1
EXHIBIT 10.1
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
among
CHANCELLOR BROADCASTING COMPANY,
CHANCELLOR RADIO BROADCASTING COMPANY,
VARIOUS BANKS,
XXXXXXX XXXXX CREDIT PARTNERS L.P., as DOCUMENTATION AGENT,
NATIONSBANK OF TEXAS, N.A., as SYNDICATION AGENT,
TORONTO DOMINION (TEXAS), INC., as SYNDICATION AGENT
and
BANKERS TRUST COMPANY,
as MANAGING AGENT
and
ARRANGER
-------------------------
Dated as of February 14, 1996
and
Amended and Restated as of January 23, 1997
and further
Amended and Restated as of July 2, 1997
-------------------------
$750,000,000
================================================================================
2
TABLE OF CONTENTS
PAGE
----
SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . .. 1
1.01 The Commitments . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Amount of Each Borrowing . . . . . . . . . . . . . . . 3
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . 4
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . 5
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . 7
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . 8
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . 9
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.12 Change of Lending Office . . . . . . . . . . . . . . . . . . . 12
1.13 Replacement of Banks . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . 14
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . 14
2.02 Letter of Credit Requests . . . . . . . . . . . . . . . . . . . 16
2.03 Letter of Credit Participations . . . . . . . . . . . . . . . . 16
2.04 Agreement to Repay Letter of Credit Drawings . . . . . . . . . 19
2.05 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3. Commitment Commission; Fees; Reductions of Commitment . . . . 20
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.02 Voluntary Termination and Reduction of Commitments . . . . . . 22
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . 22
SECTION 4. Prepayments; Payments; Taxes . . . . . . . . . . . . . . . . . 23
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . 23
4.02 Mandatory Repayments and Commitment Reductions . . . . . . . . 24
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . 32
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5. Conditions Precedent to Credit Events on the Second
Restatement Effective Date . . . . . . . . . . . . . . . . . . . . . 34
3
PAGE
----
5.01 Execution of Agreement; Notes . . . . . . . . . . . . . . . . . 34
5.02 Fees, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.03 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . 35
5.04 Corporate Documents; Proceedings; etc.. . . . . . . . . . . . . 35
5.05 Shareholders' Agreements; Management Agreements;
Employment Agreements; Tax Sharing Agreements . . . . . . . 35
5.06 Absence of Certain Conditions . . . . . . . . . . . . . . . . . 36
5.07 Consummation of the Bridge Financing; Transaction . . . . . . . 36
5.08 Subsidiary Guaranty . . . . . . . . . . . . . . . . . . . . . . 39
5.09 Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . 39
5.10 Subsidiary Security Agreement . . . . . . . . . . . . . . . . . 39
5.11 Existing Mortgages; Title Insurance; etc. . . . . . . . . . . . 40
5.12 Environmental Indemnity Agreement . . . . . . . . . . . . . . . 41
5.13 Existing Credit Agreement; etc. . . . . . . . . . . . . . . . . 41
5.14 Adverse Change, etc.. . . . . . . . . . . . . . . . . . . . . . 42
5.15 Solvency Certificate; Environmental Analyses; Insurance . . . . 42
5.16 Pro Forma Balance Sheet; Projections . . . . . . . . . . . . . 42
5.17 Acknowledgment, Consent and Amendment . . . . . . . . . . . . . 43
SECTION 6. Conditions Precedent to All Credit Events . . . . . . . . . . 44
6.01 No Default; Representations and Warranties . . . . . . . . . . 44
6.02 Notice of Borrowing; Letter of Credit Request . . . . . . . . . 44
SECTION 7. Representations, Warranties and Agreements . . . . . . . . . . 45
7.01 Corporate Status . . . . . . . . . . . . . . . . . . . . . . . 45
7.02 Corporate Power and Authority . . . . . . . . . . . . . . . . . 45
7.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.04 Governmental Approvals . . . . . . . . . . . . . . . . . . . . 46
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc.. . . . . . . . . . . . . . . . . 47
7.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.07 True and Complete Disclosure . . . . . . . . . . . . . . . . . 48
7.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . 48
7.09 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . 49
7.10 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . 50
7.11 The Security Documents . . . . . . . . . . . . . . . . . . . . 50
7.12 Representations and Warranties in Documents . . . . . . . . . . 51
7.13 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.14 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . 52
7.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 53
(ii)
4
PAGE
----
7.16 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . 53
7.17 Investment Company Act . . . . . . . . . . . . . . . . . . . . 54
7.18 Public Utility Holding Company Act . . . . . . . . . . . . . . 54
7.19 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . 54
7.20 Patents, Licenses, Franchises and Formulas . . . . . . . . . . 54
7.21 Transaction; Bridge Financing . . . . . . . . . . . . . . . . . 55
7.22 Special Purpose Corporations . . . . . . . . . . . . . . . . . 55
7.23 FCC Licenses . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.24 Subordinated Notes . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 8. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . 56
8.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . 57
8.02 Books, Records and Inspections . . . . . . . . . . . . . . . . 60
8.03 Maintenance of Property; Insurance . . . . . . . . . . . . . . 60
8.04 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . 61
8.05 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . 62
8.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.07 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . 63
8.08 Performance of Obligations . . . . . . . . . . . . . . . . . . 63
8.09 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . 63
8.10 Maintenance of Separateness . . . . . . . . . . . . . . . . . . 63
8.11 Dividends on Series A Exchangeable Preferred Stock and
Exchangeable Preferred Stock; Interest on Bridge Financing . 64
8.12 Additional Security; Further Assurances . . . . . . . . . . . . 64
8.13 Designation of Agent . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . 67
9.01 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. . . . . 71
9.03 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
9.04 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.05 Advances, Investments and Loans . . . . . . . . . . . . . . . . 79
9.06 Transactions with Affiliates . . . . . . . . . . . . . . . . . 81
9.07 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . 82
9.08 Maximum Leverage Ratio . . . . . . . . . . . . . . . . . . . . 84
9.09 Minimum Consolidated EBITDA . . . . . . . . . . . . . . . . . . 85
9.10 Consolidated EBITDA to Consolidated Net Cash Interest
Expense . . . . . . . . . . . . . . . . . . . . . . . . . . 86
(iii)
5
PAGE
----
9.11 Limitation on Modifications of Certificate of Incorporation, By-
Laws and Certain Other Agreements; Limitations of
Prepayments and Modifications of Indebtedness; etc.. . . . 87
9.12 Limitation on Certain Restrictions on Subsidiaries . . . . . 88
9.13 Limitation on Issuance of Capital Stock . . . . . . . . . . . 88
9.14 Business . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.15 Limitation on Creation of Subsidiaries . . . . . . . . . . . 89
9.16 No Other Designated Senior Debt . . . . . . . . . . . . . . . 89
SECTION 10. Events of Default . . . . . . . . . . . . . . . . . . . . . 89
10.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.02 Representations, etc.. . . . . . . . . . . . . . . . . . . . 89
10.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 90
10.04 Default Under Other Agreements . . . . . . . . . . . . . . . 90
10.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . 90
10.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
10.07 Security Documents . . . . . . . . . . . . . . . . . . . . . 91
10.08 Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . 91
10.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . 92
10.10 Change of Ownership . . . . . . . . . . . . . . . . . . . . 92
10.11 Environmental Matters . . . . . . . . . . . . . . . . . . . 92
SECTION 11. Definitions and Accounting Terms. . . . . . . . . . . . . . 93
11.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 12. The Managing Agent . . . . . . . . . . . . . . . . . . . . 128
12.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . 128
12.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . 129
12.03 Lack of Reliance on the Managing Agent . . . . . . . . . . . 129
12.04 Certain Rights of the Managing Agent . . . . . . . . . . . . 129
12.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . 130
12.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . 130
12.07 The Managing Agent in Its Individual Capacity . . . . . . . 130
12.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 130
12.09 Resignation by the Managing Agent . . . . . . . . . . . . . 131
SECTION 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 131
13.01 Payment of Expenses, etc.. . . . . . . . . . . . . . . . . . 131
13.02 Right of Setoff; Collateral Matters . . . . . . . . . . . . 133
13.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 134
(iv)
6
PAGE
----
13.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . 134
13.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . 136
13.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . 136
13.07 Calculations; Computations . . . . . . . . . . . . . . . . . 137
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . 137
13.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 139
13.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . 139
13.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . 140
13.12 Amendment or Waiver; etc.. . . . . . . . . . . . . . . . . . 140
13.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 141
13.14 Domicile of Loans . . . . . . . . . . . . . . . . . . . . . 142
13.15 Limitation on Additional Amounts, etc. . . . . . . . . . . . 142
13.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . 142
13.17 Register . . . . . . . . . . . . . . . . . . . . . . . . . . 143
13.18 Additions of New Banks; Conversion of Existing Loans of
Continuing Banks; Termination of Commitments of Non-
Continuing Banks . . . . . . . . . . . . . . . . . . . . . 144
SECTION 14. Holdings Guaranty . . . . . . . . . . . . . . . . . . . . . 145
14.01 The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . 145
14.02 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . 145
14.03 Nature of Liability . . . . . . . . . . . . . . . . . . . . 145
14.04 Independent Obligation . . . . . . . . . . . . . . . . . . . 146
14.05 Authorization . . . . . . . . . . . . . . . . . . . . . . . 146
14.06 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . 147
14.07 Subordination . . . . . . . . . . . . . . . . . . . . . . . 147
14.08 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
14.09 Nature of Liability . . . . . . . . . . . . . . . . . . . . 149
SCHEDULE I Commitments
SCHEDULE II Existing Letters of Credit
SCHEDULE III Real Property
SCHEDULE IV FCC Licenses
SCHEDULE V Insurance
SCHEDULE VI Existing Liens
SCHEDULE VII Existing Indebtedness
SCHEDULE VIII Existing Investments
(v)
7
ANNEX A Evergreen Loan Agreement
ANNEX 5.07 FCC License Issues
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Term Note
EXHIBIT B-2 Revolving Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of Xxxx Xxxxxxx & Xxxxxx L.L.P., Special Counsel to
the Credit Parties
EXHIBIT E-2 Opinion of Xxxxxxxxx & Associates, Special FCC Counsel to the
Credit Parties
EXHIBIT F Officers' Certificate
EXHIBIT G Subsidiary Guaranty
EXHIBIT H Subsidiary Pledge Agreement
EXHIBIT I Subsidiary Security Agreement
EXHIBIT J Form of Mortgage
EXHIBIT K Environmental Indemnity Agreement
EXHIBIT L Assignment and Assumption Agreement
EXHIBIT M Acknowledgement, Consent and Amendment
(vi)
8
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 14, 1996 and
amended and restated as of January 23, 1997 and further amended and restated as
of July 2, 1997, among CHANCELLOR BROADCASTING COMPANY (formerly known as
CHANCELLOR CORPORATION), a Delaware corporation ("Holdings"), CHANCELLOR RADIO
BROADCASTING COMPANY (formerly known as CHANCELLOR BROADCASTING COMPANY), a
Delaware corporation (the "Borrower"), the Banks party hereto from time to
time, XXXXXXX XXXXX CREDIT PARTNERS L.P., as Documentation Agent, TORONTO
DOMINION (TEXAS), INC. and NATIONSBANK OF TEXAS, N.A., as Syndication Agent,
and BANKERS TRUST COMPANY, as Managing Agent (all capitalized terms used herein
and defined in Section 11 are used herein as therein defined).
WITNESSETH:
WHEREAS, Holdings, the Borrower, the Existing Banks and Bankers Trust
Company, as Managing Agent, are party to a Credit Agreement, dated as of
February 14, 1996 and amended and restated as of January 23, 1997 (as the same
has been amended, modified or supplemented to, but not including, the Second
Restatement Effective Date, the "Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Existing Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Bank with a Term Loan Commitment severally agrees, (A) in
the case of each Continuing Bank, to convert into Term Loans (each, a "Term Loan
Conversion", and collectively, the "Term Loan Conversions") on the Second
Restatement Effective Date, the Existing Term Loans made by such Continuing Bank
to the Borrower pursuant to the Existing Credit Agreement and outstanding on the
Second Restatement Effective Date in an aggregate principal amount equal to the
9
aggregate principal amount of such Existing Term Loans made by such Continuing
Bank and so outstanding and/or (B) to make, on the Second Restatement Effective
Date a term loan or term loans (together with each Term Loan Conversion each, a
"Term Loan" and, collectively, the "Term Loans") to the Borrower, which Term
Loans (i) made or converted on the Second Restatement Effective Date, shall not
exceed for any Bank, in an initial principal amount, that amount which equals
such Bank's Term Loan Commitment and (ii) shall, at the option of the Borrower,
be Base Rate Loans or Eurodollar Loans, provided that, except as otherwise
specifically provided in Section 1.10(b), all Term Loans comprising the same
Borrowing shall at all times be of the same Type. Once repaid, Term Loans
borrowed hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Bank with a Revolving Loan Commitment severally agrees, (A) in the case of
each Continuing Bank, to convert into Revolving Loans (each a "Revolving Loan
Conversion", and collectively the "Revolving Loan Conversions"), on the Second
Restatement Effective Date, Existing Revolving Loans made by such Continuing
Bank to the Borrower pursuant to the Existing Credit Agreement and outstanding
on the Second Restatement Effective Date in an aggregate principal amount equal
to the lesser of (x) the aggregate principal amount of such Existing Revolving
Loans made by such Continuing Bank and so outstanding and (y) such Continuing
Bank's Adjusted RL Percentage of the aggregate principal amount of Revolving
Loans made by all Banks and outstanding on the Second Restatement Effective Date
and/or (B) at any time and from time to time on and after the Second Restatement
Effective Date and prior to the Maturity Date, to make a revolving loan or
revolving loans (together with each Revolving Loan Conversion each, a "Revolving
Loan" and, collectively, the "Revolving Loans") to the Borrower, which
Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or
Eurodollar Loans, provided that, except as otherwise specifically provided in
Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all
times be of the same Type, (ii) may be repaid and reborrowed in accordance with
the provisions hereof, (iii) shall not exceed for any Bank at any time
outstanding that aggregate principal amount (which amount, in the case of each
Continuing Bank, shall include the principal amount of each Revolving Loan
Conversion) which, when added to the product of (x) such Bank's Adjusted RL
Percentage and (y) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) at such time, equals the Revolving Loan Commitment of such Bank at such
time and (iv) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to the amount of all Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the
-2-
10
respective incurrence of Revolving Loans) at such time, equals the Total
Revolving Loan Commitment at such time.
(c) Notwithstanding any other provision of this Agreement, each Bank
with a Tenn Loan outstanding or with a Revolving Loan Commitment severally
agrees, automatically and immediately effective upon the consummation of the
Evergreen Merger (so long as (i) no Default or Event of Default then exists
under Section 10.01 or 10.05 of this Agreement and (ii) no Default or Event of
Default then exists under Section 8.01(b), (f) or (g) of (and as such terms are
defined in) the Evergreen Loan Agreement (defined below)), that such Term Loan
shall become a Term Loan for the identical amount (and with a corresponding Term
Loan Commitment) under the Second Amended and Restated Loan Agreement among
Evergreen Media of LA (which entity shall be the surviving corporation of a
merger with the Borrower pursuant to the Evergreen Merger Agreement, and
accordingly the successor in interest to the Borrower), the Lenders signatory
thereto (the "Lenders"), Toronto Dominion (Texas), Inc., Bankers Trust Company,
The Bank of New York, NationsBank of Texas, N.A., and Union Bank of California,
as Managing Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
for the Lenders (the "Evergreen Administrative Agent"), dated as of April 25,
1997, as amended by a certain First Amendment to Second Amended and Restated
Loan Agreement dated as of June 26, 1997 (as amended, the "Evergreen Loan
Agreement") a copy of which is attached hereto as Annex A, and each Bank with a
Revolving Loan Commitment agrees that such Revolving Loan Commitment shall
become, automatically and immediately effective without further action upon the
consummation of the Evergreen Merger, a Revolving Loan Commitment (with the
amount of outstanding Revolving Loans converted into an equal amount of new
Revolving Loans) for the identical amount under the Evergreen Loan Agreement.
The Evergreen Administrative Agent shall, on the date of the Evergreen Merger,
issue a revised Schedule 1 - Commitment Ratios, to each Lender under the
Evergreen Loan Agreement, which shall include each Bank hereunder, and
thereafter, the new Borrower shall issue new promissory notes to each Bank which
requests such notes promptly after such requests and relinquishment by such Bank
of any Notes issued hereunder. Concurrently with such conversion, (i) the
Borrower shall pay all unpaid interest, fees and other amounts (other than
principal in respect of the outstanding Loans) which are unpaid at such time,
all Loans hereunder shall be deemed repaid and satisfied in full and all
Revolving Loan Commitments shall be automatically terminated and (ii) all
Letters of Credit which remain outstanding hereunder shall be deemed terminated
for purposes of this Agreement to the extent assumed as Letters of Credit under
the Evergreen Loan Agreement.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount
of each Borrowing of Term Loans shall not be less than $2,000,000 and, if
-3-
11
greater, shall be in an integral multiple of $100,000. The aggregate principal
amount of each Borrowing of Revolving Loans shall be not less than $250,000
and, if greater, shall be in an integral multiple of $50,000 or, if less, the
then remaining Total Unutilized Revolving Loan Commitment. More than one
Borrowing may occur on the same date, but at no time shall there be outstanding
more than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur a
Borrowing hereunder, it shall give the Managing Agent at its Notice Office at
least one Business Day's prior written (or telephonic promptly confirmed in
writing) notice of each Base Rate Loan and at least three Business Days' prior
written (or telephonic promptly confirmed in writing) notice of each Eurodollar
Loan to be made hereunder, provided that any such notice shall be deemed to
have been given on a certain day only if given before 11:00 A.M. (New York
time) in the case of a Borrowing of Eurodollar Loans, or 12:00 Noon (New York
time) in the case of a Borrowing of Base Rate Loans, on such day. Each such
written notice or written confirmation of telephonic notice (each a "Notice of
Borrowing"), except as otherwise expressly provided in Section 1.10, shall be
irrevocable and shall be given by the Borrower in the form of Exhibit A,
appropriately completed to specify the aggregate principal amount of the Loans
to be made pursuant to such Borrowing, the date of such Borrowing (which shall
be a Business Day), whether the Loans being made pursuant to such Borrowing
shall constitute Term Loans or Revolving Loans and whether the Loans being made
pursuant to such Borrowing are to be initially maintained as Base Rate Loans or
Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to be
applicable thereto. The Managing Agent shall promptly give each Bank which is
required to make Loans of the Tranche specified in the respective Notice of
Borrowing, notice of such proposed Borrowing, of such Bank's proportionate
share thereof and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing of Loans, the
Managing Agent may act without liability upon the basis of telephonic notice of
such Borrowing, believed by the Managing Agent in good faith to be from the
President, Chief Financial Officer or Senior Vice President of Finance of the
Borrower (or any other officer of the Borrower designated in writing to the
Managing Agent by the President, the Chief Financial Officer or Senior Vice
President of Finance of the Borrower as being authorized to give such notices
under this Agreement) prior to receipt of written confirmation. In each such
case, the Borrower hereby waives the right to dispute the Managing Agent's
record of the terms of such telephonic notice of such Borrowing of Loans.
-4-
12
1.04 Disbursement of Funds. Except as otherwise specifically provided
in the second succeeding sentence, no later than 12:00 Noon (New York time) on
the date specified in each Notice of Borrowing, each Bank with a Commitment of
the respective Tranche will make available its pro rata portion of each such
Borrowing requested to be made on such date. All such amounts shall be made
available in Dollars and in immediately available funds at the Payment Office
of the Managing Agent, and the Managing Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available
by the Banks (prior to 1:00 P.M. on such day, to the extent of funds actually
received by the Managing Agent prior to 12:00 Noon on such day). Unless the
Managing Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the Managing
Agent such Bank's portion of any Borrowing to be made on such date, the
Managing Agent may assume that such Bank has made such amount available to the
Managing Agent on such date of Borrowing and the Managing Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Managing Agent by such Bank, the Managing Agent shall be entitled to recover
such corresponding amount on demand from such Bank. If such Bank does not pay
such corresponding amount forthwith upon the Managing Agent's demand therefor,
the Managing Agent shall promptly notify the Borrower and the Borrower shall
immediately pay such corresponding amount to the Managing Agent. The Managing
Agent shall also be entitled to recover on demand from such Bank or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Managing Agent to the Borrower until the date such corresponding amount is
recovered by the Managing Agent, at a rate per annum equal to (i) if recovered
from such Bank, at the overnight Federal Funds Rate and (ii) if recovered from
the Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result
of any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Bank shall, if requested by any Bank, be
evidenced (i) if Term Loans, by a promissory note duly executed and delivered
by the Borrower substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each, a "Term Note" and,
collectively, the "Tenn Notes") and (ii) if Revolving Loans, by a promissory
note duly executed and delivered by the Borrower substantially in the form of
Exhibit B-2, with blanks appropriately completed in conformity herewith (each,
a "Revolving Note" and, collectively, the "Revolving Notes").
-5-
13
(b) The Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank and be dated the Second
Restatement Effective Date, (iii) be in a stated principal amount equal to the
Term Loan Commitment of such Bank as in effect on the Second Restatement
Effective Date (before giving effect to any reductions thereto as a result of
the making of Term Loans by such Bank on such date) and be payable in the
principal amount of Term Loans evidenced thereby, (iv) mature on the Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Revolving Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to the order of such Bank and be dated the Second
Restatement Effective Date, (iii) be in a stated principal amount equal to the
Revolving Loan Commitment of such Bank and be payable in the principal amount
of the Revolving Loans evidenced thereby, (iv) mature on the Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on
any Business Day, all or a portion equal to at least (x) in the case of a
conversion of Term Loans, $2,000,000 (and, if greater, in an integral multiple
of $100,000) and (y) in the case of a conversion of Revolving Loans, $1,000,000
(and, if greater, in an integral multiple of $250,000), of the outstanding
principal amount of Loans made pursuant to one or more Borrowings (so long as
of the same Tranche) of one or more Types of Loans into a Borrowing (of the
same Tranche) of another Type of Loan, provided that (i) except as otherwise
provided in Section 1. 10(b), Eurodollar Loans may be converted into Base Rate
Loans only on the last day of an Interest Period applicable to the Loans being
converted and no partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of such Eurodollar Loans made pursuant to a single
Borrowing to less than (x) in the case of Term Loans, $2,000,000, and (y) in
the
-6-
14
case of Revolving Loans, $1,000,000, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of the conversion and (iii) no conversion pursuant to this Section 1.06
shall result in a greater number of Eurodollar Loans than is permitted under
Section 1.02. Each such conversion shall be effected by the Borrower by giving
the Managing Agent at its Notice Office prior to 12:00 Noon (New York time) at
least three Business Days' prior notice (each a "Notice of Conversion")
specifying the Loans to be so converted, the Borrowing or Borrowings pursuant
to which such Loans were made and, if to be converted into Eurodollar Loans,
the Interest Period to be initially applicable thereto. The Managing Agent
shall give each Bank prompt notice of any such proposed conversion affecting
any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Term Loans and Revolving
Loans under this Agreement shall be incurred from the Banks pro rata on the
basis of their Term Loan Commitments or Revolving Loan Commitments, as the case
may be. It is understood that no Bank shall be responsible for any default by
any other Bank of its obligation to make Loans hereunder and that each Bank
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Bank to make its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the
maturity (whether by acceleration, optional or mandatory prepayment or
otherwise) of such Base Rate Loan and (ii) the conversion of such Base Rate
Loan to a Eurodollar Loan pursuant to Section 1.06, at a rate per annum which
shall be equal to the sum of the Applicable Margin plus the Base Rate in effect
from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date the proceeds thereof are
made available to the Borrower until the earlier of (i) the maturity (whether
by acceleration, optional or mandatory prepayment or otherwise) of such
Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base Rate
Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per
annum which shall, during each Interest Period applicable thereto, be equal to
the sum of the Applicable Margin plus the Eurodollar Rate for such Interest
Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to the greater of
(x) 2% per annum in excess of the rate otherwise applicable to Base Rate Loans
of the respective Tranche
-7-
15
of Loans from time to time and (y) the rate which is 2% in excess of the rate
then borne by such Loans, in each case with such interest to be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Managing Agent shall
determine the Eurodollar Rate for each Interest Period applicable to Eurodollar
Loans and shall promptly notify the Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of Borrowing or
Notice of Conversion in respect of the making of, or conversion into, any
Eurodollar Loan (in the case of the initial Interest Period applicable thereto)
or on the third Business Day prior to the expiration of an Interest Period
applicable to such Eurodollar Loan (in the case of any subsequent Interest
Period), the Borrower shall have the right to elect, by giving the Managing
Agent notice thereof, the interest period (each an "Interest Period")
applicable to such Eurodollar Loan, which Interest Period shall, at the option
of the Borrower, be a one, two, three, six month period, or, to the extent
available to each Bank with a Commitment under the Tranche under which such
Borrowing is to be made, a nine or twelve month period; provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Loan of a different Type) and each
Interest Period occurring thereafter in respect of such Eurodollar Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on
a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end
on the last Business Day of such calendar month;
-8-
16
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period
for a Eurodollar Loan would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period may be selected at any time when a Default
or Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of Term Loans
shall be selected which extends beyond the Maturity Date;
(vii) no Interest Period in respect of any Borrowing of Revolving
Loans shall be selected which extends beyond the Maturity Date; and
(viii) no Interest Period in respect of any Borrowing of Term Loans
shall be selected which extends beyond any date upon which a mandatory
repayment of Term Loans will be required to be made under Section 4.02(b)
if after giving effect to the selection of such Interest Period, the
aggregate principal amount of Term Loans which have Interest Periods which
will expire after such date of mandatory repayment will be in excess of
the aggregate principal amount of Term Loans then outstanding less the
aggregate amount of such required repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to
convert such Eurodollar Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any Bank
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Managing Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the Second Restatement Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
-9-
17
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the Second Restatement
Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in
the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to any Bank of the principal of
or interest on such Eurodollar Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Bank, or any franchise tax based on the
net income or profits of such Bank, in either case pursuant to the laws of
the United States of America or the jurisdiction in which it is organized
or in which its principal office or applicable lending office is located
or any subdivision thereof or therein), but without duplication of any
amounts payable in respect of Taxes pursuant to Section 4.04(a), or (B) a
change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances since
the Second Restatement Effective Date affecting such Bank or the interbank
Eurodollar market or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Bank in good
faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the
Second Restatement Effective Date which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Bank (or the Managing Agent, in the case of
clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Managing Agent of such determination (which notice the Managing Agent shall
promptly transmit to each of the other Banks). Thereafter (x) in the case of
clause (i) above, Eurodollar Loans shall no longer be available until such
time as the Managing Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Managing Agent no longer exist,
and any Notice of Borrowing or Notice of Conversion given by the Borrower with
respect to Eurodollar Loans which have not yet been incurred (including by way
of conversion) shall be deemed rescinded by the Borrower, (y) in the case of
clause (ii) above, the Borrower shall, subject to the provisions of Section
13.15 (to the extent applicable) pay to such Bank, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, inter-
-10-
18
est or otherwise as such Bank in its sole discretion shall determine) as shall
be required to compensate such Bank for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional
amounts owed to such Bank, showing the basis for the calculation thereof,
submitted to the Borrower by such Bank in good faith shall, absent manifest
error, be final and conclusive and binding on all the parties hereto) and (z)
in the case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event, within
the time period required by law. Each of the Managing Agent and each Bank
agrees that if it gives notice to the Borrower of any of the events described
in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the
case of any such Bank, the Managing Agent, if such event ceases to exist. If
any such event described in clause (iii) above ceases to exist as to a Bank,
the obligations of such Bank to make Eurodollar Loans and to convert Base Rate
Loans into Eurodollar Loans on the terms and conditions contained herein shall
be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Managing Agent telephonic notice (confirmed in writing)
on the same date that the Borrower was notified by the affected Bank or the
Managing Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days' written
notice to the Managing Agent, require the affected Bank to convert such
Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank is
affected at any time, then all affected Banks must be treated the same pursuant
to this Section 1.10(b).
(c) If at any time after the Second Restatement Effective Date any
Bank determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank based on the existence of such Bank's Commitments
hereunder or its obligations hereunder, then the Borrower shall, subject to the
provisions of Section 13.15 (to the extent applicable), pay to such Bank, upon
its written demand therefor, such additional amounts as shall be required to
compensate such Bank or such other corporation for the increased cost to such
Bank or such other corporation or the reduction in the rate of return to such
Bank or such other corporation as a result of such increase of capital. In
determining such additional
-11-
19
amounts, each Bank will act reasonably and in good faith and will use reasonable
averaging and attribution methods, provided that such Bank's reasonable good
faith determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Bank, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to
the Borrower, which notice shall show the basis for calculation of such
additional amounts.
1.11 Compensation. The Borrower shall, subject to the provisions of
Section 13.15 (to the extent applicable), compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding any loss of anticipated profit) which
such Bank may sustain: (i) if for any reason (other than a default by such Bank
or the Managing Agent) a Borrowing of, or conversion from or into, Eurodollar
Loans does not occur on a date specified therefor in a Notice of Borrowing or
Notice of Conversion (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 1.10(a) or (b)); (ii) if any repayment
(including any repayment made pursuant to Section 4.02 or as a result of an
acceleration of the Loans pursuant to Section 10) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the
Borrower; or (iv) as a consequence of (x) any other default by the Borrower to
repay its Loans when required by the terms of this Agreement or any Note held
by such Bank or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such Bank,
it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans affected by such event, provided that such designation is made on
such terms that such Bank and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section
1.12 shall affect or postpone any of the obligations of the Borrower or the
right of any Bank provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a Defaulting Bank
or otherwise defaults in its obligations to make Loans or fund Unpaid Drawings,
(y) upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or
-12-
20
(iii), Section 1. 10(c), Section 2.05 or Section 4.04 with respect to any Bank
which results in such Bank charging to the Borrower increased costs in excess
of those being generally charged by the other Banks or (z) as provided in
Section 13.12(b) in the case of certain refusals by a Bank (other than a Bank
whose commitments are terminated in accordance with Section 3.02(b) and/or
whose Loans are repaid in accordance with Section 4.01(v)) to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks, the Borrower
shall have the right, if no Default or Event of Default will exist immediately
after giving effect to the respective replacement, to either replace such Bank
(the "Replaced Bank") with one or more other Eligible Transferee or
Transferees, none of whom shall constitute a Defaulting Bank at the time of
such replacement (collectively, the "Replacement Bank") reasonably acceptable
to the Managing Agent or, at the option of the Borrower, to replace only (a)
the Term Loan Commitment or Term Loans of the Replaced Bank with an identical
Tenn Loan Commitment or Term Loans provided by the Replacement Bank or (b) the
Revolving Loan Commitment (and outstandings pursuant thereto) of the Replaced
Bank with an identical Revolving Loan Commitment provided by the Replacement
Bank, provided that (i) at the time of any replacement pursuant to this Section
1.13, the Replacement Bank shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 13.04(b) (and with all fees payable
pursuant to said Section 13.04(b) to be paid by the Replacement Bank) pursuant
to which the Replacement Bank shall acquire all of the Commitments and
outstanding Loans (or, in the case of the replacement of only (a) the Term Loan
Commitment or Term Loans, the Term Loan Commitment or Term Loans or (b) the
Revolving Loan Commitment, the Revolving Loan Commitment and outstanding Revo l
ving Loans) of, and in each case (except for the replacement of only the
outstanding Term Loans) participations in Letters of Credit by, the Replaced
Bank and, in connection therewith, shall pay to (x) the Replaced Bank in
respect thereof an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans (or of the
Loans of the respective Tranche being replaced) of the Replaced Bank, (B)
except for the replacement of only the outstanding Term Loans, an amount equal
to all Unpaid Drawings that have been funded by (and not reimbursed to) such
Replaced Bank, together with all then unpaid interest with respect thereto at
such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees
owing to the Replaced Bank (but only with respect to the relevant Tranche, in
the case of all Tranches of Loans being held by the respective Replaced Bank)
pursuant to Section 3.01 and (y) except in the case of the replacement of only
the outstanding Term Loans of the Replaced Bank, any Issuing Bank an amount
equal to such Replaced Bank's Adjusted RL Percentage (for this purpose,
determined as if the adjustment described in clause (y) of the immediately
succeeding sentence had been made with respect to such Replaced Bank) of any
Unpaid Drawing (which at such time remains an Unpaid Drawing) to the extent
such amount was not theretofore funded by
-13-
21
such Replaced Bank, and (ii) all obligations of the Borrower owing to the
Replaced Bank (other than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Bank concurrently with such
replacement. Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (i) and (ii) above
and, if so requested by the Replacement Bank, delivery to the Replacement Bank
of the appropriate Note or Notes executed by the Borrower, (x) the Replacement
Bank shall become a Bank hereunder and, unless the respective Replaced Bank
continues to have outstanding Loans or Commitments hereunder, the Replaced Bank
shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01, as the same may be limited
by Section 13.15 (to the extent applicable)), which shall survive as to such
Replaced Bank and (y) in the case of a replacement of a Defaulting Bank with a
Non-Defaulting Bank, the Adjusted RL Percentages of the Banks shall be
automatically adjusted at such time to give effect to such replacement (and to
give effect to the replacement of a Defaulting Bank with one or more
Non-Defaulting Banks).
