as conducted by it on the
date hereof.
6.12 Preservation of Corporate or Limited Liability Company Existence.
Preserve, renew and keep in full force and effect its corporate or limited
liability existence in the jurisdiction of its incorporation or organization, as
applicable, and take all action to maintain all rights, franchises and
privileges necessary or desirable for the conduct of its business, and qualify
and remain qualified as a foreign corporation or limited liability company in
each jurisdiction in which such qualification is necessary or desirable in view
of its business and operations or the ownership of its properties.
6.13 Equipment. Keep and maintain the Equipment in good operating
condition,
38
reasonable wear and tear excepted, repair and make all necessary replacements,
renewals, additions or improvements thereto so that the value and operating
efficiency thereof shall at all times be maintained and preserved and not permit
any item of Equipment to become a fixture to real estate or accession to other
personal property unless the Agent has a first priority Lien in such real estate
or other personal property. Each Obligor shall, immediately on demand therefor
by the Agent or any Lender, deliver to the Agent or such Lender any and all
evidence of ownership of any of the Equipment (including, without limitation,
certificates of title and applications for title, together with any necessary
applications to have the Agent's Lien noted thereon, in the case of vehicles).
6.14 Assignment of Leasehold Interests. Upon the request of the Agent,
execute and deliver to the Agent such fee mortgages, leasehold mortgages or
other appropriate security instruments, in such form as the Agent requests, in
respect of any real property owned or leased by either Obligor.
6.15 Compliance with License Requirements. Fully comply with all
applicable requirements, laws, rules, regulations and orders, whether of the FCC
or otherwise (as if such requirements, laws, rules, regulations and order
applied directly to such Person rather than the applicable licensees), regarding
or with respect to (a) the licenses held, owned or used by CUE to offer the
Obligors the services provided to the Obligors under the Distribution Agreement;
and (b) the licenses held, owned or used by those FM radio stations through
which Borrower transmits its paging or other services.
6.16 Other Indebtedness. Maintain all of its Indebtedness in whatsoever
manner incurred, including but not limited to, Indebtedness for borrowed money
or for services or goods purchased, in a current status.
6.17 Transfer of Agreements, Consents and Licenses. Parent shall use its
best efforts to obtain the necessary consents and approvals to transfer to the
Borrower all FM Station Agreements and all other licenses, approvals, consents,
agreements, contracts and similar property of Parent necessary or desirable for
the conduct of Borrower's business which were not transferred to Borrower on the
Effective Date and shall, upon the obtaining of each such consent or approval,
promptly assign or otherwise transfer to the Borrower the applicable FM Station
Agreement, license, approval consent, agreement, contract or similar property.
7. NEGATIVE COVENANTS
The Obligors, jointly and severally, covenant with the Agent and the
Lenders that from and after the date hereof and until the termination of this
Agreement and the payment and satisfaction in full of the obligations, neither
Obligor will, nor will permit any of Subsidiaries to, without the prior written
consent of the Majority Lenders:
7.1 No Encumbrances. Create, incur, assume, or suffer to exist any
mortgage, deed of trust, pledge, assignment, Lien, charge, encumbrance on,
security interest or security title of any kind in any of the Collateral or its
other assets other than Permitted Liens.
39
7.2 Indebtedness. Incur, assume, or suffer to exist any Indebtedness
except for (a) the obligations; (b) Subordinated Debt; and (c) other
Indebtedness not to exceed $2,000,000 at any time outstanding.
7.3 Asset Sales. Sell, lease, transfer or otherwise dispose of any of the
Collateral or any interest therein or any of its other assets except for (a) the
sale of Inventory in the ordinary course of business, (b) the sale of assets no
longer used or useful in the business of such Person, in each case having an
aggregate value of not more than $200,000 during any fiscal year, (c) the
transfer by the Parent of substantially all of its assets to the Borrower,
subject to the first priority security interest in favor of the Agent, on the
Effective Date, (d) other transfers after the Effective Date of assets of the
Parent from time to time, and (e) distributions from the Borrower to the Parent
expressly permitted under Section 7.12.
7.4 Guaranties. Guarantee, endorse, become surety with respect to or
otherwise become directly or contingently liable for or in connection with the
obligations of any other Person except by endorsement of negotiable instruments
for deposit or collection and similar transactions in the ordinary course of
business, provided that so long as both before and after giving effect thereto,
no Default or Event of Default would exist hereunder, (i) The Obligors may
Guarantee up to $500,000 in the aggregate of Indebtedness of Nations Link to
First Union National Bank of North Carolina, (ii) following its acquisition of
at least a majority of the equity interest of Direct Link in accordance with
Section 7.5(c), the Obligors may Guarantee the Indebtedness of Direct Link so
long as the sum of (x) the amount so Guaranteed and (y) the amount of Direct
Link's Indebtedness to the Obligors does not exceed $750,000, and (iii) the
Parent may Guarantee the Obligations pursuant to the Guaranty and may Guarantee
other Indebtedness of the Borrower expressly permitted hereunder.
7.5 Investments and Acquisitions. Make any or suffer to exist any advances
or loans to any Person; or make any investment or acquisition, or agreement for
investment or acquisition, including, but not limited to, by way of transfer of
property, contributions to capital, purchases of shares, securities or evidences
of indebtedness, acquisitions of businesses or otherwise, in any Person or from
any Person, except for the following (each, a "Permitted Investment"):
(a) those investments existing on the date hereof described on Schedule
5.22 attached hereto;
(b) loans or advances to employees of either Obligor in an aggregate
principal amount not to exceed $20,000 at any one time outstanding;
(c) an investment in at least a majority of the equity interest of Direct
Link in an amount not to exceed $85,000;
(d) following the Obligors' acquisition of at least 85% of the equity
interest in Direct Link, loans to Direct Link such that the sum of (i) the
aggregate principal amount of such loans
40
and (ii) the amount of Indebtedness of Direct Link Guaranteed by the Obligors
pursuant to Section 7.4 does not exceed $750,000 at any time;
(e) acquisitions of or from any Person for which the aggregate purchase
price payable (whether payable in cash, shares of Capital Stock, notes,
property, assumption of liabilities or otherwise, with property being valued at
the fair market value thereof and notes and assumed liabilities being valued at
the face amount thereof) for each such Person is less than or equal to the
lesser of (i) $250,000 and (ii) an amount equal to Cash Flow for such Person for
the twelve (12) month period ending on the last day of such Person's most
recently ended fiscal quarter times seven (7); and
(f) acquisitions of assets to be used or consumed in the ordinary course
of business.
7.6 Corporate or Limited Liability Company Structure. Dissolve or
otherwise terminate its corporate or limited liability company status; amend,
restate, supplement or otherwise modify the Borrower's Articles of Organization
or Operating Agreement; enter into any merger, reorganization or consolidation;
issue any shares of any class of its Capital Stock or any securities or other
instruments for or which are convertible into any shares of any class of Capital
Stock other than the issuance by Parent of Series B Preferred Stock or common
stock (or options or warrants to purchase common stock) of a class that has been
duly authorized on or before November 17, 1995; or permit the incorporation or
existence of any Subsidiary other than as disclosed on Schedule 5.22; provided,
however, that, so long as such merger is otherwise not prohibited by the terms
of this Agreement, (i) any Person may merge with the Parent or any Subsidiary of
the Parent so long as the Parent or such Subsidiary is the surviving Person, and
(ii) any Subsidiary of Parent (other than the Borrower) may merge with and into
any other Subsidiary of the Parent.
7.7 Fiscal Year. Change its fiscal year end from July 31.
7.8 ERISA. Take, or fail to take, or permit any ERISA Affiliate to take,
or fail to take, any action with respect to a Plan including, but not limited
to, (i) establishing any Plan, (ii) amending any Plan, (iii) terminating or
withdrawing from any Plan, or (iv) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, where such action or
failure could have a Material Adverse Effect, result in a Lien on the property
of either Obligor or require either Obligor to provide any security.
7.9 Relocations; Use of Name. Except as disclosed on Schedule 5.2 attached
hereto, relocate its executive offices, open new places of business or relocate
existing places of business, maintain any Collateral or records with respect to
Collateral at any other locations than those locations presently kept or
maintained, as set forth on Schedule 5.2 attached hereto, or use any corporate
name (other than its own) or any fictitious name, except upon thirty (30) days
prior written notice to the Agent and the Lenders and after the delivery to the
Agent of financing statements, if required by the Agent, in form satisfactory to
the Agent.
7.10 Arm's-Length Transactions. Enter into or be a party to any contract,
agreement
41
or transaction with any Affiliate except those contracts, agreements or
transactions entered into in an arm's-length transaction, for fair value and
pursuant to the reasonable requirements of such Person's business; provided,
however, that (i) the Obligors may provide accounting services to Nations Link
and (ii) the Obligors may enter into any other transaction with any Affiliate so
long as such transaction is in accordance with Section 7.5.
7.11 Amendment of Distribution Agreement. Amend, modify or supplement, or
agree to any amendment, modification or supplement of, the Distribution
Agreement, other than to evidence the assignment of the Distribution Agreement
from the Parent to the Borrower.
7.12 Dividends. Declare or pay any dividends on, or make any distribution
with respect to, any of its Capital Stock or other ownership interests or
purchase, redeem, retire, defease or otherwise acquire for value any of its
Capital Stock or other ownership interest or take action having an effect
equivalent to the foregoing, except that, provided no Default or Event of
Default has occurred and is continuing or would exist upon the payment of the
dividend amounts described in this Section 7.12, (i) any Subsidiary may pay
dividends to the Borrower, (ii) the Borrower may pay dividends to Parent (a) in
an amount not to exceed $90,000 per year, to be used by Parent for the sole
purpose of paying dividends to holders of its Series A Preferred Stock; (b) in
an additional amount equal the lesser of (x) twenty-five percent (25%) of Excess
Cash Flow for the immediately preceding fiscal year or (y) $350,000 (such amount
hereinafter referred to as the "Dividend Amount"); provided, however, that
simultaneously with the payment of dividends described in clause (b) of this
Section 7.12, the Obligors shall apply an amount equal to the Dividend Amount to
prepay principal amounts outstanding under the Term Loan, and (c) the Borrower
may pay dividends to Parent in an amount not to exceed $350,000 per year, to be
used by Parent solely for the purpose of paying dividends to holders of the
Parent's Series C Preferred Stock; provided, however, that, to the extent
Borrower has failed to make the payments to Parent in the amounts provided in
clauses (ii)(a) and (c) of this section in any fiscal year, Borrower may in
subsequent fiscal years make such payments to Parent to the extent permitted in
this Section 7.12; and (iii) the Parent may pay the dividends contemplated in
clause (ii) of this section.
7.13 Operating Leases. Become or remain obligated to perform as lessee
under Operating Leases which, collectively, have an aggregate monthly rental
charge to Obligor equal to or in excess of $100,000. For the purposes of this
Section 7.13, "Operating Leases" shall mean any lease required or desirable in
the business of the Obligor which is not a Capitalized Lease.
7.14 FM Subcarrier Lease Agreements. Enter into any agreement to lease the
use of Subsidiary Communications Authorizations subcarrier channels ("Subcarrier
Lease") unless such agreement contains terms and provisions substantially
similar to the terms and provisions of the Standard Subcarrier Lease Agreement
attached hereto as, and, in any event, including, without limitation, provisions
(a) permitting the applicable Obligor to mortgage, create a security interest
in, and collaterally assign the Subcarrier Lease to its lenders to secure
indebtedness and other obligations to its lenders, without obtaining the consent
of the lessor thereunder, (b) permitting any lender to which the Subcarrier
Lease has been assigned to cure any default by the applicable
42
Obligor thereunder, (c) requiring (after the termination of the Subcarrier Lease
or any extension thereof by the lessor upon default by the applicable Obligor)
lessor thereunder to enter into a new lease with lender for the remainder of the
lease term for the rent and upon the terms and conditions set forth in the
Subcarrier Lease, and (d) permitting any lender to which the Subcarrier Lease
has been assigned to assign the Subcarrier Lease to a user of the subcarrier for
the original intent of the Subcarrier Lease, at lender's option, with no change
in terms.
8. FINANCIAL COVENANTS
The Obligors jointly and severally, covenant with the Agent and the
Lenders that from and after the date hereof and until the termination of this
Agreement and the payment and satisfaction in full of the Obligations, the
Obligors will not, unless the Majority Lenders otherwise consent in writing:
8.1 Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the
last day of each fiscal quarter set forth below of to be less than the
applicable ratio set forth opposite such quarter as set forth below:
Quarter Ending Applicable Ratio
-------------- ----------------
April 30, 1997 through
July 31, 1997 2.35 to 1.00
October 31, 1997 through
January 31, 1998 2.55 to 1.00
April 30, 1998 through
July 31, 1998 2.80 to 1.00
Thereafter 3.25 to 1.00
8.2 Net Worth. Permit Net Worth as of any date from and after the
Effective Date to be less than the amount set forth opposite the applicable
period as follows:
Applicable Period Amount
----------------- ------
February 1, 1997 through
January 31, 1998 $1,700,000
February 1, 1998 through
July 31, 1998 $1,775,000
August 1, 1998 through
January 31, 1999 $1,850,000
43
February 1, 1999 through
July 31, 1999 $2,100,000
August 1, 1999 through
January 31, 2000 $2,500,000
February 1, 2000 through
July 31, 2000 $3,000,000
Thereafter $4,100,000
provided, however, that effective upon each issuance of any equity securities by
the Parent, the minimum amounts set forth above for the period in which such
equity issuance occurs and for each period thereafter shall be automatically
increased by an amount equal to seventy five percent (75%) of amount by which
shareholders' equity is increased as a result of such equity issuance.
8.3 Senior Debt/Cash Flow Ratio. Permit the Senior Debt/Cash Flow Ratio
for any fiscal quarter set forth below to be greater than the applicable ratio
set forth opposite such quarter as set forth below:
Quarter Ending Applicable Ratio
-------------- ----------------
Effective Date through
July 31, 1998 4.50 to 1.00
August 1, 1998 through
October 31, 1998 4.25 to 1.00
November 1, 1998 through
January 31, 1999 4.00 to 1.00
February 1, 1999 through
April 30, 1999 3.75 to 1.00
Thereafter 3.50 to 1.00
8.4 Total Debt/Cash Flow Ratio. Permit the Total Debt/Cash Flow Ratio for
any fiscal quarter set forth below to be greater than the applicable ratio set
forth opposite such quarter as set forth below:
Quarter Ending Applicable Ratio
-------------- ----------------
Effective Date through
July 31, 1998 6.00 to 1.00
44
August 1, 1998 through
October 31, 1998 5.75 to 1.00
November 1, 1998 through
January 31, 1999 5.50 to 1.00
February 1, 1999 through
April 30, 1999 5.25 to 1.00
Thereafter 5.00 to 1.00
9. EVENTS OF DEFAULT
The occurrence of any of the following events or conditions shall
constitute an Event of Default hereunder:
9.1 Obligations. The Obligors shall fail to make any payments of principal
of or interest on any Loan or any other Obligation when due.
9.2 Misrepresentations. Either Obligor shall make any representation or
warranty in this Agreement or any of the other Loan Documents or in any
certificate or statement furnished at any time hereunder or in connection with
this Agreement or any of the other Loan Documents which proves to have been
untrue or misleading in any material respect when made or furnished and which
continues to be untrue or misleading in any material respect.
9.3 Loan Document Defaults. Either Obligor shall default in the observance
or performance of any term, covenant or agreement contained in (a) Article 6
hereof (other than Section 6.8 and Section 6.9 hereof) and such default shall
not have been remedied or waived within fifteen (15) days after receipt of
notice from Agent and the Lenders of such default; (b) this Agreement (other
than those covenants or agreements referred to in subsection (a) of this Section
9.3); or (c) any other Loan Document and such default shall not have been
remedied or waived within the applicable grace period provided therefor, if any,
in such Loan Document.
9.4 Distribution Agreement Default or Termination. Either Obligor shall
default in the observance or performance of any term, covenant or agreement
contained in the Distribution Agreement and such default shall not be cured by
such Obligor within ten (10) days from the date of such default or, if less, the
amount of time provided in the Distribution Agreement for cure by such Obligor
of such default, or the Distribution Agreement shall terminate for any reason.
9.5 Other Debts. Either Obligor or any Subsidiary of such Obligor shall
fail to make payment when due under any agreement for borrowed money or other
material credit or shall default in connection with any agreement for borrowed
money or other material credit with any
45
creditor other than a Lender or the Agent and such failure to make payment or
default shall not be cured within the grace period applicable thereto, if any,
as provided for in such agreement.
9.6 Tax Lien. A notice of Lien (other than a Permitted Lien), levy or
assessment is filed of record with respect to all or any of either Obligor's or
any of their Subsidiaries' assets by the United States, or any department,
agency or instrumentality thereof, or by any state, county, municipal or other
governmental agency, including, without limitation, the PBGC, which in the
opinion of the Agent and the Majority Lenders, adversely affects the priority of
the Liens granted to the Agent hereunder or under the other Loan Documents.
9.7 ERISA. The occurrence of any of the following events: (i) the
happening of a Reportable Event with respect to any Plan which Reportable Event
could result in a material liability for either Obligor or an ERISA Affiliate or
which otherwise could have a Material Adverse Effect on the Obligors or such
ERISA Affiliate; (ii) the disqualification or involuntary termination of a Plan
for any reason which could result in a material liability for either Obligor or
an ERISA Affiliate or which otherwise could have a Material Adverse Effect on
either Obligor or such ERISA Affiliate; (iii) the voluntary termination of any
Plan while such Plan has a funding deficiency (as determined under Section 412
of the Code) which could result in a material liability for either Obligor or an
ERISA Affiliate or which otherwise could have a Material Adverse Effect on
either Obligor or such ERISA Affiliate; (iv) the appointment of a trustee by an
appropriate United States district court to administer any such Plan; (v) the
institution of any proceedings by the PBGC to terminate any such Plan or to
appoint a trustee to administer any such Plan; (vi) the failure of the Obligors
to notify the Agent and the Lenders promptly upon receipt by either Obligor or
any of its Affiliates of any notice of the institution of any proceeding or
other actions which may result in the termination of any such Plan.
9.8 Voluntary Bankruptcy. Either Obligor or any Subsidiary of either
Obligor shall: (a) file a voluntary petition or assignment in bankruptcy or a
voluntary petition or assignment or answer seeking liquidation, reorganization,
arrangement, readjustment of its debts, or any other relief under the Bankruptcy
Code, or under any other act or law pertaining to insolvency or debtor relief,
whether State, Federal, or foreign, now or hereafter existing; (b) enter into
any agreement indicating consent to, approval of, or acquiescence in, any such
petition or proceeding; (c) apply for or permit the appointment, by consent or
acquiescence, of a receiver, custodian or trustee of such Person or for all or a
substantial part of its property; (d) make an assignment for the benefit of
creditors; or (e) be unable or shall fail to pay its debts generally as such
debts become due, admit in writing its inability or failure to pay its debts
generally as such debts become due, or otherwise cease to be Solvent.
9.9 Involuntary Bankruptcy. There occurs (a) a filing or issuance against
either Obligor or any Subsidiary of the either Obligor an involuntary petition
in bankruptcy or seeking liquidation, reorganization, arrangement, readjustment
of its debts or any other relief under the Bankruptcy Code, or under any other
act or law pertaining to insolvency or debtor relief, whether State, Federal or
foreign, now or hereafter existing and (i) the petition shall have been
dismissed or stayed within thirty (60) days after commencement of the case, or
(ii) an order for relief against such Person shall be entered in an involuntary
case under the Bankruptcy Code; (b)
46
the involuntary appointment of a receiver, liquidator, custodian or trustee of
such Person or for all or a substantial part of its property; or (c) the
issuance of a warrant of attachment, execution or similar process against all or
any substantial part of the property of such Person.
9.10 Suspension of Business. The suspension of the transaction of the
business of either Obligor or any Subsidiary of either Obligor, or the
dissolution of either Obligor or any Subsidiary of either Obligor.