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that any Issuing Bank
issue, at any time and from time to time on and after the Second Restatement
Effective Date and prior to the Maturity Date, (x) for the account of the
Borrower and for the benefit of any holder (or any trustee, agent or other
similar representative for any such holders) of L/C Supportable Obligations of
the Borrower or any of its Subsidiaries, an irrevocable sight standby letter of
credit, in a form customarily used by such Issuing Bank or in such other form
as has been approved by such Issuing Bank (each such standby letter of credit,
a "Standby Letter of Credit") in support of such L/C Supportable Obligations
and (y) for the account of the Borrower and for the benefit of sellers of goods
to the Borrower or any of its Subsidiaries, an irrevocable sight commercial
letter of credit in a form customarily used by such Issuing Bank (each such
commercial letter of credit, a "Trade Letter of Credit" and each such Trade
Letter of Credit and each Standby Letter of Credit, a "Letter of Credit") in
support of commercial transactions of the Borrower and its Subsidiaries.
(b) Each Issuing Bank may agree in its sole discretion, and BTCo
hereby agrees that, in the event a requested Letter of Credit is not issued by
one of the other Issuing Banks, it will (subject to the terms and conditions
contained herein), at any time and from time to time on or after the Second
Restatement Effective Date and prior to the Maturity Date, following its
receipt of the respective Letter of Credit Request, issue
-14-
22
for the account of the Borrower one or more Letters of Credit (x) in the case
of Standby Letters of Credit, in support of such L/C Supportable Obligations of
the Borrower or any of its Subsidiaries and (y) in the case of Trade Letters of
Credit, in support of sellers of goods as referenced in Section 2.01(a),
provided that the respective Issuing Bank shall be under no obligation to issue
any Letter of Credit of the types described above if at the time of such
issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Bank from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Bank or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such
Issuing Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing Bank
with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Bank is not otherwise
compensated) not in effect on the date hereof, or any unreimbursed loss,
cost or expense which was not applicable, in effect or known to such
Issuing Bank as of the date hereof and which such Issuing Bank in good
xxxxx xxxxx material to it; or
(ii) such Issuing Bank shall have received notice from any Bank prior
to the issuance of such Letter of Credit of the type described in the
second sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $40,000,000 minus the aggregate amount of xxxx xxxxxxx money
deposits outstanding at such time pursuant to Section 9.01(xix) or (y) when
added to the aggregate outstanding principal amount of all Revolving Loans of
Non-Defaulting Banks, the Adjusted Total Revolving Loan Commitment; (ii) each
Letter of Credit shall be denominated in Dollars; and (iii) each Letter of
Credit shall by its terms terminate (A) in the case of Standby Letters of
Credit, on or before the earlier of (x) the date which occurs 12 months after
the date of the issuance thereof (although any such Letter of Credit may be
extendable for successive periods of up to 12 months, but not beyond July 2,
2004, on terms acceptable to the Issuing Bank thereof) and (y) July 2, 2004 and
(B) in the case of Trade Letters of Credit, on or before the earlier of (x) the
date which occurs 180 days after the date of issuance thereof and (y) the date
which is 30 days prior to July 2, 2004.
-15-
23
(d) Schedule II contains a description of all letters of credit issued
by BTCo pursuant to the Existing Credit Agreement and which are to remain
outstanding on the Second Restatement Effective Date. Each Existing Letter of
Credit, including any extension thereof, issued by BTCo shall constitute a
"Letter of Credit" for all purposes of this Agreement. Each Existing Letter of
Credit shall be deemed issued for purposes of Sections 3.01(b) and 3.01(c) on
the Second Restatement Effective Date.
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires that
a Letter of Credit be issued for its account, the Borrower shall give the
Managing Agent and the respective Issuing Bank at least two Business Days' (or
such shorter period as is acceptable to the respective Issuing Bank) written
notice thereof. In the case of Letters of Credit to be issued pursuant to
Section 2.01, each notice shall be in the form of Exhibit C (each a "Letter of
Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.01(c). Unless the respective Issuing Bank has received notice from any Bank
before it issues a Letter of Credit that one or more of the conditions
specified in Section 5 or Section 6 are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.01(c), then such
Issuing Bank may issue the requested Letter of Credit for the account of the
Borrower in accordance with such Issuing Bank's usual and customary practices.
Upon its issuance of any Standby Letter of Credit, such Issuing Bank shall
promptly notify each Bank participating therein of such issuance, which notice
shall be accompanied by a copy of the Letter of Credit actually issued and any
amendments thereto. For Trade Letters of Credit on which the Issuing Bank is
other than the Managing Agent, the Issuing Bank will send to the Managing Agent
by facsimile transmission, promptly on the first Business Day of each week, the
daily aggregate Stated Amounts of Trade Letters of Credit available during the
preceding week. The Managing Agent will send to each Bank with a Revolving Loan
Commitment, after each calendar month end and upon each Letter of Credit Fee
payment, a report setting forth for the relevant period the daily aggregate
Stated Amount under Trade Letters of Credit of all Issuing Banks during such
period.
2.03 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall
be deemed to have sold and transferred to each Bank with a Revolving Loan
Commitment, other than such Issuing Bank (each such Bank, in its capacity under
this Section 2.03, a "Participant"), and each such Participant shall be deemed
irrevocably and unconditionally to have purchased and received from such
Issuing Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Adjusted RL
-16-
24
Percentage, in such Letter of Credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto (although the Letter of Credit
Fee shall be payable directly to the Managing Agent for the account of the
Participants as provided in Section 3.01(b) and the Participants shall have no
right to receive any portion of any Facing Fees). Upon any change in the
respective Revolving Loan Commitments or Adjusted RL Percentages of the Banks
pursuant to Section 1.13 or 13.04 or as a result of a Bank Default, it is
hereby agreed that, with respect to all such outstanding Letters of Credit and
Unpaid Drawings, there shall be an automatic adjustment to the participations
pursuant to this Section 2.03 to reflect the new Adjusted RL Percentages of the
assignor and assignee Bank or of all Banks with respective Revolving Loan
Commitments.
(b) In determining whether to pay under any Letter of Credit, such
Issuing Bank shall have no obligation relative to the other Banks other than to
confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they appear to substantially comply on
their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by any Issuing Bank under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Issuing Bank any resulting liability to
the Borrower or any Bank.
(c) In the event that any Issuing Bank makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall
promptly notify the Managing Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Managing Agent so notifies, prior to 11:00 A.M. (New York time)
on any Business Day, any Participant required to fund a payment under a Letter
of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted RL Percentage of the amount of such payment
on such Business Day in same day funds. If and to the extent such Participant
shall not have so made its Adjusted RL Percentage of the amount of such payment
available to such Issuing Bank, such Participant agrees to pay to such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to such Issuing Bank at
the overnight Federal Funds Rate. The failure of any Participant to make
available to such Issuing Bank its Adjusted RL Percentage of any payment under
any Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to such Issuing Bank its Adjusted RL Percentage of
any Letter of Credit on the date required, as specified
-17-
25
above, but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Bank such other Participant's
Adjusted RL Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Bank shall pay to each Participant
which has paid its Adjusted RL Percentage thereof, in Dollars and in same day
funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) The obligations of the Participants to make payments to each
Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), the
Managing Agent, any Issuing Bank, any Participant, or any other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including
any underlying transaction between the Borrower and the beneficiary named
in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
-18-
26
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the respective Issuing Bank, by making payment
directly to such Issuing Bank in immediately available funds, for any payment
or disbursement made by it under any Letter of Credit (each such amount, so
paid until reimbursed, an "Unpaid Drawing"), no later than three Business Days
after the date of such payment or disbursement, with interest on the amount so
paid or disbursed by such Issuing Bank, to the extent not reimbursed prior to
12:00 Noon (New York time) on the date of such payment or disbursement, from
and including the date paid or disbursed to but excluding the date such Issuing
Bank was reimbursed by the Borrower therefor at a rate per annum which shall be
the Base Rate in effect from time to time plus the Applicable Margin for
Revolving Loans maintained as Base Rate Loans; provided, however, to the extent
such amounts are not reimbursed prior to 12:00 Noon (New York time) on the
fifth Business Day following such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by such Issuing Bank (and
until reimbursed by the Borrower) at a rate per annum which shall be the Base
Rate in effect from time to time plus the Applicable Margin for Revolving Loans
maintained as Base Rate Loans plus 2%, in each such case, with interest to be
payable on demand. The respective Issuing Bank shall give the Borrower prompt
notice of each Drawing under any Letter of Credit, provided that the failure to
give any such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Bank (including in its capacity as the issuer of the
Letter of Credit or as Participant), or any nonapplication or misapplication by
the beneficiary of the proceeds of such Drawing, the respective Issuing Bank's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that
they appear to comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Bank under or in
connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create for such Issuing Bank
any resulting liability to the Borrower.
2.05 Increased Costs. If at any time after the Second Restatement
Effective Date, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant, or any corporation controlling
-19-
27
such Person, with any request or directive by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by any Issuing Bank or participated in by any
Participant, or (ii) impose on any Issuing Bank or any Participant, or any
corporation controlling such Person, any other conditions relating, directly or
indirectly, to this Agreement or any Letter of Credit; and the result of any of
the foregoing is to increase the cost to any Issuing Bank or any Participant of
issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Bank or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters
of Credit (except for changes in the rate of tax on, or determined by reference
to, the net income or profits of such Issuing Bank or such Participant, or any
corporation controlling such Person, or any franchise tax based on the net
income or profits of such Bank or Participant, or any corporation controlling
such Person, in either case pursuant to the laws of the United States of
America, the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), but without duplication of any amounts payable in respect of taxes
pursuant to Section 4.04(a), then, upon demand to the Borrower by such Issuing
Bank or any Participant (a copy of which demand shall be sent by such Issuing
Bank or such Participant to the Managing Agent) and subject to the provisions
of Section 13.15 (to the extent applicable), the Borrower shall pay to such
Issuing Bank or such Participant such additional amount or amounts as will
compensate such Bank for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Bank
or any Participant, upon determining that any additional amounts will be
payable pursuant to this Section 2.05, will give prompt written notice thereof
to the Borrower, which notice shall include a certificate submitted to the
Borrower by such Issuing Bank or such Participant (a copy of which certificate
shall be sent by such Issuing Bank or such Participant to the Managing Agent),
setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate such Issuing Bank or such
Participant. The certificate required to be delivered pursuant to this Section
2.05 shall, if delivered in good faith and absent manifest error, be final and
conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees, Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay the Managing Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment a
commitment commission (the "Commitment Commission") for the period from the
Second Restatement Effective Date to and including the Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been
terminated), computed
-20-
28
at a rate for each day equal to (x) if on the relevant Quarterly Payment Date
or the Maturity Date (or such earlier date as the Total Revolving Loan
Commitment shall have been terminated) the Leverage Ratio is equal to or
greater than 4.5 to 1, 3/8 of 1% per annum or (y) if on the relevant Quarterly
Payment Date or the Maturity Date (or such earlier date as the Total Revolving
Loan Commitment shall have been terminated) the Leverage Ratio is less than 4.5
to 1, 1/4 of 1% per annum, in each case on the daily average Unutilized
Revolving Loan Commitment of such Non-Defaulting Bank. Accrued Commitment
Commission shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the Maturity Date or such earlier date upon which the Total
Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Managing Agent for distribution
to each Non-Defaulting Bank with a Revolving Loan Commitment, as the case may
be (based on their respective Adjusted RL Percentages), a fee in respect of
each Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the
period from and including the date of issuance of such Letter of Credit, to and
including the termination of such Letter of Credit computed at a rate per annum
equal to the Applicable Margin for Revolving Loans maintained as Eurodollar
Loans as in effect from time to time on the daily Stated Amount of such Letter
of Credit. Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and upon the first day on or after the
termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Bank, for its
own account, a facing fee in respect of each Letter of Credit issued for its
account hereunder (the "Facing Fee") for the period from and including the date
of issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the daily
Stated Amount of such Letter of Credit; provided that in no event shall the
annual Facing Fee be less than $500. Accrued Facing Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the date
upon which the Total Revolving Loan Commitment has been terminated and no
Letters of Credit remain outstanding.
(d) The Borrower shall pay, upon each payment under, issuance of, or
amendment to, any Letter of Credit, such amount as shall at the time of such
event be the administrative charge which the respective Issuing Bank is
generally imposing in connection with such occurrence with respect to letters
of credit.
(e) The Borrower shall pay to the Managing Agent, for its own account,
such other fees as have been agreed to in writing by the Borrower and the
Managing Agent.
-21-
29
3.02 Voluntary Termination and Reduction of Commitments. (a) Upon at
least two Business Days' prior written notice (or telephonic notice confirmed
in writing) to the Managing Agent at its Notice Office (which notice the
Managing Agent shall promptly transmit to each of the Banks), the Borrower
shall have the right, at any time or from time to time, without premium or
penalty, to terminate or partially reduce the Total Unutilized Revolving Loan
Commitment, in whole or in part, provided that (x) each such reduction shall
apply proportionately to permanently reduce the Revolving Loan Commitment of
each Bank with a Revolving Loan Commitment (y) any partial reduction pursuant
to this Section 3.02 shall be in integral multiples of $500,000 and (z) the
reduction to the Total Unutilized Revolving Loan Commitment shall in no case be
in an amount which would cause the Revolving Loan Commitment of any Bank to be
reduced (as required by the preceding clause (x)) by an amount which exceeds
the Unutilized Revolving Loan Commitment of such Bank as in effect immediately
before giving effect to such reduction.
(b) In the event of certain refusals by a Bank as provided in Section
13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks, the Borrower may, upon five Business Days' written notice to
the Managing Agent at its Notice Office (which notice the Managing Agent shall
promptly transmit to each of the Banks) terminate the entire Revolving Loan
Commitment of such Bank so long as (i) all Loans, together with accrued and
unpaid interest, Fees and other amounts, owing to such Bank (other than amounts
owing in respect of Term Loans maintained by such Bank, if such Term Loans are
not being repaid pursuant to Section 13.12(b)) are repaid concurrently with the
effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts), and at such time, unless the
respective Bank continues to have outstanding Term Loans hereunder, such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01, as the same may
be limited by Section 13.15 (to the extent applicable)), which shall survive as
to such repaid Bank and (ii) the Managing Agent and each other Bank which will
be party to this Agreement after giving effect to such change, waiver,
discharge or termination with respect to this Agreement consents to such
termination of Revolving Loan Commitment and repayment of Loans.
3.03 Mandatory Reduction of Commitments. (a) Unless the Second
Restatement Effective Date shall have occurred on or before July 31, 1997, the
Total Commitment (and the Term Loan Commitment and the Revolving Loan
Commitment of each Bank) shall terminate in its entirety.
-22-
30
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Term Loan Commitment (and the Term Loan
Commitment of each Bank) shall terminate in its entirety on the Second
Restatement Effective Date (after giving effect to the making of Term Loans on
such date)
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each Bank) shall terminate in its entirety on the Maturity
Date.
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date after the Second Restatement Effective Date
upon which a mandatory repayment of Term Loans pursuant to Section 4.02(e) is
required (and exceeds in amount the aggregate principal amount of Term Loans
then outstanding) or would be required if Term Loans were then outstanding, the
Total Revolving Loan Commitment shall be permanently reduced by the amount, if
any, by which the amount required to be applied pursuant to said Section
(determined as if an unlimited amount of Term Loans were actually outstanding)
exceeds the aggregate principal amount of Term Loans then outstanding.
(e) Each reduction to the Total Term Loan Commitment and/or the Total
Revolving Loan Commitment pursuant to this Section 3.03 (or pursuant to Section
4.02) shall be applied proportionately to reduce the Term Loan Commitment or
the Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Managing Agent prior to 12:00 Noon (New York time) at its Notice
Office (x) at least one Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Base Rate Loans
and (y) at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Eurodollar Loans,
whether Term Loans or Revolving Loans shall be prepaid, the amount of such
prepayment and the Types of Loans to be prepaid and, in the case of Eurodollar
Loans, the specific Borrowing or Borrowings pursuant to which made, which
notice the Managing Agent shall promptly transmit to each of the Banks; (ii)
each prepayment shall be in an aggregate principal amount of at least $100,000,
provided that if any partial prepayment of Eurodollar Loans made pursuant to
any Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than (1) in the case of Term Loans,
$2,000,000, and (2)
-23-
31
in the case of Revolving Loans, $250,000, then such Borrowing may not be
continued as a Borrowing of Eurodollar Loans and any election of an Interest
Period with respect thereto given by the Borrower shall have no force or
effect; (iii) prepayments of Eurodollar Loans made pursuant to this Section
4.01 may only be made on the last day of an Interest Period applicable thereto
(except in connection with payments made pursuant to clause (v) below); (iv)
each prepayment in respect of any Loans made pursuant to a Borrowing shall,
except as provided in clauses (v) and (vi) below, be applied pro rata among the
Banks which made such Loans; (v) in the event of certain refusals by a Bank as
provided in Section 13.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Banks, the Borrower may, upon five Business Days'
written notice to the Managing Agent at its Notice Office (which notice the
Managing Agent shall promptly transmit to each of the Banks) repay all Loans,
together with accrued and unpaid interest, Fees and other amounts, owing to
such Bank (or owing to such Bank with respect to each Tranche which gave rise
to the need to obtain such Bank's individual consent) in accordance with said
Section 13.12(b) so long as (A) in the case of the repayment of Revolving Loans
of any Bank pursuant to this clause (v), the Revolving Loan Commitment of such
Bank, is terminated concurrently with such repayment (at which time Schedule I
shall be deemed modified to reflect such changed amounts), and (B) the Managing
Agent and each other Bank which will be party to this Agreement after giving
effect to such change, waiver, discharge or termination with respect to this
Agreement consents to such repayment of Loans and such termination of Revolving
Loan Commitment; (vi) at the Borrower's election in connection with any
prepayment of Revolving Loans, such prepayment shall not be applied to the
Revolving Loans of a Defaulting Bank; and (vii) each voluntary prepayment of
Term Loans made pursuant to this Section 4.01 (other than prepayments made
pursuant to preceding clauses (v) and (vi)) shall be applied to reduce the then
remaining Scheduled Repayments pro rata based upon the then remaining number of
Scheduled Repayments after giving effect to all prior reductions thereto;
provided that if the amount to be applied to any Scheduled Repayment (whether
pursuant to preceding clause (vii) or as a result of this proviso) would exceed
the then remaining amount of such Scheduled Repayment, then an amount equal to
such excess shall be applied to reduce the other then remaining Scheduled
Repayments pro rata based upon the then remaining number of such Scheduled
Repayments after giving effect to all prior reductions thereto (including the
amount of prepayments theretofore allocated pursuant to preceding clause (vii)
and this proviso).
4.02 Mandatory Repayments and Commitment Reductions. (a) (i) On any
day on which the sum of the aggregate outstanding principal amount of the
Revolving Loans made by the Non-Defaulting Banks and the Letter of Credit
Outstandings exceeds the Adjusted Total Revolving Loan Commitment as then in
effect, the
-24-
32
Borrower shall prepay on such date principal on Revolving Loans of the Non-
Defaulting Banks in an amount equal to such excess. If, after giving effect to
the prepayment of all Revolving Loans of Non-Defaulting Banks, the aggregate
amount of the Letter of Credit Outstandings exceeds the Adjusted Total
Revolving Loan Commitment as then in effect, the Borrower shall pay to the
Managing Agent at the Payment Office on such date an amount of cash or Cash
Equivalents equal to the amount of such excess (up to a maximum amount equal to
the Letter of Credit Outstandings at such time), such cash or Cash Equivalents
to be held as security for all obligations of the Borrower to Non-Defaulting
Banks hereunder in a cash collateral account to be established by the Managing
Agent.
(ii) On any day on which the aggregate outstanding principal amount of
the Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrower shall prepay principal of
Revolving Loans of such Defaulting Bank in an amount equal to such excess.
(iii) On any day on which Holdings or any of its Subsidiaries receives
Net Sale Proceeds not required to be applied as a mandatory prepayment of Term
Loans pursuant to the operation of clauses (i) and (ii) of the first proviso to
Section 4.02(e) or required to be applied as a mandatory repayment of the
Bridge Financing, such Net Sale Proceeds shall be applied to pay outstanding
principal of Revolving Loans to the extent of such outstandings in accordance
with Section 4.02(i).
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Term Loans, to the
extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(i),
a "Scheduled Repayment"):
Scheduled Repayment Date Amount
------------------------ ------
Quarterly Payment Date in September 1997 $0
Quarterly Payment Date in December 1997 $0
Quarterly Payment Date in March 1998 $0
Quarterly Payment Date in June 1998 $0
Quarterly Payment Date in September 1998 $10,000,000
Quarterly Payment Date in December 1998 $10,000,000
Quarterly Payment Date in March 1999 $10,000,000
Quarterly Payment Date in June 1999 $10,000,000
-25-
33
Quarterly Payment Date in September 1999 $15,000,000
Quarterly Payment Date in December 1999 $15,000,000
Quarterly Payment Date in March 2000 $15,000,000
Quarterly Payment Date in June 2000 $15,000,000
Quarterly Payment Date in September 2000 $15,000,000
Quarterly Payment Date in December 2000 $15,000,000
Quarterly Payment Date in March 2001 $15,000,000
Quarterly Payment Date in June 2001 $15,000,000
Quarterly Payment Date in September 2001 $15,000,000
Quarterly Payment Date in December 2001 $15,000,000
Quarterly Payment Date in March 2002 $15,000,000
Quarterly Payment Date in June 2002 $15,000,000
Quarterly Payment Date in September 2002 $20,000,000
Quarterly Payment Date in December 2002 $20,000,000
Quarterly Payment Date in March 2003 $20,000,000
Quarterly Payment Date in June 2003 $20,000,000
Quarterly Payment Date in September 2003 $25,000,000
Quarterly Payment Date in December 2003 $25,000,000
Quarterly Payment Date in March 2004 $25,000,000
Maturity Date $25,000,000
; provided that in the event the aggregate principal amount of Term Loans
incurred at the time that the Total Term Loan Commitment is terminated in
accordance with Section 3.03(b) is less than $400,000,000, an amount equal to
such deficiency shall be applied to reduce the Scheduled Repayments pro rata
based on the then remaining principal amount of each such Scheduled Repayment.
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Second
Restatement Effective Date upon which Holdings or any of its Subsidiaries
receives any proceeds from any sale or issuance of its equity (other than (i)
proceeds received from the issuance of shares of Holdings Common Stock as a
result of the exercise of options issued (x) pursuant to the Dinetz Employment
Contract or the agreements granting certain options to Xx. Xxxxxxx Xxxxx-Xxxx,
Xx. Xxxxxx Xxxxxx, Xx. Xxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxxx and Xx. Xxxx X.
Xxxxxx as in effect on the Second Restatement Effective Date, (y) pursuant to
the Employee Stock Option Plan or (z) as a result of any re-
-26-
34
issuance of Holdings Common Stock to new employees pursuant to, and as
permitted by Section 9.03(iii)(B)(z) to the extent that the aggregate proceeds
(after deduction of amounts used to purchase Holdings Common Stock in the case
of reissuances of the type described in Section 9.03(iii)(B)(z) excluded
pursuant to this clause (i)) do not exceed $2,500,000 in any fiscal year of
Holdings and (ii) proceeds received from any Permitted Issuance), an amount
equal to 100% of the cash proceeds of the respective sale or issuance (net of
all reasonable costs associated therewith, including, without limitation, all
due diligence costs and expenses paid for, or reimbursed by, Holdings and/or
any of its Subsidiaries, underwriting or similar fees, discounts and
commissions, attorneys' fees and expenses paid for, or reimbursed by, Holdings
and/or any of its Subsidiaries and other direct costs associated therewith) not
otherwise applied to make mandatory prepayments of outstandings under the
Bridge Financing permitted pursuant to Section 9.11 shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(h) and (i).
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Second
Restatement Effective Date upon which Holdings or any of its Subsidiaries
receives any proceeds from any incurrence by Holdings or any of its
Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for
borrowed money permitted to be incurred pursuant to Section 9.04 as such
Section is in effect on the Second Restatement Effective Date), an amount equal
to 100% of the cash proceeds of the respective incurrence of Indebtedness (net
of all reasonable costs associated therewith, including, without limitation,
all due diligence costs and expenses paid for, or reimbursed by, Holdings
and/or any of its Subsidiaries, any underwriting or similar fees, discounts and
commissions, attorneys' fees and expenses paid for, or reimbursed by, Holdings
and/or any of its Subsidiaries, all financing and/or commitment fees and other
direct costs associated therewith) not otherwise applied to make Dividends
permitted pursuant to Section 9.03(xi) shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(h) and (i).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Second
Restatement Effective Date upon which Holdings or any of its Subsidiaries
receives proceeds from any sale of assets (including capital stock and
securities held thereby, but excluding sales of assets to the extent permitted
by Sections 9.02(ii), (v), (vi), (vii), (ix), (xi), (xii), (xiii), (xv), (xvi)
and (xvii)); an amount equal to 100% of the Net Sale Proceeds therefrom shall
be applied as a mandatory repayment and/or commitment reduction in accordance
with the requirements of Sections 4.02(h) and (i), provided, that so long as no
Default or Event of Default then exists, and subject to the operation of
Section 4.02(a)(iii), (i) (x) if such Net Sale Proceeds are received on or
prior to March 31, 1998 and the Leverage Ratio on the date of receipt thereof
is less than 7.00:1.00 or (y)
-27-
35
if such Net Sale Proceeds are received after March 31, 1998 and the Leverage
Ratio on the date of receipt thereof is less than 6.50:1.00, no such mandatory
commitment reduction shall be required and (ii) the Net Sale Proceeds of the
sale of any of the Stations (whether as an asset sale, stock transfer, merger
or otherwise (including sales or swaps of Stations pursuant to the sales,
Station Swaps or Stock Swaps, respectively effected pursuant to Section
9.02(viii) or (ix))) shall not be required to be so applied on the date of
receipt thereof to the extent the Borrower has delivered a certificate to the
Managing Agent on or prior to such date stating that such Net Sale Proceeds
shall be reinvested or shall be committed to be reinvested in radio stations
(and related assets) or 100% of the capital stock or other equity interests
(whether by merger of the Borrower or any of its Subsidiaries (including
Subsidiaries created pursuant to Section 9.15), or a Stock Swap or a Station
Swap effected pursuant to Section 9.02(ix)) of a Person whose only business is
the ownership of radio stations (and related assets) or equipment to be used at
the Stations (each a "Reinvestment Asset" and together the "Reinvestment
Assets") within 180 days following such date, and, if such proceeds are
received after the repayment of all obligations under the Bridge Financing, the
entire amount of such Net Sale Proceeds shall be deposited with the Managing
Agent pursuant to a cash collateral arrangement reasonably satisfactory to the
Managing Agent whereby such proceeds shall be disbursed to the Borrower to pay
actual costs incurred by it in connection with the acquisition of Reinvestment
Assets or the making of any escrow deposits in connection therewith, provided
further, that at any time an Event of Default has occurred and is continuing
the Required Banks may direct the Managing Agent (in which case the Managing
Agent shall, and is hereby authorized by the Borrower to follow said
directions) to apply any and all proceeds then on deposit in such collateral
account to the repayment of Obligations in the same manner as proceeds would be
applied pursuant to the Amended and Restated Borrower Security Agreement and,
provided farther, that if all or any portion of such Net Sale Proceeds not
applied as a mandatory repayment and/or commitment reduction pursuant to the
preceding proviso are either (a) not so used or committed to be used within 180
days after the date of receipt of such Net Sale Proceeds or (b) if committed to
be so used within 180 days after the date of receipt of such Net Sale Proceeds
and not so used within 360 days after the date of receipt of such Net Sale
Proceeds, then, in either such case, such remaining portion not used or
committed to be used in the case of preceding clause (a) and not used in
the-case of preceding clause (b) shall be applied on the date which is 180 days
following the date of receipt of such Net Sale Proceeds in the case of clause
(a) above, or the date occurring 360 days after the date of receipt of such Net
Sale Proceeds in the case of clause (b) above as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h)
and (i). At the time of the acquisition of any Reinvestment Assets, Holdings
shall comply and shall cause its Subsidiaries to comply with Section 8.12.
-28-
36
(f) In addition to any other mandatory repayments pursuant to this
Section 4.02, on each Excess Cash Payment Date, an amount equal to 50% of the
Excess Cash Flow for the relevant Excess Cash Payment Period shall be applied
as a mandatory repayment of principal of outstanding Term Loans in accordance
with the requirements of Sections 4.02(h) and (i).
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date
after the Second Restatement Effective Date on which Holdings or any of its
Subsidiaries receives any proceeds from any Recovery Event, an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs including,
without limitation, legal costs and expenses and taxes incurred in connection
with such Recovery Event) shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h)
and (i), provided that (x) so long as no Default or Event of Default then
exists and such proceeds do not exceed $2,500,000, such proceeds shall not be
required to be so applied on such date to the extent that the Borrower has
delivered a certificate to the Managing Agent on or prior to such date stating
that such proceeds shall be used to replace or restore any properties or assets
in respect of which such proceeds were paid within 180 days following the date
of such Recovery Event (which certificate shall set forth the estimates of the
proceeds to be so expended) and (y) so long as no Default or Event of Default
then exists and to the extent that (a) the amount of such proceeds exceeds
$2,500,000, (b) the Borrower has delivered to the Managing Agent a certificate
on or prior to the date the application would otherwise be required pursuant to
this Section 4.02(g) in the form described in clause (x) above and also
certifying the sufficiency of business interruption insurance as required by
succeeding clause (c), and (c) the Borrower has delivered to the Managing Agent
such evidence as the Managing Agent may reasonably request in form and
substance satisfactory to the Managing Agent establishing that the Borrower has
sufficient business interruption insurance and that the Borrower will be
receiving regular payments thereunder in such amounts and at such times as are
necessary to satisfy all obligations and expenses of the Borrower (including,
without limitation, all debt service requirements, including pursuant to this
Agreement), without any delay or extension thereof, for the period from the
date of the respective casualty, condemnation or other event giving rise to the
Recovery Event and continuing through the completion of the replacement or
restoration of respective properties or assets, then the entire amount and not
just the portion in excess of $2,500,000 shall be deposited with the Managing
Agent pursuant to a cash collateral arrangement reasonably satisfactory to the
Managing Agent whereby such proceeds shall be disbursed to the Borrower from
time to time as needed to pay actual costs incurred by it in connection with
the replacement or restoration of the respective properties or assets (pursuant
to such certification requirements as may be established by the Managing
Agent), provided further, that at any time while an Event of Default has
occurred and is continuing (other than an Event
-29-
37
of Default existing solely as a result of the violation of any or all of
Sections 9.08, 9.09 and 9.10, but in each case only if, and to the extent,
that the violation of said covenant has occurred as a result of the underlying
event giving rise to the Recovery Event), the Required Banks may direct the
Managing Agent (in which case the Managing Agent shall, and is hereby
authorized by the Borrower to, follow said directions) to apply any or all
proceeds then on deposit in such collateral account to the repayment of
Obligations hereunder in the same manner as proceeds would be applied pursuant
to the Amended and Restated Borrower Security Agreement, and, provided further,
that if all or any portion of such proceeds not required to be applied as a
mandatory repayment and/or commitment reduction pursuant to the second
preceding proviso (whether pursuant to clause (x) or (y) thereof) are either
(A) not so used within 180 days after the date of receipt of proceeds from the
respective Recovery Event or (B) if committed to be used within 180 days after
the date of receipt of proceeds from the respective Recovery Event and not so
used within 360 days after the date of receipt of proceeds from the respective
Recovery Event, then, in either case, such remaining portion not used or
committed to be used in the case of the preceding clause (A) and not used in
the case of preceding clause (B), shall be applied on the date which is 180
days following the date of receipt of proceeds from the respective Recovery
Event in the case of clause (A) above, or the date which is 360 days after the
date of receipt of proceeds from the respective Recovery Event in the case of
clause (B) above as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Section 4.02(h) and (i).
(h) Each amount required to be applied to repay Term Loans (i)
pursuant to Section 4.02(f) and (g) shall be applied to reduce the then
remaining Scheduled Repayments pro rata based upon the then remaining number of
Scheduled Repayments after giving effect to all prior reductions thereto (ie.,
each then remaining Scheduled Repayment shall be reduced by an amount equal to
the aggregate amount to be applied to the Term Loans divided by the then
remaining Scheduled Repayments); provided that if the amount to be applied to
any Scheduled Repayment would exceed the then remaining amount of such
Scheduled Repayment, then an amount equal to such excess shall be applied to
reduce the other then remaining Scheduled Repayments, after giving effect to
all prior reductions thereto (including the amount of prepayments theretofore
allocated pursuant to the preceding portion of this sentence), pro rata based
upon the then remaining number of Scheduled Repayments in the manner described
above and (ii) pursuant to Sections 4.02(c) through (e) shall be applied to
reduce the then remaining Scheduled Repayments in inverse order of maturity
based upon the then remaining number of Scheduled Repayments after giving
effect to all prior reductions thereto.
(i) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which
-30-
38
are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing
or Borrowings of the respective Tranche pursuant to which made, provided that:
(i) repayments of Eurodollar Loans pursuant to this Section 4.02 may only be
made on the last day of an Interest Period applicable thereto unless all
Eurodollar Loans of the respective Tranche with Interest Periods ending on such
date of required repayment and all Base Rate Loans of the respective Tranche
have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant
to a single Borrowing shall reduce the outstanding Eurodollar Loans made
pursuant to such Borrowing to an amount less than (x) in the case of Term
Loans, $2,000,000, and (y) in the case of Revolving Loans, $1,000,000, such
Borrowing shall be converted at the end of the then current Interest Period
into a Borrowing of Base Rate Loans; and (iii) each repayment of any Loans made
pursuant to a Borrowing shall be applied pro rata among the Banks which made
such Loans. In the absence of a designation by the Borrower as described in the
preceding sentence, the Managing Agent shall, subject to the above, make such
designation in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under Section 1.11. Notwithstanding the foregoing
provisions of this Section 4.02, if at any time the mandatory prepayment of
Term Loans pursuant to Sections 4.02(c) through (g) or Revolving Loans pursuant
to Section 4.02(a)(iii) above would result, after giving effect to the
procedures set forth above, in the Borrower incurring breakage costs under
Section 1.11 as a result of Eurodollar Loans being prepaid other than on the
last day of an Interest Period applicable thereto (the "Affected Eurodollar
Loans"), then the Borrower may in its sole discretion initially deposit a
portion (up to 100%) of the amounts that otherwise would have been paid in
respect of the Affected Eurodollar Loans with the Managing Agent (which deposit
must be equal in amount to the amount of Affected Eurodollar Loans not
immediately prepaid) to be held as security for the obligations of the Borrower
hereunder pursuant to a cash collateral agreement to be entered into in form
and substance reasonably satisfactory to the Managing Agent, with such cash
collateral to be directly applied upon the first occurrence (or occurrences)
thereafter of the last day of an Interest Period applicable to the relevant
Loans that are Eurodollar Loans (or such earlier date or dates as shall be
requested by the Borrower), to repay an aggregate principal amount of such
Loans equal to the Affected Eurodollar Loans not initially repaid pursuant to
this sentence, provided that in the case of repayments of Revolving Loans
pursuant to Section 4.02(a)(iii) the Borrower may by notice to the Managing
Agent elect to temporarily reduce the availability by the amount of such
required repayment (such temporary reduction not to effect any calculation of
the Commitment Commission) in lieu of providing cash collateral as provided in
this sentence, which reduction shall continue in effect until such time as the
occurrence thereafter of the last day of an Interest Period or Interest Periods
applicable to such Revolving Loans that are Eurodollar Loans and the repayment
of such amounts by the Borrower. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, all amounts deposited as cash
collateral pursuant to the immediately preceding sentence shall be held for the
sole benefit of the Banks whose Loans would
-31-
39
otherwise have been immediately repaid with the amounts deposited and upon the
taking of any action by the Managing Agent or the Banks pursuant to the
remedial provisions of Section 10, any amounts held as cash collateral pursuant
to this Section 4.02(i) shall, subject to the requirements of applicable law,
be immediately applied to the relevant Loans.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Managing Agent for the account of the Bank or Banks entitled thereto not
later than 12:00 Noon (New York time) on the date when due and shall be made in
Dollars in immediately available funds at the Payment Office of the Managing
Agent. Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during
such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder or
under any Note will be made without set-off, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income or net profits of a Bank, or
any franchise tax based on the net income or net profits of a Bank, in either
case pursuant to the laws of the United States of America or the jurisdiction
in which it is organized or in which the principal office or applicable lending
office of such Bank is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect thereto (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "Taxes"). If any Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or
on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence of this Section 4.04(a), then the Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes imposed
on or measured by the net income or net profits of such Bank, or any franchise
tax based on the net income or net profits of such Bank, in either case
pursuant to the laws of the jurisdiction in which such bank is organized or in
which the principal office or applicable lending office of such Bank is located
or under the laws of any political subdivision or taxing authority of any such
jurisdiction in which the principal office or applicable lending
-32-
40
office of such Bank is located and for any withholding of income or similar
taxes imposed by the United States of America as such Bank shall determine in
good faith are payable by, or withheld from, such Bank in respect of such
amounts so paid to or on behalf of such Bank pursuant to the preceding sentence
and in respect of any amounts paid to or on behalf of such Bank pursuant to
this sentence. The Borrower will furnish to the Managing Agent within 45 days
after the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the Borrower. The
Borrower agrees to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes described in the
preceding sentences and subject to payment by Borrower which are so levied or
imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Managing Agent on or prior to the Second Restatement Effective Date, or
in the case of a Bank that is an assignee or transferee of an interest under
this Agreement pursuant to Sections 1.13 or 13.04 (unless the respective Bank
was already a Bank hereunder immediately prior to such assignment or transfer),
on the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or Form
1001 (or successor forms) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or Form 4224 pursuant to
clause (i) above, (x) a certificate substantially in the form of Exhibit D (any
such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Bank agrees
that from time to time after the Second Restatement Effective Date, when a
lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to the Borrower
and the Managing Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or Form 1001, or Form W-8 and a Section
4.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Managing Agent of its inability to deliver any such
form or certificate, in which case such Bank shall not be required to deliver
any such form or certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (x) the Xxxxxxxx
-00-
00
xxxxx xx entitled, to the extent it is required to do so by law, to deduct or
withhold income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or
other amounts payable hereunder for the account of any Bank which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower
shall not be obligated pursuant to Section 4.04(a) hereof to gross-up payments
to be made to a Bank in respect of income or similar taxes imposed by the
United States if (I) such Bank has not provided to the Borrower the Internal
Revenue Service forms required to be provided to the Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a
Bank described in clause (ii) above, to the extent that such forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 4.04 and except as set forth in Section 13.04(b), the Borrower
agrees to pay additional amounts and to indemnify each Bank in the manner set
forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result
of any changes after the Second Restatement Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes.
(c) Each Bank that is a United States person (as such
term is defined in Section 7701(a)(30) of the Code) will provide an original
signed copy of Internal Revenue Service Form W-9 (or successor form) to each of
the Borrower and the Managing Agent upon the reasonable written request of the
Borrower.
(d) The provisions of this Section 4.04 are subject to
the provisions of Section 13.15 (to the extent applicable).
SECTION 5. Conditions Precedent to Credit Events on the Second
Restatement Effective Date. The occurrence of the Second Restatement Effective
Date pursuant to Section,13.10 and the obligation of each Bank to make or
maintain Loans and to participate in Letters of Credit under this Agreement,
and the obligations of each Issuing Bank to issue Letters of Credit, in each
case on the Second Restatement Effective Date, is subject, at the time of such
Credit Event, to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the
Second Restatement Effective Date (i) this Agreement shall have been executed
and delivered as provided in Section 13.10 and (ii) there shall have been
delivered to the Managing
-34-
42
Agent for the account of each of the Banks that has requested a Note the
appropriate Term Note and/or Revolving Note executed by the Borrower, in each
case in the amount, maturity and as otherwise provided herein.
5.02 Fees, etc. On the Second Restatement Effective Date, the
Borrower shall have paid to the Managing Agent and the Banks all costs, fees
and expenses (including, without limitation, reasonable legal fees and
expenses) payable to the Managing Agent and the Banks to the extent then due.
5.03 Opinions of Counsel. On the Second Restatement Effective Date,
the Managing Agent shall have received (i) from Weil, Gotshal & Xxxxxx LLP,
special counsel to Holdings and its Subsidiaries, an opinion addressed to the
Managing Agent and each of the Banks and dated the Second Restatement Effective
Date covering the matters set forth in Exhibit E-1 and (ii) from Xxxxxxxxx &
Associates, FCC counsel to Holdings and its Subsidiaries, an opinion addressed
to the Managing Agent and each of the Banks and dated the Second Restatement
Effective Date covering the matters set forth in Exhibit E-2.
5.04 Corporate Documents; Proceedings; etc. (a) On the Second
Restatement Effective Date, the Managing Agent shall have received a
certificate, dated the Second Restatement Effective Date, signed by an
Authorized Officer of each Credit Party, and attested to by the Secretary or
any Assistant Secretary of such Credit Party, each in the form of Exhibit F
with appropriate insertions, together with copies of the Certificate of
Incorporation, By-Laws and resolutions (or such other administrative approval)
of such Credit Party referred to in such certificate, and the foregoing shall
be reasonably acceptable to the Managing Agent.
(b) On the Second Restatement Effective Date, all corporate and
legal proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Managing Agent and the
Required Banks, and the Managing Agent shall have received all information and
copies of all documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down telegrams or
facsimiles, if any, which the Managing Agent may have reasonably requested in
connection therewith, such documents and papers to be certified where
appropriate by proper corporate or governmental authorities.
5.05 Shareholders' Agreements; Management Agreements; Employment
Agreements; Tax Sharing Agreements. On the Second Restatement Effective Date,
there shall have been delivered to the Managing Agent true and correct copies,
certified as true and complete by an Authorized Officer of Holdings or its
respective Subsidiaries
-35-
43
of (i) the Stockholders' Agreement and all other agreements entered into by
Holdings or any of its Subsidiaries governing the terms and relative rights of
its capital stock and any agreements entered into by shareholders, relating to
any such entity with respect to its capital stock (collectively, the
"Shareholders' Agreements"), (ii) all agreements with senior members of, or
with respect to, the management of Holdings or any of its Subsidiaries
(collectively, the "Management Agreements"), (iii) the Dinetz Employment
Contract, (iv) all agreements relating to the sharing of tax liabilities and
benefits among Holdings and/or its Subsidiaries (each a "Tax Sharing Agreement"
and collectively, the "Tax Sharing Agreements") and (v) all Existing Debt
Agreements; all of which Shareholders' Agreements, Management Agreements,
Dinetz Employment Contract, Tax Sharing Agreements and Existing Debt Agreements
shall be in form and substance reasonably satisfactory to the Managing Agent
and the Required Banks and shall be in full force and effect on the Second
Restatement Effective Date.
5.06 Absence of Certain Conditions. (a) The Managing Agent
shall be satisfied that Holdings and each of its Subsidiaries (x) has complied
in all material respects with each of the Shareholders' Agreements and all
agreements (the "Existing Debt Agreements") governing Indebtedness permitted to
remain outstanding on and after the Second Restatement Effective Date pursuant
to Section 9.04 (the "Existing Debt") and (y) shall be able to perform all of
their respective obligations under this Agreement and the Bridge Financing
Documents.
(b) Neither any Existing Debt nor, except as specifically
permitted herein, the Bridge Financing, shall be subject to, or as a result of
the consummation of the Transaction become subject to, any mandatory repayment
obligation of Holdings or any of its Subsidiaries prior to the stated maturity
thereof.
5.07 Consummation of the Bridge Financing; Transaction.
(a) On or prior to the Second Restatement Effective Date:
(i)(x) Holdings shall have consummated the Bridge Financing
pursuant to the terms and conditions of the Bridge Financing
Documents, (y) Holdings shall have contributed the entire net proceeds
thereof as a capital contribution to the Borrower and (z) the Borrower
shall have applied all remaining proceeds of the Bridge Financing to
make payments owing in connection with the Transaction before using
the proceeds of any Loans for such purpose;
(ii) the Borrower shall successfully have consummated the
Tender Offer pursuant to the terms and conditions of the Tender Offer
Documents;
(iii) the Supplemental Indenture shall be in full force and
effect;
-36-
44
(iv) the Borrower shall have acquired (the "Viacom
Acquisition") all of the stock of the Acquired Viacom Subsidiaries
pursuant to the terms and conditions set forth in the Viacom Joint
Purchase Agreement and the other Viacom Acquisition Documents and in
accordance with all applicable laws relating thereto; and
(v) immediately prior to or after giving effect to the
Viacom Acquisition, the License Subsidiary shall hold all the FCC
Licenses in accordance with any rules of, or consents required by the
FCC and on terms and conditions reasonably satisfactory to the
Managing Agent and the Required Banks.
(b) On or prior to the Second Restatement Effective Date,
there shall have been delivered to the Agents copies of all the Transaction
Documents and Bridge Financing Documents, all of which shall be certified by an
Authorized Officer of Holdings and/or its Subsidiaries as true and correct and
be in full force and effect. On the Second Restatement Effective Date, the
Transaction and the Bridge Financing shall have been consummated in accordance
with the Transaction Documents and the Bridge Financing Documents,
respectively, which Transaction Documents and Bridge Financing Documents shall
be reasonably satisfactory to the Agents and the Required Banks, and all
applicable laws relating thereto. All conditions in the Transaction Documents
and Bridge Financing Documents shall have been satisfied, without amendment,
waiver or modification (except with the consent of the Agents and the Required
Banks, which consent shall not be unreasonably withheld), and all covenants in
the Viacom Acquisition Documents shall have been performed in all material
respects, without amendment, waiver or modification (except with the consent of
the Agents and the Required Banks, which consent shall not be unreasonably
withheld), and all representations and warranties contained therein shall be
true and correct in all material respects, without amendment, waiver or
modification (except with the consent of the Agents and the Required Banks,
which consent shall not be unreasonably withheld), and all terms and conditions
of, and documentation for, the Viacom Acquisition, the Tender Offer (including,
without limitation, the Supplemental Indenture) and the Bridge Financing,
including, without limitation, amortization, maturities, interest rates,
covenants, defaults, remedies, subordination provisions and all other terms,
shall be reasonably acceptable to the Agents and the Required Banks.
(c) On or prior to the Second Restatement Effective Date,
all necessary and material governmental (domestic and foreign) and third party
approvals in connection with the Transaction (including, without limitation,
preliminary approval from the FCC (the "FCC Consents") of the transfer of
control of the Viacom FCC Licenses contemplated by the Transaction) and the
transactions contemplated by the Credit Documents and otherwise referred to
herein or therein, shall have been obtained
-37-
45
and remain in effect, and all applicable waiting periods (excluding appeal
periods with respect to the FCC Consents) shall have expired without any action
being taken by any competent authority which restrains, prevents or imposes, in
the judgment of the Managing Agent, materially adverse conditions upon the
consummation of the Transaction and the transactions contemplated by this
Agreement, provided that, without limiting the foregoing,
(i) no petition for reconsideration or request for
review, rescission or stay or other objection to the grant of the FCC
Consents shall be pending and unresolved before the FCC or any court;
(ii) the FCC Consents shall not be subject to, or impose
upon Holdings, the Borrower or any of their respective Subsidiaries or
any of the Stations (including, but not limited to, Stations to be
acquired in the Viacom Acquisition), any conditions or require the
performance of any obligations that, in the judgment of the Managing
Agent, could have a material and adverse effect upon the value of the
Stations or the ability of the Borrower to perform its obligations
under the Transaction, any of the Credit Documents or the transactions
contemplated by the Credit Agreement;
(iii) to the extent that (A) a basis for the grant by the
FCC of the FCC Consents is a settlement agreement or similar agreement
or (B) Holdings, the Borrower or any of their respective Subsidiaries
is a party to a settlement agreement entered into in connection with
the grant of the FCC Consents or (C) the grant of the FCC Consents is
by written order of the FCC, then the Managing Agent shall have been
furnished a complete copy of such settlement agreement or written
order, together with a copy of any related filings with the FCC, and
neither the terms of such settlement agreement nor the terms of such
written order, in the judgment of the Managing Agent, could have a
material and adverse effect upon the value of the Stations or the
ability of the Borrower to perform its obligations under the
Transaction, any of the Credit Documents or the transactions
contemplated by the Credit Agreement, and Holdings, the Borrower and
their respective Subsidiaries shall be in compliance with such written
order or settlement agreement.
Additionally, except as fully disclosed on Annex 5.07, there shall not exist
any judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the consummation of the Transaction
or the transactions contemplated by this Agreement.
-38-
46
5.08 Subsidiary Guaranty. On the Second Restatement
Effective Date, each of the Acquired Viacom Subsidiaries shall have duly
authorized, executed and delivered a Subsidiary Guaranty in the form of Exhibit
G hereto (as amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, the "Subsidiary Guaranty").
5.09 Pledge Agreement. (a) On the Second Restatement
Effective Date, each of the Acquired Viacom Subsidiaries shall have duly
authorized, executed and delivered a Subsidiary Pledge Agreement in the form of
Exhibit H (as amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, the "Subsidiary Pledge Agreement") and shall
have delivered to the Collateral Agent, as Pledgee, all the Pledged Securities
referred to therein then owned by such Subsidiary, together with executed and
undated stock powers, in the case of capital stock constituting Pledged
Securities.
5.10 Subsidiary Security Agreement. On the Second
Restatement Effective Date, (i) each of the Acquired Viacom Subsidiaries shall
have duly authorized, executed and delivered a Security Agreement in the form
of Exhibit I (as amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, the "Subsidiary Security Agreement") covering
all of such Subsidiaries' present and future Security Agreement Collateral,
(ii) no filings, recordings, registrations or other actions shall be necessary
or desirable to maintain the perfection and priority of the security interests
granted by the original parties to the Amended and Restated Security Agreements
in the Security Agreement Collateral covered thereby (except to the extent made
pursuant to clauses (c) or (d) below), and (iii) in the case of the Subsidiary
Security Agreement, the Managing Agent shall have received:
(a) executed copies of Financing Statements (Form UCC-1)
in appropriate form for filing under the UCC of each jurisdiction as
may be necessary in the reasonable discretion of the Collateral Agent
to perfect the security interests purported to be created by the
Subsidiary Security Agreement;
(b) certified copies of Requests for Information or
Copies (Form UCC-11), or equivalent reports, listing all effective
financing statements that name Viacom or any Subsidiary of Viacom as
debtor and that are filed in any jurisdiction where a filing may be
necessary or, in the opinion of the Collateral Agent, desirable to
perfect the security interest purported to be created by such
Subsidiary Security Agreement, together with copies of such financing
statements (none of which shall cover the Collateral except to the
extent evidencing Permitted Liens or in respect of which the
Collateral Agent shall have received termination statements (Form
UCC-3) or such other termination statements as shall be required by
local law);
-39-
47
(c) evidence of the completion of all other recordings
and filings of, or with respect to, the Subsidiary Security Agreement
as may be necessary or, in the reasonable opinion of the Collateral
Agent, desirable to perfect the security interests intended to be
created by such Subsidiary Security Agreement; and
(d) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the
Subsidiary Security Agreement have been taken.
5.11 Existing Mortgages, Title Insurance, etc. On the
Second Restatement Effective Date, the Collateral Agent shall have received:
(a) duly authorized, fully executed, acknowledged, and
delivered deeds of trust, mortgages, leasehold deeds of trust or
leasehold mortgages substantially in the form of Exhibit J (as
amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, each a "Mortgage" and, collectively,
the "Mortgages"), which Mortgages shall cover such of the Real
Property owned or leased by Holdings and/or its Subsidiaries and
listed on Part A of Schedule III as a Mortgaged Property (each, a
"Mortgaged Property" and, collectively, the "Mortgaged Properties");
provided that with respect to those Mortgaged Properties covered by an
Existing Mortgage and designated as Existing Mortgaged Properties on
Part A of Schedule III, the Collateral Agent shall have received, in
lieu of a Mortgage, a fully executed counterpart of an amendment (the
"Mortgage Amendment"), in form and substance satisfactory to the
Managing Agent, to such Existing Mortgage, together with evidence that
counterparts of such Mortgages and Mortgage Amendments have been
delivered to the title insurance company insuring the Lien on the
Mortgages and Existing Mortgages for recording in all places to the
extent necessary, or, in the reasonable opinion of the Collateral
Agent, desirable to effectively create or maintain a valid and
enforceable first priority mortgage lien on the Mortgaged Properties
in favor of the Collateral Agent (or such other trustee as may be
required or desired under local law) for the benefit of the Secured
Creditors;
(b) duly authorized, fully executed, acknowledged, and
delivered subordination, nondisturbance and attornment agreements,
assignments of leases, landlord consents, tenant estoppel
certificates, and such other documents relating to the Mortgages that
the Collateral Agent may reasonably request;
(c) ALTA Lender's extended coverage policies of mortgage
title insurance (or the equivalent in the state where the respective
Mortgaged Property is located) covering each Mortgaged Property,
together with all
-40-
48
endorsements reasonably requested by the Collateral Agent relating
thereto issued by Commonwealth Land Title Company or such other title
insurers reasonably satisfactory to the Collateral Agent (the
"Mortgage Policies") in amounts reasonably satisfactory to the
Managing Agent (but not in excess of the value of the respective
Mortgaged Property) assuring the Collateral Agent that the Mortgages
on such Mortgaged Properties are valid and enforceable first priority
mortgage liens on the respective Mortgaged Properties, free and clear
of all defects and encumbrances except Permitted Encumbrances and such
Mortgage Policies shall otherwise be in form and substance reasonably
satisfactory to the Managing Agent and the Required Banks and shall
include, as appropriate, an endorsement for future advances under this
Agreement, the Notes and for any other matter that the Collateral
Agent in its reasonable discretion may reasonably request, and such
Mortgage Policies shall not include an exception for mechanics' liens,
and shall provide for affirmative insurance and such reinsurance as
the Collateral Agent in its discretion may reasonably request; and
(d) endorsements of the authorized issuing agent for the
title insurer, which agent shall be reasonably satisfactory to the
Collateral Agent, to each Existing Mortgage Policy assuring the
Collateral Agent that the Existing Mortgages are valid and enforceable
first priority mortgage liens on the respective Existing Mortgaged
Properties, free and clear of all defects and encumbrances other than
Permitted Encumbrances.
5.12 Environmental Indemnity Agreement. On the Second
Restatement Effective Date, the Collateral Agent shall have received a duly
authorized and fully executed Environmental Indemnity Agreement substantially
in the form of Exhibit K (as amended, modified, extended, renewed, replaced,
restated or supplemented from time to time, the "Environmental Indemnity
Agreement") from the Acquired Viacom Subsidiaries.
5.13 Existing Credit Agreement; etc. On the Second
Restatement Effective Date, (i) each Existing Bank shall have surrendered to
the Managing Agent for cancellation the promissory notes issued to it pursuant
to the Existing Credit Agreement in respect of its Existing Loans, (ii) each
Continuing Bank shall have converted its Existing Term Loan and Existing
Revolving Loan as contemplated by Sections 1.01(a) and (b), respectively, (iii)
each Existing Bank which is not a Continuing Bank shall have received payment
in full of all amounts then due and owing to it under the Existing Credit
Agreement, (iv) each Continuing Bank whose Existing Loans outstanding on the
Second Restatement Effective Date exceed the aggregate principal amount of
Loans to be made available by such Continuing Bank on such date shall have
received payment in full of all amounts then due and owing to it as provided
-41-
49
in Section 13.18(c), (v) the Borrower shall have paid all interest and fees
(including commitment fees) owing under the Existing Credit Agreement through
the Second Restatement Effective Date, and (vi) the Managing Agent shall have
received evidence in form, scope and substance satisfactory to it that the
matters set forth in this Section 5.13 have been satisfied on such date.
5.14 Adverse Change, etc. On the Second Restatement Effective Date,
after giving effect to the Transaction, nothing shall have occurred since
December 31, 1996 which could reasonably be likely to have a material adverse
effect on the rights or remedies of the Banks, or on the ability of the Credit
Parties to perform their respective obligations to the Managing Agent and the
Banks or which could reasonably be likely to have a material adverse effect on
the operations, property, assets, liabilities or condition (financial or
otherwise) of Holdings and its Subsidiaries taken as a whole.
5.15 Solvency Certificate; Environmental Analyses; Insurance. On or
before the Second Restatement Effective Date, the Borrower shall have delivered
or shall cause to be delivered to the Banks (i) a solvency certificate in form
and substance satisfactory to the Agents from the Chief Financial Officer of
Holdings and the Borrower, setting forth the conclusion that, after giving
effect to the Transaction, each of Holdings and its Subsidiaries taken as a
whole, and the Borrower and its Subsidiaries, taken as a whole, is not
insolvent and will not be rendered insolvent by the indebtedness incurred in
connection therewith, and will not be left with unreasonably small capital with
which to engage in their business and will not have incurred debts beyond their
ability to pay debts as they mature, (ii) the Phase I environmental assessments
from Dames & Xxxxx, with respect to certain of the Real Property acquired
pursuant to the Transaction and (iii) evidence of insurance complying with the
requirements of Section 8.03 for the business and properties of Holdings and
its Subsidiaries, in scope, form and substance reasonably satisfactory to the
Managing Agent and the Required Banks and naming the Collateral Agent as an
additional insured and/or loss payee, and stating that such insurance shall not
be cancelled or revised without 30 days' prior written notice by the insurer to
the Collateral Agent.
5.16 Pro Forma Balance Sheet, Projections. (a) On the Second
Restatement Effective Date, the Banks shall have received the unaudited
projected pro forma consolidated balance sheets of Holdings and the Borrower
prepared on a consolidated basis based upon the projected balance sheet at the
Second Restatement Effective Date prepared on a basis consistent with the
Projections and in accordance with the financial statements delivered pursuant
to Section 7.05(a), both immediately before and immediately after giving effect
to the Transaction, the related financing thereof (including, without
limitation, the Bridge Financing) and the other transactions contemplated
hereby and thereby, which projected pro forma consolidated balance
-42-
50
sheets shall be in form and substance reasonably satisfactory to the Managing
Agent and the Required Banks.
(b) On the Second Restatement Effective Date, the Banks shall have
received the Projections described in Section 7.05(d), which Projections shall
be in form and substance reasonably satisfactory to the Managing Agent and the
Required Banks.
5.17 Acknowledgment, Consent and Amendment. (a) On the Second
Restatement Effective Date, each of the Existing Chancellor Entities shall have
duly authorized, executed and delivered an Acknowledgment, Consent and
Amendment in the form of Exhibit M hereto (as amended, modified, extended,
renewed, replaced, restated or supplemented from time to time, the
"Acknowledgment, Consent and Amendment").
(b) On the Second Restatement Effective Date, the Collateral Agent, as
Pledgee, shall have in its possession all the Pledged Securities referred to in
the Amended and Restated Holdings Pledge Agreement, the Amended and Restated
Borrower Pledge Agreement and the Amended and Restated Subsidiary Pledge
Agreement then owned by the Existing Chancellor Entities, including, without
limitation, the capital stock of the Acquired Viacom Subsidiaries, together
with executed and undated stock powers, in the case of capital stock
constituting Pledged Securities.