9.11 Judgments. Any judgment, decree or order for the payment of money
which, when aggregated with all other judgments, decrees or orders for the
payment of money pending against either Obligor or any of the Subsidiaries of
either Obligor, exceeds the sum of One Hundred Thousand Dollars ($100,000),
shall be rendered against either Obligor or any Subsidiary of either Obligor and
remain unsatisfied and in effect for a period of sixty (60) consecutive days or
more without being vacated, discharged, satisfied or stayed or bonded pending
appeal.
9.12 Management. The failure of the Obligors to maintain senior management
having sufficient skill and experience in the Obligors' industry to manage the
Obligors competently and efficiently, including, but not limited to, the failure
of Xxxxx X. Xxxxxxxx to devote substantially all of his time and attention to
his duties as President and Chief Executive Officer of the Parent and the
Manager of the Borrower.
9.13 RICO. Either Obligor or any Subsidiary of either Obligor or any
director, shareholder, member, manager or executive officer of such Person shall
be indicted under the Racketeer Influenced and Corrupt Organizations Act of 1970
(18 U.S.C. S 1961 et seq.) or the Agent and the Majority Lenders otherwise
believe in good faith that all or any portion of Borrower's or any of its
Subsidiaries' assets are subject to forfeiture pursuant to 18 U.S.C. ss. 1963.
9.14 Security Documents; Failure of Security. At any time, for any reason
other than with the consent of the Agent and the Majority Lenders, (a) this
Agreement or any of the Security Documents ceases to be in full force and effect
in any material respect or either Obligor seeks to repudiate its obligations
thereunder; (b) the Liens intended to be created in connection with this
Agreement or any Security Document shall be invalidated or otherwise cease to be
in full force and effect, or such Liens are, or either Obligor seeks to render
such Liens, invalid or unperfected; or (c) such Liens shall be subordinated or
shall not be first in priority, subject only to Permitted Liens.
9.15 Ownership of the Borrower's Capital Stock. The Parent shall for any
reason cease to own all of the issued and outstanding membership interest or
other ownership interest in the Borrower.
10. REMEDIES
Upon the occurrence or existence of any Event of Default, and during the
continuation
47
thereof, without prejudice to the rights of the Agent and the Lenders to enforce
their respective claims against the Obligors for damages for failure by the
Obligors to fulfill any of the obligations hereunder, the Agent and the Lenders
shall have the following rights and remedies, in addition to any other rights
and remedies available to the Agent and the Lender at law, in equity or
otherwise:
10.1 Default Rate. At the election of the Agent or the Majority Lenders,
evidenced by written notice to the Obligors, the outstanding principal balance
of the Obligations shall bear interest at the Default Rate until paid in full.
10.2 Termination; Acceleration of the Obligations. In the event of an
Event of Default set forth in Sections 9.8 or 9.9 hereof, the Commitment shall
automatically and immediately terminate and in the event of any other Event of
Default, the Majority Lenders, at their option, may terminate the Commitment,
whereupon in either case all of the Obligations (including, but not limited to
the Term Loan and the Revolving Credit Loans) shall become immediately due and
payable, without presentment, demand, protest, notice of non-payment or any
other notice required by law relative thereto, all of which are hereby expressly
waived by each of the Obligors, anything contained herein to the contrary
notwithstanding.
10.3 Set-Off. The right of each Lender to set-off, without notice to
either Obligor, any and all deposits at any time credited by or due from such
Lender to either Obligor, whether in a general or special, time or demand, final
or provisional account or any other account or represented by a certificate of
deposit and whether or not unmatured or contingent against any or all of the
Obligations now existing or hereafter arising, whether or not such Lender shall
have made any demand under this Agreement or any of the Loan Documents.
10.4 Rights and Remedies of a Secured Party. All of the rights and
remedies of a secured party under the UCC or under other applicable law, all of
which rights and remedies shall be cumulative, and none of which shall be
exclusive, to the extent permitted by law, in addition to any other rights and
remedies contained in this Agreement, and in any of the other Loan Documents.
10.5 Take Possession of Collateral. The right of the Agent to (a) enter
upon the premises of Parent, or any other place or places where the Collateral
is located and kept, through self-help and without judicial process, without
first obtaining a final judgment or giving either Obligor notice and opportunity
for a hearing on the validity of the Agent's or the Lenders' claims and without
any obligation to pay rent to either Obligor, and remove the Collateral
therefrom to the premises of Agent or any agent of Agent, for such time as Agent
may desire, in order to effectively collect or liquidate the Collateral; and/or
(b) require the Obligors to assemble the Collateral and make it available to
Agent at a place to be designated by the Agent, in its sole discretion.
10.6 Sale of Collateral. The right of the Agent to sell or to otherwise
dispose of all or any of the Collateral, at public or private sale or sales,
with such notice as may be required by law, in lots or in bulk, for cash or on
credit, all as the Agent, in its sole discretion, may deem
48
advisable. Such sales may be adjourned from time to time with or without notice.
The Agent shall have the right to conduct such sales on either Obligor's
premises or elsewhere and shall have the right to use either Obligor's premises
without charge for such sales for such time or times as the Agent may see fit.
The Agent is hereby granted a license or other right to use, without charge, the
Obligors' labels, patents, copyrights, rights of use of any name, trade secrets,
trade names, trademarks, service marks and advertising matter, or any property
of a similar nature, whether owned by either Obligor or with respect to which
either has rights under license, sublicense or other agreements (including, but
not limited to, any rights under the Distribution Agreement and the FM Station
Leases), as it pertains to the Collateral, in preparing for sale (including,
without limitation, finishing any unfinished Inventory), advertising for sale
and selling any Collateral and either Obligor's rights under all licenses and
all franchise agreements shall inure to the benefit of the Agent and the
Lenders. The Agent shall have the right to sell, lease or otherwise dispose of
the Collateral, or any part thereof, for cash, credit or any combination
thereof, and the Agent may purchase all or any part of the Collateral at public
or, if permitted by law, private sale and, in lieu of actual payment of such
purchase price, may set off the amount of such price against the Obligations.
The proceeds realized from the sale of any Collateral shall be applied first to
the costs, expenses and attorneys' fees and expenses incurred by Agent for
collection and for acquisition, completion, protection, removal, storage, sale
and delivery of the Collateral; second to interest due upon any of the
obligations; and third to the principal of the Obligations. If any deficiency
shall arise, the Obligors, jointly and severally, shall remain liable to the
Lenders and the Agent therefor.
10.7 Judicial Proceedings. The right to proceed by an action or actions at
law or in equity to obtain possession of the Collateral, to recover the
Obligations and amounts secured hereunder or to foreclose under this Agreement
and sell the Collateral or any portion thereof, pursuant to a judgment or decree
of a court or courts of competent jurisdiction, all without the necessity of
posting any bond.
10.8 Notice. Any notice required to be given by Agent of a sale, lease, or
other disposition of the Collateral or any other intended action by Agent, given
to either Obligor in the manner set forth in Section 13.7 below, ten (10) days
prior to such proposed action, shall constitute commercially reasonable and fair
notice thereof to the Obligors.
10.9 Appointment of Agent as Obligors' Lawful Attorney. Each of the
Obligors irrevocably designates, makes, constitutes and appoints the Agent (and
all persons designated by the Agent) as such Obligor's true and lawful attorney,
and the Agent or the Agent's agent, may, without notice to Borrower, at the
Obligors' cost and expense, and at such time or times thereafter as the Agent or
said agent, in its sole discretion, may determine, in either Obligor's or the
Agent's name: (a) demand payment of the Accounts; (b) enforce payment of the
Accounts, by legal proceedings or otherwise; (c) exercise all of the Obligors'
rights and remedies with respect to the collection of the Accounts; (d) settle,
adjust, compromise, extend or renew the Accounts; (e) settle, adjust or
compromise any legal proceedings brought to collect the Accounts; (f) if
permitted by applicable law, sell or assign the Accounts upon such terms, for
such amounts and at such time or times as the Agent deems advisable; (g)
discharge and release the Accounts; (h) take control, in any manner, of any item
of payment or proceeds on the Accounts; (i)
49
prepare, file and sign either Obligor's name on a Proof of Claim in Bankruptcy
or similar document against any Account Debtor; (j) prepare, file and sign
either Obligor's name on any notice of Lien, assignment or satisfaction of Lien
or similar document in connection with the Accounts; (k) do all acts and things
necessary, in the Agent's sole discretion, to fulfill either Obligor's
obligations under this Agreement; (1) endorse the name of either Obligor upon
any of the items of payment or proceeds on any Account, and deposit the same to
the account of the Agent and the Lenders on account of the Obligations; (m)
endorse the name of either Obligor upon any chattel paper, document, instrument,
invoice, freight xxxx, xxxx of lading or similar document or agreement relating
to the Accounts or Inventory; (n) use either Obligor's stationery and sign the
name of either Obligor to verifications of the Accounts and notices thereof to
Account Debtors; and (o) use the information recorded on or contained in any
data processing equipment and computer hardware and software relating to the
Accounts and Inventory to which either Obligor has access, and each of the
Obligors hereby agrees to indemnify and hold the Agent harmless from any costs,
damages, expenses or liabilities arising against or incurred by the Agent in
connection therewith except to the extent that any of such costs, damages,
expenses or liabilities arise out of Agent's gross negligence or willful
misconduct.
11. CONDITIONS PRECEDENT
11.1 Conditions Precedent to Initial Loan. Notwithstanding any other
provision of this Agreement, it is understood and agreed that this Agreement
shall not become effective and the Agent and the Lenders shall have no
obligation to make the initial Loan hereunder unless and until the following
conditions have been met, to the sole and complete satisfaction of the Lenders,
the Agent and their respective counsel:
(a) All governmental consents and approvals and third party consents and
approvals necessary in connection with the Loan Documents and the transactions
contemplated thereby shall have been received and shall remain in full force and
effect, and no action shall have been taken by any competent authority and no
law or regulation shall be applicable that, in the good faith judgment of the
Agent and the Lenders, restrains, prevents or imposes materially adverse
conditions upon the Loan Documents and the transactions contemplated thereby.
(b) Neither Obligor shall be subject to any statute, rule, regulation,
order, writ or injunction of any court or governmental authority or agency which
would materially restrict or hinder the conduct of such Obligor's business as
proposed to be conducted or which would have a Material Adverse Effect. In
addition, each of the Lenders shall have reasonably satisfied itself that each
of the Obligors is in compliance with all applicable statutes, rules,
regulations, orders, writs or injunctions of any court or governmental authority
or agency the failure to comply with which, in the opinion of such Lender, could
have a Material Adverse Effect.
(c) Each Lender shall have reasonably satisfied itself that neither of the
Obligors is subject to any liability for environmental or other matters,
including, without limitation, litigation, governmental inquiries, injunctions
or restraining orders pending or threatened which in the opinion of such Lender,
could have a Material Adverse Effect.
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(d) The Agent and the Lenders shall have received the following documents,
each dated the Effective Date (unless otherwise specified), each duly executed
and delivered to the Agent and the Lenders, and each to be satisfactory in form
and substance to the Lenders, the Agent and their counsel:
(i) the Notes;
(ii) a certificate signed by the chief executive officer and chief
financial officer of the Parent and the Manager of the Borrower,
each certifying that (A) the representations and warranties set
forth in Article 5 hereof are true and correct in all material
respects on and as of such date with the same effect as though made
on and as of such date; (B) since July 31, 1996, there has been no
material adverse change in the financial condition of such Obligor
as set forth in the financial statement dated such date, prepared by
management and reviewed by Xxxxxx Xxxxxxxx; (C) such Obligor is on
such date in compliance with all the terms and conditions set forth
in this Agreement on its part to be observed and performed, and (D)
on the Effective Date, after giving effect to the making of the
initial Loan, no Default or Event of Default has occurred or is
continuing;
(iii) a certificate of the Secretary of Parent certifying (A) that
attached thereto is a true and complete copy of the Articles of
Incorporation of Parent as in effect on the date of such
certification; (B) that attached thereto is a true and complete copy
of the by-laws of Parent as in effect on the date of such
certification; (C) that attached thereto is a true and complete copy
of Resolutions adopted by the Board of Directors of Parent,
authorizing the execution, delivery and performance of this
Agreement and the other Loan Documents; and (D) as to the incumbency
and genuineness of the signatures of the officers of Parent
executing this Agreement or any of the other Loan Documents;
(iv) a copy of the Articles of Incorporation of Parent, and all
restatements thereof or amendments thereto (including, without
limitation, the amendment changing the Parent's name), certified as
of a date close to the Effective Date, by the Secretary of State of
the State of Georgia;
(v) a certificate of the Secretary of Borrower certifying (A) that
attached thereto is a true and complete copy of the Articles of
Organization of Borrower as in effect on the date of such
certification; (B) that attached thereto is a true and complete copy
of the Operating Declaration of Borrower, as in effect on the date
of such certification; (C) that attached thereto is a true and
complete copy of Resolutions adopted by the Board of Directors of
the Manager of Borrower, authorizing the execution, delivery and
performance of this Agreement and the other Loan Documents; and (D)
as to the incumbency and genuineness of the signatures of the
officers of the Manager of Borrower executing this Agreement or any
of the other Loan Documents;
51
(vi) a copy of the Articles of Organization of Borrower, and all
restatements thereof (or amendments thereto), certified as of a date
close to the Effective Date by the Secretary of State of the State
of Georgia;
(vii) good standing certificates for each Obligor, certified as of a date
close to the Effective Date and issued by the Secretaries of State
of the States of Alabama, Georgia, Louisiana and Texas;
(viii) copies of all filing receipts or acknowledgments issued by any
governmental authority to perfect the security interests of the
Agent in the Collateral and evidence in a form acceptable to the
Agent that such security interests of the Agent constitute valid and
perfected first priority security interests;
(ix) certified copies of each of the casualty and liability insurance
policies of Obligors, effective as of a date on or before the
Effective Date, together, in the case of such casualty policies,
with loss payable and mortgagee endorsements on the Agent's standard
form naming the Agent as loss payee;
(x) (A) an audited balance sheet of Parent for the fiscal year ended
July 31, 1996, prepared in accordance with GAAP, accompanied by the
unqualified opinion of Xxxxxx Xxxxxxxx & Co., and (B) interim
unaudited financial statements of Parent dated April 30, 1997,
including a balance sheet and statements of income and cash flow,
for the quarter and year-to-date periods then ended, reviewed by
Xxxxxx Xxxxxxxx & Co.;
(xi) the Amended and Restated Guaranty;
(xii) the Amended and Restated LLC Pledge Agreement;
(xiii) the Amended and Restated Collateral Assignments;
(xiv) the written opinion of Xxxxxx & Bird, counsel to the Obligors, in
form and content acceptable to the Lenders;
(xv) copies of all required regulatory approvals including, without
limitation, any which may be required by regulatory authorities
having jurisdiction over Borrower and any that may be required for
any transactions contemplated by this Agreement or any of the other
Loan Documents;
(xvi) such other documents, instruments and agreements with respect to the
transactions contemplated by this Agreement, in each case in such
form and containing such additional terms and conditions as may be
satisfactory to the Agent and the Lenders, and containing, without
limitation, representations and warranties which are customary and
usual in such documents.
52
(e) The Lenders shall have executed and delivered to the Agent the
signature pages to this Agreement.
(f) Concurrently with the making of the initial Loan, Borrower shall pay
all accrued fees and expenses of the Agent and the Lenders payable hereunder or
under any other Loan Document (including, without limitation, that portion of
the commitment fee due and payable as a condition to the Lenders' obligation to
make the initial Loans hereunder as set forth in Section 3.5 hereof and the
accrued fees and disbursements of counsel to the Agent).
11.2 All Loans. The obligation of Lenders to make any Loan hereunder
(including the initial Loan) shall be subject to fulfillment of the following
conditions:
(a) No Injunction. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court
or other governmental agency or authority to enjoin, restrain, or prohibit, or
to obtain substantial damages in respect of, or which is related to or arises
out of this Agreement or such Loan or which in the judgment of the Majority
Lenders, would make it inadvisable to make such Loan;
(b) No Material Adverse Change. There shall not have occurred any material
adverse change in the assets, liabilities, business, operations or condition
(financial or otherwise) of either Obligor, or any event, condition, or state of
facts which would be expected to have a Material Adverse Effect subsequent to
the making of such Loan to Borrower, including, without limitation, any material
adverse change in the financial condition of the Obligors from that reflected in
the restated consolidated audited financial statements of Borrower dated July
31, 1996, previously furnished to the Lenders, as determined by the Majority
Lenders in their sole discretion;
(c) Solvency. The Majority Lenders shall be satisfied that, giving effect
to the making of such Loan, the Obligors will be Solvent;
(d) No Default or Event of Default. There shall exist no Default or Event
of Default or any event or condition which, with the making of such Loan, would
constitute a Default or Event of Default;
(e) Representations and Warranties. All of the representations and
warranties made by the Obligors hereunder shall be true and correct in all
material respects as of the date of such Loan with the same force and effect as
if made on and as of such date.
(g) Payment of Fees then Payable. All of the fees then due and payable
shall have been paid in full on or before such date.
11.3 Delay in Satisfaction of Conditions Precedent. If any Lender makes a
Loan prior to the fulfillment of any condition precedent set forth in this
Section 11, the making of such Loan shall constitute only an extension of time
for the fulfillment of such condition and not a waiver thereof. The failure of
either Obligor, for any reason, to satisfy or cause to be satisfied
53
any such condition precedent within thirty (30) days after the date thereof
shall constitute an Event of Default for all purposes under this Agreement and
the Loan Documents, unless such failure is waived in writing by the Majority
Lenders.
12. THE AGENT
12.1 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder with
such powers as are specifically delegated to the Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 12.5 hereof and
the first sentence of Section 12.6 hereof shall include reference to its
Affiliates and its own and its Affiliates' officers, directors, employees and
agents): (a) shall have no duties or responsibilities except those expressly set
forth in this Agreement, and shall not by reason of this Agreement be a trustee
for any Lender; (b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or any of
the other Loan Documents, or in any certificate or other instrument, document or
agreement referred to or provided for in, or received by any of them under, this
Agreement or any of the other Loan Documents, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, any
Note or any of the other Loan Documents or for any failure by Borrower or any
other Person to perform any of its obligations hereunder or thereunder; (c)
subject to Section 12.3 hereof, shall not be required to initiate or conduct any
litigation or collection proceedings hereunder; and (d) shall not be responsible
for any action taken or omitted to be taken by it hereunder or under any other
agreement, document or instrument referred to or provided for herein or in
connection herewith, except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith. The Agent may deem and treat the payee of any Note
as the holder thereof for all purposes hereof unless and until a written notice
of the assignment or transfer complying with the terms and conditions of Section
13.3 hereof.
12.2 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, facsimile, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Majority Lenders (unless the instructions of or
consent of all of the Lenders is required hereunder), and such instructions and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders; provided, however, the Agent shall not be required to take any
action which (a) the Agent reasonably believes will expose it to personal
liability unless the Agent receives an indemnification satisfactory to it from
the Lenders with respect to such action or (b) is contrary to this Agreement,
the Notes, the other Loan Documents or Applicable Law.
12.3 Defaults. The Agent shall not be deemed to have knowledge or
notice of
54
the occurrence of a Default or Event of Default (other than the non-payment of
principal of or interest on Loans or of Commitment Fees) unless the Agent has
received notice from a Lender or the Borrower specifying such Default or Event
of Default and stating that such notice is a "Notice of Default." In the event
that the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt notice thereof to the Lenders (and shall
give each Lender prompt notice of each such non-payment). The Agent shall
(subject to Section 12.7 of) take such action with respect to such Default or
Event of Default as shall be directed by the Majority Lenders (unless the
directions of or consent of all of the Lenders is required hereunder), provided
that, unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interest of the Lenders.