(c) On the Second Restatement Effective Date, (i) the Amended and
Restated Holdings Security Agreement, the Amended and Restated Borrower
Security Agreement and the Amended and Restated Subsidiary Security Agreement
shall remain in full force and effect with respect to the Existing Chancellor
Entities, (ii) no filings, recordings, registrations or other actions shall be
necessary or desirable to maintain the perfection and priority of the security
interests granted pursuant to the Amended and Restated Holdings Security
Agreement, the Amended and Restated Borrower Security Agreement and the Amended
and Restated Subsidiary Security Agreement in the Security Agreement Collateral
covered thereby, and (iii) the Banks shall have received:
(x) evidence of the completion of all recordings and filings of, or
with respect to, the Amended and Restated Holdings Security Agreement, the
Amended and Restated Borrower Security Agreement and the Amended and
Restated Subsidiary Security Agreements as may be necessary or, in the
opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created thereby; and
-43-
51
(y) evidence that all other actions necessary or, in the opinion of
the Collateral Agent, desirable to perfect and protect the security
interests purported to be created by the Amended and Restated Holdings
Security Agreement, the Amended and Restated Borrower Security Agreement
and the Amended and Restated Subsidiary Security Agreement have been
taken.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
of each Bank to make Loans and participate in Letters of Credit (including
Loans made and Letters of Credit issued on the Second Restatement Effective
Date), and the obligation of any Issuing Bank to issue any Letter of Credit
(including any Letter of Credit issued on the Second Restatement Effective
Date), is subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of the making of such Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct
in all material respects only as of such specified date).
6.02 Notice of Borrowing: Letter of Credit Request. (a) Prior to the
making of each Loan, the Managing Agent shall have received the notice required
by Section 1.03.
(b) Prior to the issuance of each Letter of Credit, the Managing Agent
and the respective Issuing Bank shall have received a Letter of Credit Request
meeting the requirements of Section 2.02.
The acceptance of the benefit of each Credit Event shall constitute a
representation and warranty by Holdings and the Borrower to the Managing Agent
and each of the Banks that all the conditions specified in Section 5 and in
this Section 6 and applicable to such Credit Event exist as of that time
(except to the extent that any of the conditions specified in Section 5 are
required to be satisfactory to or determined by any Bank, the Required Banks
and/or the Managing Agent). All of the Notes, certificates, legal opinions and
other documents and papers referred to in Section 5 and in this Section 6,
unless otherwise specified, shall be delivered to the Managing Agent at the
Notice Office for the account of each of the Banks and, except for the Notes,
in suffici-
-44-
52
ent counterparts or copies for each of the Banks and shall be in form and
substance reasonably satisfactory to the Banks.
Notwithstanding anything to the contrary contained above or in Section
13. 10, if the Second Restatement Effective Date does not occur on or prior to
June 30, 1997, then it shall not thereafter occur (unless the Required Banks
agree in writing to an extension of such date), and this Agreement shall cease
to be of any force or effect and the Existing Credit Agreement shall continue
to be effective, as the same may have been, or may thereafter be, amended,
modified or supplemented from time to time.
SECTION 7. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, each of Holdings
and the Borrower makes the following representations, warranties and
agreements, in each case after giving effect to the Transaction, all of which
shall survive the execution and delivery of this Agreement and the Notes and
the making of the Loans and the issuance of the Letters of Credit, with the
occurrence of each Credit Event on or after the Second Restatement Effective
Date being deemed to constitute a representation and warranty that the matters
specified in this Section 7 are true and correct on and as of the Second
Restatement Effective Date and in all material respects on the date of each
such Credit Event (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date).
7.01 Corporate Status. Holdings, the Borrower and each of their
respective Subsidiaries (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its property
and assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified to do business and is in good
standing in each jurisdiction where the conduct of its business requires such
qualifications except for failures to be so qualified which, individually or in
the aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of Holdings and its
Subsidiaries taken as a whole.
7.02 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and perform the terms and
provisions of each of the Documents to which it is party and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of each of such Documents. Each Credit Party has duly executed and
delivered each of the Documents to which it is party, and each of such
Documents constitutes such Credit Party's legal, valid and binding obligation
enforceable in accordance with its terms, except to the
-45-
53
extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the material properties
or assets of Holdings, the Borrower or any of their respective Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument, to which Holdings, the Borrower or any of their respective
Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any provision of the
Certificate of Incorporation or By-Laws of Holdings, or any of its
Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the Second Restatement Effective
Date), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Document or (ii) the
legality, validity, binding effect or enforceability of any such Document,
except, in the case of any failure to obtain where such failure to so obtain
would not have a material adverse effect on (x) the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or Holdings and its Subsidiaries taken as a whole or (y) the
ability of the Credit Parties to perform their obligations under the Credit
Documents or the rights and remedies of the Managing Agent and the Banks
thereunder; provided, however, that: (a) subsequent to the date of execution of
the Credit Documents, copies of certain of the Credit Documents are required to
be filed with the FCC; (b) the License Subsidiary will be required from time to
time to obtain certain authorizations of, or to make certain filings with, the
FCC that are required in connection with the ordinary course of business of the
License Subsidiary and the Borrower; (c) subsequent to the Second Restatement
Effective Date, under the Communications Act and the FCC rules, further FCC
approval will be required prior to (A) the transfer of control of the License
Subsidiary, the Borrower or Holdings or (B) the assignment of any of the FCC
Licenses or prior to the exercise of any voting rights or management authority
over the License
-46-
54
Subsidiary, the Borrower or Holdings; and (d) prior to the exercise of certain
rights or remedies under the Security Documents by the Managing Agent or the
Banks, or their respective successors and assigns, FCC consents and
notifications with respect to such exercise may be required to be timely
obtained or made.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities, Projections; etc. (a) The balance sheets, statements of
operations, statements of stockholders' equity, statements of changes in
stockholders' equity, statements of changes in group deficiency, statements of
operations and division equity, statements of assets and liabilities,
statements of operating revenues and expenses, statements of changes in net
assets, statements of changes in group investment (deficiency) and statements
of cash flows of Holdings and its Subsidiaries previously delivered to the
Managing Agent and the Banks fairly present the financial condition and
operations of the Stations at and for the periods indicated. All such financial
statements are true and correct in all material respects and have been prepared
in accordance with GAAP, consistently applied. After giving effect to the
Transaction, since December 31, 1996, there has been no material adverse change
in the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of Holdings and its
Subsidiaries taken as a whole.
(b) On and as of the Second Restatement Effective Date, after giving
effect to the Transaction and to all Indebtedness incurred, and to be incurred,
and Liens created, and to be created, by Holdings and its Subsidiaries in
connection therewith, (a) the sum of the assets, at a fair valuation, of each
of Holdings and its Subsidiaries, and the Borrower and its Subsidiaries, will
exceed their debts; (b) each of Holdings and its Subsidiaries, and the Borrower
and its Subsidiaries, has not incurred and does not intend to incur, and does
not believe that they will incur, debts beyond their ability to pay such debts
as such debts mature; and (c) each of Holdings and its Subsidiaries, and the
Borrower and its Subsidiaries, will have sufficient capital with which to
conduct their businesses. For purposes of this Section 7.05(b), "debt" means
any liability on a claim, and "claim" means (i) right to payment, whether or
not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a), there were as of the Second Restatement Effective
Date no liabilities or obligations with respect to Holdings or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
would be material to the Borrower or to
-47-
55
Holdings and its Subsidiaries taken as a whole. As of the Second Restatement
Effective Date, neither Holdings nor the Borrower knows of any basis for the
assertion against it of any liability or obligation of any nature whatsoever
that is not fully disclosed in the financial statements delivered pursuant to
Section 7.05(a) which, either individually or in the aggregate, could be
material to Holdings and its Subsidiaries or the Borrower.
(d) On and as of the Second Restatement Effective Date, the financial
projections contained in the Confidential Memorandum dated as of May, 1997 (the
"Projections") previously delivered to the Managing Agent and the Banks have
been prepared on a basis consistent with the financial statements dated
December 31, 1996 delivered pursuant to Section 7.05(a) (other than as set
forth or presented in such Projections), and there are no statements or
conclusions in any of the Projections which are based upon or include
information known to the Borrower to be misleading in any material respect or
which fail to take into account material information regarding the matters
reported therein. On the Second Restatement Effective Date, the Borrower
believed that the Projections were reasonable and attainable, but the Banks
acknowledge that actual results may vary from the Projections and such
variations may be significant.
7.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of Holdings and the Borrower, threatened (i) with
respect to any Document or (ii) that could reasonably be expected to materially
and adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or of Holdings
and its Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of Holdings or the Borrower in writing to the
Managing Agent or any Bank (including, without limitation, all information
contained in the Documents, but excluding the Projections) for purposes of or
in connection with this Agreement, the other Credit Documents or any
transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower in writing to the Managing Agent or any Bank will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary
to make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such information
was provided.
7.08 Use of Proceeds, Margin Regulations. (a) The proceeds of the
Loans made on the Second Restatement Effective Date shall be used by the
Borrower (i) to repay all Existing Loans and terminate all Commitments under
the Existing Credit Agreement, (ii) to finance the Tender Offer, (iii) to
finance the Viacom Acquisition and (iv) to pay fees and expenses related to the
Transaction.
-48-
56
(b) The proceeds of Revolving Loans made after the Second Restatement
Effective Date shall be used by the Borrower (i) to finance, in part, the
Transaction, (ii) to pay fees and expenses related to the Transaction, (iii) to
make acquisitions permitted under Section 9.02(xiii) and (iv) to finance the
working capital and general corporate needs of the Borrower and its
Subsidiaries.
(c) Notwithstanding anything to the contrary contained in clauses (a)
or (b) above, the aggregate amount of proceeds of Revolving Loans which are
used by the Borrower to finance the Transaction and pay fees and expenses
relating thereto shall not exceed $250,000,000.
(d) No part of the proceeds of any Loan will be used to purchase or
carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock. Neither the making of any Loan nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
7.09 Tax Returns and Payments. Each of Holdings, the Borrower and each
of their Subsidiaries have timely filed or caused to be timely filed, on the
due dates thereof or within applicable grace periods, with the appropriate
taxing -authority, all Federal and all material state returns, statements,
forms and reports for taxes (the "Returns") required to be filed by or with
respect to the income, properties or operations of Holdings and/or any of its
Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of Holdings, the Borrower and their respective
Subsidiaries, as the case may be, for the periods covered thereby. Each of
Holdings, the Borrower and their respective Subsidiaries have paid all material
taxes payable by them other than taxes which are not delinquent, and other than
those contested in good faith and for which adequate reserves have been
established in accordance with GAAP. Except as disclosed in the financial
statements referred to in Section 7.05(a), there is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the best
knowledge of Holdings or the Borrower, threatened by any authority regarding
any taxes relating to Holdings, the Borrower or any of their respective
Subsidiaries. As of the Second Restatement Effective Date, none of Holdings,
the Borrower nor any of their respective Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of Holdings, the Borrower or any of their respective Subsidiaries, or is
aware of any circumstances that would cause the taxable years or other taxable
periods of Holdings, the Borrower or any of their respective Subsidiaries not
to be subject to the normally applicable statute of limitations. None of
Holdings, the Borrower nor any of their respective Subsidiaries has incurred,
or will incur, any material tax liability in connection with the Transaction
and the other transactions contemplated hereby.
-49-
57
7.10 Compliance with ERISA. Each Plan is in substantial compliance
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; all contributions required to be made with respect to a Plan have been
timely made; none of Holdings, the Borrower nor any of their respective
Subsidiaries nor any ERISA Affiliate has incurred any material liability to or
on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or
4980 of the Code or reasonably expects to incur any material liability under
any of the foregoing Sections with respect to any Plan; no proceedings have
been instituted to terminate or appoint a trustee to administer any Plan; no
condition exists which presents a material risk to Holdings, the Borrower or
any of their respective Subsidiaries or any ERISA Affiliate of incurring a
material liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; using actuarial assumptions and computation
methods consistent with Part I of subtitle E of Title IV of ERISA, the
aggregate liabilities of Holdings, the Borrower, their respective Subsidiaries
and their ERISA Affiliates to all Plans which are multiemployer plans (as
defined in Section 4001(a)(3) of ERISA) in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such Plan
ended prior to the date of the most recent Credit Event, would not exceed
$50,000; no lien imposed under the Code or ERISA on the assets of Holdings, the
Borrower or any of their respective Subsidiaries or any ERISA Affiliate exists
or is reasonably likely to arise on account of any Plan; and Holdings, the
Borrower and their respective Subsidiaries do not maintain or contribute to any
employee welfare benefit plan (as defined in Section 3(l) of ERISA) which
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA) the obligations with respect to which could
reasonably be expected to have a material adverse effect on the ability of
Holdings, the Borrower or any of its Subsidiaries to perform their respective
obligations under the Credit Documents to which they are a party.
7.11 The Security Documents. (a) The provisions of the Security
Agreements are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Security Agreements, upon the
filing of Form UCC-1 financing statements or the appropriate equivalent (which
filing, if this representation is being made more than 10 days after the Second
Restatement Effective Date, has been made), create a fully perfected first lien
on, and security interest in, all right, title and interest in all of the
Security Agreement Collateral described therein, subject to no other Liens
other than
-50-
58
Permitted Liens. Each of the Credit Parties party to an Security Agreement has
good and indefeasible title to all Security Agreement Collateral described
therein, free and clear of all Liens except those described above in this
clause (a).
(b) The security interests created in favor of the Collateral Agent,
as Pledgee, for the benefit of the Secured Creditors under the Pledge
Agreements constitute first priority perfected security interests in the
Pledged Securities described in the Pledge Agreements, subject to no security
interests of any other Person. No filings or recordings are required in order
to perfect (or maintain the perfection or priority of) the security interests
created in the Pledged Securities and the proceeds thereof under the Pledge
Agreements.
(c) The Mortgages create, as security for the obligations purported to
be secured thereby, a valid and enforceable perfected security interest in and
mortgage lien on all of the Mortgaged Properties in favor of the Collateral
Agent (or such other trustee as may be required or desired under local law) for
the benefit of the Secured Creditors, superior to and prior to the rights of
all third persons (except that the security interest and mortgage lien created
in the Mortgaged Properties may be subject to Permitted Encumbrances) and
subject to no other Liens (other than Liens permitted under Section 9.01).
Parts A and B of Schedule III contain a true and complete list of each parcel
of Real Property owned or leased by Holdings, the Borrower and their respective
Subsidiaries on the Second Restatement Effective Date, and the type of interest
therein held by Holdings, the Borrower or such Subsidiary. Holdings, the
Borrower and each of their respective Subsidiaries have good and indefeasible
title to all Mortgaged Properties free and clear of all Liens except those
described in the first sentence of this subsection (c).
7.12 Representations and Warranties in Documents. All representations
and warranties set forth in the other Documents were true and correct in all
material respects at the time as of which such representations and warranties
were made (or deemed made). Notwithstanding anything to the contrary contained
in the immediately preceding sentence, it shall not be a misrepresentation
pursuant to this Section 7.12 if a representation or warranty made by a Person
other than a Credit Party pursuant to a Document (other than a Credit Document)
is not true and correct in all material respects, but only if (A)(i) the
damages to Holdings and its Subsidiaries as a result of the incorrectness of
such representation or warranty are fully covered to the extent in excess of
$2,500,000 by (x) the escrow of cash or Cash Equivalents pursuant to an escrow
arrangement established for the benefit of Holdings and its Subsidiaries or (y)
a guaranty or indemnity issued by a solvent guarantor or indemnitor (with such
solvency to be determined after giving effect to the required guaranty or
indemnity in respect of the incorrectness of such representations and
warranties) and (ii) Holdings or the Borrower, as the case may be, is
proceeding in good faith to collect the amounts
-51-
59
owing pursuant to the respective escrow arrangement, guaranty or indemnity as a
result of the incorrectness of the respective representation or warranty (which
action shall be required to include, at such time, if any, as the respective
escrow monies are not made available in accordance with the terms of the
respective escrow arrangement or the respective guarantor or indemnitor has
resisted requests for payment, contesting in good faith and by appropriate
proceedings the amounts owing to Holdings and its Subsidiaries) or (B)(i) the
period of time expressly provided in such Document for the survival of such
representation or warranty has expired, (ii) such representation or warranty is
made by a Person other than a Credit Party and (iii) the damages resulting from
the incorrectness of such representation or warranty could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financed or otherwise) or prospects
of the Borrower or Holdings and its Subsidiaries taken as a whole.
7.13 Properties. Holdings, the Borrower and each of their respective
Subsidiaries have good and indefeasible title to all properties (or a valid
leasehold estate with respect to leased properties) owned by them after giving
effect to the Transaction in accordance with the Documents, including all
property reflected in the balance sheet of the Borrower referred to in Section
7.05(a) and in the pro forma balance sheet referred to in Section 5.16, free
and clear of all Liens, other than (i) as referred to in the balance sheet or
in the notes thereto or in the pro forma balance sheet or (ii) Permitted Liens.
7.14 Capitalization. (a) On or about the Second Restatement Effective
Date and after giving effect to the Transaction and the other transactions
contemplated hereby, the authorized capital stock of Holdings shall consist of
approximately (i) 40,000,000 shares of Class A Common Stock, $.01 par value per
share ("Holdings Class A Common Stock"), of which 9,937,320 shares shall be
issued and outstanding, (ii) 10,000,000 shares of Class B Common Stock
("Holdings Class B Common Stock"), $.01 par value per share, 8,547,910 shares
of which shall be issued and outstanding, (iii) 10,000,000 shares of Class C
Common Stock, $.01 par value per share ("Holdings Class C Common Stock"), none
of which are outstanding and (iv) 10,000,000 shares of preferred stock, $.01
par value per share, 2,300,000 shares of which shall be designated 7%
Convertible Preferred Stock, of which 2,000,000 shares shall be issued and
outstanding. All such outstanding shares have been duly and validly issued, are
fully paid and non-assessable and have been issued free of preemptive rights.
As of the Second Restatement Effective Date, Holdings does not have outstanding
any securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock, in each case other than (x) the options outstanding or
to be issued pursuant to the Dinetz Employment Contract, the
-52-
60
Employee Stock Option Plan or the agreements granting certain options to
purchase Holdings Class A Common Stock to Xx. Xxxxxxx Xxxxx-Xxxx, Xx. Xxxxxx
Xxxxxx, Xx. Xxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxxx and Xx. Xxxx X. Xxxxxx and
(y) the Convertible Preferred Stock.
(b) On the Second Restatement Effective Date and after giving effect
to the Transaction and the other transactions contemplated hereby, the
authorized capital stock of the Borrower shall consist of (x) 1,000 shares of
common stock, $.01 par value per share, all of which shall be issued and
outstanding, and (y) 10,000,000 shares of preferred stock, $.01 par value per
share, (i) 1,000,000 shares of which are designated Series A Exchangeable
Preferred Stock, all of which shall be issued and outstanding and (ii)
3,600,000 shares of which are designated 12% Exchangeable Preferred Stock, of
which 2,000,000 shares shall be issued and outstanding. All such outstanding
shares have been duly and validly issued, are fully paid and nonassessable, are
free of preemptive rights and, in the case of all such outstanding shares of
common stock, have been pledged pursuant to the Holdings Pledge Agreement. As
of the Second Restatement Effective Date, the Borrower does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent
or otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock, other than the Series A Exchangeable Preferred Stock and
the Exchangeable Preferred Stock.
7.15 Subsidiaries. As of the Second Restatement Effective Date and
after giving effect to the Transaction, Holdings will have no direct or
indirect Subsidiaries other than the Borrower, Chancellor Broadcasting
Licensee, Trefoil, Shamrock, Shamrock Radio, Shamrock Broadcasting Licenses,
Shamrock Broadcasting of Texas, Inc., a Texas corporation, Radio 100 L.L.C., a
Delaware limited liability company, KIBB, KYSR, WLIT and WDRQ.
7.16 Compliance with Statutes, etc. Except for matters relating to the
compliance by Holdings and its Subsidiaries with Environmental Laws, which
matters are governed by the Amended and Restated Environmental Indemnity
Agreement and the Environmental Indemnity Agreement, each of Holdings and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except such noncompliances as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or of Holdings
and its Subsidiaries taken as a whole.
-53-
61
7.17 Investment Company Act. None of Holdings, the Borrower nor any of
their respective Subsidiaries is an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
7.18 Public Utility Holding Company Act. None of Holdings, the
Borrower nor any of their respective Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
7.19 Labor Relations. None of Holdings, the Borrower nor any of their
respective Subsidiaries is engaged in any unfair labor practice that could
reasonably be expected to have a material adverse effect on the Borrower or on
Holdings and its Subsidiaries taken as a whole. There is (i) no unfair labor
practice complaint pending against Holdings or any of its Subsidiaries or, to
the best knowledge of Holdings or the Borrower, threatened against any of them,
before the National Labor Relations Board, and no significant grievance or
significant arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against Holdings or any of its Subsidiaries
or, to the best knowledge of Holdings or the Borrower, threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
Holdings or any of its Subsidiaries or, to the best knowledge of Holdings and
the Borrower, threatened against Holdings or any of its Subsidiaries and (iii)
to the best knowledge of Holdings and the Borrower, no union representation
question existing with respect to the employees of Holdings or any of its
Subsidiaries, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise)
or prospects of Borrower or of Holdings and its Subsidiaries taken as a whole.
7.20 Patents, Licenses, Franchises and Formulas. Each of Holdings and
its Subsidiaries owns all material patents, trademarks, permits, service marks,
trade names, copyrights, licenses, franchises and formulas, or rights with
respect to the foregoing, and has obtained assignments of all leases and other
rights of whatever nature, necessary for the present conduct of its business,
without any known conflict with the rights of others, except such failures to
own or obtain and/or conflicts as could not reasonably be likely to result in a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Holdings and its Subsidiaries taken as a whole.
-54-
62
7.21 Transaction; Bridge Financing. The Transaction and the Bridge
Financing have been consummated in all material respects in accordance with the
terms of the respective Documents and all applicable laws. All consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities
(including the consent from the FCC approving the transfer of the FCC Licenses
contemplated by the Documents which consent shall have become final) required
in order to make or consummate the Transaction or the Bridge Financing will
have been obtained, given, filed or taken and are or will be in full force and
effect (or effective judicial relief with respect thereto has been obtained),
except where the failure to so obtain, give, file or take would not have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Holdings and its Subsidiaries taken as whole. All applicable waiting periods
with respect thereto have or, prior to the time when required, will have,
expired without, in all such cases, any action being taken by any competent
authority which restrains, prevents, or imposes material adverse conditions
upon the Transaction or the Bridge Financing. Additionally, there does not
exist any judgment, order or injunction prohibiting or imposing material
adverse conditions upon the Transaction, the Bridge Financing, or any Credit
Event or the performance by any Credit Party of its obligations under the
respective Documents. All actions taken by each Credit Party pursuant to or in
furtherance of the Transaction or the Bridge Financing have been taken in
compliance with the respective Documents and all applicable laws.
7.22 Special Purpose Corporations. Holdings was formed for the purpose
of holding all of the capital stock of the Borrower and is authorized to effect
the Transaction and the Bridge Financing and, except in connection with the
foregoing (or as may be permitted by this Agreement), Holdings engages in no
business activities and has no significant assets (other than the stock of the
Borrower) or liabilities (other than liabilities which are expressly permitted
under this Agreement). Chancellor Broadcasting Licensee was formed for the
purpose of holding all rights, title and interests in certain of the FCC
Licenses to be used by the Borrower and its Subsidiaries in connection with
their respective businesses and otherwise engages in no business activities and
has no significant assets or liabilities.
7.23 FCC Licenses. After giving effect to the Transaction, the License
Subsidiary holds such validly issued FCC licenses and authorizations as are
necessary to operate the Stations as they are currently operated (collectively,
the "FCC Licenses"), each of which is in full force and effect. The FCC
Licenses as of the Second Restatement Effective Date are listed on Schedule IV
(with the Viacom FCC Licenses being designated as such on Schedule IV), each of
which FCC Licenses has the expiration date indicated on Schedule IV. Neither
Holdings nor the Borrower has knowledge of any material adverse condition
imposed by the FCC as part of any FCC
-55-
63
License which is neither set forth on the face thereof as issued by the FCC nor
contained in the rules and regulations of the FCC applicable generally to
stations of the type, nature, class or location of each Station. Except as set
forth on Annex 5.07, each Station is being operated in all material respects in
accordance with the terms and conditions of the FCC Licenses applicable to it
and in accordance with the rules and regulations of the FCC and the
Communications Act of 1934, as amended (the "Communications Act"). Except as
set forth on Annex 5.07, no proceedings are pending or, to the knowledge of
Holdings or the Borrower, are threatened which may reasonably be expected to
result in the revocation, modification, non-renewal or suspension of any of the
FCC Licenses, the denial of any pending applications, the issuance of any cease
and desist order or the imposition of any material fines, forfeitures or other
administrative actions by the FCC with respect to the Stations or their
operation, other than proceedings affecting the radio broadcasting industry in
general. Except as set forth on Annex 5.07, reports, applications and other
documents required to be filed by any Credit Party with the FCC with respect to
the Stations have in all material respects been timely filed and all such
reports, applications and documents are true, correct and complete in all
material respects, and neither Holdings nor the Borrower has knowledge of any
matters (i) which could reasonably be expected to result in the suspension or
revocation of or the refusal to renew any of the FCC Licenses or the imposition
of any material fines or forfeitures by the FCC upon any Credit Party or (ii)
which could reasonably be expected to result in the modification or revocation
of any FM Station's authorization to operate as currently authorized, or any AM
Station's authorization to operate as currently authorized, as applicable,
under the rules and regulations of the FCC. There are no unsatisfied or
otherwise outstanding notices of apparent liability or violations issued by the
FCC with respect to any Station or its operations. The Borrower has delivered
to the Banks true and complete copies of the FCC Licenses (including any and
all amendments and other modifications thereto).
7.24 Subordinated Notes. As of the Second Restatement Effective Date,
the subordination provisions contained in the Existing Senior Subordinated
Notes (if any), the 12-1/4% Junior Exchange Debentures and the 12% Junior
Exchange Debentures are enforceable by the Banks against the Borrower and any
holders thereof, and all Obligations of the Borrower hereunder or under the
other Credit Documents are or will be within the definition of "Senior Debt"
included in such provisions of the Existing Senior Subordinated Note Documents
or the documents relating to the 12-1/4% Junior Exchange Debentures or 12%
Junior Exchange Debentures.
SECTION 8. Affirmative Covenants. Holdings and the Borrower hereby
covenant and agree that on and after the Second Restatement Effective Date and
until the Total Commitments and all Letters of Credit have terminated and the
Loans,
-56-
64
Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. Holdings and/or the Borrower will furnish
to each Bank:
(a) Monthly Reports. Within 30 days after the end of each fiscal month
(other than the fiscal months ending March, June, September and December)
of Holdings, (i) the combined and combining balance sheets of Holdings and
its Consolidated Subsidiaries for each fiscal month, each as of the end of
such month and the related combined and combining statements of income and
statements of cash flows for such month and for the last elapsed portion
of the fiscal year ended with the last day of such month, in each case
setting forth in the statements of income only, the comparative figures
for the corresponding month in the prior fiscal year and the budgeted
figures for such month as set forth in the respective budgets delivered
pursuant to Section 8.01(e) and (ii) the balance sheets of each of the
Stations on an individual basis as of the end of such month and the
related statements of income and statements of cash flows for such month
and for the elapsed portion of the fiscal year ended with the last day of
such month, in each case setting forth in the statements of income only,
the comparative figures for the corresponding month in the prior fiscal
year and the budgeted figures for such month as set forth in the
respective budgets delivered pursuant to Section 8.01(e).
(b) Quarterly Financial Statements. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of Holdings, (i) the combined and
combining balance sheets of Holdings and its Consolidated Subsidiaries for
each fiscal quarter, each as of the end of such quarter and the related
combined and combining statements of income and statements of cash flows
for such quarter and for the last elapsed portion of the fiscal year ended
with the last day of such quarter and setting forth in the statements of
income only, the comparative figures for the corresponding quarter in the
prior fiscal year and the budgeted figures for such quarter as set forth
in the respective budgets delivered pursuant to Section 8.01(e), and (ii)
the balance sheets of each of the Stations as of the end of such quarter
and the related statements of income and statements of cash flows for such
quarter and for the elapsed portion of the fiscal year ended with the last
day of such quarter, in each case setting forth in the statements of
income only, the comparative figures for the corresponding quarter in the
prior fiscal year and the budgeted figures for such quarter as set forth
in the respective budgets delivered pursuant to Section 8.01(e).
-57-
65
(c) Annual Financial Statements. Within 95 days after the close of
each fiscal year of Holdings, (i) the consolidated and consolidating
balance sheets of Holdings and its Consolidated Subsidiaries for each
fiscal year, each as at the end of such fiscal year and the related
statements of income and retained earnings and of cash flows for such
fiscal year and, setting forth comparative figures for the preceding
fiscal year and certified, in the case of such consolidated statements, by
Coopers & Xxxxxxx L.L.P. or such other independent certified public
accountants of recognized national standing reasonably acceptable to the
Managing Agent, together with a report of such accounting firm (which
report shall be unqualified as to scope) stating that in the course of its
regular audit of the financial statements of Holdings and its
Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge of
any Default or Event of Default under Sections 9.03, 9.04, 9.05 and 9.07
through 9.10, inclusive, which has occurred and is continuing or, if in
the opinion of such accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof, (ii) the
balance sheets of each of the Stations at the end of such fiscal year and
the related statement of income and retained earnings and statement of
cash flows for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year for income statements only, and
(iii) management's discussions and analysis of the important operational
and financial developments during such fiscal year in respect of Holdings
and its Subsidiaries.
(d) Management Letters. Promptly after the receipt thereof by Holdings
or any of its Subsidiaries, a copy of any final "management letter"
received by Holdings or such Subsidiary from its certified public
accountants and a copy of management's responses thereto.
(e) Budgets. No later than 30 days following the commencement of the
first day of each fiscal year of Holdings, a budget in form satisfactory
to the Managing Agent prepared by Holdings for (x) in the case of budgeted
statements of income, each of the twelve months of such fiscal year
prepared in detail, and (y) in the case of budgeted statements of sources
and uses of cash and balance sheets, for such fiscal year on an annual
basis and prepared in detail and for each of the four years immediately
following such fiscal year prepared in summary form, in each case, of each
of Holdings and its Subsidiaries and each of the Stations on an individual
basis accompanied by the statement of the President, Chief Financial
Officer or Senior Vice President of Finance of the Borrower to the effect
that, to the best of his knowledge, the budget is a reasonable estimate
for the period covered thereby.
-58-
66
(f) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of an Authorized Officer of the Borrower to the effect that,
to the best of such officer's knowledge, no Default or Event of Default
has occurred and is continuing or, if any Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof,
which certificate shall, in the case of any such financial statements
delivered in respect of a period ending on the last day of a fiscal
quarter or year of Holdings, (x) set forth the calculations required to
establish whether the Borrower was in compliance with the provisions of
Sections 9.03, 9.04, 9.05, and 9.07 through 9.10, inclusive, at the end
of such fiscal quarter or year, as the case may be and (y) if delivered
with the financial statements required by Section 8.01(c), set forth the
calculations required to establish whether the Borrower was in compliance
with the provisions of Section 4.02(f) and set forth the amount of Excess
Cash Flow (if any) for the respective Excess Cash Payment Period.
(g) Notice of Default or Litigation. Promptly, and in any event within
three Business Days after an officer of Holdings or the Borrower obtains
knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or Event of Default and (ii) any litigation or
governmental investigation or proceeding pending (x) against Holdings or
any of its Subsidiaries which could reasonably be expected to materially
and adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower or Holdings and its Subsidiaries taken as a whole, (y) with
respect to any material Indebtedness of the Borrower and its Subsidiaries
taken as a whole or (z) with respect to any other Document which could
reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of Holdings and its
Subsidiaries taken as a whole.
(h) Other Reports and Filings. Promptly, copies of all (x) financial
information, proxy materials and other information and reports, if any,
which Holdings or any of its Subsidiaries shall file with the Securities
and Exchange Commission or any successor thereto (the "SEC") including,
without limitation, in connection with the issuance of the Existing Senior
Subordinated Notes or, if issued, the 12-1/4% Junior Exchange Debentures,
the 12% Junior Exchange Debentures or any securities issued pursuant to
the OmniAmerica Equity Issuance, or deliver to holders of its Indebtedness
pursuant to the terms of the documentation governing such Indebtedness (or
any trustee, agent or other representative therefor) and (y) material
filings or communications with the FCC or under, or as required by, the
Communications Act.
-59-
67
(i) Annual Meetings with Banks. At the request of the Managing Agent
or the Required Banks, Holdings shall within 120 days after the close of
each fiscal year of Holdings hold a meeting at a time and place selected
by Holdings and acceptable to the Managing Agent with all of the Banks at
which meeting shall be reviewed the financial results of the previous
fiscal year and the financial condition of Holdings and the budgets
presented for the current fiscal year of Holdings and its Subsidiaries.
(j) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to Holdings or its
Subsidiaries as any Bank may reasonably request in writing.
8.02 Books, Records and Inspections. Holdings will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries in conformity with GAAP and all requirements of
law shall be made of all dealings and transactions in relation to its business
and activities. Holdings will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of the Managing Agent or any
Bank to visit and inspect, during regular business hours and under guidance of
officers of Holdings, the Borrower or such Subsidiary, any of the properties of
Holdings, the Borrower or such Subsidiary, and to examine the books of account
of Holdings, the Borrower or such Subsidiary and discuss the affairs, finances
and accounts of Holdings, the Borrower or such Subsidiary with, and be advised
as to the same by, its and their officers and independent accountants, all at
such reasonable times and intervals and to such reasonable extent as the
Managing Agent or such Bank may request.
8.03 Maintenance of Property; Insurance. (a) Schedule V sets forth a
true and complete listing of all insurance maintained by Holdings, and its
Subsidiaries as of the Second Restatement Effective Date. Holdings will, and
will cause each of its Subsidiaries to, (i) keep all property necessary in its
business in good working order and condition (ordinary wear and tear excepted),
(ii) maintain insurance on all its property in at least such amounts and
against at least such risks as is consistent and in accordance with industry
practice and (iii) furnish to each Bank, upon written request, full information
as to the insurance carried. In addition to the requirements of the immediately
preceding sentence, Holdings and the Borrower will at all times cause insurance
of the types described in Schedule V to be maintained (with the same scope of
coverage as that described in Schedule V) at levels which are at least as great
as the respective amount described opposite the respective type of insurance on
Schedule V under the column headed "Minimum to be Maintained. "
(b) Holdings will, and will cause its Subsidiaries to, at all times
keep their respective property insured in favor of the Collateral Agent, and
all policies or
-60-
68
certificates (or certified copies thereof) with respect to such insurance (and
any other insurance maintained by Holdings or any of its Subsidiaries) (i)
shall be endorsed to the Collateral Agent's satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral Agent
as loss payee or as an additional insured), (ii) shall state that such
insurance policies shall not be cancelled without 30 days' prior written notice
thereof by the respective insurer to the Collateral Agent, (iii) shall provide
that the respective insurers irrevocably waive any and all rights of
subrogation with respect to the Collateral Agent and the Secured Creditors,
(iv) shall contain the standard non-contributory mortgagee clause endorsement
in favor of the Collateral Agent with respect to hazard insurance coverage, (v)
shall, except in the case of public liability insurance and workers'
compensation insurance, provide that any losses shall be payable
notwithstanding (A) any act or neglect of Holdings or any of its Subsidiaries,
(B) the occupation or use of the properties for purposes more hazardous than
those permitted by the terms of the respective policy if such coverage is
obtainable at commercially reasonable rates and is of the kind from time to
time customarily insured against by Persons owning or using similar property
and in such amounts as are customary, (C) any foreclosure or other proceeding
relating to the insured properties if such coverage is available at
commercially reasonable rates or (D) any change in the title to or ownership or
possession of the insured properties if such coverage is available at
commercially reasonable rates and (vi) shall be deposited with the Collateral
Agent.
(c) If Holdings or any of its Subsidiaries shall fail to maintain all
insurance in accordance with this Section 8.03, or if Holdings or any of its
Subsidiaries shall fail to so endorse and deposit all policies or certificates
with respect thereto, the Managing Agent and/or the Collateral Agent shall have
the right (but shall be under no obligation) to procure such insurance and the
Borrower agrees to reimburse the Managing Agent or the Collateral Agent as the
case may be, for all costs and expenses of procuring such insurance.
8.04 Corporate Franchises. Holdings will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights,
franchises, licenses and patents (including the rights of the Borrower and the
License Subsidiary under the Asset Use and Operating Agreement dated January
10, 1994 and the two separate Asset Use and Operating Agreements dated October
12, 1994, respectively) (each an "Operating Agreement," and, collectively, the
"Operating Agreements"); provided that nothing in this Section 8.04 shall
prevent (i) sales of assets by Holdings or any of its Subsidiaries in
accordance with Section 9.02 or (ii) the withdrawal by Holdings or any of its
Subsidiaries of their qualification as a foreign corporation in any
jurisdiction where such withdrawal could not reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of the Borrower or of
Holdings and its Subsidiaries taken as a whole.
-61-
69
8.05 Compliance with Statutes, etc. Except for matters relating to
compliance by Holdings and its Subsidiaries with Environmental Laws, which
matters are governed by the Amended and Restated Environmental Indemnity
Agreement and the Environmental Indemnity Agreement, Holdings will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliances as could
not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
of Holdings and its Subsidiaries taken as a whole.
8.06 ERISA. As soon as possible and, in any event, within 20 days
after Holdings, the Borrower or any of their respective Subsidiaries or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following, Holdings or the Borrower will deliver to each of the Banks a
certificate of an Authorized Officer of Holdings or the Borrower setting forth
details as to such occurrence and the action, if any, that Holdings, the
Borrower, such Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given to or filed
with or by Holdings, the Borrower, such Subsidiary, the ERISA Affiliate, the
PBGC, or a Plan participant or the Plan administrator with respect thereto:
that a Reportable Event has occurred; that an accumulated funding deficiency
has been incurred or an application is likely to be or has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that
a contribution required to be made to a Plan has not been timely made; that a
Plan has been or is reasonably expected to be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability giving rise to a lien under ERISA or the Code; that
proceedings are likely to be or have been instituted or notice has been given
to terminate or appoint a trustee to administer a Plan, that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that Holdings, the Borrower, any of their respective
Subsidiaries or any ERISA Affiliate will or is reasonably expected to incur any
liability (including any contingent or secondary liability) to or on account of
the termination of or withdrawal from a Plan under Section 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section
401(a)(29), 4971 or 4975 of the Code or Section 409 or 502(i) or 502(l) of
ERISA; or that Holdings, the Borrower or any Subsidiary may incur any material
liability pursuant to any employee welfare benefit plan (as defined in Section
3(l) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any employee
pension benefit plan (as defined in Section 3(2) of ERISA). Upon request the
-62-
70
Borrower will deliver to each of the Banks a complete copy of the annual report
(Form 5500) of each Plan required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Banks
pursuant to the first sentence hereof, copies of annual reports and any
material notices received by Holdings, the Borrower or any of their respective
Subsidiaries or any ERISA Affiliate with respect to any Plan shall be delivered
to the Banks no later than 20 days after the date such report has been filed
with the Internal Revenue Service or such notice has been received by Holdings,
the Borrower, the Subsidiary or the ERISA Affiliate, as applicable.
8.07 End of Fiscal Years; Fiscal Quarters. Holdings shall cause (i)
each of its, and each of its Subsidiaries', fiscal years to end on December 31,
and (ii) each of its, and each of its Subsidiaries', fiscal quarters to end on
March 31, June 30 and September 30.
8.08 Performance of Obligations. Holdings will, and will cause each of
its Subsidiaries to, perform all of their obligations under the terms of each
mortgage, indenture, security agreement and other debt instrument by which it
is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of Holdings and its Subsidiaries
taken as a whole.
8.09 Payment of Taxes. Holdings will pay and discharge or cause to be
paid and discharged, and will cause each of its Subsidiaries to pay and
discharge, all material taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any material properties
belonging to it, in each case on a timely basis, and all lawful claims which,
if unpaid, might become a lien or charge upon any properties of Holdings or any
of its Subsidiaries; provided that none of Holdings nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
8.10 Maintenance of Separateness. Holdings will, and will cause each
of its Subsidiaries to, satisfy customary corporate formalities including the
holding of regular board of directors' and shareholders' meetings and the
maintenance of corporate offices and records. None of the Borrower nor any of
its Subsidiaries shall make any payment to a creditor of Holdings in respect of
any liability of Holdings which is not a liability of the Borrower or such
Subsidiary, and no bank account of Holdings shall be commingled with any bank
account of the Borrower or any of its Subsidiaries. Any financial statements
distributed to any creditors of Holdings shall, to the extent permitted by
GAAP, clearly establish the corporate separateness of Holdings from the
Borrower and its Subsidiaries. Finally, neither Holdings nor any of its
Subsidiaries shall
-63-
71
take any action, or conduct its affairs in a manner, which is likely to result
in the corporate existence of Holdings being ignored, or in the assets and
liabilities of the Borrower or any of its Subsidiaries being substantively
consolidated with those of Holdings in a bankruptcy, reorganization or other
insolvency proceeding.
8.11 Dividends on Series A Exchangeable Preferred Stock and
Exchangeable Preferred Stock, Interest on Bridge Financing . The Borrower will
pay all dividends on (x) the Series A Exchangeable Preferred Stock through the
accretion of the liquidation preference on the Series A Exchangeable Preferred
Stock rather than in cash, except as otherwise permitted to be paid in cash
pursuant to Section 9.03(x), and (y) the Exchangeable Preferred Stock
(including at any time on or after January 15, 2002) solely through the
issuance of additional shares of Exchangeable Preferred Stock rather than in
cash, except as permitted to be paid in cash pursuant to Section 9.03(x).
8.12 Additional Security, Further Assurances. (a) Holdings and the
Borrower will, and will cause each of their respective Subsidiaries to, grant
to the Collateral Agent security interests in Reinvestment Assets at the time
of the acquisition thereof as described in this clause (a). To the extent
Reinvestment Assets are acquired by the Borrower and/or its Subsidiaries, the
Borrower or such Subsidiary shall xxxxx x Xxxx on and a security interest in
such Reinvestment Assets on the same terms as set forth in the Security
Documents and as otherwise set forth in this Section 8.12. To the extent
Reinvestment Assets are acquired by a merger or the acquisition of capital
stock, the Borrower shall cause the Person acquiring such Reinvestment Assets
to become a Subsidiary of the Borrower and/or its Subsidiaries, and shall
pledge or cause to be pledged all capital stock of any such Person so acquired
pursuant to the Amended and Restated Borrower Pledge Agreement or the Amended
and Restated Subsidiary Pledge Agreement and cause such Person to enter into an
additional guaranty substantially similar to the Subsidiary Guaranty and
additional security documents substantially similar to the Security Documents,
all as otherwise as set forth in this Section 8.12; provided that, absent a
change in the relevant sections of the Code or the rules, regulations, rulings,
notices or other official pronouncements issued or promulgated thereunder, the
Borrower and its Subsidiaries shall be required to only pledge 65% of the
voting capital stock of a foreign Subsidiary and no foreign Subsidiary shall be
required to enter into such guaranty or Security Documents; provided further,
the Borrower and its Subsidiaries shall not be required to grant a security
interest in any Reinvestment Assets that are acquired subject to a Lien
permitted by Section 9.01(vii), (viii) or (xx).
(b) Holdings will, and will cause each of its Subsidiaries to, grant
to the Collateral Agent security interests and mortgages (an "Additional
Mortgage") in such Real Property of Holdings or any of its Subsidiaries as are
not covered by the Existing Mortgages or Mortgages to the extent acquired after
the Second Restatement Effective Date, and as may reasonably be requested from
time to time by the Managing Agent
-64-
72
or the Required Banks (each such Real Property, an "Additional Mortgaged
Property"). All such Additional Mortgages shall be granted pursuant to
documentation substantially in the form of the Mortgages or in such other form
as is reasonably satisfactory to the Managing Agent and shall constitute valid
and enforceable perfected Liens superior to and prior to the rights of all
third Persons and subject to no other Liens except as are permitted by Section
9.01 at the time of perfection thereof. The Additional Mortgages or instruments
related thereto shall have been duly recorded or filed in such manner and in
such places as are required by law to establish, perfect, preserve and protect
the Liens in favor of the Collateral Agent required to be granted pursuant to
the Additional Mortgages and all taxes, fees and other charges payable in
connection therewith shall have been paid in full. Notwithstanding anything to
the contrary stated above in this clause (b), Holdings and its Subsidiaries
shall be required to only grant Additional Mortgages in fee owned Real Property
with a fair market value at the time of acquisition thereof in excess of
$500,000.
(c) Holdings will, and will cause each of its Subsidiaries to, grant
to the Collateral Agent security interests in assets acquired pursuant to
Sections 9.02(ix), (xiii) and (xv) at the time of the acquisition thereof as
described in this clause (c). To the extent assets are acquired by the Borrower
or any of its Subsidiaries pursuant to such Sections, the Borrower or such
Subsidiary shall xxxxx x Xxxx on and a security interest in such assets on the
same terms as set forth in the Security Documents and as otherwise set forth in
this Section 8.12. In connection with the acquisition of the capital stock of a
Person pursuant to such Sections, the Borrower shall cause such Person to
become a direct or indirect Subsidiary of the Borrower, and shall pledge or
cause to be pledged all capital stock of any such Person so acquired pursuant
to the Amended and Restated Borrower Pledge Agreement, the Amended and Restated
Subsidiary Pledge Agreement or the Subsidiary Pledge Agreement, as applicable,
and cause such Person to enter into an additional guaranty substantially
similar to the Subsidiary Guaranty and additional security documents
substantially similar to the Security Documents, all as otherwise set forth in
this Section 8.12; provided that, absent a change in the relevant sections of
the Code or the rules, regulations, rulings, notices or other official
pronouncements issued or promulgated thereunder, the Borrower and its
Subsidiaries shall be required to only pledge 65% of the voting capital stock
of a foreign Subsidiary and no foreign Subsidiary shall be required to enter
into such guaranty or Security Documents; provided further, that the Borrower
and its Subsidiaries shall not be required to grant a security interest in such
assets that are acquired subject to a Lien permitted by Section 9.01(vii),
(viii) or (xx). Notwithstanding anything to the contrary contained above,
Holdings and its Subsidiaries shall be required to only grant Additional
Mortgages in fee owned Real Property with a fair market value at the time of
acquisition in excess of $500,000.
-65-
73
(d) Holdings will, and will cause each of its Subsidiaries to, at the
expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, real property surveys,
reports and other assurances or instruments and take such further steps
relating to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require pursuant to this Section 8.12.
Furthermore, Holdings and the Borrower shall cause to be delivered to the
Collateral Agent such opinions of counsel, title insurance and other related
documents as may be requested by the Collateral Agent to assure itself that
this Section 8.12 has been complied with.
(e) Holdings will cause each Subsidiary established or created in
accordance with Section 9.15 to execute and deliver a guaranty of all
Obligations and all obligations under Interest Rate Protection Agreements in
substantially the form of the Subsidiary Guaranty; provided that absent a
change in the relevant sections of the Code or the rules, regulations, rulings,
notices or other official pronouncements issued or promulgated thereunder, no
foreign Subsidiary shall be required to enter into such guaranty.
(f) Holdings will cause each Subsidiary established or created in
accordance with Section 9.15 to grant to the Collateral Agent a first priority
Lien on all property (tangible and intangible) of such Subsidiary upon terms
similar to those set forth in the Security Documents as appropriate, and
satisfactory in form and substance to the Collateral Agent and Required Banks;
provided that, absent a change in the relevant sections of the Code or the
rules, regulations, rulings, notices or other official pronouncements issued or
promulgated thereunder, no foreign Subsidiary shall be required to enter into
such Security Documents; provided further, that the Borrower and its
Subsidiaries shall not be required to grant a security interest in such assets
that are acquired subject to a Lien permitted by Section 9.01(vii), (viii) or
(xx); provided further, that such Subsidiary shall be required to only grant
Additional Mortgages in fee owned Real Property with a fair market value at the
time of acquisition in excess of $500,000. Holdings and the Borrower will cause
each Subsidiary, at its own expense, to execute; acknowledge and deliver, or
cause the execution, acknowledgment and delivery of, and thereafter register,
file or record in any appropriate governmental office, any document or
instrument reasonably deemed by the Collateral Agent to be necessary or
desirable for the creation and perfection of the foregoing Liens. Holdings and
the Borrower will cause each of its Subsidiaries to take all actions requested
by the Collateral Agent (including, without limitation, the filing of UCC-1's)
in connection with the granting of such security interests.
-66-
74
(g) The security interests required to be granted pursuant to this
Section 8.12 shall be granted pursuant to security documentation (which shall
be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable) or otherwise
satisfactory in form and substance to the Managing Agent and shall constitute
valid and enforceable perfected security interests prior to the rights of all
third Persons and subject to no other Liens except such Liens as are permitted
by Section 9.01. The Additional Security Documents and other instruments
related thereto shall be duly recorded or filed in such manner and in such
places and at such times as are required by law to establish, perfect, preserve
and protect the Liens, in favor of the Collateral Agent for the benefit of the
respective Secured Creditors, required to be granted pursuant to the Additional
Security Documents and all taxes, fees and other charges payable in connection
therewith shall be paid in full by the Borrower. At the time of the execution
and delivery of the Additional Security Documents, the Borrower shall cause to
be delivered to the Collateral Agent such opinions of counsel, Mortgage
Policies, title surveys, real estate appraisals and other related documents as
may be reasonably requested by the Managing Agent or the Required Banks to
assure themselves that this Section 8.12 has been complied with.
(h) Each of Holdings and the Borrower agrees that each action required
above by Section 8.12(d) shall be completed as soon as possible, but in no
event later than 60 days after such action is requested to be taken by the
Managing Agent or the Required Banks. Each of Holdings and the Borrower further
agrees that each action required by Sections 8.12(a) (to the extent applicable
in connection with the creation or acquisition of a new Subsidiary), (c), (e),
(f) and (g) with respect to Additional Collateral shall be completed
contemporaneously with the creation of such new Subsidiary.
8.13 Designation of Agent. If for any reason the agent designated by
Holdings and the Borrower in Section 13.08(a) shall cease to be available to
act in such capacity, Holdings and the Borrower shall designate, appoint and
empower a new agent in the City of New York satisfactory to the Managing Agent
on the terms and for the purposes set forth in Section 13.08(a).
SECTION 9. Negative Covenants. Holdings and the Borrower covenant and
agree that on and after the Second Restatement Effective Date and until the
Total Commitments and all Letters of Credit have terminated and the Loans,
Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
9.01 Liens. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any
-67-
75
property or assets (real or personal, tangible or intangible) of Holdings or
any of its Subsidiaries, whether now owned or hereafter acquired, or sell any
such property or assets subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets (including sales of accounts
receivable with recourse to Holdings or any of its Subsidiaries), or assign any
right to receive income or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute; provided that the provisions of this Section 9.01 shall not
prevent the creation, incurrence, assumption or existence of the following
(Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP;
(ii) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such
as carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Borrower's
or such Subsidiary's property or assets or materially impair the use
thereof in the operation of the business of the Borrower or such
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Second Restatement Effective Date
which are listed, and the property subject thereto described, in Schedule
VI, but only to the respective date, if any, set forth in such Schedule VI
for the removal and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set forth on
Schedule VI, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that
amount outstanding at the time of any such renewal, replacement or
extension and (y) any such renewal, replacement or extension does not
encumber any additional assets or properties of Holdings or any of its
Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
-68-
76
(vi) licenses, leases or subleases granted to other Persons in a
manner consistent with past practice or the radio industry generally not
materially interfering with the conduct of the business of Holdings and
its Subsidiaries taken as a whole;
(vii) Liens upon assets subject to Capitalized Lease Obligations to
the extent permitted by Section 9.04, provided that (x) such Liens only
serve to secure the payment of Indebtedness arising under such Capitalized
Lease Obligation and (y) the Lien encumbering the asset giving rise to the
Capitalized Lease Obligation does not encumber any other asset of the
Borrower or any Subsidiary of the Borrower;
(viii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Borrower or any of its Subsidiaries at the time
of acquisition thereof by the Borrower or any such Subsidiary or within
120 days thereafter to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof and all renewals, replacements or
extensions thereof, provided that (x) the aggregate outstanding principal
amount of all Indebtedness secured by Liens permitted by this clause
(viii) shall not at any time exceed $5,000,000 and (y) in all events, the
Lien encumbering the equipment or machinery so acquired does not encumber
any other asset of the Borrower or such Subsidiary;
(ix) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness and not materially
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;
(x) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by Holdings or any of its
Subsidiaries in the ordinary course of business;
(xi) Liens arising out of the existence of judgments or awards not
constituting an Event of Default under Section 10.09, provided that no
cash or property is deposited or delivered to secure the respective
judgment or award (or any appeal bond in respect thereof, other than
appeal bonds secured by deposits not to exceed $5,000,000 in the
aggregate);
(xii) statutory, contractual and common law landlords' liens under
leases to which the Borrower or any of its Subsidiaries is a party;
-69-
77
(xiii) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety, stay, customs bonds, statutory bonds (other than appeal bonds),
bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(xiv) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement;
(xv) Liens in favor of a banking institution arising as a matter of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(xvi) deposits made in the ordinary course of business to secure
liabilities for premiums to insurance carriers, provided that such
deposits do not exceed in the aggregate an amount equal to $2,500,000 at
any time;
(xvii) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business, in
accordance with past practices of the Borrower and its Subsidiaries;
(xviii) Liens created to secure obligations permitted by Section
9.02(xi);
(xix) xxxx xxxxxxx money deposits in connection with acquisitions
otherwise permitted by Section 9.02 in an amount not to exceed that
amount, when added to the Stated Amount of all Letters of Credit issued to
provide assurance of performance in connection with acquisitions otherwise
permitted by Section 9.02, which equals $40,000,000 at any time
outstanding;
(xx) Liens on property or assets in existence at the time such
property or assets are acquired pursuant to Section 9.02(ix), (xiii) or
(xiv), provided that (x) any Indebtedness that is secured by such Liens is
permitted to exist under Section 9.04(xv) and (y) such Liens are not
incurred in connection with, or in contemplation or anticipation of, such
acquisition and do not attach to any other asset of Holdings or any of its
Subsidiaries; and
-70-
78
(xxi) Liens not otherwise permitted under this Section 9.01 to the
extent attaching to properties and assets with an aggregate fair market
value not in excess of, and securing liabilities not in excess of,
$2,500,000 in the aggregate at any time outstanding.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. Holdings
will not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or merge, consolidate, convey, sell, lease or otherwise
dispose of all or any part of its property or assets, or enter into any
sale-leaseback transactions, or purchase or other-wise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, equipment and
intangible assets, including property acquired by way of trade or barter
agreements, in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures made by the Borrower and its Subsidiaries
shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary
course of business, sell, lease or otherwise dispose of any assets
provided that the aggregate Net Sale Proceeds of all assets subject to
sales or other dispositions pursuant to this clause (ii) shall not exceed
$2,500,000 in any fiscal year of the Borrower;
(iii) investments may be made to the extent permitted by Section 9.05;
(iv) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
such lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 9.04(v));
(v) each of the Borrower and its Subsidiaries may make sales or other
transfers of airtime in the ordinary course of business and consistent
with past practices;
(vi) licenses or sublicenses by the Borrower and its Subsidiaries of
software, trademarks and other intellectual property and general
intangibles and licenses, leases or subleases of other property in the
ordinary course of business and which do not materially interfere with the
business of the Borrower or any Subsidiary;
(vii) the Borrower or any Wholly-Owned Subsidiary of the Borrower may
transfer assets to or lease assets to or acquire or lease assets from the
-71-
79
Borrower or any Wholly-Owned Subsidiary (so long as the security interests
granted pursuant to the Security Documents are not, in the judgment of the
Collateral Agent, adversely affected thereby) or any Subsidiary of the
Borrower may be merged or consolidated with or into, or be liquidated or
dissolved into, the Borrower or any Wholly-Owned Subsidiary of the
Borrower (so long as the Borrower or such Wholly-Owned Subsidiary is the
surviving corporation);
(viii) (x) the sale or other disposition of Stations of the Borrower
or its Subsidiaries shall be permitted for cash at fair market value (as
determined in good faith by the Borrower or its Subsidiaries) so long as
the proceeds thereof are applied in accordance with Section 4.02(e),
provided that the Broadcast Cash Flow attributable to the Stations so sold
or disposed during any fiscal year of the Borrower or such Subsidiary
shall not exceed 20% of Consolidated Broadcast Cash Flow for such fiscal
year and (y) the acquisition for no more than fair market value of
Reinvestment Assets shall be permitted in accordance with Sections 4.02(e)
and 8.12;
(ix) so long as (x) no Default or Event of Default then exists or
would arise therefrom and (y) Holdings shall be in compliance with the
financial covenants contained in Sections 9.08 through 9.10, inclusive,
with such financial covenants to be calculated on a pro forma basis as if
such Stock Swap and/or Station Swap had been consummated on the first day
of the then most recently ended Test Period (and any Indebtedness
incurred, issued or assumed in connection therewith had been incurred on
the first day of, and remained outstanding throughout, such Test Period),
the Borrower may, and may permit its Subsidiaries to, simultaneously
exchange (for reasonably equivalent value, a portion thereof which may
include cash) (x) 100% of the capital stock of any Subsidiary of such
Person (the "Stock Swapped Station") for 100% of the capital stock of any
Person (the "Stock Target Station") owning a station (each such occurrence
a "Stock Swap") or (y) all or substantially all of the assets of a radio
Station or group of Stations (the "Asset Swapped Station," with each Stock
Swapped Station and Asset Swapped Station, a "Swapped Station") for all or
substantially all of the assets of another radio station or group of
stations (the "Asset Target Station," with each Stock Target Station and
each Asset Target Station, a "Target Station") (each such occurrence a
"Station Swap"), provided that at the time of such Stock Swap or Station
Swap the Borrower and/or such Subsidiary, and the newly acquired entity,
shall comply with Section 8.12, provided further, that any cash proceeds
received by the Borrower or any of its Subsidiaries in connection with any
such Station Swap shall be applied in accordance with the requirements of
Section 4.02(e);
(x) the Viacom Acquisition shall be permitted;
-72-
80
(xi) the Borrower and its Subsidiaries may sell or discount, accounts
receivable arising in the ordinary course of business (x) which are
overdue or (y) which the Borrower may reasonably determine are difficult
to collect, but only in connection with the compromise or collection
thereof consistent with customary industry practice (and not as part of
any bulk sale or financing of receivables);
(xii) transfers of condemned property to the respective governmental
authority or agency that have condemned same (whether by deed in lieu of
condemnation or otherwise), and transfers of properties that have been
subject to a casualty to the respective insurer of such property or its
designee as part of an insurance settlement, so long as the proceeds
thereof are applied as required by Section 4.02(g);
(xiii) so long as no Default or Event of Default then exists or would
arise therefrom, the Borrower may and may permit its Subsidiaries to,
acquire the capital stock or assets of any Person so long as (x) any such
acquisition is for all the capital stock or all or substantially all of
the business of, or an operating division or a business unit of, such
Person, (y) the aggregate consideration paid (including Indebtedness
assumed in connection therewith) pursuant to this clause (xiii) does not
exceed $200,000,000 and (z) Holdings shall be in compliance with the
financial covenants contained in Sections 9.08 through 9.10, inclusive,
with such financial covenants to be calculated on a pro forma basis as if
such acquisition had been consummated on the first day of the then most
recently ended Test Period (and any Indebtedness incurred, issued or
assumed in connection therewith had been incurred on the first day of, and
remained outstanding throughout, such Test Period);
(xiv) in addition to the acquisitions permitted pursuant to preceding
clause (xiii), the Borrower and its Subsidiaries may acquire all or
substantially all of the business of, or operating division or a business
unit of, any Person with the reinvestment of Excess Cash Flow for the
relevant Excess Cash Payment Period to the extent, (w) not required to be
applied to repay Loans pursuant to Section 4.02(f), (x) not used to prepay
Holdings Subordinated Notes pursuant to Section 9.11 (ii), (y) not used to
make Capital Expenditures pursuant to Section 9.07(c)(iii) and (z) not
used to make investments pursuant to Section 9.05(x);
(xv) the WDRQ Detroit Disposition shall be permitted;
(xvi) the SFX Exchange shall be permitted; and
-73-
81
(xvii) each of the Borrower and its Subsidiaries may sell or otherwise
dispose of equipment in the ordinary course of business which, in the
reasonable judgment of such Person, is obsolete, worn out or otherwise no
longer useful, in the conduct of such Person's business.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted
by this Section 9.02 (other than clause (vii) thereof), such Collateral shall
be sold free and clear of the Liens created by the Security Documents, and the
Managing Agent and Collateral Agent shall be authorized to take any actions
deemed appropriate in order to effect the foregoing.