12.4 Rights as a Lender. With respect to its Commitment and the
Loans made by it, Creditanstalt (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. Creditanstalt
(and any successor acting as Agent) and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with Borrower
(and any of its Affiliates) as if it were not acting as the Agent, and
Creditanstalt and its Affiliates may accept fees and other consideration from
Borrower for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
12.5 Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed under Sections 13.5 or 13.13 hereof, but without
limiting the obligations of Borrower under said Sections 13.5 and 13.13), for
their Commitment Percentage of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement or any other instruments, documents or agreements contemplated by or
referred to herein or the transactions contemplated hereby (including, without
limitation, the costs and expenses which Borrower are obligated to pay under
Section 13.5 hereof but excluding, unless an Event of Default has occurred and
is continuing, normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or of any such other instruments, documents or agreements, provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party to be indemnified.
The obligations of the Lenders under this Section 12.5 shall survive the
termination of this Agreement.
12.6 Non-Reliance on Agent and other Lenders. Each Lender agrees
that it has, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and its own decision
to enter into this Agreement and that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and
55
decisions in taking or not taking action under this Agreement. The Agent shall
not be required to keep itself informed as to the performance or observance by
the Borrower of this Agreement or any other instrument, document or agreement
referred to or provided for herein or to inspect the properties or books of the
Borrower. Except for notice, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of the Borrower (or any of its Affiliates) which may come into the
possession of the Agent or any of its Affiliates.
12.7 Failure to Act. Except for action expressly required of the
Agent hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Lenders of their indemnification obligations under Section
12.5 hereof against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.
12.8 Resignation or Removal of Agent; Co-Agent.
(a) Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving notice thereof to the
Lenders and the Borrower, and the Agent may be removed at any time with cause by
the Majority Lenders. Upon any such resignation or removal, the Majority Lenders
shall have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment with thirty (30) days after the retiring Agent's giving of notice of
resignation or the Majority Lender's removal of the retiring Agent, the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a
bank which has a combined capital and surplus of at least Three Hundred Million
Dollars ($300,000,000). Upon the acceptance of any appointment as Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article 12 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 Agent.
(b) In the event that Applicable Law imposes any restrictions on the
identity of an agent such as the Agent or requires the appointment of any
co-agent in connection therewith, the Agent may, in its discretion, for the
purpose of complying with such restrictions, appoint one or more co-agents
hereunder. Any such Co-Agent(s) shall have the same rights, powers, privileges
and obligations as the Agent and shall be subject to and entitled to the
benefits of all provisions of this Agreement and the Loan Documents relative to
the Agent. In addition to any rights of the Majority Lenders set forth in
subsection (a) above, any such Co-Agent may be removed at any time by the Agent.
56
12.9 Collateral Matters.
(a) Authority. Each Lender authorizes and directs the Agent to enter
into the Loan Documents relating to the Collateral for the benefit of the
Lenders. Each Lender agrees that any action taken by the Agent or the Majority
Lenders (or, where required by the express terms of this Agreement, a greater
proportion of the Lenders) in accordance with the provisions of this Agreement
or the other Loan Documents, and the exercise by the Agent or the Majority
Lenders (or, where so required, such greater proportion) of the powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders. Without limiting the generality of the foregoing, the Agent shall have
the sole and exclusive right and authority to (i) act as the disbursing and
collecting agent for the Lenders with respect to all payments and collections
arising in connection with this Agreement and the Loan Documents relating to the
Collateral; (ii) execute and deliver each Loan Document relating to the
Collateral and accept delivery of each such agreement delivered by the Borrower
or any of its Subsidiaries; (iii) act as collateral agent for the Lenders for
purposes of the perfection of all security interests and Liens created by such
agreements and all other purposes stated therein, provided, however, the Agent
hereby appoints, authorizes and directs the Lenders to act as collateral
sub-agents for the Agent and the Lenders for purposes of the perfection of all
security interests and Liens with respect to the Borrower's and its
Subsidiaries' respective deposit accounts maintained with, and cash and other
property held by, such Lender; (iv) manage, supervise and otherwise deal with
the Collateral; (v) take such action as is necessary or desirable to maintain
the perfection and priority of the security interest and Liens created or
purported to be created by the Loan Documents, and (vi) except as may be
otherwise specifically restricted by the terms of this Agreement or any other
Loan Document, exercise all remedies given to the Agent or the Lenders with
respect to the Collateral under the Loan Documents, Applicable Law or otherwise.
(b) Each Lender hereby directs, in accordance with the terms of this
Agreement, the Agent to release or to subordinate any Lien held by the Agent for
the benefit of the Lenders:
(i) against all of the Collateral, upon final and indefeasible
payment in full of the Obligations and termination of this Agreement;
(ii) against any part of the Collateral sold or disposed of by
the Borrower or any of its Subsidiaries, if such sale or disposition is
permitted by Section 7.3 hereof or is otherwise consented to by the
Majority Lenders, as certified to the Agent by the Majority Lenders;
(iii) against any part of the Collateral constituting property
in which the Borrower owned no interest at the time the Lien was granted
or at any time thereafter; or
(iv) if approved, authorized or ratified in writing by the
Agent at the direction of Majority Lenders.
57
Each Lender hereby directs the Agent to execute and deliver or file such
termination and partial release statements and do such other things as are
necessary to release Liens to be released pursuant to Section 12.9(b) hereof
promptly upon the effectiveness of any such release.
(c) Without in any manner limiting the Agent's authority to act
without any specific or further authorization or consent by Majority Lenders (as
set for in Section 12.9(b) hereof), each Lender agrees to confirm in writing,
upon request by the Borrower, the authority to release Collateral conferred upon
the Agent under clauses (i) through (iv) of Section 12.9(b) hereof. So long as
no Default or Event of Default is then continuing, upon receipt by the Agent of
any such written confirmation from the Majority Lenders of its authority to
release any particular items or types of Collateral, and in any event upon any
sale and transfer of Collateral which is expressly permitted pursuant to the
terms of this Agreement, and upon at lease five (5) Business Days prior written
request by the Borrower, the Agent shall (and is hereby irrevocably authorized
by Lenders to) execute such documents as may be necessary to evidence the
release of the Liens granted to the Agent for the benefit of Lenders herein or
pursuant hereto upon such Collateral; provided, that (i) the Agent shall not be
required to execute any such document on terms which, in the Agent's opinion,
would expose the Agent to liability or create any obligation or entail any
consequence other that the release of such Liens without recourse or warranty,
and (ii) such release shall not in any manner discharge, affect or impair the
Obligations or any Liens upon (or obligations of the Borrower in respect of) all
interests retained by the Borrower, including without limitation the proceeds of
any sale, all of which shall continue to constitute part of the Collateral.
(d) The Agent shall have no obligation whatsoever to the Lenders or
to any other Person to assure that the Collateral exists or is owned by the
Borrower or is cared for, protected or insured or has been encumbered or that
the Liens granted to the Agent pursuant to this Agreement or any of the Loan
Documents have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to exercise
at all or in any particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights, authorities and powers
granted or available to the Agent in this Section 12.9 or in any of the Loan
Documents, it being understood and agreed that in respect of the Collateral, or
in any act, omission or event related thereto, the Agent may act in any manner
it may deem appropriate, in its sole discretion, given its own interest in the
Collateral as one of the Lenders and that the Agent shall have no duty or
liability whatsoever to any Lender (except to the extent of its own gross
negligence or willful misconduct).
12.10 Borrower Not a Beneficiary. The provisions of this Article 12
are solely for the benefit of the Agent and the Lenders and neither the Borrower
nor any Subsidiary of the Borrower shall have any right to rely on or enforce
any of the provisions hereof. In performing its functions and duties under this
Agreement, the Agent shall act solely as the agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligations or relationship
of agency, trustee or fiduciary with or for the Borrower or any Subsidiary of
the Borrower.
13. MISCELLANEOUS
13.1 Waiver. Each and every right and remedy granted to the Lenders and
the Agent
58
under this Agreement, or any other document delivered hereunder or in connection
herewith or allowed it by law or in equity, shall be cumulative and may be
exercised from time to time. No failure on the part of the Lenders and the
Agent, or any of them, to exercise, and no delay in exercising, any right or
remedy shall operate as a waiver thereof, nor shall any single or partial
exercise by the Lenders and the Agent, or any of them, of any right or remedy
preclude any other or future exercise thereof or the exercise of any other right
or remedy. No waiver by the Lenders and the Agent of any Default or Event of
Default shall constitute a waiver of any subsequent Default or Event of Default.
13.2 Survival. All representations, warranties and covenants made herein
shall survive the execution and delivery of all of the Loan Documents. The terms
and provisions of this Agreement shall continue in full force and effect until
all of the Obligations have been paid in full and the Commitment has been
terminated in writing, whichever last occurs; provided, that Borrower's
obligations under Sections 3.3, 13.5 and 13.13 hereof shall survive the
repayment of the Obligations and the termination of this Agreement.
13.3 Assignments; Successors and Assigns.
(a) This Agreement and the Loan Documents shall be binding upon, and inure
to the benefit of, the successors of the Lenders and the Agent, the permitted
successors of the Obligors, and the respective assigns, transferees and
endorsees of the Lenders and the Agent. No Person shall be deemed to be a
third-party beneficiary of any of the provisions of this Agreement or the Loan
Documents or otherwise have any rights by reason of any provisions of this
Agreement or the Loan Documents.
(b) Each Lender may, in the ordinary course of its commercial banking
business and in accordance with the applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in any
Loans owing to such Lender, any of the Notes held by such Lender, such Lender's
Commitment hereunder or any other interests of such Lender hereunder. Each
Obligor agrees that each Participant shall be entitled to the benefits of
Section 13.13 hereof with respect to its participation; provided, that, no
Participant shall be entitled to receive any greater amount pursuant to such
Section than such Lender would have been entitled to receive in respect of the
amount of the participation transferred by such Lender to such Participant had
no such transfer occurred.
(c) Each Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time assign, pursuant to
an Assignment and Acceptance Agreement substantially in the form of Exhibit F
attached hereto and incorporated herein by reference, without either Obligor's
consent to one or more banks having unimpaired capital and surplus of
$250,000,000 or more or may assign with the Borrower's consent (which shall not
be unreasonably withheld) to any other entities (in either case, "Assignees")
all or any part of any Loans owing to such Lender, any of the Notes held by such
Lender, such Lender's Commitment or any other interest of such Lender hereunder;
provided, however, that any such assignment shall be in a minimum principal
amount of $1,000,000 or, if less, the sum of (a) the principal amount
outstanding under such Lender's Term Note Plus (b) such Lender's Commitment. The
59
Obligors, the Agent and the Lenders agree that to the extent of any assignment
the Assignee shall be deemed to have the same rights and benefits with respect
to the Obligors under this Agreement and any of the Notes as it would have had
if it were the "Lender" hereunder on the date hereof and the assigning Lender
shall be released from its Commitment and other obligations hereunder, to the
extent of such assignment.
(d) Each Obligor authorizes each Lender to disclose to any Participant or
Assignee ("Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning the Obligors which has been
delivered to such Lender by either Obligor pursuant to this Agreement or which
has been delivered to such Lender by either Obligor in connection with such
Lender's credit evaluation of the Obligors prior to entering into this
Agreement.
(e) Any Lender shall be entitled to have any Note held by it subdivided in
connection with a permitted assignment of all or any portion of such Note and
the respective Loans evidenced thereby pursuant to Section 13.3(c) above. In the
case of any such subdivision, the new Note (the "New Note") issued in exchange
for a Note previously issued hereunder (the "Old Note") (i) shall be dated the
date of such assignment, (ii) shall be otherwise duly completed, and (iii) shall
bear a legend, to the effect that such New Note is issued in exchange for such
old Note and that the indebtedness represented by such Old Note shall not have
been extinguished by reason of such exchange.
(f) If, pursuant to this Section 13.3, any interest in this Agreement or
any of the Notes is transferred to any Transferee which is organized under the
laws of any jurisdiction other than the United States or any State thereof, the
Lender making such transfer shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to such Lender (for the benefit
of such Lender and the Obligors) that under applicable law and treaties no taxes
will be required to be withheld by such Lender or either Obligor with respect to
any payments to be made to such Transferee hereunder or in respect of the Loans,
(ii) to furnish to such Lender and the Obligors either United States Internal
Revenue Service Form 4224 or United States Internal Revenue Service Form 1001
(wherein such Transferee claims entitlement to complete exemption from United
States federal withholding tax on all payments hereunder), and (iii) to agree
(for the benefit of such Lender and the Obligors) to provide such Lender and the
Obligors a new Form 4224 or Form 1001 upon the obsolescence of any previously
delivered form and comparable statements in accordance with applicable United
States laws and regulations and amendments duly executed and completed by such
Transferee, and to comply from time to time with all applicable United States
laws and regulations with regard to such withholding tax exemption; provided,
however, that with respect to any Transferee organized under the laws of any
jurisdiction other than the United States or any State thereof, such Transferee
shall have an office in the United States.
(g) Neither Obligor shall be permitted to assign its interest in this
Agreement or any Loan Document without the prior written consent of the Agent
and the Lenders.
(h) Each the Lenders and the Agent agrees to keep confidential, in
accordance with
60
its customary procedures for handling confidential information of this nature
and in accordance with safe and sound banking practices, any non-public
information supplied to it by either Obligor pursuant to this Agreement which is
identified by the Obligors as being confidential at the time the same is
delivered to such Person, provided that nothing herein shall limit the
disclosure of any such information (i) the extent required by statute, rule,
regulation or judicial process, (ii) to counsel for the Agent or any Lender,
(iii) to bank examiners, auditors or accountants, (iv) in connection with any
litigation to which any Lender or the Agent is a party, or (v) to any assignee
or participant (or prospective assignee or participant) so long as such assignee
or participant (or prospective assignee or participant) agrees to keep such
nonpublic information confidential to the same extent as provided in this
paragraph with respect to the Agent or such Lender.
13.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which when fully executed shall be an original, and all of
said counterparts taken together shall be deemed to constitute one and the same
agreement. Any signature page to this Agreement may be witnessed by a telecopy
or other facsimile of any original signature page and any signature page of any
counterpart hereof may be appended to any other counterpart hereof to form a
completely executed counterpart hereof.
13.5 Expense Reimbursement. The Obligors, jointly and severally, agree to
reimburse the Agent for all of the Agent's expenses incurred in connection with
the negotiation, preparation, execution, delivery, modification, regular review,
administration and enforcement of this Agreement, the Notes and the other Loan
Documents, including, without limitation, audit costs, appraisal costs, the cost
of searches, filings and filing fees, taxes and the fees and disbursements of
Agent's attorneys, Messrs. Xxxxxxxx Xxxxxxx LLP, and any counsel retained by
them. The Obligors, jointly and severally, further agree to reimburse the Agent
and each Lender for all costs and expenses incurred by the Agent or such Lender
(including, without limitation, attorneys' fees and disbursements) to: (i)
commence, defend or intervene in any court proceeding; (ii) file a petition,
complaint, answer, motion or other pleading, or to take any other action in or
with respect to any suit or proceeding (bankruptcy or otherwise) relating to the
Collateral or this Agreement, the Notes or any of the other Loan Documents;
(iii) protect, collect, lease, sell, take possession of, or liquidate any of the
Collateral; (iv) attempt to enforce any security interest in any of the
Collateral or any guarantee of the Obligations or to seek any advice with
respect to such enforcement; and (v) enforce any of such Lender's or the Agent's
rights to collect any of the Obligations. The Obligors, jointly and severally,
also agree to pay, and to save harmless the Agent and the Lenders from any delay
in paying, any intangibles, documentary stamp and other taxes, if any, which may
be payable in connection with the execution and delivery of this Agreement, the
Notes or any of the other Loan Documents, or the recording of any thereof, or in
any modification hereof or thereof. Additionally, the Obligors, or either of
them, shall pay to any Lender or the Agent on demand any and all fees, costs and
expenses which such Lender or the Agent pays to a bank or other similar
institution arising out of or in connection with (a) the forwarding to Borrower
or any other Person, on Borrower's behalf, by the Agent or such Lender of
proceeds of any Loan and (b) the depositing for collection by the Agent or such
Lender of any check or item of payment received by or delivered to the Agent or
such Lender on account of the Obligations. All fees, costs and expenses
61
provided for in this Section 13.5 may, at the option of the Lenders and the
Agent, be charged as Revolving Credit Loans to Borrower's revolving loan
accounts with the Lenders provided for in Section 2.1 hereof. The Obligors'
obligations under this Section 13.5 shall survive the termination of this
Agreement and the repayment of the Obligations.
13.6 Severability. If any provision of this Agreement or any of the Loan
Documents or the application thereof to any party thereto or circumstances shall
be invalid, illegal or unenforceable to any extent, the remainder of this
Agreement or such Loan Document and the application of such provisions to any
other party thereto or circumstance shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
13.7 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been given
or made when (a) delivered by hand, (b) sent by telex or facsimile transmitter
(with receipt confirmed), provided that a copy is mailed by certified mail,
return receipt requested, or (c) when received by the addressee, if sent by
Express Mail, Federal Express or other overnight delivery service (receipt
requested), in each case to the appropriate addresses, telex numbers, facsimile
numbers designated for a party at the "Address for Notices" specified below its
name on the signature pages hereto or to such other addresses as may be
designated hereafter in writing by the respective parties hereto.
13.8 Entire Agreement; Amendment. This Agreement and the Loan Documents
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior negotiations, understandings and
agreements between such parties in respect of such subject matter. Neither this
Agreement nor any provision hereof may be changed, waived, discharged, modified
or terminated except pursuant to a written instrument signed by the Obligors,
the Agent and the Majority Lenders; provided, however, that no such amendment,
waiver, discharge, modification or termination shall, except pursuant to an
instrument signed by Obligors, and all of the Lenders, (a) increase the amount
of, extend the term of, or extend the time or waive any requirement for the
termination of, the Commitment; (b) extend the date fixed for the scheduled
payment of principal of, or interest on, any Loan; (c) reduce the amount of any
scheduled payment of principal of, or the rate of interest on, any Loan; (d)
reduce any fee payable hereunder; (e) alter the terms of this Section 13.8; (f)
release any guarantor of the Obligations; (g) reduce the Commitment of any
Lender in any manner which would change such Lender's Commitment Percentage; or
(h) amend the definitions of the term "Majority Lenders" or "Commitment
Percentage" set forth in Section 1.1 hereof; provided, further, that any
amendment, waiver, discharge modification or termination of any provision of
Section 12 hereof, or which increases the obligations of the Agent hereunder and
under the Loan Documents, shall require the written consent of the Agent.
Anything in this Agreement to the contrary notwithstanding, if any
Lender shall fail to fulfill its obligations to make any Loan hereunder then,
for so long as such failure shall continue, such Lender shall (unless the
Majority Lenders, determined as if such Lender were not a "Lender" hereunder,
shall otherwise consent in writing) be deemed for all purposes relating to
amendments, modifications, waivers or consents under this Agreement or the Notes
(including, without
62
limitation, under this Section 13.8) to have no Loans or Commitment, shall not
be treated as a "Lender" hereunder when performing the computation of Majority
Lenders, and shall have no rights under the preceding paragraph of this Section
13.8; provided that any action taken by the other Lenders with respect to the
matters referred to in clauses (a) through (h) of the preceding paragraph shall
not be effective as against such Lender.
13.9 Time of the Essence. Time is of the essence in this Agreement and the
other Loan Documents.
13.10 Interpretation. No provision of this Agreement shall be construed
against or interpreted to the disadvantage of any party hereto by any court or
other governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
13.11 Lenders, Agent Not Joint Venturers. Neither this Agreement, the Loan
Documents, any agreements, instruments, documents executed and delivered
pursuant hereto or thereto or in connection herewith or therewith, nor any of
the transactions contemplated hereby or thereby shall in any respect be
interpreted, deemed or construed as making any Lender or the Agent a partner or
joint venturer with either Obligor or as creating any similar relationship or
entity, and each Obligor agrees that it will not make any assertion, contention,
claim or counterclaim to the contrary in any action, suit or other legal
proceeding involving any Lender, the Agent and the Obligors, or any of them.
13.12 Cure of Defaults by Lenders. If, hereafter, either Obligor defaults
in the performance of any duty or obligation to any third party, any Lender may,
at its option, but without obligation, cure such default and any costs, fees and
expenses incurred by such Lender in connection therewith including, without
limitation, for payment on mortgage or note obligations, for the purchase of
insurance, the payment of taxes and the removal or settlement of Liens and
claims, shall be included in the Obligations and be secured by the Collateral.
13.13 Indemnity. In addition to any other indemnity provided for herein,
the Obligors, jointly and severally, hereby indemnify the Agent and each Lender
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, fees and disbursements
of counsel) which may be imposed on, incurred by, or asserted against the Agent
or such Lender in any litigation, proceeding or investigation instituted or
conducted by any governmental agency or instrumentality or any other Person
(other than the Obligors, or either of them) with respect to any aspect of, or
any transaction contemplated by, or referred to in, or any matter related to,
this Agreement or the other Loan Documents, whether or not the Agent or such
Lender is a party thereto, except to the extent that any of the foregoing arises
out of gross negligence or willful misconduct of the Agent or such Lender, as
the case may be. Additionally, the Obligors, jointly and severally, hereby
indemnify and hold the Agent and each of the Lenders harmless from all loss,
cost (including, without limitation, fees and disbursements of counsel),
liability and damage whatsoever incurred by the Agent and the Lenders by reason
of any violation of any applicable Environmental Laws for which either Obligor
or any of their
63
respective Affiliates or predecessors has any liability or which occurs upon any
real estate owned by or under the control of either Obligor or any of their
respective Affiliates or predecessors, or by reason of the imposition of any
governmental Lien for the recovery of environmental cleanup costs expended by
reason of such violation. The Obligors' obligations under this Section shall
survive the termination of this Agreement and the repayment of the Obligations.
13.14 Termination Statements. The Obligors acknowledge and agree that it
is the Obligors' intent that all financing statements filed hereunder shall
remain in full force and effect until the Commitment shall have been terminated
in accordance with the provisions hereof, even if, at any time or times prior to
such termination, no loans or Loans shall be outstanding hereunder. Accordingly,
each Obligor waives any right which it may have under Section 9-404(l) of the
UCC to demand the filing of termination statements with respect to the
collateral, and agrees that the Agent shall not be required to send such
termination statements to the Obligors, or to file them with any filing office,
unless and until the Commitment shall have been terminated in accordance with
the terms of this Agreement and all Obligations paid in full in immediately
available funds. Upon such termination and payment in full, the Agent shall
execute appropriate termination statements and deliver the same to Borrower.
13.15 Governing Law; Jurisdiction. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH
OBLIGOR HEREBY (A) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN NEW YORK CITY FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT; (B) AGREES THAT SECTIONS 5-1401 AND 5-1402
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THIS
AGREEMENT AND THE LOAN DOCUMENTS; AND (C) IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS
AGAINST EITHER OBLIGOR IN THE COURTS OF ANY OTHER JURISDICTION.
13.16 Waiver of Jury Trial. AFTER REVIEWING THIS PROVISION SPECIFICALLY
WITH ITS RESPECTIVE COUNSEL, EACH OF THE OBLIGORS, THE AGENT AND THE LENDERS
HEREBY KNOWINGLY, INTELLIGENTLY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING BASED ON OR
ARISING OUT OF, UNDER, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT, ANY
64
OF THE NOTES, ANY OF THE OTHER LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED
HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN), OR ACTIONS OF EITHER OBLIGOR, THE AGENT OR THE LENDERS. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS TO MAKE THE LOANS TO
BORROWER.
[Remainder of page intentionally left blank]
65
IN WITNESS WHEREOF, Parent, Borrower, the Agent and the Lenders have
caused their duly authorized officers or other representatives to set their
hands and seals as of the day and year first above written.
"Parent"
SATELLINK COMMUNICATIONS,
INC., a Georgia corporation
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx
President
Attest: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President of
Finance and Administration
and Chief Financial Officer
[CORPORATE SEAL]
Address for Notices:
Satellink Communications, Inc.
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
(Signatures Continued On Next Page)
(Signatures Continued From Previous Page)
"Borrower"
SATELLINK PAGING, LLC,
a Georgia limited liability company
By: Satellink Communications, Inc.,
Its Manager
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx
President
Attest: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President of
Finance and Administration
and Chief Financial Officer
[CORPORATE SEAL]
Address for Notices:
c/o Satellink Communications, Inc.
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
(Signatures Continued On Next Page)
(Signatures Continued From Previous Page)
"AGENT"
CREDITANSTALT-BANKVEREIN
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
Executive Vice President
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Sr Associate
Address for Notices:
Creditanstalt-Bankverein
0 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxxx
Facsimile Number: (000) 000-0000
with copies to:
Creditanstalt-Bankverein
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
and
Xxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
(Signatures Continued On Next Page)
(Signatures Continued From Previous Page)
"LENDER"
CREDITANSTALT-BANKVEREIN
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
Executive Vice President
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Sr Associate
Amount of Commitment: $10,200,000
Amount of Term Loan: $4,800,000
Address for Notices:
Creditanstalt-Bankverein
0 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxxx
Facsimile Number: (000) 000-0000
with copies to:
Creditanstalt-Bankverein
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
and
Xxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
(Signatures Continued On Next Page)
(Signature Continued From Previous Page)
"LENDER"
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
Vice President
Amount of Commitment: $6,800,000
Amount of Term Loan: $3,200,000
Address for Notices:
FINOVA Capital Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President, Law
Facsimile Number (000) 000-0000
with copies to:
FINOVA Capital Corporation
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Portfolio Manager
Facsimile Number: (000) 000-0000
Schedule 1.1
FM Station Agreements
Borrower
1. Standard Subcarrier Lease Agreement dated October 19, 1988, by and between
Satellink Paging Inc. and WGOV, Incorporated, the licensee of radio station
WAAC-FM, licensed in the city of Valdosta, Georgia.
2. Standard Subcarrier Lease Agreement dated March 20, 1990, by and between
Satellink Paging Inc. and Marathon Communications, Inc., the licensee of
radio station WAVH-FM, licensed in the city of Mobile, Alabama.
3. Standard Subcarrier Lease Agreement dated April 18, 1989, by and between
Satellink Paging Inc. and Xxxxxxx Radio, Inc. the licensee of radio station
WBGA-FM, licensed in the city of Waycross, Georgia.
4. Standard Subcarrier Lease Agreement dated April 1, 1988, by and between
Satellink Paging Inc. and M & M Partners, the licensee of radio station
WNKS-FM, licensed in the city of Columbus, Georgia.
5. Standard Subcarrier Lease Agreement dated August 16, 1988, by and between
Satellink Paging Inc. and South Georgia Broadcasting, Inc., the licensee of
radio station WBYZ-FM, licensed in the city of Xxxxxx, Georgia.
6. Standard Subcarrier Lease Agreement dated May 4, 1989, by and between
Satellink Paging Inc. and Arrow Communications Inc., the licensee of radio
station WFFX-FM, licensed in the city of Tuscaloosa, Alabama.
7. Standard Subcarrier Lease Agreement dated May 31, 1989, by and between
Satellink Paging Inc. and HVS Partners, the licensee of radio station
WGUS-FM, licensed in the city of Augusta, Georgia.
8. Standard Subcarrier Lease Agreement dated August 16, 1988, by and between
Satellink Paging Inc. and Anniston Radio, Inc., the licensee of radio
station WHMA-FM, licensed in the city of Anniston, Alabama.
9. Standard Subcarrier Lease Agreement dated June 30, 1989, by and between
Satellink Paging Inc. and Xxxxx Broadcasting Corp., the licensee of radio
station WIJK-FM, licensed in the city of Evergreen, Alabama.
10. Standard Subcarrier Lease Agreement dated April 18, 1989, by and between
Satellink paging and Colonial Broadcasting Inc., the licensee of radio
station WLWI-FM, licensed in the city of Montgomery, Alabama.
11. Standard Subcarrier Lease Agreement dated March 9, 1990, by and between
Satellink Paging Inc. and Xxxxxxxx Broadcasting Company, the licensee of
radio station WMTM-FM, licensed in the city of Moultrie, Georgia.
12. Standard Subcarrier Lease Agreement dated March 20, 1989, by and Between
Satellink Paging Inc. and WDEB TV: Xxxxx Communications Group Inc., the
licensee of radio station WTVY-FM, licensed in the city of Dothan, Alabama.
13. Standard Subcarrier Lease Agreement dated December 12, 1988, by and between
Satellink Paging Inc. and Gulf Atlantic Media of Georgia, Inc., the
licensee of radio station WZAT-FM, licensed in the city of Savannah,
Georgia.
14. Standard Subcarrier Lease Agreement dated August 16, 1989, by and between
Satellink Paging Inc. and Broadcast Investment Associates Inc., the
licensee of radio station WTSH-FM, licensed in the city of Rockmart,
Georgia.
15. Agreement to Lease SCA Subcarrier dated May 1, 1988, by and between All
America Communications Corporation and Provident Broadcasting Company, the
licensee of WVFJ-FM.
16. Agreement to Lease SCA Subcarrier dated September 15, 1987, by and between
All America Communications Corporation and Xxxxxx Broadcasting Corporation,
the licensee of WNGC-FM.
17. Agreement to Lease SCA Subcarrier dated November 5, 1987, by and between
All American Communications Corporation and Piedmont Communications
Corporation, the licensee of WPEZ-FM.
18. Standard Subcarrier Lease Agreement dated April 15, 1993, by and between
Satellink Paging Inc. and X. X. Xxxxx, the licensee of radio station
WVNA-FM, licensed in the city of Tuscumbia, Alabama.
19. Standard Subcarrier Lease Agreement dated July 19, 1993, by and between
Satellink Paging Inc. and WMCD-Statesboro, Georgia, the licensee of radio
station WMCD-FM, licensed in the city of Statesboro, Georgia.
20. Standard Subcarrier Lease Agreement dated August 1, 1993, by and between
Satellink Paging Inc. and Albany Broadcasting Company, Inc., the licensee
of radio station WGPC-FM, licensed in the city of Albany, Georgia.
21. Standard Subcarrier Lease Agreement dated December 1, 1993, by and between
Satellink Paging Inc. and Sonic Broadcasting L. P. - Fund I, the licensee
of radio station WLET-FM, licensed in the city of Toccoa, Georgia.
22. Standard Subcarrier Lease Agreement dated February 1, 1994, by and between
Satellink Paging Inc. and Mountain Lakes Broadcasting LLC, the licensee of
radio station WDRM-FM, licensed in the city of Hunstville, Alabama.
23. Standard Subcarrier Lease Agreement dated February 4, 1994, by and between
Satellink Paging Inc. and Radio Communications, Inc., the licensee of radio
station WINL-FM, licensed in the city of Linden, Alabama.
24. Standard Subcarrier Lease Agreement dated November 9, 1994, by and between
Satellink Paging Inc. and Birmingham Communications, Inc., the licensee of
radio station WODL-FM, licensed in the city of Birmingham, Alabama.
25. Standard Subcarrier Lease Agreement dated January 31, 1995, by and between
Satellink Paging Inc. and P & T Broadcasting, Inc., the licensee of radio
station WLOV-FM, licensed in the city of Washington, Georgia.
26. Standard Subcarrier Lease Agreement dated March 9, 1995, by and between
Satellink Paging Inc. and Xxxxxxx Broadcasting, the licensee of radio
station WYNR-WGIG-FM, licensed in the city of Brunswick, Georgia.
27. Standard Subcarrier Lease Agreement dated April 16, 1995, by and between
Satellink Paging Inc. and Tel-Dodge Broadcasting, the licensee of radio
station WZNY-FM, licensed in the city of Augusta, Georgia.
28. Standard Subcarrier Lease Agreement dated April 16, 1995, by and between
Satellink Paging Inc. and State Broadcasting Corp., the licensee of radio
station WQZY-FM, licensed in the city of Dublin, Georgia.
29. Standard Subcarrier Lease Agreement dated April 16, 1995, by and between
Satellink Paging Inc. and Savanah Valley Broadcasting, the licensee of
radio station WZNY-FM, licensed in the city of Augusta, Georgia.
30. SCA Transmission Agreement dated February 22, 1989, by and between
Satellink Paging Inc. and Jacor Broadcasting of Atlanta, Inc.
Schedule 1.2
Lease Agreements
Parent
1. Lease Agreement, dated April 2, 1992, by and between Northmeadow Associates
Joint Venture and Satellink Paging Inc.
2. Office Service Center Lease, dated July 20, 1994, by and between Xxxxx
Development Corporation and Satellink Paging Inc.
3. Lease, dated October 11, 1991, by and between Xxx Xxxxxxxxx and Satellink
Paging Inc.
4. Standard Texas Business Complex Lease, dated March 30, 1994, by and between
R&B EXECUTIVE INVESTMENTS - GREAT SOUTHWEST ASSOCIATES, a California
Limited Partnership and CR, Inc. a Texas Corporation.
5. Shopping Center Lease dated March 31, 1997 by and between Satellink Paging,
LLC and Woodmen Of The World Life Insurance Society.
6. Lease Agreement, dated November 1, 1996, by and between Xxx Xxxxxx and
Satellink Paging, Inc. (Baton Rouge)
7. Modification of Lease Agreement, dated May 1, 1997, by and between Perlis
Realty Company and Xx. Xxxxxx Xxxxx and Xxxxx X. Xxxxxxx (Cordele)
8. Communications Site Access Agreement, (Newnan, GA) dated May 12, 1995, by
and between Grid-Site Services, Inc. and Atlanta Voice Page, Inc.
9. Communications Site Access Agreement, (Xxxxxx, GA) dated November 23, 1994,
by and between Grid-Site Services, Inc. and Atlanta Voice Page, Inc.
10. Lease Agreement for Radio Broadcasting Antenna & Base Cabinet, (Atlanta,
GA) dated March 30, 1990, by and between First Bank Building Corp. and
Atlanta Voice Page, Inc.
11. Telecommunications Terminal Site Access Agreement, (Mableton, GA) dated
March 30, 1990 by and between Xxxxx X Xxxxx and Atlanta Voice Page, Inc.
12. Antenna Site Licenses Between Motorola, Inc, and Atlanta Voice Page, Inc
for the following locations:
A. Ravinia III, Xxxxxxx, XX
X. Xxxxxxx/Xxxxxxxxx, Xxxxxxx, XX
C. Sawnee Mountain, Cumming, GA
D. Highpoint Tower, Snellville, GA
Schedule 1.3
Permitted Liens
Xxxxxx County, Georgia
Debtor: Satellink Paging Inc.
Secured Party: Advanta Leasing Corp.
File No.: 768418
Collateral: Leased NEWB Equipment; Lease No. 60435
Debtor: Satellink Paging Inc.
Secured Party: Modern Office Machines
File No.: 774430
Collateral: Canon NP 2015s Copier Serial No. CJH 07208
Debtor: Satellink Paging Inc.
Secured Party: American Business Credit Corporation
File No.: 807954
Collateral: Minolta 5420 copier and related equipment S/# 311841
Debtor: Satellink Paging Inc.
Secured Party: Advanta Leasing Corp.
File No.: 819356
Collateral: Minolta Copier and Related Equipment S/# 317909
Debtor: Satellink Paging Inc.
Secured Party: Siemens Credit Corporation
File No.:
Collateral: Seimens 9751 Model 30 EX and Related Equipment
Xxxxxxxxxx County, Alabama
Debtor: Satellink Paging Inc.
Secured Party: Advanta Leasing Corp.
File No.: 819356
Collateral: Minolta Copier and Related Equipment S/# 317907
Schedule 5.2
Chief Executive Offices; Business and Collateral Locations
Chief Executive Office and Principal Place of Business Parent and Borrower
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Sales Offices
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Xxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
0000 Xxxxxxx 000
Xxxxxxxx 0/Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
00000 Xxxxxxx Xxxx.
Xxxxx X0
Xxxxx Xxxxx, XX 00000
0000X 00xx Xxx Xxxx
Xxxxxxx, XX 00000
0000X Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Collateral Locations - Borrower
Collateral may be located at the Borrower's Chief Executive Office and at
various locations in Alabama, Georgia, and South Carolina, as provided for in
those certain subcarrier lease agreements to which the Borrower may be a party
from time to time, including, without limitation, the following subcarrier lease
agreements and corresponding transmitter locations:
Provident Broadcasting Co. (WVFJ)
X.X. Xxx 000
Xxxxx 0, Xxx 000 Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
M&M Partners (WNKS)
X.X. Xxx 000
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Transmitter Site: Cusseta, Xxxxxxx
Xxxxx Georgia Broadcasting Inc. (WBYZ)
Xxxxxxx 000 Xxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxx 00000
Transmitter Site: Griffin Road
Gram Corporation (WGOV, Inc.)
X.X. Xxx 0000
Xxxxx Xxxxxxxx, Xxxxxxx 00000
Transmitter Site: Xxxxxxx 00 Xxxx, Xxxxxxxx, Xxxxxxx
Gulf Atlantic Media of GA, Inc. (WZAT/WSGA)
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxx 00000
Transmitter Site: Xxxxx Xxxxxxx 000, 00 XX
Xxxx xx Xxxxxxxx
Xxxxxxxx Communications Corp. (WPEZ)
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Transmitter Site: WMGT, Channel 00 Xxxxx Xxxx, Xxxxxxx
Xxxxx Xxxxx, Xxxxx, Xxxxxxx
Anniston Radio, Inc. (WHMA)
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Transmitter Site: Top of ColdWater Peak
Xxxxx Community Group (WTVY)
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000
Transmitter Site: Xxxx, Alabama
Jacor Broadcasting (WPCH)
000 Xxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Transmitter Site: 0000 Xxxxxxxxxx Xxxx, Xxxxxxx
Xxxxxxxx Broadcasting (WMTM)
X.X. Xxx 000, XXXX Xxxx
Xxxxxxxx, Xxxxxxx 00000
Colonial Broadcasting, Inc. (WIWI)
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Transmitter Site: 0000 Xxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000
Xxxxx Broadcasting Corp. (WNGC)
000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Transmitter Site: Xxxxx, Xxxxxxx
Xxxxxxx Radio, Inc. (WBGA)
000 Xxxxxxx 00
Xxxxxxxxx, Xxxxxxx 00000
Transmitter Site: Xxxxxx, Georgia
HVS Partners (WGUS)
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Transmitter Site: 000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx
Arrow Communications, Inc. (WFFX)
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Transmitter Site: 000 00xx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx
WVNA
000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
WMCD - Statesboro
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Albany Broadcasting Company, Inc. (WGPC)
0000 Xxxxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Sonic Broadcasting L. P. Fund I (WLET)
340 Xxxxx Xxxxxx Parkway - Suite 525
Gainsville, GA 30501
Mountain Lakes Broadcasting LLC (WDRM)
000 00xx Xxxxxx X. X.
Xxxxxxx, XX 00000
Radio Communications, Inc. (WINL)
000 Xxxx 0xx Xxxxxx
Xxxxxx, XX 00000
Birmingham Communications, Inc. (WODL)
000 Xxxxxx Xxxxxxx, Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
P & T Broadcasting, Inc. (WLOV)
P. O. Xxx 000
Xxxxxxxxx, XX 00000
Xxxxxxx Broadcasting (WYNR-WGIG)
000 Xxxxxx Xxxxx
Xx. Xxxxxx Xxxxxx, XX 00000
WAAC
P. 0. Xxx 0000
Xxxxxxxx, XX 00000
Colonial Broadcasting Inc. (WLWI)
P. 0. Xxx 0000
Xxxxxxxxxx, XX 00000
IJK
X.X. Xxx
Xxxxxxxxx, XX 00000
Broadcasting Investment Association (WTSH)
00 Xxxxxxxxx Xxxxx
Xxxx XX 00000
Xxxxx XxXxxxx (WAVH)
P. O. Xxx
Xxxxxx, XX 00000
Savanah Valley Broadcasting
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX
Schedule 5.5
Litigation and Related Proceedings
None
Schedule 5.8
Intangible Assets
Radio station license; call sign WNZK555, frequency 462.825 (Baton Rouge, LA)
FCC Licenses of Parent as attached hereto.