9.03 Dividends. Holdings shall not, and shall not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to
Holdings or any of its Subsidiaries except that:
(i) any Subsidiary of the Borrower may pay Dividends to the Borrower
or any Wholly-Owned Subsidiary of the Borrower;
(ii) the Borrower may pay cash Dividends to Holdings for the purpose
of paying, so long as all proceeds thereof are promptly used by Holdings
to pay, its operating expenses incurred in the ordinary course of business
and other corporate overhead costs and expenses (including, without
limitation, legal and accounting expenses and similar expenses) in a
maximum principal amount of $2,000,000 per annum;
(iii) Holdings may pay cash Dividends, and the Borrower may pay cash
Dividends to Holdings to enable Holdings, to make payments (A) to pay
management fees or executive compensation to the extent such management
fees or executive compensation are permitted by Section 9.06(v) and (vi)
and pursuant to the Monitoring and Oversight Agreements, to the extent
permitted pursuant to Section 9.06(iv), (B) to repurchase Holdings Common
Stock and/or options to purchase Holdings Common Stock held by (x) Dinetz
pursuant to the Dinetz Employment Contract or (y) directors, executives,
officers, members of management, or employees of Holdings, the Borrower or
any of its Subsidiaries upon the exercise of options in accordance with
the Employee Stock Option Plan, or (z) other stockholders of Holdings so
long as the purpose of such purchase is to acquire Holdings Common Stock
for reissuance to new employees of Holdings and its Subsidiaries to the
extent so reissued within 12 months of any such purchase so long as the
aggregate amount of cash expended by Holdings pursuant to subclause (B) of
this clause (iii) shall not exceed $2,500,000 in any fiscal year or
$5,000,000 in the aggregate (plus the amount of cash proceeds paid by any
new employee in consideration for reissuance of
-74-
82
Holdings Common Stock repurchased by Holdings to the extent received by
Holdings within 12 months following any such repurchase, minus the amount
of cash paid in respect of Holdings Subordinated Notes permitted under
Section 9.11 (ii)) and (C) on the Holdings Subordinated Notes, to the
extent permitted under Section 9.11 (ii), so long as in the case of
subclauses (B) and (C) of this clause (iii), no Default or Event of
Default exists or would result therefrom;
(iv) the Borrower may pay cash Dividends to Holdings for the purpose
of paying, so long as all proceeds thereof are promptly used by Holdings
to pay franchise taxes and federal, state and local income taxes and
interest, and penalties with respect thereto, if any, payable by Holdings,
provided that any refund shall be promptly returned by Holdings to the
Borrower;
(v) the Borrower may pay cash Dividends to Holdings to enable Holdings
to pay cash Dividends to redeem fractional shares of its common stock so
long as the aggregate amount thereof does not exceed $5,000;
(vi) the Borrower may pay regularly scheduled Dividends on its
Exchangeable Preferred Stock pursuant to the terms thereof solely through
the issuance of additional shares of Exchangeable Preferred Stock;
(vii) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may pay cash Dividends to Holdings for the
purpose of paying, so long as all proceeds thereof are promptly used by
Holdings to pay, regularly scheduled Dividends on its Convertible
Preferred Stock; provided, that (x) the aggregate amount of cash Dividends
paid pursuant to this clause (vii) shall not exceed 7% per annum of the
original aggregate liquidation preference of the Convertible Preferred
Stock in any fiscal year of the Borrower and (y) such payment of cash
Dividends is permitted under the Series A Exchangeable Preferred Stock
Documents, the Exchangeable Preferred Stock Documents and any other
indenture, certificate of designation or other agreement which may
restrict such payments;
(viii) the Borrower may pay cash Dividends to Holdings for the purpose
of making, so long as all proceeds thereof are promptly used by Holdings
to make, cash payments in lieu of issuing fractional shares of Holdings
Common Stock upon the conversion of the Convertible Preferred Stock in an
aggregate amount not to exceed $150,000;
-75-
83
(ix) the Borrower may pay cash Dividends on its Exchangeable Preferred
Stock in lieu of issuing fractional shares of Exchangeable Preferred
Stock;
(x) so long as (x) no Default or Event of Default then exists or would
result therefrom, (y) the Leverage Ratio on the date of payment thereof is
less than 4.00: 1.00 and (z) such payment of cash Dividends is permitted
under the indentures, certificates of designation and other agreements
which may restrict such payments, the Borrower may pay regularly scheduled
Dividends on its Series A Exchangeable Preferred Stock and Exchangeable
Preferred Stock; and
(xi) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may pay cash Dividends to Holdings for the
purpose of making, so long as all proceeds thereof are promptly used by
Holdings to make, payments (including voluntary prepayments) in respect of
principal and/or accrued interest under the Bridge Financing.
9.04 Indebtedness. Holdings will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Indebtedness existing on the Second Restatement Effective Date
shall be permitted to the extent the same is listed on Schedule VII, and
extensions, replacements, refinancings or renewals thereof, provided that
no such extension, replacement, refinancing or renewal shall increase the
principal amount thereof;
(iii) the Bridge Financing, but no extensions, replacements,
refinancings or renewals thereof;
(iv) Indebtedness under Interest Rate Protection Agreements to the
extent entered into pursuant to Section 9.05(iv);
(v) Indebtedness evidenced by Capitalized Lease Obligations to the
extent permitted pursuant to Section 9.07;
(vi) Indebtedness subject to Liens permitted under Section 9.01(viii);
-76-
84
(vii) Indebtedness of Holdings not to exceed $2,500,000 at any time
outstanding evidenced by subordinated notes in form and upon terms
reasonably satisfactory to the Managing Agent (the "Holdings Subordinated
Notes") issued to effectuate the stock repurchases described in Section
9.03(iii);
(viii) Indebtedness (x) of the Borrower evidenced by the Existing
Senior Subordinated Notes in an aggregate principal amount not to exceed
$200,000,000, after giving effect to the Tender Offer and repurchase of
such notes and (y) arising under guaranties by the Subsidiaries of the
Borrower of the remaining obligations of the Borrower (if any) under the
Existing Senior Subordinated Notes after giving effect to the Tender Offer
and repurchase of such notes;
(ix) additional Indebtedness of the Borrower and its Subsidiaries not
otherwise permitted under this Section 9.04 not to exceed $5,000,000 in
aggregate principal amount outstanding at any time;
(x) Contingent Obligations of the Borrower or any Subsidiary as a
guarantor of the lessee under any lease pursuant to which the Borrower or
a Subsidiary is the lessee so long as such lease is otherwise permitted
hereunder;
(xi) intercompany Indebtedness of any Wholly-Owned Subsidiary of
Holdings owing to the Borrower or any other Wholly-Owned Subsidiary of
Holdings, or of the Borrower owing to any Wholly-Owned Subsidiary of
Holdings, to the extent permitted by Section 9.05(xi);
(xii) as long as no Default or Event of Default then exists or would
arise therefrom, with the consent of the Total Supermajority Banks, the
Borrower may exchange all of the Series A Exchangeable Preferred Stock
into the 12-1/4% Junior Exchange Debentures in accordance with the terms
of the Series A Exchangeable Preferred Stock Documents;
(xiii) so long as no Default or Event of Default then exists or would
arise therefrom, with the consent of the Total Supermajority Banks, the
Borrower may exchange all of the Exchangeable Preferred Stock into the 12%
Junior Exchange Debentures in accordance with the terms of the
Exchangeable Preferred Stock Documents;
(xiv) so long as (i) the Borrower shall have delivered a certificate
of an Authorized Officer of the Borrower to the effect that, to the best
of such officer's knowledge, (x) no Default or Event of Default has
occurred and is continuing (or would result from the incurrence of the
additional Indebtedness con-
-77-
85
templated by this Section 9.04(xiv)), and (y) all representations and
warranties herein or in any other Credit Document are true and correct in
all material respects with the same effect as if these representations and
warranties had been made on the date of the incurrence of Indebtedness
contemplated by this Section 9.04(xiv) (it being understood and agreed
that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects only as of such specified date) and (ii) new Notes and other
documentation necessary to incur such Indebtedness are delivered in form
and substance satisfactory to the Managing Agent pursuant to Sections
13.04 and 13.12, then the Borrower may, with the consent of the Banks
providing such additional amount, increase the Total Revolving Loan
Commitment by an amount not to exceed $100,000,000 in the aggregate;
(xv) (A) unsecured Indebtedness of the Borrower and its Subsidiaries
owing to the seller in any acquisition permitted pursuant to Sections
9.02(ix), (xiii) and (xiv) in an aggregate principal amount not to exceed
$15,000,000 at any time outstanding or (B) Indebtedness of the Borrower
and its Subsidiaries assumed in connection with any such acquisition of an
asset securing such Indebtedness in an aggregate principal amount not to
exceed $15,000,000 at any time outstanding, provided that such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such acquisition;
(xvi) Contingent Obligations of the Borrower or any of its
Subsidiaries (other than License Subsidiary) as a guarantor of
Indebtedness permitted pursuant to Section 9.04(ii) existing on the Second
Restatement Effective Date and extensions, replacements, refinancings and
renewals thereof, provided that no such extension, replacement,
refinancing or renewal shall (x) amend, modify or supplement the
subordination provisions, if any, contained in such guaranty in a manner
adverse to interests of the Banks or (y) increase the principal amount of
such Indebtedness guaranteed by the original guaranty;
(xvii) guarantees (other than guarantees of Indebtedness which is not
a Capitalized Lease Obligation) made in the ordinary course of business,
provided that such guarantees could not, individually or in the aggregate,
have a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
the Borrower or of Holdings and its Subsidiaries taken as a whole; and
(xviii) Indebtedness of the Borrower evidenced by the 8-3/4% Senior
Subordinated Notes in an aggregate principal amount not to exceed
$200,000,000.
-78-
86
Notwithstanding anything to the contrary contained in this Agreement,
in no event shall the License Subsidiary contract, create, incur, assume or
suffer to exist any Indebtedness (other than the Indebtedness incurred pursuant
to the Subsidiary Guaranty).
9.05 Advances, Investments and Loans. Holdings will not, and will not
permit any of its Subsidiaries to, directly or indirectly, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations
or securities of, or any other interest in, or make any capital contribution
to, any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash or Cash Equivalents,
except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents, provided that during any time that Revolving Loans of
Non-Defaulting Banks are outstanding, the aggregate amount of cash and Cash
Equivalents permitted to be held by the Borrower and its Subsidiaries
shall not exceed $5,000,000 for any period of five consecutive days
(exclusive of any cash held by the Borrower pursuant to an xxxxxxx money
escrow account to the extent such account is permitted by Section
9.01(xix);
(iii) the Borrower and its Subsidiaries may make loans and advances in
the ordinary course of business to their respective officers, directors
and employees so long as the aggregate principal amount thereof at any
time outstanding (determined without regard to any write-downs or
write-offs of such loans and advances) shall not exceed $1,000,000;
(iv) the Borrower may enter into Interest Protection Agreements on
terms reasonably satisfactory to the Managing Agent;
(v) Holdings may repurchase Holdings Common Stock to the extent
permitted by Section 9.03;
(vi) Holdings and any of its Subsidiaries may make investments in
accordance with Section 4.02(e) (including investments necessary to form
Subsidiaries under Section 9.15);
-79-
87
(vii) promissory notes and other similar non-cash consideration
received by the Borrower and its Subsidiaries in connection with
dispositions permitted by Section 9.02 so long as the aggregate principal
amount thereof does not exceed $1,000,000 at any one time outstanding;
(viii) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(ix) investments by the Borrower in any Wholly-Owned Subsidiary;
(x) investments by the Borrower and its Subsidiaries consisting of
the reinvestment of Excess Cash Flow for the relevant Excess Cash Payment
Period to the extent (v) not required to be applied to repay the Loans
pursuant to Section 4.02(f), (w) not used to prepay Holdings Subordinated
Notes pursuant to Section 9.11 (ii), (x) not used to make Capital
Expenditures pursuant to Section 9.07(c)(iii), (y) not used to make
acquisitions pursuant to Section 9.02(xiv) and (z) such investments (other
than investments resulting in the ownership by the Borrower and/or its
Subsidiaries of 100% of the capital stock of the Person in which such
investment is made) in an aggregate principal amount not to exceed
$10,000,000;
(xi) any Wholly-Owned Subsidiary may make intercompany loans and
advances to the Borrower or any Wholly-Owned Subsidiary and the Borrower
may make intercompany loans and advances to any Wholly-Owned Subsidiary,
provided that if such intercompany loans are evidenced by an intercompany
promissory note, such note is pledged by the Borrower or such Wholly-Owned
Subsidiary as Collateral pursuant to the applicable Pledge Agreement;
(xii) investments by the Borrower or any of its Subsidiaries to the
extent permitted by Section 9.07;
(xiii) advances, loans and investments made by the Borrower and its
Subsidiaries in existence on the Second Restatement Effective Date and set
forth on Schedule VIII shall be permitted, without giving effect to any
additions thereto or replacements thereof;
(xiv) guarantees of Indebtedness made by the Borrower or any of its
Subsidiaries to the extent otherwise permitted by Section 9.04; and
-80-
88
(xv) in addition to investments permitted by clauses (i) through (xiv)
of this Section 9.05, the Borrower and its Subsidiaries may make
additional loans, advances and investments in an aggregate principal
amount not to exceed $2,500,000 at any time outstanding.
9.06 Transactions with Affiliates. Holdings will not, and will not
permit any of its Subsidiaries to enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Holdings or any of its Subsidiaries, other than in the
ordinary course of business and on terms and conditions substantially as
favorable to Holdings or such Subsidiary as would reasonably be obtained by
Holdings or such Subsidiary at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section 9.03;
(ii) loans may be made and other transactions may be entered into by
the Borrower and its Subsidiaries to the extent permitted by Sections
9.02, 9.04 and 9.05;
(iii) customary fees and reimbursement of expenses may be paid to
directors of Holdings;
(iv) Holdings or to the extent not paid by Holdings, the Borrower may
pay to Xxxxx, Muse & Co. Partners, L.P., its Affiliates or any successor
thereto controlled by Xxxx X. Xxxxx, Xxxxxxx X. Xxxx, Xxxxxx X. Xxxxx
and/or Xxxx X. Xxxx, the amounts set forth in the Amended and Restated
Financial Monitoring and Oversight Agreement dated as of January 1, 1996,
among Holdings, the Borrower and Xxxxx, Muse & Co. Partners, L.P. and the
Financial Advisory Agreement (together with the Amended and Restated
Financial Monitoring and Oversight Agreement, the "Monitoring and
Oversight Agreements") dated as of January 1, 1996 among HM2/Management
Partners L.P., the Company and Holdings in the form delivered to the Banks
on or prior to the Second Restatement Effective Date, as it may be
modified thereafter but without giving effect to any modifications thereto
which in any way adversely affects the interests of the Banks without the
consent of the Managing Agent and the Required Banks; provided that,
notwithstanding anything to the contrary above in this clause (iv), the
Amended and Restated Financial Monitoring and Oversight Agreement may be
amended to increase the base fee paid to Xxxxx, Muse & Co. Partners, L.P.
to an amount not to exceed $1,000,000 without obtaining the consent of the
Managing Agent or the Required Banks;
-81-
89
(v) Holdings and its Subsidiaries may enter into and make payments
pursuant to employment arrangements with executive officers and senior
management employees in the ordinary course of business and may enter into
employment termination agreements in connection with the Viacom
Acquisition and the Evergreen Merger;
(vi) Holdings and its Subsidiaries may make payments pursuant to
employment agreements existing on the Second Restatement Effective Date;
(vii) Holdings and its Subsidiaries may make payments pursuant to the
Tax Sharing Agreements;
(viii) the Borrower and the License Subsidiary may maintain their
present Operating Agreements; and
(ix) Holdings may make capital contributions to the Borrower.
Except as specifically provided above, no management or similar fees
shall be paid or payable by Holdings or any of its Subsidiaries to any Person
other than the Borrower.
9.07 Capital Expenditures. (a) Holdings will not, and will not permit
any of its Subsidiaries to, make any Capital Expenditures, except that during
any fiscal period set forth below (taken as one accounting period) the Borrower
and its Subsidiaries may make Capital Expenditures so long as the aggregate
amount of such Capital Expenditures made under this Section 9.07(a) does not
exceed in any period set forth below the amount set forth opposite such period
below:
Period Amount
------ ------
Second Restatement Effective Date to $3,500,000
and including the last day
of the Fiscal Year ending
December 31, 1997
Fiscal Year ending $7,500,000
December 31, 1998
Fiscal Year ending $8,000,000
December 31, 1999
Fiscal Year ending $8,000,000
December 31, 2000
-82-
90
Fiscal Year ending $8,500,000
December 31, 2001
Fiscal Year ending $9,000,000
December 31, 2002
Fiscal Year ending $9,000,000
December 31, 2003
January 1, 2004 to and $9,000,000
including the Maturity Date.
(b) Notwithstanding anything to the contrary contained in clause (a)
above, to the extent that the Capital Expenditures made by the Borrower and its
Subsidiaries (i) in any period set forth in clause (a) above are less than the
amount permitted to be made in such period (without giving effect to any
additional amount available as a result of this clause (b) or clause (c)
below), the amount of such difference may be carried forward and used to make
Capital Expenditures in the immediately succeeding fiscal year of the Borrower
or (ii) from January 1, 1997 to and including the Second Restatement Effective
Date are less than $3,000,000, the amount of such difference may be carried
forward and used to make Capital Expenditures in the period from the Second
Restatement Effective Date to and including the last day of the fiscal year
ending December 31, 1997, with such carried forward amount to be pooled with
permitted expenditures for such fiscal year ending December 31, 1997 for
purposes of calculating carry over amounts into the fiscal year ending December
31, 1998.
(c) In addition to the Capital Expenditures permitted pursuant to
preceding clauses (a) and (b), the Borrower and its Subsidiaries may make
additional Capital Expenditures consisting of (i) the reinvestment of Net Sale
Proceeds of asset sales not required to be applied to prepay the Loans pursuant
to Section 4.02(e) as a result of the first proviso contained therein, (ii) the
reinvestment of proceeds of Recovery Events not required to be applied to repay
the Loans pursuant to Section 4.02(g) and (iii) the reinvestment of the amounts
of Excess Cash Flow (w) not required to be applied to repay the Loans pursuant
to Section 4.02(f), (x) not used to prepay the Holdings Subordinated Notes
pursuant to Section 9.11(ii), (y) not used to make acquisitions pursuant to
Section 9.02(xiv) or (z) not used to make investments pursuant to Section
9.05(x).
-83-
91
9.08 Maximum Leverage Ratio. Holdings will not permit the Leverage
Ratio at any time during a period set forth below to be greater than the ratio
set forth opposite such period below:
Period Ratio
------ -----
Fiscal quarter ended June 30, 1997 7.00:1.00
Fiscal quarter ended September 30, 1997 7.00:1.00
Fiscal quarter ended December 31, 1997 7.00:1.00
Fiscal quarter ended March 31, 1998 7.00:1.00
Fiscal quarter ended June 30, 1998 7.00:1.00
Fiscal quarter ended September 30, 1998 6.80:1.00
Fiscal quarter ended December 31, 1998 6.75:1.00
Fiscal quarter ended March 31, 1999 6.50:1.00
Fiscal quarter ended June 30, 1999 6.25:1.00
Fiscal quarter ended September 30, 1999 6.00:1.00
Fiscal quarter ended December 31, 1999 5.75:1.00
Fiscal quarter ended March 31, 2000 5.50:1.00
Fiscal quarter ended June 30, 2000 5.25:1.00
Fiscal quarter ended September 30, 2000 5.00:1.00
Fiscal quarter ended December 31, 2000 4.80:1.00
Fiscal quarter ended March 31, 2001 4.60:1.00
Fiscal quarter ended June 30, 2001 4.50:1.00
Fiscal quarter ended September 30, 2001 4.25:1.00
Fiscal quarter ended December 31, 2001 4.00:1.00
Fiscal quarter ended March 31, 2002 4.00:1.00
Fiscal quarter ended June 30, 2002 3.75:1.00
Fiscal quarter ended September 30, 2002 3.75:1.00
Fiscal quarter ended December 31, 2002 3.50:1.00
Fiscal quarter ended March 31, 2003 3.50:1.00
Fiscal quarter ended June 30, 2003 3.50:1.00
Fiscal quarter ended September 30, 2003 3.50:1.00
Fiscal quarter ended December 31, 2003 3.50:1.00
Fiscal quarter ended March 31, 2004 3.50:1.00
-84-
92
9.09 Minimum Consolidated EBITDA. Holdings will not permit
Consolidated EBITDA for any period of four consecutive fiscal quarters (or, if
shorter, the period beginning on the Second Restatement Effective Date and
ending on the last day of a fiscal quarter ended thereafter), in each case
taken as one accounting period, ended on the last day of any fiscal quarter set
forth below to be less than the amount set forth opposite such fiscal quarter
below:
Fiscal Quarter Amount
-------------- ------
Fiscal quarter ended September 30, 1997 $ 31,000,000
Fiscal quarter ended December 31, 1997 $ 68,400,000
Fiscal quarter ended March 31, 1998 $ 95,000,000
Fiscal quarter ended June 30, 1998 $128,300,000
Fiscal quarter ended September 30, 1998 $130,400,000
Fiscal quarter ended December 31, 1998 $133,100,000
Fiscal quarter ended March 31, 1999 $135,300,000
Fiscal quarter ended June 30, 1999 $138,100,000
Fiscal quarter ended September 30, 1999 $140,800,000
Fiscal quarter ended December 31, 1999 $144,200,000
Fiscal quarter ended March 31, 2000 $146,600,000
Fiscal quarter ended June 30, 2000 $149,700,000
Fiscal quarter ended September 30, 2000 $152,800,000
Fiscal quarter ended December 31, 2000 $156,400,000
Fiscal quarter ended March 31, 2001 $159,100,000
Fiscal quarter ended June 30, 2001 $162,300,000
Fiscal quarter ended September 30, 2001 $165,600,000
Fiscal quarter ended December 31, 2001 $169,500,000
Fiscal quarter ended March 31, 2002 $172,200,000
Fiscal quarter ended June 30, 2002 $175,400,000
Fiscal quarter ended September 30, 2002 $178,700,000
Fiscal quarter ended December 31, 2002 $182,700,000
Fiscal quarter ended March 31, 2003 $185,500,000
Fiscal quarter ended June 30, 2003 $189,100,000
Fiscal quarter ended September 30, 2003 $192,600,000
Fiscal quarter ended December 31, 2003 $196,900,000
Fiscal quarter ended March 31, 2004 $199,100,000
-85-
93
9.10 Consolidated EBITDA to Consolidated Net Cash Interest Expense.
Holdings will not permit the ratio of Consolidated EBITDA to Consolidated Net
Cash Interest Expense for any period of four consecutive fiscal quarters (or,
if shorter, the period beginning on the Second Restatement Effective Date and
ending on the last day of a fiscal quarter ended thereafter), in each case
taken as one accounting period, ended on the last day of any fiscal quarter set
forth below to be less than the amount set forth opposite such fiscal quarter
below:
Fiscal Quarter Ratio
-------------- -----
Fiscal quarter ended September 30, 1997 1.75:1.00
Fiscal quarter ended December 31, 1997 1.75:1.00
Fiscal quarter ended March 31, 1998 1.75:1.00
Fiscal quarter ended June 30, 1998 1.75:1.00
Fiscal quarter ended September 30, 1998 1.75:1.00
Fiscal quarter ended December 31, 1998 1.75:1.00
Fiscal quarter ended March 31, 1999 1.75:1.00
Fiscal quarter ended June 30, 1999 1.80:1.00
Fiscal quarter ended September 30, 1999 1.80:1.00
Fiscal quarter ended December 31, 1999 1.85:1.00
Fiscal quarter ended March 31, 2000 2.00:1.00
Fiscal quarter ended June 30, 2000 2.10:1.00
Fiscal quarter ended September 30, 2000 2.20:1.00
Fiscal quarter ended December 31, 2000 2.30:1.00
Fiscal quarter ended March 31, 2001 2.40:1.00
Fiscal quarter ended June 30, 2001 2.50:1.00
Fiscal quarter ended September 30, 2001 2.65:1.00
Fiscal quarter ended December 31, 2001 2.75:1.00
Fiscal quarter ended March 31, 2002 2.90:1.00
Fiscal quarter ended June 30, 2002 3.00:1.00
Fiscal quarter ended September 30, 2002 3.00:1.00
Fiscal quarter ended December 31, 2002 3.00:1.00
Fiscal quarter ended March 31, 2003 3.00:1.00
Fiscal quarter ended June 30, 2003 3.00:1.00
-86-
94
Fiscal quarter ended September 30, 2003 3.00:1.00
Fiscal quarter ended December 31, 2003 3.00:1.00
Fiscal quarter ended March 31, 2004 3.00:1.00
9.11 Limitation on Modifications of Certificate of Incorporation,
ByLaws and Certain Other Agreements; Limitations of Prepayments and
Modifications of Indebtedness; etc. Holdings will not, and will not permit any
of its Subsidiaries to (i) make (or give any notice with respect of) any
voluntary or optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of paying
when due), after the issuance thereof, any 12-1/4% Junior Exchange Debentures,
12% Junior Exchange Debentures, the Bridge Financing (except such payments in
respect of principal of and accrued interest on the Bridge Financing as are
permitted by Section 9.03(xi)), the 8-3/4% Senior Subordinated Notes or any
Existing Senior Subordinated Notes (after giving effect to the Tender Offer),
(ii) make any cash payments whatsoever in respect of Holdings Subordinated
Notes issued pursuant to Section 9.04(vii) unless the aggregate amount of such
payments made in respect of such Holdings Subordinated Notes, when added to the
aggregate amount of Dividends theretofore paid pursuant to Section
9.03(iii)(B), do not exceed $2,500,000 in any fiscal year or $5,000,000 in the
aggregate (plus the amount of cash proceeds paid by any new employee in
consideration for reissuance of Holdings Common Stock repurchased by Holdings
to the extent received by Holdings within six months following any such
repurchase), (iii) amend or modify, or permit the amendment or modification of
any provision of the foregoing Indebtedness (including, without limitation, the
Supplemental Indenture), the Series A Exchangeable Preferred Stock Documents
(including as relating to the 12-1/4% Junior Exchange Debentures), the
Exchangeable Preferred Stock Documents (including as relating to the 12% Junior
Exchange Debentures), the 8-3/4% Senior Subordinated Note Documents, the Bridge
Financing Documents, the Tax Sharing Agreement, the Viacom Joint Purchase
Agreement, the SFX Exchange Documents, (other than, in the case of the Tax
Sharing Agreement, the Viacom Joint Purchase Agreement, the SFX Exchange
Documents or the WDRQ Detroit Disposition Documents, in a manner not reasonably
likely to be materially adverse to the interest of the Banks) or (iv) amend,
modify or change its Certificate of Incorporation (including, without
limitation, by the filing or modification of any certificate of designation) or
By-Laws, or any agreement entered into by it, as the case may be, with respect
to its capital stock (including any Stockholders' Agreement), or enter into any
new agreement with respect to its capital stock, other than any amendments,
modifications or changes pursuant to this clause or any such new agreements
which do not in any way adversely affect the interests of the Banks.
-87-
95
9.12 Limitation on Certain Restrictions on Subsidiaries. Holdings will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any
Subsidiary of the Borrower, or pay any Indebtedness owed to the Borrower or any
Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any
Subsidiary of the Borrower or (c) transfer any of its properties or assets to
the Borrower or any Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement, the other Credit Documents, the Bridge Financing Documents, and the
Viacom Acquisition Documents, (iii) customary provisions restricting subletting
or assignment of any lease governing a leasehold interest of the Borrower or
any Subsidiary of the Borrower, (iv) customary provisions restricting
assignment of any licensing agreement entered into by the Borrower or any
Subsidiary of the Borrower in the ordinary course of business and (v) customary
restrictions in any industrial revenue bond, purchase money financing, capital
lease or any other agreement permitted by this Agreement.
9.13 Limitation on Issuance of Capital Stock. (a) Holdings will not
issue (i) any preferred stock or (ii) any class of redeemable common stock,
other than Permitted Issuances.
(b) The Borrower will not issue, or permit any of its Subsidiaries to
issue, any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and similar issuances which do
not decrease the percentage ownership of Holdings or any of its Subsidiaries in
any class of the capital stock of the Borrower or such Subsidiary, (iii) to
qualify directors to the extent required by applicable law, (iv) the Borrower
may issue additional shares of common stock to Holdings, so long as all such
shares are immediately delivered to the Collateral Agent and pledged pursuant
to the Amended and Restated Holdings Pledge Agreement, (v) Series A
Exchangeable Preferred Stock, provided that the Borrower may not exchange the
Series A Exchangeable Preferred Stock for 12-1/4% Junior Exchange Debentures
other than in accordance with Section 9.04(xii), (vi) Exchangeable Preferred
Stock, provided that the Borrower may not exchange the Exchangeable Preferred
Stock for 12% Junior Exchange Debentures other than in accordance with Section
9.04(xiii), and (vii) in connection with the creation of Subsidiaries of the
Borrower in compliance with Section 9.15.
9.14 Business. (a) Holdings shall engage in no types of business and
shall have no assets or liabilities, other than its ownership of the capital
stock of the
-88-
96
Borrower and liabilities incident thereto, and liabilities expressly permitted
under this Agreement.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage (directly or indirectly) in any business other than the type of
business in which the Borrower and its Subsidiaries are engaged on the Second
Restatement Effective Date and reasonable extensions thereof.
(c) Chancellor Broadcasting Licensee shall engage in no business
activities and have no assets or liabilities, other than the holding of certain
of the FCC Licenses and its operations pursuant to Operating Agreements with
the Borrower and liabilities incident thereto.
9.15 Limitation on Creation of Subsidiaries. Holdings shall not and
will not permit any Subsidiary to establish, create or acquire any additional
Subsidiaries after the Second Restatement Effective Date without the prior
written consent of the Required Banks, except that the Borrower may create or
otherwise acquire new Subsidiaries in connection with the acquisition of
Stations in compliance with Sections 4.02(e), 9.02(ix), 9.02(xiii), 9.02(xiv),
9.05(x) or 9.05(xii).