Federal Communications Commission
Xxxxxxxxxx, XX 00000-0000 RADIO STATION LICENSE
--------------------------------------------------------------------------------
Licensee Name: SATELLINK PAGING LLC
Radio Service: IB BUSINESS License Issue Date: 05/06/1997
Call Sign: WPJZ339 File Number: 9608D050911 License Expiration Date: 12/19/2006
Frequency Advisory No./Service Area:
Pagers -20000*
970506A 8 1 2A
SATELLINK PAGING LLC
0000 XXXXX XXXXXX XXXXXXX XXXXX 000
XXXXXXX XX 00000
REGULATORY STATUS: CMRS
----------------------------------------------------------------------------------------------------------
Station Technical Specifications
----------------------------------------------------------------------------------------------------------
Output
FCC Frequencies Station No. of Emission Power E.R.P. Ground Ant. Hgt. Antenna Antenna
I.D. (MHz) Class Units Designator (Xxxxx) (Xxxxx) Eleva To Tip Latitude Longitude
----------------------------------------------------------------------------------------------------------
B: 75.78000 FXO 1 20K0F1D 125.000 250.000 356 120 34-03-27 000-00-00
20K0F2D HAAT 161
20K0F3E
75.88000 FXO 1 20K0F1D 125.000 250.000 120
20K0F2D
20K0F3E
C: 75.78000 FXO 1 20K0F1D 125.000 250.000 512 51 34-04-00 000-00-00
20K0F2D HAAT 209
20K0F3E
75.88000 FXO 1 20K0F1D 125.000 250.000 51
20K0F2D
20K0F3E
D: 75.78000 FXO 1 20K0F1D 125.000 250.000 512 46 34-04-00 000-00-00
20K0F2D HAAT 209
20K0F3E
75.88000 FX0 1 20K0F1D 125.000 250.000 46
20K0F2D
20K0F3E
XXXXXXXXXXX XXXXXX XXXXXXX XXXX XXXXXX XXXXX
B: 000X0 X XXXXXX XXXX XXXXXXXXXX XXXXXX XX
C: SWEAT MOUNAIN TOP XXXXX XX XXXXXXXX XXXX GA
D: SWEAT MOUNAIN TOP XXXXX XX XXXXXXXX XXXX GA
PAINTING AND LIGHTING SPECIFICATIONS
SITE B: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 4 13 21 22
SITE C: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 4 13 21 22
CONTROL POINTS: 0000 XXXXXXXXXXX XXX XXX 000 XXXXXXX XX
CONTROL POINT PHONE: 000-000-0000
ASSOCIATED CALLSIGN: WNRF458
----------------------------------------------------------------------------------------------------------
PAGE 1 OF 2
[LOGO] FEDERAL -----------------------------------------------------
COMMUNICATIONS This authorization becomes invalid and must be
COMMISSION returned to the Commission if the stations are not
placed in operation within eight months, unless an
extension of time has been granted. EXCEPTIONS: 1)
800 MHz trunked and certain 900 MHz station licenses
cancel automatically if not constructed within 1 year
2) IVDS authorizations automatically cancel if
service is not made available in accordance with
Section 95.833(a) of the Commission's Rules 3) There
are no time limitations for placing GMRS stations in
operation.
-----------------------------------------------------
FCC 574-L April 0000
Xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, XX 00000-0000 RADIO STATION LICENSE
--------------------------------------------------------------------------------
Licensee Name: SATELLINK PAGING LLC
Radio Service: IB BUSINESS License Issue Date: 05/06/1997
Call Sign: WPJZ339 File Number: 9608D050911 License Expiration Date: 12/19/2006
Frequency Xxxxxxxx Xx./Xxxxxxx Xxxx
Xxxxxx -00000*
970506A 8 2 2A
SATELLINK PAGING LLC
0000 XXXXX XXXXXX XXXXXXX XXXXX 000
XXXXXXX XX 00000
REGULATORY STATUS: CMRS
----------------------------------------------------------------------------------------------------------
Station Technical Specifications
----------------------------------------------------------------------------------------------------------
Output
FCC Frequencies Station No. of Emission Power E.R.P. Ground Ant. Hgt. Antenna Antenna
I.D. (MHz) Class Units Designator (Xxxxx) (Xxxxx) Eleva To Tip Latitude Longitude
----------------------------------------------------------------------------------------------------------
The latitude/1ongitude are authorized in North American Datum 1927 (NAD27).
Additionally, the antenna height to tip, ground elevation, AAT and area of operation units are authorized in metric.
EMISSION DESIGNATOR(S) CONVERTED TO CONFORM TO DESIGNATOR(S) SET OUT IN PART 2
OF THE COMMISSION'S RULES.
----------------------------------------------------------------------------------------------------------
PAGE 2 OF 2
[LOGO] FEDERAL -----------------------------------------------------
COMMUNICATIONS This authorization becomes invalid and must be
COMMISSION returned to the Commission if the stations are not
placed in operation within eight months, unless an
extension of time has been granted. EXCEPTIONS: 1)
800 MHz trunked and certain 900 MHz station licenses
cancel automatically if not constructed within 1 year
2) IVDS authorizations automatically cancel if
service is not made available in accordance with
Section 95.833(a) of the Commission's Rules 3) There
are no time limitations for placing GMRS stations in
operation.
-----------------------------------------------------
FCC 574-L April 0000
Xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, XX 00000-0000 RADIO STATION LICENSE
--------------------------------------------------------------------------------
Licensee Name: SATELLINK PAGING LLC
Radio Service: IB BUSINESS License Issue Date: 05/06/1997
Call Sign: WNRF458 File Number: 9608D050898 License Expiration Date: 02/04/2007
Frequency Advisory No./Service Area 960330204
Pagers -*5000*
970506A 6 1 2A
SATELLINK PAGING LLC
0000 XXXXX XXXXXX XXXXXXX XXXXX 000
XXXXXXX XX 00000
REGULATORY STATUS: CMRS
----------------------------------------------------------------------------------------------------------
Station Technical Specifications
----------------------------------------------------------------------------------------------------------
Output
FCC Frequencies Station No. of Emission Power E.R.P. Ground Ant. Hgt. Antenna Antenna
I.D. (MHz) Class Units Designator (Xxxxx) (Xxxxx) Eleva To Tip Latitude Longitude
----------------------------------------------------------------------------------------------------------
A: 462.85000 FB6C 1 20K0F1D 225.000 1851 439 51 34-04-00 000-00-00
20K0F2D HAAT 0
20K0F3E
B: 462.85000 FB6C 1 20K0F1D 225.000 1705 296 123 33-49-03 000-00-00
20K0F2D HAAT 0
20K0F3E
C: 462.85000 FB6C 1 20K0F1D 225.000 1727 588 49 34-13-47 000-00-00
20K0F2D HAAT 0
20K0F3E
D: 462.85000 FB6C 1 20K0F1D 225.000 1177 338 34 33-51-02 000-00-00
20K0F2D HAAT 0
20K0F3E
75.78000 FXO 1 20K0F1D 125.000 150.000 34
20K0F2D
20K0F3E
75.88000 FXO 1 20K0F1D 125.000 150.000 34
20K0F2D
20K0F3E
E: 462.85000 FB6C 1 20K0F1D 225.000 1795 321 169 33-45-15 000-00-00
20K0F2D HAAT 0
20K0F3E
F: 462.85000 FB6C 1 20KOF1D 225.000 1190 293 135 33-55-16 000-00-00
20K0F2D HAAT 0
20K0F3E
TRANSMITTER STREET ADDRESS CITY COUNTY STATE
A: SWEAT MOUNTAIN XXXXXX XX XXXXXXXX XXXX GA
B: XXXXX XXXXX 00 XXXXXX XXXX XX XX XXXXXXXX XXXX XX
X: SAWNEE MOUNTAIN CUMMING FORSYTH GA
D: 0000 XXXX XXXXX XX XXXXXXXXXX XXXXXXXX XX
E: 1ST NATIONAL BANK 0 XXXXXXXXX XXXXXXX XXXXXX XX
F: 0 XXXXXXX XX XXXXXXX XX XXXX XX
----------------------------------------------------------------------------------------------------------
PAGE 1 OF 2
[LOGO] FEDERAL -----------------------------------------------------
COMMUNICATIONS This authorization becomes invalid and must be
COMMISSION returned to the Commission if the stations are not
placed in operation within eight months, unless an
extension of time has been granted. EXCEPTIONS: 1)
800 MHz trunked and certain 900 MHz station licenses
cancel automatically if not constructed within 1 year
2) IVDS authorizations automatically cancel if
service is not made available in accordance with
Section 95.833(a) of the Commission's Rules 3) There
are no time limitations for placing GMRS stations in
operation.
-----------------------------------------------------
FCC 574-L April 0000
Xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, XX 00000-0000 RADIO STATION LICENSE
--------------------------------------------------------------------------------
Licensee Name: SATELLINK PAGING LLC
Radio Service: IB BUSINESS License Issue Date: 05/06/1997
Call Sign: WNRF458 File Number: 9608D050898 License Expiration Date: 02/04/2007
Frequency Advisory No./Service Area: 960330204
Pagers -*5000*
970506A 6 2 2A
SATELLINK PAGING LLC
0000 XXXXX XXXXXX XXXXXXX XXXXX 000
XXXXXXX XX 00000
REGULATORY STATUS: CMRS
----------------------------------------------------------------------------------------------------------
Station Technical Specifications
----------------------------------------------------------------------------------------------------------
Output
FCC Frequencies Station No. of Emission Power E.R.P. Ground Ant. Hgt. Antenna Antenna
I.D. (MHz) Class Units Designator (Xxxxx) (Xxxxx) Eleva To Tip Latitude Longitude
----------------------------------------------------------------------------------------------------------
PAINTING AND LIGHTING SPECIFICATIONS
SITE A: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 4 13 21 22
SITE B: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 12 21
SITE E: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 21 22
CONTROL POINTS: 0000 XXXXXXXXXXX XXX XXX 000 XXXXXXX XX
CONTROL POINT PHONE: 000-000-0000
ADMIN NOTE: SEE ATTACHED #14
STATION CLASS SUFFIX C = INTERCONNECT
STATION CLASS SUFFIX J = TEMPORARY WITH INTERCONNECT
STATION CLASS SUFFIX K = STAND-BY WITH INTERCONNECT
STATION CLASS SUFFIX L = ITINERANT WITH INTERCONNECT
The latitude/longitude are authorized in North American Datum 1927 (NAD27).
Additionally, the antenna, height to tip, ground elevation, AAT and area of
operation units are authorized in metric.
EMISSION DESIGNATOR(S) CONVERTED TO CONFORM TO DESIGNATOR(S)
SET OUT IN PART 2 OF THE COMMISSION'S RULES.
----------------------------------------------------------------------------------------------------------
PAGE 2 OF 2
[LOGO] FEDERAL -----------------------------------------------------
COMMUNICATIONS This authorization becomes invalid and must be
COMMISSION returned to the Commission if the stations are not
placed in operation within eight months, unless an
extension of time has been granted. EXCEPTIONS: 1)
800 MHz trunked and certain 900 MHz station licenses
cancel automatically if not constructed within 1 year
2) IVDS authorizations automatically cancel if
service is not made available in accordance with
Section 95.833(a) of the Commission's Rules 3) There
are no time limitations for placing GMRS stations in
operation.
-----------------------------------------------------
FCC 574-L April 0000
Xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, XX 00000-0000 RADIO STATION LICENSE
--------------------------------------------------------------------------------
Licensee Name: SATELLINK PAGING LLC
Radio Service: IB BUSINESS License Issue Date: 05/06/1997
Call Sign: WNRT534 File Number: 9605D064043 License Expiration Date: 04/13/2000
Frequency Advisory No./Service Area: 960330203
Pagers -*1000*
970506A 7 1 2A
SATELLINK PAGING LLC
0000 XXXXX XXXXXX XXXXXXX XXXXX 000
XXXXXXX XX 00000
REGULATORY STATUS: CMRS
----------------------------------------------------------------------------------------------------------
Station Technical Specifications
----------------------------------------------------------------------------------------------------------
Output
FCC Frequencies Station No. of Emission Power E.R.P. Ground Ant. Hgt. Antenna Antenna
I.D. (MHz) Class Units Designator (Xxxxx) (Xxxxx) Eleva To Tip Latitude Longitude
----------------------------------------------------------------------------------------------------------
A: 462.85000 FB6C 1 16K0F1D 225.000 996.000 384 0 33-36-35 000-00-00
HAAT 213
B: 462.85000 FB6C 1 16K0F1D 225.000 855.000 299 0 33-29-31 000-00-00
HAAT 91
C: 462.85000 FB6C 1 16K0F1D 225.000 2479 512 0 33-04-00 000-00-00
HAAT 51
D: 462.85000 FB6C 1 16K0F1D 225.000 840.000 281 0 33-23-49 000-00-00
HAAT 91
E: 462.85000 FB6C 1 16K0F1D 225.000 935.000 256 0 33-35-33 000-00-00
HAAT 152
F: 462.85000 FB6C 1 16KOF1D 225.000 950.000 287 0 33-20-43 000-00-00
HAAT 000
XXXXXXXXXXX XXXXXX XXXXXXX XXXX XXXXXX XXXXX
A: FAIRPLAY DOUGLASVILLE DOUGLAS GA
B: 0000 X XXX 00 XXXXXX XXXXXXX XX
C: TOP SWEAT MOUNTAIN XXXXX XX XXXXXXXX XXXX GA
D: 00 XXXXXXXX XX XXXXXX XXXXXX XX
E: 0 XX X XXXXXXXXX XXXXXX XX
F: 5 MI W SUNNY SIDE SPALDING GA
PAINTING AND LIGHTING SPECIFICATIONS
SITE A: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 4 13 21
SITE B: SEE ATTACHED FORM 715/715A PARAGRAPHS: A H I
SITE C: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 4 13 21 22
SITE D: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 4 13 21
SITE E: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 4 13 21
CONTROL POINTS: 0000 XXXXXXXXXXX XXX XXX 000 XXXXXXX XX
CONTROL POINT PHONE: 000-000-0000
----------------------------------------------------------------------------------------------------------
PAGE 1 of 2
[LOGO] FEDERAL -----------------------------------------------------
COMMUNICATIONS This authorization becomes invalid and must be
COMMISSION returned to the Commission if the stations are not
placed in operation within eight months, unless an
extension of time has been granted. EXCEPTIONS: 1)
800 MHz trunked and certain 900 MHz station licenses
cancel automatically if not constructed within 1 year
2) IVDS authorizations automatically cancel if
service is not made available in accordance with
Section 95.833(a) of the Commission's Rules 3) There
are no time limitations for placing GMRS stations in
operation.
-----------------------------------------------------
FCC 574-L April 0000
Xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, XX 00000-0000 RADIO STATION LICENSE
--------------------------------------------------------------------------------
Licensee Name: SATELLINK PAGING LLC
Radio Service: IB BUSINESS License Issue Date: 05/06/1997
Call Sign: WNRT534 File Number: 9605D064043 License Expiration Data: 04/13/2000
Frequency Advisory No./Service Area: 960330203
Pagers -*1000*
970506A 7 2 2A
SATELLINK PAGING LLC
0000 XXXXX XXXXXX XXXXXXX XXXXX 000
XXXXXXX XX 00000
REGULATORY STATUS: CMRS
----------------------------------------------------------------------------------------------------------
Station Technical Specifications
----------------------------------------------------------------------------------------------------------
Output
FCC Frequencies Station No. of Emission Power E.R.P. Ground Ant. Hgt. Antenna Antenna
I.D. (MHz) Class Units Designator (Xxxxx) (Xxxxx) Eleva To Tip Latitude Longitude
----------------------------------------------------------------------------------------------------------
STATION CLASS SUFFIX C = INTERCONNECT
STATION CLASS SUFFIX J = TEMPORARY WITH INTERCONNECT
STATION CLASS SUFFIX K = STAND-BY WITH INTERCONNECT
STATION CLASS SUFFIX L = ITINERANT WITH INTERCONNECT
The latitude/longitude are authorized in North American Datum 1927 (NAD27).
Additionally, the antenna height to tip, ground elevation, AAT and area of
operation units are authorized in metric.
EMISSION DESIGNATOR(S) CONVERTED TO CONFORM TO DESIGNATOR(S) SET OUT IN PART 2
OF THE COMMISSION'S RULES.
----------------------------------------------------------------------------------------------------------
PAGE 2 OF 2
[LOGO] FEDERAL -----------------------------------------------------
COMMUNICATIONS This authorization becomes invalid and must be
COMMISSION returned to the Commission if the stations are not
placed in operation within eight months, unless an
extension of time has been granted. EXCEPTIONS: 1)
800 MHz trunked and certain 900 MHz station licenses
cancel automatically if not constructed within 1 year
2) IVDS authorizations automatically cancel if
service is not made available in accordance with
Section 95.833(a) of the Commission's Rules 3) There
are no time limitations for placing GMRS stations in
operation.
-----------------------------------------------------
FCC 574-L April 0000
Xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, XX 00000-0000 RADIO STATION LICENSE
--------------------------------------------------------------------------------
Licensee Name: SATELLINK PAGING LLC
Radio Service: IB BUSINESS License Issue Date: 05/30/1997
Call Sign: WPJY562 File Number: 9704D076479 License Expiration Date: 05/30/2007
Frequency Advisory No./Service Area: 970640165
Pagers - 10000*
970530A 110 1 22
SATELLINK PAGING LLC
0000 X XXXXXX XXX XXX 000
XXXXXXX XX 00000
REGULATORY STATUS: CMRS
----------------------------------------------------------------------------------------------------------
Station Technical Specifications
----------------------------------------------------------------------------------------------------------
Output
FCC Frequencies Station No. of Emission Power E.R.P. Ground Ant. Hgt. Antenna Antenna
I.D. (MHz) Class Units Designator (Xxxxx) (Xxxxx) Eleva To Tip Latitude Longitude
----------------------------------------------------------------------------------------------------------
A: 462.85000 FB6 1 20K0F3E 225.000 1125 372 58 34-11-35 000-00-00
HAAT 107
B: 462.85000 FB6 1 20K0F3E 225.000 1050 689 43 34-33-57 000-00-00
HAAT 244
C: 462.85000 FB6 1 20KOF3E 225.000 950.000 274 98 34-00-54 000-00-00
HAAT 76
D: 462.85000 FB6 1 20K0F3E 225.000 950.000 280 88 34-11-22 000-00-00
HAAT 99
E: 462.85000 FB6 1 20K0F3E 225.000 975.000 216 52 33-34-43 000-00-00
HAAT 00
XXXXXXXXXXX XXXXXX XXXXXXX XXXX XXXXXX XXXXX
A: PONDERS MOUNTAIN CARTERSVILLE BARTOW GA
B: GA HWY 000 XXXX XXXXXXXX 0.0 XX X XXXXXXXXX XXXXX XX
X: XX XXX 00 X XXXXXX XXXXXX XX
D: XXXXX ST 000 XX X XXXX XXXXXX XXXXXXXX XXXXXXX XX
E: 000 XXXXXXXXXX XX XXXXXXX XXXXXX XX
PAINTING AND LIGHTING SPECIFICATIONS
SITE C: SEE ATTACHED FORM 715/715A PARAGRAPHS: A H I
SITE D: SEE ATTACHED FORM 715/715A PARAGRAPHS: 1 3 11 21 22
CONTROL POINTS: 0000 X XXXXXX XXX XXX 000 XXXXXXX XX
CONTROL POINT PHONE: 000-000-0000
SPECIAL CONDITIONS BY SITE
SITE C: PARAGRAPH A MODIFIED TO REQUIRE USE OF L-865 MEDIUM INTENSITY LIGHTS IN
LIEU OF L-856. LIGHTS SHALL EMIT A PEAK INTENSITY OF APPROXIMATELY 2,000
XXXXXXXX AT NIGHT IN LIEU OF 4,000.