9.16 No Other Designated Senior Debt. Holdings will not, and will not
permit any Subsidiary to, create or permit the creation after the Second
Restatement Effective Date of, any class of "Designated Senior Debt," or any
Indebtedness with similar rights, including pursuant to clause (ii) of the
definition of "Designated Senior Debt" appearing in the Second Senior
Subordinated Note Indenture, the 12-1/4% Junior Exchange Debenture Indenture or
the 12% Junior Exchangeable Debenture Indenture.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more Business Days, in the payment when
due of any Unpaid Drawings or interest on any Loan or Note, or any Fees or any
other amounts owing hereunder, thereunder or under any other Credit Document;
or
10.02 Representations, etc. Any representation, warranty or statement
made by any Credit Party herein or in any other Credit Document or in any
certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
-89-
97
10.03 Covenants. Holdings or the Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(g)(i), 8.07, 8.11, 8.12(d), 8.13 or Section 9 or (ii) default in
the due performance or observance by it of any other term, covenant or
agreement contained in this Agreement (other than as described in Section
10.01, 10.02 or 10.03(i)), and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Managing Agent or
any Bank; or
10.04 Default Under Other Agreements. Holdings or any of its
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause
(determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity, or (iii) any
Indebtedness (other than the Obligations) of Holdings or any of its
Subsidiaries shall be declared to be due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof, provided that (x) it shall not be a Default or Event of
Default under this Section 10.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) through (iii), inclusive, is
at least $1,500,000; or
10.05 Bankruptcy, etc. Holdings or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title II of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Holdings or any of its Subsidiaries and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Holdings or any of its
Subsidiaries, or Holdings or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Holdings or any of
its Subsidiaries, or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days;
-90-
98
or Holdings or any of its Subsidiaries makes a general assignment for the
benefit of creditors; or any corporate action is taken by Holdings or any of
its Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code, any Plan shall have had or, in the reasonable opinion
of the Required Banks, is likely to have a trustee appointed to administer such
Plan, any Plan is, shall have been or is likely to be terminated or to be the
subject of termination proceedings under ERISA, any Plan shall have an Unfunded
Current Liability, a contribution required to be made to a Plan has not been
made, Holdings, the Borrower or any of their respective Subsidiaries or any
ERISA Affiliate has incurred or is likely to incur a liability to or on account
of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or
Holdings, the Borrower or any of their respective Subsidiaries has incurred or
is likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(l) of ERISA) which provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or employee pension benefit plans (as defined in Section 3(2) of ERISA);
(b) there shall result from any such event or events the imposition of a lien,
the granting of a security interest, or a liability or a material risk of
incurring a liability; and in each case in clauses (a) and (b) above, such
lien, security interest or liability, in the reasonable opinion of the Required
Banks, will have a material adverse effect upon the business, operations,
property, assets, liabilities or condition (financial or otherwise) of
Holdings, the Borrower or of Holdings and its Subsidiaries taken as a whole; or
10.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect, or shall cease in any material respect to give the Collateral Agent for
the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected
security interest in, and Lien on, all of the Collateral), in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.01), and subject to no other Liens (except as
permitted by Section 9.01), or any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any of the Security Documents and such
default shall continue beyond any grace period specifically applicable thereto
pursuant to the terms of such Security Document; or
10.08 Guaranty. Any Guaranty or any provision thereof shall cease to
be in full force or effect as to the relevant Guarantor or other party
thereunder (other
-91-
99
than in accordance with the express terms thereof) or any Guarantor or other
party thereunder or Person acting by or on behalf of such Guarantor or such
party shall deny or disaffirm such Guarantor's or such party's obligations
under the relevant Guaranty, or any Guarantor or such party shall default in
the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to any Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
against Holdings or any of its Subsidiaries involving in the aggregate for
Holdings and its Subsidiaries a liability (not paid or fully covered by a
reputable and solvent insurance company) and such judgments and decrees either
shall be final and non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of 60 consecutive days, and the
aggregate amount of all such judgments exceeds $2,000,000; or
10.10 Change of Ownership. A Change of Ownership shall occur; or
10.11 Environmental Matters. At any time after the Second Restatement
Effective Date, the Amended and Restated Environmental Indemnity Agreement or
any provision thereof, or the Environmental Indemnity Agreement or any
provision thereof, shall cease to be in full force or effect as to Holdings or
any of its Subsidiaries, as applicable, or Holdings or any of its Subsidiaries
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to the Amended and
Restated Environmental Indemnity Agreement or the Environmental Indemnity
Agreement, as applicable, and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Managing Agent or
any Bank;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Managing Agent, upon the written request
of the Required Banks, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Managing
Agent, any Bank or the holder of any Note to enforce its claims against any
Credit Party (provided that, if an Event of Default specified in Section 10.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Managing Agent to the Borrower as specified in
clauses (i) and (ii) below shall occur automatically without the giving of any
such notice): (i) declare the Total Commitments terminated, whereupon all
Commitments of each Bank shall forthwith terminate immediately and any
Commitment Commission shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest
-92-
100
or other notice of any kind, all of which are hereby waived by each Credit
Party; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 10.05 with respect to the Borrower, it will pay)
to the Collateral Agent at the Payment Office such additional amount of cash,
to be held as security by the Collateral Agent, as is equal to the aggregate
Stated Amount of all Letters of Credit issued for the account of the Borrower
and then outstanding; (v) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Security Documents and (vi) apply
any cash collateral held pursuant to Section 4.02 in satisfaction of the
Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ABC" shall mean ABC, Inc., a New York corporation.
"Acquired Viacom Stations" shall mean the stations acquired by the
Borrower from Viacom pursuant to the Viacom Joint Purchase Agreement, including
KYSR-FM, KIBB-FM, WLIT-FM and WDRQ-FM.
"Acknowledgment, Consent and Amendment" shall have the meaning
provided in Section 5.17.
"Acquired Viacom Subsidiaries" shall mean KIBB, KYSR, WDRQ and WLIT,
each a Subsidiary of Viacom, which collectively own the Acquired Viacom
Stations.
"Additional Collateral" shall mean all property (whether real or
personal) in which security interests are granted (or have been purported to be
granted) (and continue to be in effect at the time of determination) pursuant
to Section 8.12 (which shall in any event exclude any interest in the FCC
Licenses to the extent prohibited by applicable law).
"Additional Mortgage" shall have the meaning provided in Section
8.12(b).
"Additional Mortgaged Property" shall have the meaning provided in
Section 8.12(b).
-93-
101
"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 8.12 with respect to Additional Collateral.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the sum
(rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing
(x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled
"Select Interest Rates," published weekly on Form H.15 as of the date hereof,
or if such publication or a substitute containing the foregoing rate
information shall not be published by the Federal Reserve System for any week,
the weekly average offering rate determined by the Managing Agent on the basis
of quotations for such certificates received by it from three certificate of
deposit dealers in New York of recognized standing or, if such quotations are
unavailable, then on the basis of other sources reasonably selected by the
Managing Agent, by (y) a percentage equal to 100% minus the stated maximum rate
of all reserve requirements as specified in Regulation D applicable on such day
to a three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily
net annual assessment rate as estimated by the Managing Agent for determining
the current annual assessment payable by the Managing Agent to the Federal
Deposit Insurance Corporation for insuring three-month certificates of deposit.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense,
but excluding any net non-cash charges reflected in Adjusted Consolidated
Working Capital) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less the sum of the amount of all net
non-cash gains (exclusive of such non-cash items reflected in Adjusted
Consolidated Working Capital) included in arriving at Consolidated Net Income
for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted RL Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank, such Bank's RL Percentage and (y) at a time when a Bank
Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
in the case of such Bank's RL Percentage, such Bank's Revolving Loan Commitment
at such time by
-94-
102
the Adjusted Total Revolving Loan Commitment at such time, it being understood
that all references herein to Revolving Loan Commitments and the Adjusted Total
Revolving Loan Commitment at a time when the Total Revolving Loan Commitment or
Adjusted Total Revolving Loan Commitment, as the case may be, has been
terminated shall be references to the Revolving Loan Commitments or Adjusted
Total Revolving Loan Commitment, as the case may be, in effect immediately
prior to such termination, provided that (A) no Bank's Adjusted RL Percentage
shall change upon the occurrence of a Bank Default from that in effect
immediately prior to such Bank Default if after giving effect to such Bank
Default, and any repayment of Revolving Loans at such time pursuant to Section
4.02(a) or otherwise, the sum of the aggregate outstanding principal amount of
Revolving Loans of all Non-Defaulting Banks plus the Letter of Credit
Outstandings, exceed the Adjusted Total Revolving Loan Commitment; (B) the
changes to the Adjusted RL Percentage that would have become effective upon the
occurrence of a Bank Default but that did not become effective as a result of
the preceding clause (A) shall become effective on the first date after the
occurrence of the relevant Bank Default on which the sum of the aggregate
outstanding principal amount of the Revolving Loans of all Non-Defaulting Banks
plus the Letter of Credit Outstandings is equal to or less than the Adjusted
Total Revolving Loan Commitment; and (C) if (i) a Non-Defaulting Bank's
Adjusted RL Percentage is changed pursuant to the preceding clause (B) and (ii)
any repayment of such Bank's Revolving Loans, or of Unpaid Drawings with
respect to Letters of Credit, that were made during the period commencing after
the date of the relevant Bank Default and ending on the date of such change to
its Adjusted RL Percentage. must be returned to the Borrower as a preferential
or similar payment in any bankruptcy or similar proceeding of the Borrower,
then the change to such Non-Defaulting Bank's Adjusted RL Percentage effected
pursuant to said clause (B) shall be reduced to that positive change, if any,
as would have been made to its Adjusted RL Percentage if (x) such repayments
had not been made and (y) the maximum change to its Adjusted RL Percentage
would have resulted in the sum of the outstanding principal of Revolving Loans
made by such Bank plus such Bank's new Adjusted RL Percentage of the
outstanding principal amount of Letter of Credit Outstandings equalling such
Bank's Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any time the
Total Revolving Loan Commitment less the aggregate Revolving Loan Commitments
of all Defaulting Banks.
"Affected Eurodollar Loans" shall have the meaning provided in Section
4.02(i).
"Affiliate" shall mean, with respect to any Person, any other Person
(including for purposes of Section 9.06 only, all directors, officers and
partners of such Person) directly or indirectly controlling, controlled by, or
under direct or indirect com-
-95-
103
mon control with, such Person; provided, however, that for purposes of Section
9.06, an Affiliate of Holdings shall include any Person that directly or
indirectly owns more than 10% of any class of the capital stock of Holdings. A
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agents" shall mean the Managing Agent and each of Xxxxxxx Xxxxx
Credit Partners L.P., as Documentation Agent, and NationsBank of Texas, N.A.
and Toronto Dominion (Texas), Inc., as Syndication Agents, so long as each
remains a Bank.
"Agreement" shall mean this Amended and Restated Credit Agreement, as
amended, modified, extended, renewed, replaced, restated or supplemented from
time to time.
"Amended and Restated Borrower Pledge Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Amended and Restated Borrower Security Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Amended and Restated Environmental Indemnity Agreement" shall have
the meaning provided in the Existing Credit Agreement.
"Amended and Restated Holdings Pledge Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Amended and Restated Holdings Security Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Amended and Restated Security Agreements" shall mean the Amended and
Restated Holdings Security Agreement, the Amended and Restated Borrower
Security Agreement and the Amended and Restated Subsidiary Security Agreement.
"Amended and Restated Subsidiary Guaranty" shall have the meaning
provided in the Existing Credit Agreement.
"Amended and Restated Subsidiary Pledge Agreement" shall have the
meaning provided in the Existing Credit Agreement.
-96-
104
"Amended and Restated Subsidiary Security Agreement" shall have the
meaning provided in the Existing Credit Agreement.
"Applicable Margin" shall mean (A) for the period from and including
the Second Restatement Effective Date to and including the date which is six
months after the Second Restatement Effective Date, a percentage per annum
equal to (x) in the case of Base Rate Loans, 1.125 % and (y) in the case of
Eurodollar Loans, 2.125 % and (B) thereafter, from and after each day of
delivery of any certificate delivered in accordance with the following sentence
(each a "Start Date") to and including the applicable End Date described below,
a percentage per annum based on the then-existing Leverage Ratio as set forth
below:
Base Rate Eurodollar
Leverage Ratio Loans Loans
-------------- ----- -----
Equal to or greater
than 6.5:1 1.125% 2.125%
Equal to or greater
than 6.0:1 but less
than 6.5:1 .75% 1.75%
Equal to or greater
than 5.5:1 but less
than 6.O:l .50% 1.50%
Equal to or greater
than 5.0:1 but less
than 5.5:1 .25% 1.25%
Equal to or greater
than 4.5:1 but less
than 5.0:1 0% 1.00%
Less than 4.5:1 0% 0.75%
The Leverage Ratio, for purposes of calculating the Applicable Margin, shall be
determined based on the delivery of a certificate of the Borrower to the
Managing Agent (with a copy to be sent by the Managing Agent to each Bank),
certified by an Authorized Officer of the Borrower within 30 days after the
last day of any fiscal quarter of the Borrower (commencing with its fiscal
quarter ending December 31,
-97-
105
1997), which certificate shall set forth the calculation of the Leverage Ratio
for the Test Period ended immediately prior to the relevant Start Date and the
Applicable Margin which shall be thereafter applicable (until same is changed
or ceases to apply in accordance with the following sentences). The Applicable
Margin so determined shall apply, except as set forth in the succeeding
sentence, from the Start Date to the earlier of (x) the date on which the next
certificate is delivered to the Managing Agent and (y) the date which is 30
days following the last day of the fiscal quarter in which the previous Start
Date occurred (the "End Date"), at which time, if no certificate has been
delivered to the Managing Agent indicating an entitlement to an Applicable
Margin other than in the case of Base Rate Loans, 1.125%, and in the case of
Eurodollar Loans, 2.125% (and thus commencing a new Start Date), the Applicable
Margin shall be, in the case of Base Rate Loans, 1.125%, and, in the case of
Eurodollar Loans, 2.125%. Notwithstanding anything to the contrary contained
above in this definition, the Applicable Margin shall be, in the case of Base
Rate Loans, 1.125% and, in the case of Eurodollar Loans, 2.125% at all times
during which there shall exist a Default or an Event of Default.
"Asset Swapped Station" shall have the meaning provided in Section
9.02(ix).
"Asset Target Station" shall have the meaning provided in Section
9.02(ix).
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"Authorized Officer" of any Credit Party shall mean any of the
Chairman of the Board, the President, the Chief Executive Officer, any Vice
President, the Treasurer, the Secretary, any Assistant Secretary, any Assistant
Treasurer, the Chief Financial Officer or the Controller of such Credit Party
or any other officer of such Credit Party which is designated in writing to the
Managing Agent and the Issuing Bank or any of the foregoing officers of such
Credit Party as being authorized to give such notices under this Agreement.
"Bank" shall mean each financial institution listed on Schedule I, as
well as any Person which becomes a "Bank" hereunder pursuant to Sections 1.13
and 13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.03(c) or (ii) a Bank
having notified in writing the Borrower and/or the Managing Agent that it does
not intend to comply with its
-98-
106
obligations under Section 1.01(a), 1.01(b) or 2, in the case of either clause
(i) or (ii) as a result of any takeover of such Bank by any regulatory
authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1% in
excess of the Adjusted Certificate of Deposit Rate and (ii) the Prime Lending
Rate.
"Base Rate Loan" shall mean each Loan designated or deemed designated
as such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
" Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Banks having Commitments of the respective Tranche on a
given date (or resulting from a conversion or conversions on such date) having
in the case of Eurodollar Loans the same Interest Period, provided that Base
Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of
the related Borrowing of Eurodollar Loans.
"Bridge Financing" shall mean the incurrence by Holdings of up to
$170,000,000 in unsecured senior Indebtedness from Bankers Trust New York
Corporation pursuant to the terms of the Bridge Financing Documents, the
proceeds of which shall be used to finance the Transaction.
"Bridge Financing Documents" shall mean the Senior Credit Agreement,
dated of even date herewith, among the Holdings, the Lenders named therein and
Bankers Trust New York Corporation, as Agent, the Notes as defined therein, and
any additional documents delivered in connection therewith, each as amended,
modified, restated or supplemented, from time to time, in accordance with the
terms hereof and thereof.
"Broadcast Cash Flow" shall mean, with respect to any Station during
any period, the sum of (x) EBITDA of such Station for such period (provided
that for purposes of calculating compliance with Section 9.08, non-cash
expenses relating to options to purchase common stock of Holdings issued by
Holdings in 1994 to Xxxxxx Xxxxxx, the President and Chief Executive Officer of
the Borrower, and certain Directors of the Borrower shall not be included in
the determination of Broadcast Cash Flow for any period occurring on or after
the Second Restatement Effective Date) and (y) corporate overhead expense
allocated to such Station for such period; it being
-99-
107
understood that the Broadcast Cash Flow of any Person shall mean the total
Broadcast Cash Flow of all Stations owned by such Person.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall
be in New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and
between banks in the New York interbank Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures (excluding barter transactions effected in the ordinary course of
business consistent with past practices) by such Person which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
GAAP) and the amount of Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under GAAP, are or will be required to be capitalized on the
books of such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
one year from the date of acquisition, (ii) time deposits and certificates of
deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States, any State thereof, the District of Columbia or any foreign jurisdiction
having capital, surplus and undivided profits aggregating in excess of
$200,000,000, with maturities of not more than one year from the date of
acquisition by such Person, (iii) repurchase obligations with a term of not
more than 90 days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications specified in
clause (ii) above, (iv) commercial paper issued by any Person incorporated in
the United States rated at least A-1 or the equivalent thereof by Standard &
Poor's Corporation or at least P-1 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. and in each case maturing not more than one year
-100-
108
after the date of acquisition by such Person, (v) investments in money market
funds substantially all of whose assets are comprised of securities of the
types described in clauses (i) through (iv) above and (vi) demand deposit
accounts maintained in the ordinary course of business not in excess of
$100,000 in the aggregate.
"Chancellor Broadcasting Licensee" shall mean Chancellor Broadcasting
Licensee Company, a Delaware corporation.
"Change of Ownership" shall mean (i) Holdings shall cease to own
beneficially 100% of the capital stock (other than the Series A Exchangeable
Preferred Stock and the Exchangeable Preferred Stock) of the Borrower, or the
Borrower or a Wholly-Owned Subsidiary of the Borrower shall cease to own
beneficially 100% of the capital stock of the Chancellor Broadcasting Licensee,
(ii) for any reason whatsoever any "Person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), excluding HM Group, is or
becomes the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than the greater of (x) 15%
of the then outstanding Voting Stock of Holdings or (y) the percentage of the
then outstanding Voting Stock of Holdings owned beneficially by the HM Group,
(iii) the Board of Directors of Holdings shall cease to consist of a majority
of Continuing Directors, (iv) a "Change of Control" under and as defined in the
Series A Exchangeable Preferred Stock Documents, the Exchangeable Preferred
Stock Documents, or after any issuance thereof, the 12-1/4% Junior Exchange
Debentures or 12% Junior Exchange Debentures shall have occurred or (v) the
Evergreen Merger shall have become effective.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
Second Restatement Effective Date, and to any subsequent provision of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties and all cash and Cash Equivalents delivered as collateral pursuant
to Section 4.02 or Section 10 hereof and all Additional Collateral, if any (all
of which shall in any event exclude any interest in the FCC Licenses to the
extent prohibited by applicable law).
"Collateral Agent" shall mean the Managing Agent acting as collateral
agent for the Secured Creditors pursuant to the Security Documents.
-101-
109
"Commitment" shall mean any of the commitments of any Bank, i.e.,
whether the Term Loan Commitment or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Communications Act" shall have the meaning provided in Section 7.23.
"Consolidated Broadcast Cash Flow" shall mean, for any period, the
Broadcast Cash Flow of Holdings and its Consolidated Subsidiaries determined on
a consolidated basis in accordance with GAAP during such period.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of Holdings and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP plus the Total
Unutilized Revolving Loan Commitment at such time.
"Consolidated Current Liabilities" shall mean, at any time, the
consolidated current liabilities of Holdings and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP at such time, but
excluding (i) the current portion of any Indebtedness under this Agreement and
any other long-term Indebtedness which would otherwise be included therein,
(ii) accrued but unpaid interest with respect to the Indebtedness described in
clause (i), and (iii) the current portion of Capitalized Lease Obligations.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of Holdings and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP, before Consolidated Net Interest
Expense and provision for taxes and without giving effect to any extraordinary
gains or losses or gains or losses from sales of assets other than inventory
sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation that were deducted in arriving at Consolidated EBIT for such
period, provided, that for any period ending in the first calendar year
following the Second Restatement Effective Date, Consolidated EBITDA shall be
calculated on a pro forma basis as if all Stations owned at the end of such
period were owned for the entire period, provided, further, for purposes of
calculating compliance with Sections 9.08, 9.09 and 9.10, in the event that
any sale or other disposition of Stations is made in compliance with Section
9.02, and the proceeds thereof are not applied to repay Loans, all in
accordance with Section 4.02(e), for the period (not to exceed 180 days) that
the proceeds thereof are held as
-102-
110
cash collateral pursuant to Section 4.02(e), the amount equal to the Broadcast
Cash Flow of the Stations so sold or so disposed at the end of the most recent
fiscal quarter prior to such sale or disposition for the four fiscal quarters
prior thereto shall be included in the determination of Consolidated EBITDA
during such period, provided, further, that for purposes of calculating
compliance with Sections 9.08, 9.09 and 9.10, non-cash expenses relating to
options to purchase common stock of Holdings issued by Holdings in 1994 to
Xxxxxx Xxxxxx, the President and Chief Executive Officer of the Borrower, Xx.
Xxxxxxx Xxxxx-Xxxx, Xx. Xxxxxx Xxxxxx, Xx. Xxxx X. Xxxxxxx, Xx. Xxxxxxx X.
Xxxxxx, Xx. Xxxx X. Xxxxxx and certain Directors of the Borrower shall not be
included in the determination of Consolidated EBITDA for any period occurring
on or after the Second Restatement Effective Date.
"Consolidated Indebtedness" shall mean, at any time, without
duplication, the sum of the aggregate outstanding principal amount of all
Indebtedness for borrowed money and the principal component of Capitalized
Lease Obligations of Holdings and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Cash Interest Expense" shall mean, for any period,
the total consolidated cash interest expense of Holdings and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP for
such period plus, without duplication, that portion of Capitalized Lease
Obligations of Holdings and its Consolidated Subsidiaries representing the
interest factor for such period in each case net of the total consolidated cash
interest income of Holdings, its Consolidated Subsidiaries for such period.
"Consolidated Net Income" shall mean, for any period, net after tax
income of Holdings and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Interest Expense" shall mean, for any period, the
total consolidated interest expense of Holdings and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of Holdings and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP representing the interest factor for
such period in each case net of the total consolidated cash interest income of
Holdings and its Consolidated Subsidiaries for such period, but excluding the
amortization of any deferred financing costs incurred in connection with this
Agreement.
-103-
111
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
holder of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of
the instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Continuing Bank" shall mean each Existing Bank with a Commitment
under this Agreement (immediately upon giving effect to the Second Restatement
Effective Date).
"Continuing Directors" shall mean the directors of Holdings on the
Second Restatement Effective Date and each other director, if such director's
nomination for election to the Board of Directors of Holdings is recommended by
a majority of the then Continuing Directors or any other nominee of the HM
Group.
"Convertible Preferred Stock" shall mean Holding's 7% Convertible
Preferred Stock.
"Credit Documents" shall mean this Agreement and, after the execution
and delivery thereof pursuant to the terms of this Agreement, each Note, each
Security Document, the Amended and Restated Environmental Indemnity Agreement,
the
-104-
112
Environmental Indemnity Agreement, the Amended and Restated Subsidiary Guaranty
and the Subsidiary Guarantee.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean Holdings, the Borrower and each Subsidiary
thereof party to a Credit Document.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Xxxxxx" shall mean Xx. Xxxxxx Xxxxxx.
"Xxxxxx Employment Contract" shall mean the contract between Holdings
and Xxxxxx.
"Dividend" with respect to any Person shall mean that such Person has
declared or paid a dividend or returned any equity capital to its stockholders
or authorized or made any other distribution, payment or delivery of property
(other than common stock of such Person) or cash to its stockholders as such,
or redeemed, retired, purchased or otherwise acquired, directly or indirectly,
for consideration any shares of any class of its capital stock outstanding on
or after the Second Restatement Effective Date (or any options or warrants
issued by such Person with respect to its capital stock), or set aside any
funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of such Person outstanding on or after the
Second Restatement Effective Date (or any options or warrants issued by such
Person with respect to its capital stock).
"Documentation Agent" shall mean Xxxxxxx Xxxxx Credit Partners L.P.,
in its capacity as Documentation Agent for the Banks hereunder.
"Documents" shall mean the Transaction Documents, the Bridge Financing
Documents and the Evergreen Acquisition Documents.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
-105-
113
"Drawing" shall have the meaning provided in Section 2.04(b).
"EBIT" shall mean, for any period, net after tax income of any
Person before Net Interest Expense and provision for taxes and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"EBITDA" shall mean, for any period, EBIT, adjusted by adding
thereto the amount of all amortization of intangibles and depreciation that
were deducted in arriving at EBIT for such period.
"8 3/4% Senior Subordinated Note Documents" shall mean and
include each of the documents and other agreements entered into (including,
without limitation, the 8 3/4% Senior Subordinated Note Indenture relating to
the issuance by the Borrower of the 8 3/4% Senior Subordinated Notes, as in
effect on the Second Restatement Effective Date and as the same may be entered
into, modified, supplemented or amended from time to time pursuant to the terms
hereof and thereof.
"8 3/4% Senior Subordinated Note Indenture" shall mean the
indenture, dated as of June 24, 0000, xxxxxxx xxx Xxxxxxxx xxx Xxxxxx Xxxxxx
Trust Company of Texas, as Trustee, as amended, modified, extended, reserved,
replaced, restated or supplemented from time to time pursuant to the terms
hereof and thereof.
"8 3/4% Senior Subordinated Notes" shall mean the Borrower's
8 3/4% Senior Subordinated Notes due 2007 issued pursuant to the 8 3/4% Senior
Subordinated Note Indenture.
"Eligible Transferee" shall mean and include a commercial
bank, mutual funds, financial institution or other institutional "accredited
investor" (as defined in Regulation D of the Securities Act).
"Employee Stock Option Plan" shall mean (i) the Chancellor
Corporation Stock Award Plan, (ii) the 1994 Directors Stock Option Plan and
(iii) any plan, to be entered into after the Second Restatement Effective Date,
for the compensation of management of Holdings or any of its Subsidiaries, or
any arrangement for the benefit of management of Holdings or any of its
Subsidiaries, in form and substance reasonably acceptable to the Managing
Agent.
"EMHC" shall mean Evergreen Mezzanine Holdings Corporation, a
Delaware corporation, which, no later than the date upon which the Evergreen
Merger is consummated, shall own all of the issued and outstanding capital
stock of Evergreen Media of LA.
-106-
114
"End Date" shall have the meaning provided in the definition of
Applicable Margin.
"Environmental Claims" shall have the meaning provided in the Amended
and Restated Environmental Indemnity Agreement and the Environmental Indemnity
Agreement.
"Environmental Indemnity Agreement" shall have the meaning provided in
Section 5.12.
"Environmental Law" shall have the meaning provided in the Amended and
Restated Environmental Indemnity Agreement and the Environmental Indemnity
Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the Second Restatement Effective Date and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or any Subsidiary of the Borrower
would be deemed to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean each Loan designated as such by the
Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean the offered quotation to first-class banks
in the New York interbank Eurodollar market by BTCo for Dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the Eurodollar Loan of BTCo with maturities comparable to the
Interest Period applicable to such Eurodollar Loan commencing two Business Days
thereafter as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period, divided (and rounded
off to the nearest 1/16 of 1%) by a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves required by
applicable law) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
-107-
115
"Evergreen" shall mean Evergreen Media Corporation, a Delaware
corporation.
"Evergreen Acquisition Documents" shall mean the Evergreen Merger
Agreement and all other agreements and documents relating to the Evergreen
Merger.
"Evergreen Administrative Agent" shall have the meaning provided in
Section 1.01(c).
"Evergreen Loan Agreement" shall have the meaning provided in Section
1.01(c).
"Evergreen Merger" shall mean the merger of Holdings with and into
EMHC and the merger of the Borrower with and into Evergreen Media of LA, with
EMHC and Evergreen of LA being the surviving corporations, pursuant to the
Evergreen Merger Agreement.
"Evergreen Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of February 19, 1997 by and among Holdings, the Company,
Evergreen and Evergreen Media of LA.
"Evergreen Media of LA" shall mean Evergreen Media Corporation of Los
Angeles, a Delaware corporation.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of (i) Adjusted Consolidated Net Income for such period and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Capital Expenditures made by the Borrower and its Subsidiaries on a
consolidated basis during such period pursuant to and in accordance with
Section 9.07(a) and (b), except to the extent financed with the proceeds of
Indebtedness or pursuant to Capitalized Lease Obligations, (ii) the aggregate
amount of permanent principal payments of Indebtedness for borrowed money of
the Borrower and the permanent repayment of the principal component of
Capitalized Lease Obligations of the Borrower and its Subsidiaries (excluding
(1) payments with proceeds of issuances of Indebtedness or equity or with
proceeds of asset sales and (2) payments of Loans or other Obligations),
provided that repayments of Loans shall be deducted in determining Excess Cash
Flow if such repayments were (x) required as a result of a Scheduled Repayment
under Section 4.02(b) (but not as a reduction to the amount of Scheduled
Repayments pursuant to another provision of this Agreement) or (y) made as a
voluntary prepayment pursuant to Section 4.01 with internally generated funds
(but in the case of a voluntary prepayment of Revolving Loans, only to the
extent accompanied by a voluntary reduction to the Total Revolving Loan
Commitment)) dur-
-108-
116
ing such period, (iii) the increase, if any, in Adjusted Consolidated Working
Capital from the first day to the last day of such period, (iv) the amount of
all expenses (including expenses incurred in connection with acquisitions) that
have been paid during such period to the extent that such expenses have been
capitalized in accordance with GAAP but only to the extent that the payment
thereof does not otherwise reduce Adjusted Consolidated Net Income and (v) the
aggregate amount of any payments made by Holdings to reduce the principal
amount of Indebtedness under the Bridge Financing.
"Excess Cash Payment Date" shall mean the date occurring 90 days after
the last day of each fiscal year of the Borrower (beginning with its fiscal
year ending December 31, 1997).
"Excess Cash Payment Period" shall mean with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal
year of the Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchangeable Preferred Stock" shall mean the Borrower's 12%
Exchangeable Preferred Stock due 2009.
"Exchangeable Preferred Stock Documents" shall mean each document
relating to the Exchangeable Preferred Stock (including, without limitation,
the 12% Junior Exchange Debenture Indenture and all documents relating
thereto).
"Existing Banks" shall mean each Person which was a Bank under, and as
defined in, the Existing Credit Agreement.
"Existing Chancellor Entities" shall mean Holdings, the Borrower and
each of the Borrower's Subsidiaries prior to giving effect to the Viacom
Acquisition.
"Existing Credit Agreement" shall have the meaning provided in the
first Whereas clause of this Agreement.
"Existing Debt" shall have the meaning provided in Section 5.06(a).
"Existing Debt Agreements" shall have the meaning provided in Section
5.06(a).
-109-
117
"Existing Letters of Credit" shall mean those letters of credit
outstanding under the Existing Credit Agreement prior to the Second Restatement
Effective Date and which remain outstanding following the Second Restatement
Effective Date, as disclosed on Schedule II.
"Existing Loans" shall mean, collectively the Existing Term Loans and
the Existing Revolving Loans.
"Existing Mortgage Policies" shall mean the "Mortgage Policies" under,
and as defined in, the Existing Credit Agreement.
"Existing Mortgaged Properties" shall mean all Real Property of the
Borrower and its Subsidiaries listed on Part A of Schedule II and designated as
"Existing Mortgaged Properties" therein.
"Existing Mortgages" shall mean all "Mortgages" (as defined in the
Existing Credit Agreement), "Existing Mortgages" (as defined in the Existing
Credit Agreement) and "Additional Mortgages" (as defined in the Existing Credit
Agreement) granted by the Borrower and its Subsidiaries or assumed pursuant to
the Existing Credit Agreement which have not been released by the lenders
thereunder prior to the Second Restatement Effective Date.
"Existing Revolving Loans" shall mean the "Revolving Loans" under, and
as defined in the Existing Credit Agreement.
"Existing Senior Subordinated Note Documents" shall mean and include
each of the documents and other agreements entered into (including, without
limitation, the Existing Senior Subordinated Note Indenture, the Second Senior
Subordinated Note Indenture and the Supplemental Indenture) relating to the
issuance by the Borrower of the Existing Senior Subordinated Notes, as in
effect on the Second Restatement Effective Date and as the same may be entered
into, modified, supplemented or amended from time to time pursuant to the terms
hereof and thereof.