The latitude/longitude are authorized in North American Datum 1927 (NAD27).
Additionally, the antenna height to tip, ground elevation, AAT and area of
operation units are authorized in metric.
----------------------------------------------------------------------------------------------------------
PAGE 1 OF 2
[LOGO] FEDERAL -----------------------------------------------------
COMMUNICATIONS This authorization becomes invalid and must be
COMMISSION returned to the Commission if the stations are not
placed in operation within eight months, unless an
extension of time has been granted. EXCEPTIONS: 1)
800 MHz trunked and certain 900 MHz station licenses
cancel automatically if not constructed within 1 year
2) IVDS authorizations automatically cancel if
service is not made available in accordance with
Section 95.833(a) of the Commission's Rules 3) There
are no time limitations for placing GMRS stations in
operation.
-----------------------------------------------------
FCC 574-L April 0000
Xxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, XX 00000-0000 RADIO STATION LICENSE
--------------------------------------------------------------------------------
Licensee Name: SATELLINK PAGING LLC
Radio Service: IB BUSINESS License Issue Date: 05/30/1997
Call Sign: WPJY562 File Number: 9704D076479 License Expiration Date: 05/30/2007
Frequency Advisory No./Service Area: 970640165
Pagers -10000*
970530A 110 2 2Z
SATELLINK PAGING LLC
0000 X XXXXXX XXX XXX 000
XXXXXXX XX 00000
REGULATORY STATUS: CMRS
----------------------------------------------------------------------------------------------------------
Station Technical Specifications
----------------------------------------------------------------------------------------------------------
Output
FCC Frequencies Station No. of Emission Power E.R.P. Ground Ant. Hgt. Antenna Antenna
I.D. (MHz) Class Units Designator (Xxxxx) (Xxxxx) Eleva To Tip Latitude Longitude
----------------------------------------------------------------------------------------------------------
EMISSION DESIGNATOR(S) CONVERTED TO CONFORM TO DESIGNATOR(S) SET OUT IN PART 2
OF THE COMMISSION'S RULES.
----------------------------------------------------------------------------------------------------------
PAGE 2 of 2
[LOGO] FEDERAL -----------------------------------------------------
COMMUNICATIONS This authorization becomes invalid and must be
COMMISSION returned to the Commission if the stations are not
placed in operation within eight months, unless an
extension of time has been granted. EXCEPTIONS: 1)
800 MHz trunked and certain 900 MHz station licenses
cancel automatically if not constructed within 1 year
2) IVDS authorizations automatically cancel if
service is not made available in accordance with
Section 95.833(a) of the Commission's Rules 3) There
are no time limitations for placing GMRS stations in
operation.
-----------------------------------------------------
FCC 574-L April 1995
[logo] Communications -----------------
Industry First Class Mail
Association U.S. Postage Paid
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Permit No. 1060
Alexandria, VA 22314-1561 Alexandria, VA
Important information about -----------------
your radio license application
Please read other side.
1). Applicant Name: Control No.: 970640165
SATELLINK PAGING INC.
Existing Callsign: WPJY562
2). Transmitter Location
CARTERSVILLE BARTOW GA
Your PCIA ID No. is: 1192914
3). Application Dates:
Received Coordinated Filed
3/05/1997 4/03/1997 4/04/1997
XXXXXXXX, XXX
4). Time Spent in Days: SATELLINK PAGING INC.
Coordination - 29 0000 XXXXXXXXXXX XXXX XXX 000
Xxxxxxx, XX 00000-0000
XXXXXXXX, XXX
SATELLINK PAGING INC. Personal Communications Industry Association
0000 XXXXXXXXXXX XXXX XXX 000 Frequency Recommendation Notice
XXXXXXX XX 00000-0000 Control #: 970640165 Date: 4/03/97 Radio Svc: IB
THIS APPLICATION WILL BE FILED WITH THE FCC WITHIN 3 WORKING DAYS
Frequency Class Units Emission Power ERP AAT Elev Aat Latitude Longitude
462.85000 FB6 1 20K0F3E 225 1125 107 372 58 34:11:35 84:45:30 XXXXXXXXXXXX XXXXXX XX
000.00000 FB6 1 20K0F3E 225 1050 244 689 43 34:33:57 84:36:41 CLEVELAND WHITE GA
462.85000 FB6 1 20K0F3E 225 950 76 274 98 34:00:54 83:29:01 ATHENS XXXXXX GA
462.85000 FB6 1 20K0F3E 225 950 99 280 88 34:11:22 83:27:10 COMMERCE JACKSON GA
462.85000 FB6 1 20K0F3E 225 975 91 216 52 34:34:43 83:28:42 XXXXXXX XXXXXX GA
**Area of Operation:
Your FCIA ID No. 1192914 ***NOTE: ALL HEIGHTS ARE IN METRIC
SATELLINK PAGING INC.
XXX XXXXXXXX
0000 X0XXXXXXXXX XXXX XXX 000
XXXXXXX XX 00000-0000
[logo] Personal Communications -----------------
Industry First Class Mail
Association U.S. Postage Paid
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Permit No. 1060
Alexandria, VA 22314-1561 Alexandria, VA
Important information about -----------------
your radio license application
Please read other side.
1). Applicant Name: Control No.: 970160036
SATELLINK PAGING INC.
Existing Callsign: IB WNYS772
2). Transmitter Location
LOOKOUT MOUNTAIN XXXXXXXX TN
Your PCIA ID No. is: 806162
3). Application Dates:
Received Coordinated Filed
1/16/1997 1/31/1997 2/03/1997
SATELLINK PAGING INC.
4). Time Spent in Days: 0000 XXXXXXXXXXX XXXX XXX 000
Xxxxxxxxxxxx - 14 XXX XXXX
Monitoring - 1 XXXXXXX XX 00000-0000
[logo] Personal Communications -----------------
Industry First Class Mail
Association U.S. Postage Paid
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Permit No. 1060
Alexandria, VA 22314-1561 Alexandria, VA
Important information about -----------------
your radio license application
Please read other side.
1). Applicant Name: Control No.: 970640164
SATELLITE PAGING, LLC
Existing Callsign: WPJY565
2). Transmitter Location
EATONTON PUNTAM GA
Your PCIA ID No. is: 219714
3). Application Dates:
Received Coordinated Filed
3/05/l997 4/03/1997 4/04/1997
SATELLITE PAGING, LLC
4). Time Spent in Days: 0000 XXXXXXXXXXX XXXX XXX 000
Xxxxxxxxxxxx - 00 XXXXXXX XX 00000-0000
[logo] Personal Communications -----------------
Industry First Class Mail
Association U.S. Postage Paid
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Permit No. 1060
Alexandria, VA 22314-1561 Alexandria, VA
Important information about -----------------
your radio license application
Please read other side.
1). Applicant Name: Control No.: 970160035
SATELLINK PAGING INC.
Existing Callsign: WNZX622
2). Transmitter Location
PIKEVILLE XXXXXXX TN
Your PCIA ID No. is: 806162
3). Application Dates:
Received Coordinated Filed
1/16/1997 1/31/1997 2/03/1997
SATELLINK PAGING INC.
4). Time Spent in Days: 0000 XXXXXXXXXXX XXXX XXX 000
Xxxxxxxxxxxx - 00 XXX XXXX
Xxxxxxxxxx - 0 XXXXXXX XX 00000-0000
Schedule 5.9
Federal Tax Identification Number of the Parent
00-0000000
Federal Tax Identification Number of the Borrower
00-0000000
Schedule 5.10
ERISA Matters
The Borrower contributes to a 401 (k) Profit Sharing Plan which became effective
April 1, 1995.
Schedule 5.12
Title to Assets
None.
Schedule 5.19
Corporate and Trade or Fictitious Names
Satellink Paging Inc.
Satellink Paging Southeast II, LLC
Satellink Paging, LLC
Message World
Satellink Paging, Inc.
Flint River Paging
Fast Communications
Call One
Schedule 5.22
Permitted Investments
Borrower
Investment Loans Equity Ownership
--------------------------------- -------- ------- ---------
Nations Link, Ltd. $134,106 $50,119 33%
Direct Link Communications L.L.C. 380,799 62,842 85%
Schedule 5.29
Labor Matters
None.
Schedule 5.30
Existing Indebtedness
Creditor Amount
--------------------------- ---------------------------------
Xxxxx Communications $320,000, unsecured, payable on
(Message World) 6/30/97.
The Xxxxxxx Company $18,750, unsecured, payable on or
(Flint River) about 8/23/97
Siemens Credit Corporation $123,765 under capital lease
Indebtedness to the Lenders Indebtedness under this Loan
agreement and the Loan Documents.
Exhibit A
to
Third Amended and Restated
Loan and Security Agreement
dated as of June __, 1997
FORM OF
REVOLVING CREDIT NOTE
New York, New York
$___________ As of June __, 1997
FOR VALUE RECEIVED, the undersigned, SATELLINK PAGING, LLC, a Georgia
limited liability company (hereinafter referred to as "Maker"), promises to pay
to the order of ____________________________(hereinafter referred to as the
"Holder"), at such account or at such other place as Holder may from time to
time designate in writing, the principal sum of __________________UNITED STATES
DOLLARS (U.S. $___________), or if less, the aggregate outstanding principal
amount of Revolving Credit Loans, as such term is defined in the Loan Agreement
referred to hereinbelow, made or issued by Holder to Maker, in lawful money of
the United States, payable in full on the Maturity Date (as defined in the Loan
Agreement).
Interest on the principal balance from time to time outstanding hereunder
shall accrue at the rates and shall be payable in the manner set forth in that
certain Third Amended and Restated Loan and Security Agreement dated as of even
date herewith, by and among Maker, Satellink Communications, Inc., a Georgia
corporation, the Lenders from time to time party thereto, and
Creditanstalt-Bankverein, as Agent for the Lenders (such agreement, as
heretofore, now or hereafter amended, restated, supplemented or otherwise
modified from time to time, the "Loan Agreement"). Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such terms in the
Loan Agreement.
In no contingency or event whatsoever shall the interest rate charged
pursuant to the terms of this Revolving Credit Note (this "Note") exceed the
highest rate permissible under any law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that such
a court determines that Holder has received interest hereunder in excess of the
highest applicable rate, Holder shall promptly refund such excess interest to
Maker.
The date and amount of each Revolving Credit Loan made by the Holder to
the Maker of this Note under the Loan Agreement, and each payment of principal
thereof, shall be recorded by Holder on its books and, prior to any transfer of
this Note, endorsed by Holder on the Schedule attached hereto or on any
continuation thereof.
This Note is, in part, a replacement, extension and renewal note for that
certain Revolving Credit Note dated as of January 31, 1997, in the principal
face amount of $16,000,000, executed by Maker in favor of
[Holder/Creditanstalt-Bankverein, an Austrian Banking corporation], which note
was, in part, a replacement note for that certain Revolving Credit Note dated as
of May 31, 1996, in the principal face amount of $8,500,000, which note was, in
part, a replacement note for that certain Revolving Credit Note dated as of
November 17, 1995, in the principal face amount of $5,000,000, which note was,
in part, a replacement note for that certain Revolving Credit Note dated as of
December 23, 1992, in the principal face amount of $1,500,000. This Note is a
"Revolving Credit Note" referred to in the Loan Agreement, and is subject to all
of the terms and conditions of the Loan Agreement, including, but not limited
to, those related to the acceleration of the indebtedness represented hereby
upon the occurrence of an Event of Default or the reduction of the Commitment.
Payment of this Note is secured by the Collateral.
In the event that all or any portion of the indebtedness evidenced hereby
shall be collected by or through an attorney-at-law, Holder shall be entitled to
collect from Maker all costs of collection, including reasonable attorneys'
fees.
The Maker hereby waives presentment, demand for payment, protest and
notice of protest, notice of dishonor and all other notices in connection with
this Note. This Note shall be payable without right of setoff, any defense of
want or failure of consideration, nonperformance of any condition precedent,
nondelivery or delivery for a special purpose or any other defense of any nature
whatsoever.
THIS NOTE, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW). MAKER HEREBY (A)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS NOTE AND (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE HOLDER TO BRING PROCEEDINGS AGAINST MAKER IN THE COURTS OF ANY
OTHER JURISDICTION.
AFTER REVIEWING THIS PROVISION SPECIFICALLY WITH ITS COUNSEL, MAKER HEREBY
KNOWINGLY, INTELLIGENTLY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING BASED ON OR ARISING OUT
OF, UNDER, IN CONNECTION WITH, OR RELATING TO THIS NOTE, THE TRANSACTIONS
CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
2
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF MAKER OF HOLDER. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR TO THE HOLDER TO MAKE THE LOANS EVIDENCED BY THIS NOTE
TO MAKER.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
under seal by its duly authorized officer as of the day and year first written
above.
"MAKER"
SATELLINK PAGING, LLC, a Georgia
limited liability company
By: Satellink Communications, Inc.,
its Manager
By: ________________________________
Name:
Title:
Attest: ____________________________
Name:
Title:
[CORPORATE SEAL]
3
Schedule to
Revolving Credit Note
dated as of June ___, 1997
of Satellink Paging, LLC,
a Georgia limited liability company
Principal Principal
Amount of Interest Amount of Outstanding
Date Loan Rate Payment Balance
---- ---- ---- ------- -------
Exhibit B
to Third Amended and Restated
Loan and Security Agreement
dated as of June ___, 1997
FORM OF TERM NOTE
New York, New York
$__________ As of June __,1997
FOR VALUE RECEIVED, the undersigned, SATELLINK PAGING, LLC, a Georgia
limited liability company (hereinafter referred to as "Maker"), promises to pay
to the order of _________________ (hereinafter referred to as the "Holder"), at
such account or at such other place as Holder may from time to time designate in
writing, the principal sum of _____________ UNITED STATES DOLLARS
(U.S.$___________), repayable in accordance with the Loan Agreement referred to
below. Each capitalized term contained herein and not otherwise defined herein
shall have the meaning given to such term in the Loan Agreement.
Interest on the principal balance from time to time outstanding hereunder
shall accrue at the rates and shall be payable in the manner set forth in that
certain Third Amended and Restated Loan and Security Agreement dated as of even
date herewith, by and among Maker, Satellink Communications, Inc., a Georgia
corporation, the Lenders from time to time party thereto, and Creditanstalt-
Bankverein, as Agent for the Lenders (as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement"). In no contingency or event whatsoever shall the interest rate
charged pursuant to the terms of this Term Note (the "Note") exceed the highest
rate permissible under any law which a court of competent jurisdiction shall, in
a final determination, deem applicable hereto, In the event that such a court
determines that Holder has received interest hereunder in excess of the highest
applicable rate, Holder shall promptly refund such excess interest to Maker.
This Note is, in part, a replacement, renewal and extension of that
certain Term Note, dated as of January 31, 1997, in the principal face amount of
$8,000,000 executed by Maker in favor of [Holder/Creditanstalt-Bankverein, an
Austrian Banking Corporation], which note was in turn a replacement note for
that certain Term Note, dated as of May 31, 1996, in the principal face amount
of $5,500,000, which note was in turn a replacement note for that certain Term
Note, dated as of November 17, 1995, in the principal face amount of $3,500,000,
which note was in turn a replacement note for that certain Term Note dated as of
December 23, 1992, in the principal face amount of $3,500,000. This Note is a
"Term Note" referred to in the Loan Agreement, and is subject to all of the
terms and conditions of the Loan Agreement, including, but not limited to, those
relating to prepayments hereon, and those relating to the acceleration of the
indebtedness represented hereby upon the occurrence of an Event of Default.
Payment of this Note is secured by the Collateral. All prepayments under this
Note shall be applied to the principal installments hereof in the inverse order
of their maturities.
In the event that all of any portion of the indebtedness evidenced hereby
shall be collected by or through an attorney-at-law, Holder shall be entitled to
collect from Maker all costs of collection, including reasonable attorneys'
fees.
The Maker hereby waives presentment, demand for payment, protest and
notice of protest, notice of dishonor and all other notices in connection with
this Note. This Note shall be payable without right of setoff, any defense of
want or failure of consideration, nonperformance of any condition precedent,
nondelivery or delivery for a special purpose or any other defense of any nature
whatsoever.
THIS NOTE, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW). MAKER HEREBY (A)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS NOTE (B) AGREES THAT SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THIS NOTE AND (C)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTWITHSTANDING ANYTHING HEREIN
TO THE CONTRARY, NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE HOLDER TO BRING
PROCEEDINGS AGAINST MAKER IN THE COURTS OF ANY OTHER JURISDICTION.
MAKER HEREBY KNOWINGLY, INTELLIGENTLY AND INTENTIONALLY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING BASED
ON OR ARISING OUT OF, UNDER, IN CONNECTION WITH, OR RELATING TO THIS NOTE, THE
TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF MAKER OF HOLDER. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE HOLDER TO MAKE THE LOANS EVIDENCED BY
THIS NOTE TO MAKER.
2
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
under seal by its duly authorized officer as of the day and year first written
above.
"MAKER"
SATELLINK PAGING, LLC, a Georgia
limited liability company
By: Satellink Communications, Inc.,
its Manager
By: ________________________________
Name:
Title:
Attest: ____________________________
Name:
Title:
[CORPORATE SEAL]
3
Exhibit C
to
Third Amended and Restated
Loan and Security Agreement
dated as of June ___, 1997
FORM OF NOTICE OF [BORROWING] [CONVERSION] [CONTINUATION]
Creditanstalt-Bankverein
0 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: Third Amended and Restated Loan and Security Agreement dated as of
June ____, 1997 (as the same may be further amended, restated,
supplemented or otherwise modified from time to time, the "Loan
Agreement") among Satellink Communications, Inc. ("Parent"),
Satellink Paging, LLC (the "Borrower"), and Creditanstalt-Bankverein
("Bank")
Gentlemen:
This request is delivered in accordance with Article 2.12(a) of the Loan
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Loan Agreement.
Borrower hereby [irrevocably requests) (confirms its irrevocable oral
request) for the following [Loan] [Conversion] [Continuation]:
1. Amount of [Loan] [Conversion] [Continuation]: $______________
2. Type of [Loan] [Conversion] [Continuation] (check one):
(a) If a Loan: ______ Base Rate Loan
______ Eurodollar Loan
(b) If a Continuation: ______ Base Rate Loan
______ Eurodollar Loan
Creditanstalt-Bankverein
Page 2
(c) If a Conversion: ______ Base Rate Loan to
Eurodollar Loan
______ Eurodollar Loan to
Base Rate
3. Date of[Loan][Conversion]
[Continuation]: _______, _______
4. Duration of Interest Period (if a Eurodollar Loan): ________________
In connection with this request, Borrower hereby certifies to the Agent,
for the benefit of the Lenders, as follows:
(a) The representations and warranties set forth in Article 5 of the Loan
Agreement, the terms of which are incorporated herein by reference, are true and
correct in all material respects on and as of the date hereof; and
(b) On the date hereof, and after giving effect to the [Loan] [Conversion]
[Continuation] requested hereby, no Default or Event of Default has occurred or
is continuing.
Very truly yours,
SATELLINK PAGING, LLC
By: Satellink Communications, Inc.,
its Manager
By: _______________________
Title:
Exhibit F
to
Third Amended and Restated
Loan and Security Agreement
dated as of June ___, 1997
FORM OF
COMPLIANCE CERTIFICATE
Reference is made to that certain Third Amended and Restated Loan and
Security Agreement dated as of June __,1997 (as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement") by and among SATELLINK COMMUNICATIONS, INC., a Georgia corporation
(the "Parent"), SATELLINK PAGING, LLC, a Georgia limited liability company (the
"Borrower"), the LENDERS from time to time party thereto (the "Lenders") and
CREDITANSTALT-BANKVEREIN, in its capacity as agent for the Lenders (the
"Agent"). Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Loan Agreement. The undersigned, being
the _______________ and Chief Financial Officer of the Borrower, hereby delivers
this Compliance Certificate (the "Certificate") to the Bank pursuant to Section
6.2(e) of the Loan Agreement, for the period beginning on ______________, _____
and ending on ________________, _____ (the "Compliance Period").
The undersigned hereby certifies to the Bank that he is the
___________________ and the Chief Financial Officer of the Parent and is
authorized and empowered to issue this certificate in his capacity for and on
behalf of the Parent, and that each of the following calculations is true,
complete and correct in all respects, and has been determined in accordance with
GAAP for the Parent and its consolidated Subsidiaries as of the last day of the
Compliance Period:
I. Interest Coverage Ratio (Section 8.01)
A. Cash Flow for the Compliance Period
1. Net Income $___________
2. Interest Expense $___________
3. depreciation and
amortization $___________
4. income tax expense $___________
5. Cash Flow (the sum of
Items 1 through 4 above) $_________]
B. Interest Expense for the
Compliance Period $___________
C. Interest Coverage Ratio for the Compliance Period
(Item A(5) divided by Item B) ___________/1.0
D. Applicable Minimum Ratio (from Section 8.01) ___________/1.0
II. Net Worth (Section 8.02)
A. Total Assets as of the last
day of the Compliance Period
1. assets $___________
2. write-ups in the
book value of any
assets $___________
3. treasury stock $___________
4. receivables from
Affiliates $___________
5. unamortized debt
discount and
expense $___________
6. excluded assets (the sum of
items 2 through 5 above) $___________
7. assets less excluded assets
(Item 1 minus Item 6) $___________
B. Total Liabilities as of the last
day of the Compliance Period $___________
C. Net Worth as of the last day of
the Compliance Period (item A(7)
minus Item B) $___________
D. Minimum Net Worth (from Section 8.02) $___________
III. Senior Debt/Cash Flow Ratio (Section 8.03)
A. Senior Debt as of the last day
of the Compliance Period
1. Loans outstanding $___________
2
2. Other Indebtedness
not subordinate to
the Obligations $___________
3. Senior Debt (the sum of Items
1 and 2 above) $___________
B. Annualized Cash Flow as of the
last day of the Compliance Period
1. Cash Flow from
Section I, Item
A(7) above) $___________
2. Times four X4
3. Annualized Cash Flow $___________
C. Senior Debt/Cash Flow Ratio for the Compliance
Period (Item A(3) divided by Item B(3)) ___________/1.0
D. Applicable Maximum Ratio (from Section 8.03) ___________/1.0
IV. Total Debt/Cash Flow Ratio (Section 8.04)
A. Indebtedness as of the last day
of the Compliance Period $___________
B. Annualized Cash Flow as of the
last day of the Compliance Period
(from III(B) above) $___________
C. Total Debt/Cash Flow Ratio for
the Compliance Period
(Item A divided by Item B) ___________/1.0
D. Applicable Maximum Ratio (from Section 8.04) ___________/1.0
The undersigned further certifies to the Agent for the benefit of the
Lenders that, on and as of the last day of the Compliance Period and as of the
date hereof, no Default or Event of Default has occurred and is continuing.
3
IN WITNESS WHEREOF, the undersigned has set his hand and seal as of the
___ day of ______________, _____.
SATELLINK COMMUNICATIONS, INC.
By: ___________________________
Title: ________________________
(CORPORATE SEAL)
4
EXHIBIT D
FORM OF STANDARD SUBCARRIER LEASE AGREEMENT
(See Attached)
STANDARD SUBCARRIER LEASE AGREEMENT
This agreement made this ___ day of ____________, 1995 by and between
Satellink Communications, Inc.,. a Georgia corporation ("LESSEE"), and
_________________ the licensee of radio STATION __________________ ("STATION"),
licensed in the city of ____________________________.
WHEREAS, LESSEE is engaged in the business of distributing diverse
information by utilizing Subsidiary Communications Authorizations ("SCA"); and
WHEREAS, LESSEE desires to lease the use of STATION's 57 kHz SCA
subcarrier channel for the transmission of various material ("Material"), and
STATION is amenable to such use; and
WHEREAS, STATION's licensee owns and operates STATION under authorization
of the Federal Communications Commission ("FCC"); and
WHEREAS, LESSEE desires to transmit Material from any number of sources to
any number of SCA receivers in the coverage area of STATION;
NOW THEREFORE, THE PARTIES HERETO AGREE TO THE FOLLOWING:
1. Subcarrier Availability
(a) STATION hereby leases to LESSEE the exclusive use of STATION's 57 kHz
SCA Subcarrier channel (the "Subcarrier") for the SCA receivers using the
Subcarrier. The Subcarrier shall be available to LESSEE on a twenty-four (24)
hours per day, seven (7) days per week basis, during the term of this agreement.
In the event an FCC ruling shall prohibit such full-time use, and such adverse
ruling limits the period of LESSEE's use, making the continued conduct of
business by LESSEE impossible, as determined by LESSEE, LESSEE may terminate
this Agreement immediately.
(b) The STATION's technical specifications shall be as set forth in
Attachment 1, attached hereto and made part hereof. The parties acknowledge that
the Subcarrier, the time availability, the injection level, and the
specifications set forth in Attachment 1 are integral and essential parts of
this Agreement except that the foregoing shall not require STATION to violate
any rule or regulation of the FCC.
(c) LESSEE intends to install all equipment ("Equipment") as described in
Attachment 5, attached hereto and made part hereof, that it deems necessary for
the transfer of Material to the STATION's transmitting equipment and begin
transmissions over the Subcarrier upon 10 days notice to STATION not later than
ONE Hundred Twenty (120)
-1-
days from the date of this Agreement. Should LESSEE not install the Equipment
within such time period, STATION shall have the option, but not obligation, to
terminate this Agreement.
(d) During the initial Sixty (60) days after installation, an evaluation
and acceptance of STATION's technical facilities by LESSEE's engineering
personnel shall be conducted so as to certify that such facilities can be
utilized to effect the purposes contemplated herein. During this same Sixty (60)
day period an evaluation and acceptance by STATION's engineering personnel shall
be conducted so as to certify that utilization of such facilities by LESSEE does
not cause material interference to STATION's main channel operation.
2. Consideration. As full consideration for its use of the Subcarrier, LESSEE
shall pay on the Fifteenth (15th) day of each calendar month, after installation
and acceptance as defined in subparagraph 1(d) above, the sum of which STATION
shall accept, as described in Attachment 2 attached hereto and made a part
hereof.
(a) So long as this Agreement is in effect, LESSEE shall pay to STATION
the agreed amount per month.
(b) Payments shall be made to STATION on a monthly basis, except as stated
in Paragraph 8 (a).
3. Permitted Uses.
(a) LESSEE shall employ the Subcarrier for transmission of various
Material. STATION will carry each transmission on the Subcarrier as and when
transmitted by LESSEE.
(b) STATION grants to LESSEE and its customers consent to receive material
transmitted by LESSEE on the Subcarrier. LESSEE has the sole discretion to
transmit Material it selects, provided the Material being transmitted does not
violate any FCC rule or regulation, and is consistent with the STATION's FCC
broadcast license.
(c) LESSEE hereby agrees and warrants to indemnify and hold STATION
harmless against any liability, damage, or claim which arises with regard to
Material transmitted over the Subcarrier.
4. Subcarrier Equipment, Installation, and Maintenance. LESSEE will, at its own
cost and expense, install and maintain all Equipment necessary for the transfer
of Material to the STATION's transmitting equipment, Satellite Earth STATION
Receiving Terminal equipment and other equipment which LESSEE deems necessary
and relevant to the reception of transmitted material.
-2-
(a) STATION shall:
(1) Provide sufficient and suitable space for the placement of the
Equipment at STATION's studio or transmitter site including
sufficient and suitable space for LESSEE's satellite downlink
receiving facilities.
(2) Take all reasonable steps to make this Equipment secure from
vandalism or unauthorized tampering.
(3) Provide, at its own expense, the required electric current to
operate the Equipment and related facilities as specified by
LESSEE.
(b) LESSEE shall undertake, at its own cost and expense, the entire
installation including the obtaining of contractors for the construction and/or
installation of LESSEE Equipment at STATION's location.
(c) STATION, its employees, or agents shall not permit access to the
Equipment to anyone other than:
(1) STATION's technicians or engineers who require access,
pursuant to specific LESSEE authorization and direction, to
perform necessary maintenance, adjustments or modifications;
or
(2) LESSEE, its employees, or agents. Provided however, that
LESSEE shall give STATION sufficient and reasonable advance
notice of LESSEE's intention to enter STATION's premises and
that STATION personnel may accompany any LESSEE employee or
agent as STATION may require.
(d) After reasonable prior notice to STATION, LESSEE may, at its own
expense, make alterations to the Equipment.
(e) STATION will read and monitor certain transmitting levels of LESSEE's
Equipment and commute this information to LESSEE, or designate, upon request,
but not more than one time during any twenty-four (24) hour period. If more
monitoring is necessary, STATION will permit LESSEE, or designate, to enter
STATION's premises and read monitoring meters or take measurements during normal
working hours.
(f) STATION shall perform routine scheduled and emergency maintenance and
LESSEE shall provide for transmitter and subcarrier downtime as specified in
Attachment 4, attached hereto and made part hereof.
-3-
(g) STATION shall designate one or more of STATION's employees, including
employee title and telephone number, as identified in Attachment 3, attached
hereto and made a part hereof, who are authorized to communicate with LESSEE
regarding operational and technical matters, and STATION shall notify LESSEE
immediately if any change in such designated employees or telephone numbers
occurs.
(h) All Equipment installed by LESSEE shall remain the property of LESSEE
and shall not be used by any other entity for any other purpose other than that
set forth herein, except with prior written permission of LESSEE.
5. Interference by or to the Subcarrier.
(a) LESSEE acknowledges that the interference-free operation of STATION's
main and stereo channel(s) is of the essence of this Agreement. In that regard,
in the event LESSEE's subcarrier activities cause any material interference to
STATION's main channel operation, except interference attributable to listener
equipment, STATION shall have the right to shut subcarrier operations
immediately and then STATION and LESSEE shall cooperate to cure such
interference immediately. If such interference cannot be cured, LESSEE shall
cease its subcarrier operations on STATION's premises with STATION's assistance,
and shall have the right, but not the obligation, to terminate this Agreement
immediately.
(b) STATION shall not employ either its main and stereo channel or any
additional available subcarriers in any manner which results in material
interference to or degradation of the Subcarrier used by LESSEE under the terms
of the Agreement. The signal provided by STATION to LESSEE on the Subcarrier
shall meet all reasonable performance criteria established by LESSEE, as
specified in Attachment 1.
(c) If, at any time during the term hereof, the Subcarrier is degraded in
performance so as not to permit the normal and proper operation of LESSEE's
subcarrier activities and Equipment; and, notwithstanding anything contained in
this Agreement to the contrary, LESSEE shall have the option, but not the
obligation, to terminate this Agreement upon Fourteen (14) days advance written
notice to STATION; provided however, that if STATION can within such Fourteen
(14) day period correct the degradation to the satisfaction of LESSEE, then, in
such event, the notice of termination shall not be effective.
6. Risk of Loss on STATION and Insurance Coverage.
(a) STATION shall be responsible for all risks of physical damage to or
loss or destruction of the Equipment specifically occasioned by any individual
act or omission of STATION. Moreover, during the term of this Agreement as to
STATION common plant and
-4-
ground terminal equipment, STATION shall at its expense, keep in effect all risk
and liability insurance policies covering such separate equipment of STATION as
may already be secured with regard to STATION's separate Equipment and common
plant facilities, and as may be permissible by state regulation or law.
(b) LESSEE at its own expense shall secure insurance coverage for the
Equipment installed at STATION's premises. Such coverage shall insure STATION
against any property damage or common hazard loss specifically occasioned by
the operation of the Equipment.
7. Regulatory Authorization.
(a) STATION shall obtain, maintain and renew all such required
authorizations and approvals from the FCC to operate its main channel and to
engage in FM subcarrier multiplex transmissions as herein contemplated.
STATION's obligations pursuant to the preceding sentence shall include but not
be limited to:
1. The maintenance of its main channel license from the FCC to
operate STATION; and
2. Obtaining and maintaining a Subsidiary Communications
Authorization from the FCC, as may be necessary; and
3. The filing of all required reports and documents relating to the
operations of STATION.
(b) STATION will, at its own cost and expense, comply with all local,
state and federal rules and regulations, and obtain authorization sufficiently
broad to cover the transmission of LESSEE material.
8. Responsibility for Failure to Transmit.
(a) If STATION utilizes more than twelve (12) hours per month for
maintenance and repairs, the LESSEE shall have a credit on the monthly lease for
the amount of additional hours of downtime at a pro-rated hourly rate in accord
with the amount payable monthly on the Agreement.
(b) neither party to this Agreement shall be responsible to the other
party, nor shall either party be liable to any third party for damages arising
our of non-performance or delay in performance of the terms and conditions
herein due to acts of GOD, acts of government, wars, riots, strikes, accidents
in transportation, failure of deliveries, or other cause, including Equipment
failure, beyond its control.
-5-
9. Sale of STATION or Transfer/Assignment of License. This Agreement shall be
binding on any party who may purchase substantially all of the assets of
STATION, and/or accept the transfer of control of STATION or assignment of the
FCC licenses and authorizations of STATION. No such transaction as described in
this paragraph shall be consummated unless the purchaser, transferee, and/or
assignee shall have first agreed to assume, effective with such consummation,
all of STATION's obligations hereunder. STATION shall reasonably notify LESSEE
in writing of any agreement relating to ownership, operation, or transfer of
control of STATION, the consummation of which would require prior FCC approval.
10. Term and Termination.
(a) The initial term of this Agreement shall commence on acceptance as
defined in subparagraph 1(d) and shall continue for Five (5) years thereafter.
(b) This Agreement shall be automatically renewed for additional Five (5)
year periods, up to a maximum of Two (2) renewal terms, unless LESSEE gives
notice in writing to STATION not later than ninety (90) days before the end of
the initial or any renewal term, of its intent not to renew.
(c) In addition to any other provisions hereof and notwithstanding the
foregoing paragraphs, this Agreement may be terminated by LESSEE or STATION,
respectively, upon notice to the other party if:
1. LESSEE fails to pay the compensation set forth in Attachment 2
and fails to sure such failure within Fifteen (15) days after
written notice to LESSEE; or
2. Either party fails to perform materially its obligation
hereunder and does not cure such failure within Fifteen (15) days
after written notice thereof; or
(d) LESSEE may terminate this Agreement specifically with regard to an
adverse ruling of the FCC as described in Section 1.
(e) Further, LESSEE may terminate this Agreement immediately if, within
the Thirty (30) day period under Section 1(d), LESSEE determines, in its sole
discretion, that the STATION's facilities are inadequate for LESSEE's purposes.
11. LESSEE shall have the right to:
-6-
(a) Interconnect and feed service from its Equipment to any other location
at its expense.
(b) Use the multiplex transmission of the LESSEE services by the STATION
outside of and beyond the confines of the STATION's coverage area; and
(c) Permit other radio STATION's to take off the air said multiplex
transmission by the STATION and retransmit or relay the same by multiplex
transmission to the customers and subscribers of LESSEE's services; and
(d) Retransmit or relay the STATION's multiplex transmission of LESSEE's
Material by telephone line.
12. Assignability. STATION agrees that LESSEE may assign this Agreement to CUE
Paging Corporation, a Delaware Corporation ("CUE"), at any time mutually
acceptable to LESSEE and CUE.
13. Entire Agreement. This Agreement constitutes the sole understanding between
the parties with respect to the subject matter hereof and supersedes all prior
understandings and agreements between them with respect thereto and shall not be
modified except in a writing signed by designated contract officers of each of
the parties as specified in Attachment 3, attached hereto and made a part
hereof.
14. Non-Compete. During the term hereof, including the renewal period, STATION
shall not, either directly or indirectly, engage, participate in, or transmit
any program or service of a competitive nature with LESSEE with respect to the
paging and data information signal furnished by LESSEE under this agreement.
15. Validity of Terms. If any portion of this Agreement shall be held to be
illegal, invalid, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein. Additionally, in lieu of each such
illegal, invalid, or unenforceable provision, there shall be added
automatically, as a part of this Agreement, a provision as similar to such
former provision as shall be legal, valid, and enforceable.
16. No Joint Venture. It is understood and agreed that nothing herein shall be
deemed to create a relationship or partnership, joint venture, agency, or
employment between LESSEE and STATION. Both parties agree that, in their
performance of this Agreement each shall enter all contracts with others,
whether for employment or otherwise, as principal and not as agent for the
other.
-7-
17. Warranty and Indemnification.
(a) LESSEE agrees it shall hold STATION harmless and indemnify STATION
against all charges, claims, suits, demands, and any liability whatsoever
arising out of or in connection with LESSEE's use, or that of any entity,
organization, or individual with which LESSEE has a relationship associated with
the performance of this Agreement, or with which LESSEE has contracted to
provide services associated with performance hereunder, of STATION's Subcarrier
and with regard to a breach of any obligation or responsibility of LESSEE
herein.
(b) STATION agrees it shall hold LESSEE harmless and indemnify LESSEE
against all charges, claims, suits, demands, and any liability whatsoever
arising due to a breach of any obligation or responsibility of STATION herein.
18. Right of First Refusal. In the event STATION wishes to lease, sell, license,
transfer, or otherwise utilize or convey ("transfer") an additional Subcarrier
signal or rights thereto, either directly or indirectly (including but not
limited to transfers through joint ventures), it shall first give LESSEE twenty
(20) days written notice of the terms (including the identity of the offeror) of
the proposed transfer. LESSEE shall have Ten (10) days from the receipt of such
notices to notify STATION of its election to lease, sell, license, transfer of
otherwise utilize or convey such Subcarrier signal rights on identical terms and
conditions.
19. Right to Finance. LESSEE shall have the right to mortgage, create a security
interest in or collaterally assign this Lease to secure indebtedness and other
obligations in favor of its lenders without the consent of the STATION, provided
that no such mortgage, security interest or collateral assignment shall affect
the fee or the estate of the STATION in and to any of the Premises. If the
holder of such mortgage, security interest or collateral assignment shall give
STATION, before any default shall have occurred in this Lease, written notice
containing the name and address of such lender, thereafter upon its delivery of
notice of such default to LESSEE, STATION shall simultaneously deliver a copy of
such notice to the name and address contained in the aforesaid written notice of
any lender, and any such lender shall have a period of Twenty (20) days from the
receipt of such notice from STATION in which it may cure such default, or if
such default is of a nature that, in the exercise of reasonable diligence, it
cannot be cured within such 20 day period, the lender shall have such additional
time as may be necessary under the circumstances within which to sure such
default. A copy of such notice of default shall, in each instance, be deemed
duly given to any such lender Five (5) days after being deposited in the United
States mail, postage prepaid, and addressed to such lender at the address last
furnished to STATION. STATION will accept performance by any
-8-
such lender of any term of this Lease required to be performed by LESSEE, with
the same force and effect as though performed by LESSEE. If, by reason of any
default of LESSEE, this Lease, or any extension thereof, shall be terminated at
the election of STATION prior to the stated expiration therefor, STATION will
enter into a new lease with any lender who has given notice as set forth above
for the rent and upon the other terms and conditions set forth in this Lease.
20. STATION warrants and represents that it has all necessary rights and power
to enter into and perform this Agreement and grants to LESSEE the rights herein
granted.
21. Notification Addresses. Any notice, request, instruction, legal process or
other document to be given hereunder shall be in writing and, except as
otherwise provided herein or specifically in writing directed by the recipient,
shall be delivered by certified mail, return receipt requested, as set forth
below:
For LESSEE: For STATION:
Satellink Communications, Inc. ___________________________________
Attn: President ___________________________________
0000 Xxxxxxxxxxx Xxxxxxx ___________________________________
Xxxxx 000 ___________________________________
Xxxxxxx, XX 00000 ___________________________________
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IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day
and year first written above.
LESSEE: STATION:
SATELLINK COMMUNICATIONS, INC. ___________________________________
LICENSEE NAME AND CALL LETTERS
BY: BY:
___________________________________ ___________________________________
PRINT NAME PRINT NAME
___________________________________ ___________________________________
PRINT TITLE PRINT TITLE
___________________________________ ___________________________________
SIGNATURE SIGNATURE
-10-
ATTACHMENT 1
A. STATION shall lease to LESSEE the exclusive use of STATION's Subcarrier as
defined in Subparagraph 1(a) for the term designated in Xxxxxxxxx 00, Xxxx and
Termination, and as set forth below:
57 kHz Subcarrier Channel Specifications
Subcarrier Frequency: 57,000 kHz plus or minus 6 Hz.
Subcarrier Modulation: Amplitude modulation with suppressed carrier.
Modulation Characteristics: 1187.5 Hz tone phase modulated with data
at 1187.5 bits per second.
Subcarrier Injection: Subcarrier injection shall equal the
maximum amount permitted under the rules
and regulations set forth by the FCC.
Occupied Bandwidth: 57,000 kHz plus or minus 2400 Hz.
B. STATION shall operate under the following technical specifications for the
purpose of this Agreement:
Performance Requirements - STATION's Transmission System
(a) Composite amplitude response +/- 0.5dB from 54kHz to 60kHz.
(b) Noise (measured as RMS noise) in the composite baseband from 54kHz
to 60kHz shall be 50dB below 100% modulation.
(c) Crosstalk (measured as RMS noise) from any element of the composite
signal into the 54kHz - 60kHz band shall be at least 60dB below 100%
modulation.
(d) Synchronous amplitude modulated noise shall be at least 50dB below
the level representing 100% amplitude modulation.
(e) The 57kHz subcarrier channel shall not pass through a composite
clipper or any other signal processing device.
(f) The environment containing LESSEE's Equipment must be maintained at
a temperature range of +10 to +40 degrees Celsius with 10-90%
relative humidity.
(g) LESSEE shall be allowed a maximum of 9.5% subcarrier injection plus
or minus 0.5%.
-11-
C. STATION hereby certifies that the following is true and accurate
information regarding its Subcarrier facilities:
STATION's Transmitter Location:
STATION's Licensed Transmitting Power:
STATION's Antenna Height Above Average Terrain:
STATION's Licensed Main Channel Frequency:
STATION's Licensed Expiration Date:
D. All Equipment provided by LESSEE shall be installed at the following
location:
___________________________________
___________________________________
___________________________________
E. STATION shall not alter or change any technical specification in this
Attachment or any STATION facilities related thereto without prior written
notice to LESSEE. If STATION intends to move, alter, or substitute STATION's
technical facilities, STATION shall provide written notice at least Thirty (30)
days prior to filing applications for such changes with the Federal
Communications Commission.
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CONSIDERATION
Provided that the STATION's facilities are actually utilized by LESSEE, and
subject to all other terms and conditions of the Agreement, LESSEE shall pay
STATION on the Fifteenth (15th) day of each calendar month after installation
and acceptance, the following:
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ATTACHMENT 3
DESIGNATION OF CONTRACT OFFICERS
In accordance with paragraph 13 of this Agreement, the designated Contract
Officers who are authorized to approve additions, alteration, or modifications
in this Agreement shall be:
FOR THE STATION: ___________________________________
___________________________________
___________________________________
___________________________________
FOR LESSEE: Xxxxx X. Xxxxxxxx, President
Satellink Paging Incorporated
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
For the purpose of communication regarding operational and technical matters,
other authorized employees shall be:
Name & Title Phone No.
FOR THE STATION: ___________________________________ _________________
___________________________________ _________________
___________________________________ _________________
FOR LESSEE: Xxxxxx Xxxxx' Director of Engineering 000-000-0000
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ATTACHMENT 4
EQUIPMENT MAINTENANCE PROCEDURES AND
PROVISION FOR TRANSMITTER AND SUBCARRIER DOWNTIME
Unless otherwise noted in Attachment 1, the Equipment provided by LESSEE
shall be installed and adjusted using good engineering practice.
Provision for Transmitter and Subcarrier Maintenance Downtime
Maintenance to the STATION's equipment necessary to assure the reliable
transmission of the STATION's main channel, as well as the Subcarrier, may, from
time to time, require that the signal be removed from the air. This maintenance
can be classified under two categories: Scheduled Routine Maintenance and
Emergency Maintenance.
1. Scheduled Routine Maintenance:
Scheduled Routine Maintenance as maintenance that is performed on the
STATION's equipment to minimize unscheduled downtime. LESSEE shall operate
a central network control for the coordination and distribution of data
and other information over the STATION's Subcarrier ("Network Control").
Scheduled Routine Maintenance shall be performed by the STATION according
to the following procedure:
(a) The STATION's Chief Engineer or other appropriate authority as
designated by the STATION shall determine when Scheduled Maintenance
shall occur.
(b) The STATION's Chief Engineer or other appropriate authority shall
provide Network Control with a schedule indicating Scheduled Routine
Maintenance times. Should STATION's Engineer or other appropriate
authority deem it necessary to change such Scheduled Routine
Maintenance times, an updated schedule shall be forwarded to Network
Control and Network Control shall be given at least Twenty-four (24)
hours advanced notice, prior to beginning such maintenance.
(c) When the STATION's Engineer has completed Scheduled Maintenance, the
engineer shall notify Network Control within Thirty (30) minutes
after the service is restored and Maintenance is complete.
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2. Emergency Maintenance:
Emergency Maintenance is that maintenance that must be performed without
any prior notification as defined in paragraph C(1)(c) above. It may occur
at any time during the STATION's broadcast excessive unscheduled downtime
if the problem is not immediately resolved. Emergency Maintenance shall be
performed by the STATION according to the following procedure:
a. When the emergency situation will allow, the STATION's Engineer
shall notify any Network Control in advance of such maintenance so
that any traffic for the STATION's coverage area may be stored for
later transmission after service is restored.
b. When the STATION's Engineer has completed Emergency Maintenance, the
Engineer shall immediately notify Network Control when the service
is restored and Maintenance is complete so that any traffic for the
STATION's coverage area may be retransmitted.
-16-
ATTACHMENT 5
THE EQUIPMENT
LESSEE is responsible for providing any and all Equipment necessary to
cause LESSEE's signal to appear on the STATION's Subcarrier as specified in
Attachment 1. STATION agrees to provide LESSEE space and access for installation
and maintenance, as set forth herein. This Equipment may include the following:
1. 70mHz Power Splitter
2. Satellite Dishes and Demodulators
3. Exciter Interface
4. Base Band Generator
5. SCA Generator(s)
6. Downlink receiving facilities including all related interface components,
as determined by LESSEE
7. Remote STATION Monitor
5. Telephone data circuit for Remote STATION Monitor
9. Local paging terminal equipment
10. Local paging telephone circuits
-17-
Exhibit E
to
Third Amended and Restated
Loan and Security Agreement
dated as of June ___, 1997
FORM OF
COMPLIANCE CERTIFICATE
Reference is made to that certain Third Amended and Restated Loan and
Security Agreement dated as of June __,1997 (as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement") by and among SATELLINK COMMUNICATIONS, INC., a Georgia corporation
(the "Parent"), SATELLINK PAGING, LLC, a Georgia limited liability company (the
"Borrower"), the LENDERS from time to time party thereto (the "Lenders") and
CREDITANSTALT-BANKVEREIN, in its capacity as agent for the Lenders (the
"Agent"). Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Loan Agreement. The undersigned, being
the _______________ and Chief Financial Officer of the Borrower, hereby delivers
this Compliance Certificate (the "Certificate") to the Bank pursuant to Section
6.2(e) of the Loan Agreement, for the period beginning on ______________, _____
and ending on ________________, _____ (the "Compliance Period").
The undersigned hereby certifies to the Bank that he is the
___________________ and the Chief Financial Officer of the Parent and is
authorized and empowered to issue this certificate in his capacity for and on
behalf of the Parent, and that each of the following calculations is true,
complete and correct in all respects, and has been determined in accordance with
GAAP for the Parent and its consolidated Subsidiaries as of the last day of the
Compliance Period:
I. Interest Coverage Ratio (Section 8.01)
A. Cash Flow for the Compliance Period
1. Net Income $___________
2. Interest Expense $___________
3. depreciation and
amortization $___________
4. income tax expense $___________
5. Cash Flow (the sum of
Items 1 through 4 above) $_________]
B. Interest Expense for the
Compliance Period $___________
C. Interest Coverage Ratio for the Compliance Period
(Item A(5) divided by Item B) ___________/1.0
D. Applicable Minimum Ratio (from Section 8.01) ___________/1.0
II. Net Worth (Section 8.02)
A. Total Assets as of the last
day of the Compliance Period
1. assets $___________
2. write-ups in the
book value of any
assets $___________
3. treasury stock $___________
4. receivables from
Affiliates $___________
5. unamortized debt
discount and
expense $___________
6. excluded assets (the sum of
items 2 through 5 above) $___________
7. assets less excluded assets
(Item 1 minus Item 6) $___________
B. Total Liabilities as of the last
day of the Compliance Period $___________
C. Net Worth as of the last day of
the Compliance Period (item A(7)
minus Item B) $___________
D. Minimum Net Worth (from Section 8.02) $___________
III. Senior Debt/Cash Flow Ratio (Section 8.03)
A. Senior Debt as of the last day
of the Compliance Period
1. Loans outstanding $___________
2
2. Other Indebtedness
not subordinate to
the Obligations $___________
3. Senior Debt (the sum of Items
1 and 2 above) $___________
B. Annualized Cash Flow as of the
last day of the Compliance Period
1. Cash Flow from
Section I, Item
A(7) above) $___________
2. Times four X4
3. Annualized Cash Flow $___________
C. Senior Debt/Cash Flow Ratio for the Compliance
Period (Item A(3) divided by Item B(3)) ___________/1.0
D. Applicable Maximum Ratio (from Section 8.03) ___________/1.0
IV. Total Debt/Cash Flow Ratio (Section 8.04)
A. Indebtedness as of the last day
of the Compliance Period $___________
B. Annualized Cash Flow as of the
last day of the Compliance Period
(from III(B) above) $___________
C. Total Debt/Cash Flow Ratio for
the Compliance Period
(Item A divided by Item B) ___________/1.0
D. Applicable Maximum Ratio (from Section 8.04) ___________/1.0
The undersigned further certifies to the Agent for the benefit of the
Lenders that, on and as of the last day of the Compliance Period and as of the
date hereof, no Default or Event of Default has occurred and is continuing.
3
IN WITNESS WHEREOF, the undersigned has set his hand and seal as of the
___ day of ______________, _____.
SATELLINK COMMUNICATIONS, INC.
By: ___________________________
Title: ________________________
(CORPORATE SEAL)
4
Exhibit F
to
Third Amended and Restated
Loan and Security Agreement
dated as of June ___, 1997
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT is dated as of
______________________ and made BETWEEN:
(1) ____________________________________________________________________
______________________________________________________________________________
with an address at ______________________________________ (the "Assignor"); and
(2) ____________________________________________________________________
______________________________________________________________________________
__________ ("___________")____________________________________________________
______________________ with an address at ____________________________________
_________________ (the "Assignee").
WHEREAS:
(A) The Assignor is party to the Third Amended and Restated Loan
Agreement, more specifically described in Item 1 of Exhibit A hereto (the "Loan
Agreement"; terms used herein which are defined in the Loan Agreement and not
otherwise defined herein shall have the same meaning as set forth in the Loan
Agreement when used herein).
(B) The Assignor holds certain outstanding Loans under the Loan Agreement
and desires to transfer, sell and assign to Assignee the percentage of such
Loans outstanding on the Assignment Date (as defined herein), which percentage
is set forth in Item 2 of Exhibit A hereto (the "Percentage" the Percentage of
Assignor's Loans to be purchased by Assignee on the Assignment Date are
hereinafter referred to as the "Assigned Loans");
(C) Assignee desires to purchase the Percentage of the Loans outstanding
on the Assignment Date and assume a portion of Assignor's Commitment equal to
the Percentage of Assignor's Commitment (the Percentage of Assignor's Commitment
to be assumed by Assignee on the Assignment Date, the "Assigned Commitment");
(D) The Assignor and Assignee desire to set forth the terms and provisions
of the
transfers, sales and assignments hereinabove described.
NOW IT IS HEREBY AGREED AND DECLARED as follows:
1. ASSIGNMENT AND TRANSFER
1.01. Subject to the terms and conditions set forth herein, the Assignor
hereby assigns and transfers to the Assignee, without recourse to or
representation or warranty by the Assignor (except as provided in Clause 5.01
hereof), all the Assignor's, rights, title and interest in respect of the
Assigned Loans under the Loan Documents and with effect from the date set forth
in Item 3 of Exhibit A hereto (the "Assignment Date"), and the Assignee hereby
accepts such assignment and transfer as of the Assignment Date (the
"Assignment").
1.02. Upon the occurrence and in consideration of the Assignment, the
Assignee agrees with the Assignor that the Assignee (i) shall assume the
Assigned Commitment, (ii) shall perform all the obligations of the Assignor with
respect to the Assigned Loans and Assigned Commitment under the Loan Agreement
and the other documents and instruments executed in connection therewith (such
obligations of Assignee, including without limitation the obligation to fund
under the Assigned Commitment are hereinafter referred to as the "Assumed
Obligations") so far as such Assumed obligations remain to be performed, and
(iii) shall be bound by the terms and provisions of the Loan Documents to the
same extent and in the same manner as if it were originally a party thereto (the
"Assumption" and, together with the Assignment, the "Transfer").
2. CONSIDERATION
2.01. In consideration of the Assignment, the Assignee agrees to transfer
to the Assignor, on the Assignment Date, the consideration described in the
funding letter agreement of even date herewith between the Assignor and the
Assignee (the "Consideration"). Upon receipt of the Consideration, Assignor
shall send written notice of the Transfer to the Borrower and each other
financial institution party thereto from time to time in the form set forth as
Exhibit B hereto in accordance with Section 13.7 of the Loan Agreement.
2.02. The Assignor and the Assignee agree that all interest on, and fees
and commissions in respect of, the Assigned Loans which have accrued to but
excluding the Assignment Date shall be for the account of the Assignor, and
interest on and fees and commissions in respect of the Assigned Loans which
accrue on and after the Assignment Date shall be for the account of the
Assignee. Either party which receives any such interest, fees and commissions
which is for the account of the other party shall promptly pay the same to the
other and until so paid hold it in trust for the other party. Partial payments
of interest in respect of any period in effect on and continuing after the
Assignment Date shall be applied pro rata for each day of such period.
2.03. All payments to be made hereunder shall be made without setoff,
counterclaim, deduction or withholding in U.S. Dollars.
2
3. INDEPENDENT INVESTIGATION
The Assignee acknowledges that it has not relied upon any representation,
nor has any representation been made, by the Assignor (except as specified in
Clause 5.01 hereof), and the Assignee further acknowledges that it has made its
own independent investigation based upon such documents and information as it
has deemed appropriate, as to all matters relevant to the Transfer, including
without limitation (a) the financial condition or creditworthiness of all
parties named as borrowers, (b) the rights, obligations and transactions
contemplated by the Loan Documents, and (c) the effectiveness, legality,
validity, collectability or enforceability of any Loan Document. The Assignee
acknowledges that it will, based upon its own independent investigation and such
documents as it deems appropriate, continue to make its own decisions as to the
Assigned Loans, the Assigned Commitment, the Assumed Obligations, the Loan
Documents and this Assignment Agreement.
4. TRANSFER COSTS AND FURTHER ASSURANCES
Each of the parties hereto agrees that it shall bear its own costs and
expenses in connection with the Transfer and with the negotiation, preparation,
execution and performance of this Assignment Agreement. Upon the consummation of
the Transfer hereunder, the Assignor shall request the Borrower to make
appropriate arrangements so that, if required, replacement notes are issued to
the Assignor and new notes are issued to Assignee to reflect the Transfer
hereunder.
5. REPRESENTATIONS AND WARRANTIES
5.01. The Assignor hereby represents and warrants to the Assignee that the
Assignor has full power and authority to take, has duly authorized to be taken,
and has taken, all corporate action necessary to execute and deliver this
Assignment Agreement and to effect the Transfer and to fulfill its obligations
hereunder.
5.02. The Assignee hereby represents and warrants to the Assignor that:
(a) The Assignee has full power and authority to take, has duly
authorized to be taken, and has taken, all corporate action necessary to
execute, deliver and fulfill its obligations hereunder and under the Assumed
Obligations, and has obtained all consents and approvals necessary to its
execution, delivery and performance hereof and the delivery of the
Consideration.
(b) The Assignee is not insolvent or otherwise in any condition that
would entitle any creditor of the Assignee, any person acting or purporting to
act under authority of any legislation pertaining to bankruptcy or creditors'
rights or any banking authority, to require that the Assignor or the Assignor's
agent divest itself of the consideration received pursuant to Clause 2.01 hereof
in respect of the Assignment.
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6. COMMUNICATIONS
All notices and other correspondence to be given by one party hereto to
the other shall be given or made by mail, telex or telecopier to the addressee
at its address set forth in the recitals hereto, or to such other address as the
respective addressee may notify to the respective addressor. Any notices shall
be deemed to have been received, if given by mail, when received; if given by
telex, at the time of receipt of the appropriate answerback code; and if given
by telecopier, when received.
7. EXHIBIT
Exhibit A and all of the provisions thereof are hereby incorporated into
this Agreement by reference and form a part hereof as if fully set forth herein.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
on the day and year first above written.
__________________________________
as Assignor
By: ______________________________
Title: _______________________
By: ______________________________
Title: _______________________
Accepted and Agreed to:
__________________________________
as Assignor
By: ______________________________
Title: _______________________
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EXHIBIT A
TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Exhibit A completes items of
information in the Assignment and Acceptance
Agreement to which this Exhibit A is Attached.
Item 1. Identification of Loan Agreement: Third Amended and Restated Loan and
Security Agreement dated as of June ___, 1997, by and among Satellink
Communications, Inc., a Georgia corporation, Satellink Paging, LLC, a Georgia
limited liability company, the Lenders from time to time party thereto, and
Creditanstalt-Bankverein, as Agent for the Lenders.
Item 2. Percentage: _______%
Item 3. Effective Date: ______________________
Item 4. Name and address of Assignee: _____________________________________
___________________________________________________________________________
______________________________ ______________________________
as Assignor as Assignee
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
By: __________________________
Name: ________________________
Title: _______________________
EXHIBIT B
TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
NOTICE OF TRANSFER
To the Parties listed on
Schedule A attached hereto:
[Insert on Schedule A address
of Borrower and each other financial
institution party to the Loan Agreement]
Reference is made to the Third Amended and Restated Loan and Security
Agreement dated as of June ___, 1997 among Satellink Communications, Inc., a
Georgia corporation, Satellink Paging, LLC, a Georgia limited liability company,
the Lenders from time to time party thereto, and Creditanstalt-Bankverein, as
Agent for the Lenders (as the same has been amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement"). Each capitalized
term contained herein and not otherwise defined herein shall have the meaning
given to such term in the Loan Agreement. In connection with the undersigned's
transfer of all or a portion of its interests under the Loan Agreement, please
be advised of the following:
Assignor Information
Financial Institution Name: _______________________________________:
(1) Prior to Giving Effect to Assignment:
Amount of
Amount of Outstanding Commitment
Facility Commitment Loans Percentage
________________ ________________ ________________ ________________
(2) After Giving Effect To Assignment:
Amount of
Amount of Outstanding Commitment
Facility Commitment Loans Percentage
________________ ________________ ________________ ________________
ASSIGNEE INFORMATION
Financial Institution Name:
Offices For Notices:
Domestic Lending Office:
Name:
Address:
Attention:
Telex:
Fax:
Telephone:
Eurodollar Lending Office:
Name:
Address:
Attention:
Telex:
Fax:
Telephone:
Commitments and Loans Assigned:
Amount of
Amount of Outstanding Commitment
Facility Commitment Loans Percentage
________________ ________________ ________________ ________________
______________________________
Assignor
By: __________________________
Title: __________________
By: __________________________
Title: __________________
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