"Existing Senior Subordinated Note Indenture" shall mean that certain
indenture dated as of October 12, 1994 by and between the Borrower and United
States Trust Company of Texas, as Trustee, as amended, modified, extended,
renewed, replaced, restated or supplemented prior to the effectiveness of the
Indenture Amendment.
"Existing Senior Subordinated Notes" shall mean the Borrower's 9 3/8%
Senior Subordinated Notes due 2004 issued pursuant to the Second Senior
Subordinated Note Indenture and any of the Borrower's 12 1/2% Senior
Subordinated Notes due 2004
-110-
118
issued pursuant to the Existing Senior Subordinated Note Indenture which remain
outstanding following the Tender Offer.
"Existing Term Loans" shall mean the "Term Loans" under, and as
defined in, the Existing Credit Agreement.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"FCC" shall mean the Federal Communications Commission, or any
successor thereto.
"FCC Consent" shall have the meaning provided in Section 5.07(c).
"FCC Licenses" shall have the meaning provided in Section 7.23.
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Managing Agent from three Federal Funds brokers of
recognized standing selected by the Managing Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Guaranteed Obligations" shall mean (i) the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of the
principal and interest on each Note issued by the Borrower to such Bank, and
Loans made, under the Credit Agreement and all reimbursement obligations and
Unpaid Drawings with respect to Letters of Credit, together with all the other
obligations and liabilities (including, without limitation, indemnities, fees
and interest thereon) of the Borrower to such Bank now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement or
any other Credit Document and the due performance and compliance with all the
terms, conditions and agreements contained in the Credit Documents by the
Borrower and (ii) the full and prompt payment when due (whether by acceleration
or otherwise) of all obligations of the Borrower owing under any Interest Rate
Protection Agreement, whether now in existence or hereafter arising, and
-111-
119
the due performance and compliance with all terms, conditions and agreements
contained therein.
"Guarantor" shall mean Holdings and any guarantor that is party to the
Amended and Restated Subsidiary Guaranty or the Subsidiary Guaranty.
"Guaranty" shall mean the guaranty made by Holdings pursuant to
Section 14, the Amended and Restated Subsidiary Guaranty, the Subsidiary
Guaranty and any guaranty executed pursuant to Section 8.12(e).
"Hazardous Materials" shall have the meaning provided in the Amended
and Restated Environmental Indemnity Agreement and the Environmental Indemnity
Agreement.
"HM Group" shall mean, collectively, (i) Hicks, Muse, Xxxx & Xxxxx
Incorporated, its Affiliates and Xxxxxx taken as a whole, (ii) so long as
Hicks, Muse, Xxxx & Xxxxx Incorporated, its Affiliates and Xxxxxx taken as a
whole possess sole voting right with respect to the Voting Stock held by each
such individual, such individuals who are or were employees, officers,
directors or partners of Hicks, Muse, Xxxx & Xxxxx Incorporated or such
Affiliate and the family members of such individuals or trusts created for the
sole benefit of such family members and (iii) so long as Hicks, Muse, Xxxx &
Xxxxx Incorporated, its Affiliates and Xxxxxx taken as a whole possess sole
voting right with respect to the Voting Stock of Holdings held by each such
Person, any Person not otherwise described by clause (i) and (ii) above,
provided that the aggregate number of shares held by all such Persons in
accordance with this clause (iii) at any time shall not exceed 3% of the
aggregate number of shares held by the Persons described in clause (i) and (ii)
above at such time.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Class A Common Stock" shall have the meaning provided in
Section 7.14(a).
"Holdings Class B Common Stock" shall have the meaning provided in
Section 7.14(a).
"Holdings Class C Common Stock" shall have the meaning provided in
Section 7.14(a).
"Holdings Common Stock" shall mean Holdings Class A Common Stock,
Holdings Class B Common Stock and Holdings Class C Common Stock.
-112-
120
"Holdings Guaranty" shall mean the guaranty provided to the Banks
pursuant to Section 14.
"Holdings Subordinated Notes" shall have the meaning set forth in
Section 9.04(vii).
"Indebtedness" shall mean, as to any Person, without duplication, (1)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services due more than 90 days after acquisition of the property or receipt of
services or which is otherwise represented by a note, (ii) the maximum amount
available to be drawn under all letters of credit issued for the account of
such Person and all unpaid drawings in respect of such letters of credit, (iii)
all Indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or
(vii) of this definition secured by any Lien on any property owned by such
Person, whether or not such Indebtedness has been assumed by such Person (to
the extent of the lesser of the amount of such Indebtedness and the value of
the respective property), (iv) Capitalized Lease Obligations, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person and (vii) all
obligations under any Interest Rate Protection Agreement or under any similar
type of agreement; provided that Indebtedness shall not include trade payables
and accrued expenses, in each case arising in the ordinary course of business.
"Indenture Amendment" shall mean the amendment to the Existing Senior
Subordinated Note Indenture (as so amended and as the same may be further
amended, modified, restated or supplemented from time to time, the
"Supplemental Indenture") eliminating substantially all of the restrictive
covenants therein, as described in the Offer to Purchase and Consent
Solicitation Statement.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Issuing Bank" shall mean, BTCO and any Bank which at the request of
the Borrower and with the consent of the Managing Agent agrees, in such Bank's
sole discretion, to become an Issuing Bank for the purpose of issuing Letters
of Credit
-113-
121
pursuant to Section 2. The sole Issuing Bank on the Second Restatement
Effective Date is BTCo.
"KIBB" shall mean KIBB Inc., a Delaware corporation.
"KYSR" shall mean KYSR Inc., a Delaware corporation.
"L/C Supportable Obligations" shall mean (i) obligations of
the Borrower or its Subsidiaries incurred in the ordinary course of business
with respect to insurance obligations and workers' compensation, surety bonds
and other similar statutory obligations and (ii) such other obligations of the
Borrower or any of its Subsidiaries as are reasonably acceptable to the
respective Issuing Bank and otherwise permitted to exist pursuant to the terms
of this Agreement.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lenders" shall have the meaning provided in Section 1.01(c).
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings relating to Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean on the date of determination
thereof the ratio of (x) Consolidated Indebtedness on such date less the
outstanding principal amount of the Bridge Financing on such date to (y) (i) in
the case of any date occurring on or after the Test Period ending June 30, 1997
(but prior to the last date of the next succeeding Test Period), Consolidated
EBITDA for such Test Period multiplied by 4, (ii) in the case of any date
occurring on or after the Test Period ending September 30, 1997 (but prior to
the last date of the next succeeding Test Period), Consolidated EBITDA for such
Test Period multiplied by 2, (iii) in the case of any date occurring on or
after the Test Period ending December 31, 1997 (but prior to the last date of
the next succeeding Test Period), Consolidated EBITDA for such Test Period
multiplied
-114-
122
by 4/3 and (iv) thereafter Consolidated EBITDA for the Test Period most
recently ended (taken as one accounting period) and ending on such date,
provided that, with respect to periods prior to June 30, 1998, for purposes of
calculating the Leverage Ratio, Consolidated EBITDA shall include Broadcast
Cash Flow of all Stations owned on the date of determination for less than the
entirety of such Test Period as if such Stations had been owned by the Borrower
or its Subsidiaries for the full Test Period, less corporate overhead
attributable to such Stations for such Test Period. Notwithstanding anything to
the contrary contained in the immediately preceding sentence, for purposes of
determining the Leverage Ratio in connection with Sections 3.01(a), the
denominator shall be Consolidated EBITDA for the then most recently ended Test
Period.
"License Subsidiary" shall mean Chancellor Broadcasting
Licensee, Shamrock, Shamrock Radio, Shamrock Broadcasting Licenses and Trefoil,
KIBB, KYSR, WDRQ and WLIT.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Term Loan and each Revolving Loan.
"Management Agreements" shall have the meaning provided in
Section 5.05.
"Managing Agent" shall mean Bankers Trust Company, in its
capacity as Managing Agent for the Banks hereunder, and shall include any
successor to the Managing Agent appointed pursuant to Section 12.09.
"Margin Stock" shall have the meaning provided in
Regulation U.
"Maturity Date" shall mean the earlier of (x) the date of
consummation of the Evergreen Merger and (y) July 2, 2004.
"Monitoring and Oversight Agreements" shall have the meaning
provided in Section 9.06(iv).
-115-
123
"Mortgage" shall have the meaning provided in Section 5.11(a),
and, after the execution and delivery thereof, shall include each Additional
Mortgage delivered pursuant to Section 8.12.
"Mortgage Amendment" shall have the meaning provided in
Section 5.11(a).
"Mortgage Policies" shall have the meaning provided in Section
5.11(c).
"Mortgaged Properties" shall have the meaning provided in
Section 5.11(a) and shall include any real property mortgaged pursuant to
Section 8.12.
"Net Interest Expense" shall mean, for any period, the total
interest expense of any Person for such period (calculated without regard to
any limitations on the payment thereof) plus, without duplication, that portion
of Capitalized Lease Obligations of such Person representing the interest
factor for such period in each case net of the total consolidated cash interest
income of such Person for such period, but excluding the amortization of any
deferred financing costs incurred in connection with this Agreement.
"Net Sale Proceeds" shall mean for any sale, lease, transfer
or other disposition of assets, the gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note, receivable
or otherwise, but only as and when received) received by Holdings and/or any of
its Subsidiaries from such sale, lease, transfer or other disposition, net of
reasonable transaction costs (including, without limitation, any underwriting,
brokerage or other customary selling commissions and reasonable legal, advisory
and other fees and expenses, including title and recording expenses and
reasonable expenses incurred for preparing such assets for sale, associated
therewith) and payments of unassumed liabilities relating to the assets sold at
the time of, or within 30 days after, the date of such sale, the amount of such
gross cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Banks pursuant to this Agreement) which is secured by the
respective assets which were sold, and the estimated marginal increase in
income taxes which will be payable by Holdings' consolidated group with respect
to the fiscal year in which the sale occurs as a result of such sale; but
excluding any portion of any such gross cash proceeds which Holdings determines
in good faith should be reserved for post-closing adjustments (to the extent
Holdings' delivers to the Banks a certificate signed by an Authorized Officer
as to such determination), it being understood and agreed that on the day that
all such post-closing adjustments have been determined (which shall not be
later than six months following the date of the respective asset sale), the
amount (if any) by which the reserved amount in respect of such sale or
disposition exceeds the actual
-116-
124
post-closing adjustments payable by Holdings or any of its Subsidiaries shall
constitute Net Sale Proceeds on such date).
"New Banks" shall mean each of the Persons listed on Schedule
I hereto which is not a Continuing Bank.
"Non-Continuing Bank" shall have the meaning provided in
Section 13.18.
"Non-Defaulting Bank" shall mean and include each Bank which
is not a Defaulting Bank.
"Note" shall mean each Term Note and each Revolving Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Managing Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxx
Xxxxx, or such other office as the Managing Agent may hereafter designate in
writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the Managing
Agent, the Collateral Agent or any Bank pursuant to the terms of this Agreement
or any other Credit Document.
"Offer to Purchase and Consent Solicitation Statement" shall
mean the Offer to Purchase and Consent Solicitation Statement, dated as of May
2, 1997, mailed to the holders of the Existing Senior Subordinated Notes on or
about May 2, 1997 in connection with the Tender Offer and Indenture Amendment.
"OmniAmerica Equity Issuance" shall mean the issuance by
Holdings of Class A Common Stock to the OmniAmerica Group pursuant to the
acquisition by the Borrower of certain Stations previously owned by the
OmniAmerica Group.
"OmniAmerica Stations" shall have the meaning provided in the
Existing Credit Agreement.
"Operating Agreement" shall have the meaning provided in
Section 8.04.
-117-
125
"Original Credit Agreement" shall mean the Credit Agreement,
dated as of February 19, 1996, among Holdings, the Borrower, the Banks (as
defined therein) from time to time party thereto and the Managing Agent.
"Participant" shall have the meaning provided in Section
2.03(a).
"Payment Office" shall mean the office of the Managing Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxx
Xxxxx, or such other office as the Managing Agent may hereafter designate in
writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto, all of
which exceptions must be acceptable to the Managing Agent in its reasonable
discretion.
"Permitted Issuance" shall mean (a) the issuance by Holdings
of options or other equity securities of Holdings to outside directors, members
of management or employees of Holdings or any Subsidiary of Holdings, (b) the
issuance of securities as interest or dividends on pay-in-kind debt or
preferred equity securities permitted hereunder and under the other Credit
Documents, (c) the issuance to Holdings or any Subsidiary (or any director,
with respect to directors' qualifying shares) by any of its Subsidiaries of any
of their respective capital stock, in each case with respect to this clause (c)
to the extent such capital stock is pledged to the Collateral Agent pursuant to
the applicable Pledge Agreement (provided that only 65% of the voting capital
stock of a foreign Subsidiary of the Borrower is required to be so pledged) and
(d) the issuance by Holdings of shares of capital stock of Holdings to infuse
additional capital into Holdings in an aggregate amount not to exceed
$25,000,000.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Person" shall mean any individual, partnership, joint
venture, limited liability company, firm, corporation, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan,
as defined in Section 4001 of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), the Borrower or a
Subsidiary of the Borrower or an
-118-
126
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed or had an obligation to
contribute to such plan.
"Pledge Agreements" shall mean the Subsidiary Pledge
Agreement, the Amended and Restated Holdings Pledge Agreement, the Amended and
Restated Borrower Pledge Agreement and the Amended and Restated Subsidiary
Pledge Agreement.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in each of the Pledge Agreements.
"Pledged Securities" shall mean "Pledged Securities" as
defined in each of the Pledge Agreements.
"Prime Lending Rate" shall mean the rate which Bankers Trust
Company announces from time to time as its prime lending rate, the Prime
Lending Rate to change when and as such prime lending rate changes. The Prime
Lending Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. Bankers Trust Company may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Projections" shall have the meaning provided in Section
7.05(d).
"Quarterly Payment Date" shall mean the last Business Day of
each January, April, July and October occurring after the Second Restatement
Effective Date.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Recovery Event" shall mean the receipt by Holdings or any of
its Subsidiaries of any (i) cash insurance proceeds payable (x) by reason of
theft, loss, physical destruction or damage or any other similar event with
respect to any property or assets of Holdings or any of its Subsidiaries and
(y) under any policy of insurance required to be maintained under Section 8.03
or (ii) condemnation award payable by reason of eminent domain or deed in lieu
thereof.
"Register" shall have the meaning set forth in Section 13.17.
-119-
127
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Reinvestment Assets" shall have the meaning provided in
Section 4.02(e).
"Release" shall have meaning provided on the Amended and
Restated Environmental Indemnity Agreement and the Environmental Indemnity
Agreement.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(b) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Repurchased Notes" shall have the meaning provided in the
definition of Tender Offer.
"Required Banks" shall mean Non-Defaulting Banks, the sum of
whose outstanding Term Loans and Revolving Loan Commitments represent an amount
greater than 50% of the sum of (x) all outstanding Term Loans of Non-Defaulting
Banks and (y) the Total Revolving Loan Commitment of Non-Defaulting Banks (or,
if the Total
-120-
128
Revolving Loan Commitment has been terminated, the outstanding Revolving Loans
of each Bank).
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(b).
"Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment," as same may be (x) reduced
from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Revolving Loan Conversion" shall have the meaning set forth
in Section 1.01(b).
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined
immediately prior (and without giving effect) to such termination.
"Scheduled Repayments" shall have the meaning provided in
Section 4.02(b).
"SEC" shall have the meaning provided in Section 8.01(h).
"Second Restatement Effective Date" shall have the meaning
provided in Section 13.10.
"Second Senior Subordinated Note Indenture" shall mean that
certain indenture dated as of February 8, 1996 by and between the Borrower, the
Licensee Subsidiary, as Guarantor and U.S. Trust Company of Texas, N.A., as
Trustee.
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
-121-
129
"Secured Creditors" shall have the meaning assigned that term
in the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Security Agreements" shall mean and include the Subsidiary
Security Agreement, the Amended and Restated Holdings Security Agreement, the
Amended and Restated Borrower Security Agreement, the Amended and Restated
Subsidiary Security Agreement and any Additional Security Document delivered
pursuant to Section 8.12.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in each Security Agreement (which shall in any event exclude any
interests in the FCC Licenses to the extent prohibited or ineffectual under
applicable law).
"Security Document" shall mean and include each Pledge
Agreement, each Security Agreement, each Mortgage and, after the execution and
delivery thereof, each Additional Mortgage and each Additional Security
Document required to be delivered pursuant to Section 8.12.
"Series A Exchangeable Preferred Stock" shall mean the
Borrower's 12 1/4% Series A Senior Cumulative Exchangeable Preferred Stock due
2008 issued concurrently with the Original Credit Agreement.
"Series A Exchangeable Preferred Stock Documents" shall mean
each document relating to the Series A Exchangeable Preferred Stock (including,
without limitation, the 12-1/4% Junior Exchange Debenture Indenture and all
documents relating thereto).
"SFX" shall mean WBLI, Inc., WHFM, Inc., WBAB, Inc. and WGBB,
Inc., all New York corporations, together with WBLI-FM, Inc. and SFX
Broadcasting, Inc., two Delaware corporations.
"SFX Exchange" shall mean the simultaneous exchange by the
Borrower of two of the OmniAmerica Stations (Stations WFYV (FM), Atlantic Beach
and WAPE (FM), Jacksonville, Florida) and approximately $11,000,000 in cash for
Stations WGBB (AM), Freeport, WBAB-FM, Babylon, WBLI (FM), Patchogue and WHFM
(FM), Southampton, New York (the "SFX Stations") in accordance with the terms
and provisions of the SFX Exchange Documents.
-122-
130
"SFX Exchange Documents" shall mean the agreement, dated as of
July 1, 1996, between the Borrower and SFX, as in effect on the Second
Restatement Effective Date, and all other agreements and documents relating to
the SFX Exchange.
"SFX Stations" shall have the meaning provided in the
definition of SFX Exchange.
"Shamrock" shall mean Shamrock Broadcasting, Inc., a Delaware
corporation.
"Shamrock Broadcasting Licenses" shall mean Shamrock
Broadcasting Licenses of Denver, Inc., a Delaware corporation.
"Shamrock Radio" shall mean Shamrock Radio Licenses, Inc., a
Delaware corporation.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.05.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01 (a).
"Start Date" shall have the meaning provided in the definition
of Applicable Margin.
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Station Swap" shall have the meaning provided in Section
9.02(ix).
"Stations" shall mean and include all of the radio stations
owned and operated by Holdings and its Subsidiaries on the Second Restatement
Effective Date, after giving effect to the Viacom Acquisition, and any radio
stations acquired pursuant to Section 9.02.
"Stock Swapped Station" shall have the meaning provided in
Section 9.02(ix).
"Stock Swaps" shall have the meaning provided in Section
9.02(ix).
-123-
131
"Stock Target Station" shall have the meaning provided in
Section 9.02(ix).
"Stockholders Agreement" shall mean the amended and restated
stockholders agreement dated as of February 14, 1996, among Holdings and the
stockholders of Holdings party thereto, as amended through the Second
Restatement Effective Date.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, association,
joint venture or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantee" shall have the meaning provided in
Section 5.08.
"Subsidiary Pledge Agreement" shall have the meaning provided
in Section 5.09.
"Subsidiary Security Agreement" shall have the meaning
provided in Section 5.10.
"Supermajority Banks" shall mean Non-Defaulting Banks the sum
of whose outstanding Term Loans represent an amount greater than 66 2/3% of
outstanding Term Loans of Non-Defaulting Banks.
"Supplemental Indenture" shall have the meaning provided in
the definition of Indenture Amendment.
"Swapped Station" shall have the meaning provided in Section
9.02(ix).
"Syndication Agent" shall mean each of NationsBank of Texas,
N.A. and Toronto Dominion (Texas), Inc., each in its capacity as Syndication
Agent for the Banks hereunder.
"Target Station" shall have the meaning provided in Section
9.02(ix).
"Tax Sharing Agreement" shall have the meaning provided in
Section 5.05.
-124-
132
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tender Offer" shall mean (i) the Borrower's offer to
purchase, in accordance with all applicable laws and the terms of the Tender
Offer Documents, all of its outstanding 12 1/2% Senior Subordinated Notes due
2004 issued pursuant to the Existing Senior Subordinated Note Indenture (the
"Repurchased Notes") and (ii) the valid tender of Repurchased Notes to the
Borrower (and actual purchase by the Borrower thereof) of more than $30,001,000
in aggregate principal amount of Repurchased Notes.
"Tender Offer Documents" shall mean the Offer to Purchase and
Consent Solicitation Statement and the Supplemental Indenture.
"Term Loan" shall have the meaning provided in Section
1.01(a).
"Term Loan Commitment" shall mean for each Bank the amount set
forth opposite such Bank's name in Schedule I hereto in the column entitled
"Tenn Loan Commitment" as same may be (x) reduced from time to time pursuant to
Sections 3.03, 4.02 and/or 10 or (y) adjusted from time to time as a result of
assignments to or from such Bank pursuant to Section 1.13 or 13.04(b).
"Term Loan Conversion" shall have the meaning set forth in
Section 1.01(a).
"Term Notes" shall have the meaning provided in Section
1.05(a).
"Test Period" shall mean (i) for any determination made prior
to June 30, 1998, the period from March 31, 1997 to the last day of the fiscal
quarter then last ended and (ii) for any determination made thereafter, the
four consecutive fiscal quarters then last ended (taken as one accounting
period).
"Total Commitment" shall mean the sum of the Total Term Loan
Commitment and the Total Revolving Loan Commitment.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
"Total Supermajority Banks" shall mean Non-Defaulting Banks
the sum of whose outstanding Term Loans and Revolving Commitments (or after the
termination thereof, outstanding Revolving Loans and Adjusted RL Percentage or
Letter of Credit Outstandings) represent an amount greater than 66-2/3% of
outstanding Term Loans and Revolving Commitments (or after the termination
thereof, outstanding Revolving
-125-
133
Loans and Adjusted RL Percentage or Letter of Credit Outstandings) of
Non-Defaulting Banks.
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Term Loan Commitments of each Bank.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, the sum of the Unutilized Revolving Loan Commitments of each of the
Banks.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01 (a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being two separate Tranches,
i.e., Term Loans and Revolving Loans.
"Transaction" shall mean and include the Viacom Acquisition,
the Indenture Amendment, the Tender Offer, the amendment and restatement of the
Existing Credit Agreement and related guaranties and security documents as
provided herein, the Loans incurred on the Second Restatement Effective Date
and the payment of fees and expenses in connection with the foregoing.
"Transaction Documents" shall mean the Tender Offer Documents,
the Viacom Acquisition Documents, the Credit Documents and all other documents
effectuating the Transaction or executed in connection therewith.
"Trefoil" shall mean Trefoil Communications, Inc., a Delaware
corporation.
"12% Junior Exchange Debenture Indenture" shall mean that
certain indenture dated as of the date of issuance of the 12% Junior Exchange
Debentures, by and between the Borrower and the United States Trust Company of
Texas, N.A., as trustee.
"12% Junior Exchange Debentures" shall mean the Borrower's
Subordinated Notes due 2009 issued pursuant to the 12% Junior Exchange
Debenture Indenture.
"12-1/4% Junior Exchange Debenture Indenture" shall I mean
that certain indenture dated as of the date of issuance of the 12-1/4% Junior
Exchange Debentures, by and between the Borrower and United States Trust
Company of Texas, as trustee.
134
"12-1/4% Junior Exchange Debentures" shall mean the Borrower's
Subordinated Notes due 2006 issued pursuant to the 12-1/4% Junior Exchange
Debenture Indenture.
"12-1/4% Senior Cumulative Preferred Stock" shall mean the
Borrower's Series A Senior Cumulative Exchangeable Preferred Stock due 2008.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated benefits under the
Plan as of the close of its most recent plan year, determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets allocable
thereto, determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any
Bank, at any time, shall mean such Bank's Revolving Loan Commitment at such
time less the sum of (i) the aggregate outstanding principal amount of
Revolving Loans made by such Bank plus (ii) such Bank's Adjusted RL Percentage
of all Letter of Credit Outstandings.
"Viacom" shall mean Viacom International, Inc. and its
affiliates.
"Viacom Acquisition" shall have the meaning provided in
Section 5.07(a)(iv).
"Viacom Acquisition Documents" shall mean the Viacom Joint
Purchase Agreement, the Stock Purchase Agreement dated as of February 16, 1997
between Viacom and Evergreen Media of LA and all other agreements and documents
relating to the Viacom Acquisition.
"Viacom FCC Licenses" shall mean the FCC Licenses acquired by
the Borrower pursuant to the Viacom Acquisition.
-127-
135
"Viacom Joint Purchase Agreement" shall mean the Joint
Purchase Agreement, dated as of February 19, 1997 by and among Holdings, the
Borrower, Evergreen Media of LA and Evergreen.
"Voting Stock" shall mean, as to any Person, any class or
classes of capital stock of such Person pursuant to which the holders thereof
have the general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors of such Person, or any class or classes of
capital stock convertible into such stock at the option of the holders thereof.
"WDRQ" shall mean WDRQ Inc., a Delaware corporation.
"WDRQ Detroit Disposition" shall mean the sale of WDRQ to ABC
for approximately $37,000,000 of gross cash proceeds subsequent to the Second
Restatement Effective Date pursuant to the WDRQ Detroit Disposition Documents.
"WDRQ Detroit Disposition Documents" shall mean the Asset
Purchase Agreement dated as of April 11, 1997 between the Borrower and ABC.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time. Any
reference to a Wholly-Owned Subsidiary, unless expressly to a Wholly-Owned
Subsidiary of another Person, shall mean a Wholly-Owned Subsidiary of the
Borrower.
"WLIT" shall mean WLIT Inc., a Delaware corporation.
SECTION 12. The Managing Agent.
12.01 Appointment. The Banks hereby designate BTCo as
Managing Agent (for purposes of this Section 12, the term "Managing Agent"
shall include BTCo in its capacity as Collateral Agent pursuant to the Security
Documents) to act as specified herein and in the other Credit Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the Managing
Agent to take such action on its behalf under the provisions of this Agreement,
the other Credit Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Managing Agent by the terms hereof and thereof and such other powers as are
-128-
136
reasonably incidental thereto. The Managing Agent may perform any of its duties
hereunder by or through its respective officers, directors, agents, employees
or affiliates. The Documentation Agent and Syndication Agent shall have no
duties or liabilities in acting in such capacities hereunder.
12.02 Nature of Duties. The Managing Agent shall not have
any duties or responsibilities except those expressly set forth in this
Agreement and the Security Documents. Neither the Managing Agent nor any of its
respective officers, directors, agents, employees or affiliates shall be liable
for any action taken or omitted by it or them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the Managing Agent
shall be mechanical and administrative in nature; the Managing Agent shall not
have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Bank or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon the Managing Agent any
obligations in respect of this Agreement or any other Credit Document except as
expressly set forth herein or therein.
12.03 Lack of Reliance on the Managing Agent. Independently
and without reliance upon the Managing Agent, each Bank and the holder of each
Note, to the extent it deems appropriate, has made and shall continue to make
(i) its own independent investigation of the financial condition and affairs of
Holdings and its Subsidiaries in connection with the making and the continuance
of the Loans and the taking or not taking of any action in connection herewith
and (ii) its own appraisal of the creditworthiness of Holdings and its
Subsidiaries and, except as expressly provided in this Agreement, the Managing
Agent shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank or the holder of any Note with any credit
or other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter. The Managing
Agent shall not be responsible to any Bank or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Credit Document or the financial condition of Holdings and its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document, or the financial condition of Holdings
and its Subsidiaries or the existence or possible existence of any Default or
Event of Default.
12.04 Certain Rights of the Managing Agent. If the Managing
Agent shall request instructions from the Required Banks with respect to any
act or action
-129-
137
(including failure to act) in connection with this Agreement or any other
Credit Document, the Managing Agent shall be entitled to refrain from such act
or taking such action unless and until the Managing Agent shall have received
instructions from the Required Banks; and the Managing Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, neither any Bank nor the holder of any Note shall have any right of
action whatsoever against the Managing Agent as a result of the Managing Agent
acting or refraining from acting hereunder or under any other Credit Document
in accordance with the instructions of the Required Banks.
12.05 Reliance. The Managing Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Managing Agent believed to be the
proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and
thereunder, upon advice of counsel selected by the Managing Agent.
12.06 Indemnification. To the extent the Managing Agent is
not reimbursed and indemnified by the Borrower, the Banks will reimburse and
indemnify the Managing Agent, in proportion to their respective "percentages"
as used in determining the Required Banks, for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Managing Agent in
performing its respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Managing Agent's
gross negligence or willful misconduct.
12.07 The Managing Agent in Its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the Managing
Agent shall have the rights and powers specified herein for a "Bank" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Banks," "Required Banks," "holders of Notes" or
any similar terms shall, unless the context clearly otherwise indicates,
include the Managing Agent in its individual capacity. The Managing Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Credit Party or any Affiliate of any
Credit Party as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Borrower or any other Credit Party
for services in connection with this Agreement and otherwise without having to
account for the same to the Banks.
-130-
138
12.08 Holders. The Managing Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the
case may be, shall have been filed with the Managing Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Managing Agent. (a) The Managing
Agent may resign from the performance of all its functions and duties hereunder
and/or under the other Credit Documents at any time by giving 15 Business Days'
prior written notice to the Borrower and the Banks. Such resignation shall take
effect upon the appointment of a successor Managing Agent pursuant to clauses
(b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall
appoint a successor Managing Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Managing Agent shall not have been so
appointed within such 15 Business Day period, the Managing Agent, with the
consent of the Borrower, shall then appoint a successor Managing Agent who
shall serve as Managing Agent hereunder or thereunder until such time, if any,
as the Banks appoint a successor Managing Agent as provided above.
(d) If no successor Managing Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date
such notice of resignation was given by the Managing Agent, the Managing
Agent's resignation shall become effective and the Required Banks shall
thereafter perform all the duties of the Managing Agent hereunder and/or under
any other Credit Document until such time, if any, as the Banks appoint a
successor Managing Agent as provided above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. (a) The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Managing Agent (including,
without limitation, the reasonable fees and disbursements of White & Case and
local counsel) in connection with the preparation, execution and delivery of
this Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto, of the Managing Agent in
-131-
139
connection with its syndication efforts with respect to this Agreement and of
the Managing Agent and, following an Event of Default, each of the Banks in
connection with the enforcement of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
(including, without limitation, the reasonable fees and disbursements of
counsel for the Managing Agent and, following an Event of Default, for each of
the Banks including any reasonable allocated costs of in-house counsel); (ii)
pay and hold each of the Banks harmless from and against any and all present
and future stamp, excise and other similar taxes with respect to the foregoing
matters and save each of the Banks harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Bank) to pay such taxes; and (iii) indemnify
the Managing Agent and each Bank, and each of their respective officers,
directors, employees, representatives, trustees and agents from and hold each
of them harmless against any and all liabilities, obligations (including
removal or remedial actions), losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements (including reasonable
attorneys' and consultants' fees and disbursements) incurred by, imposed on or
assessed against any of them as a result of, or arising out of, or in any way
related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not the Managing Agent or any Bank is a party thereto)
related to the entering into and/or performance of this Agreement or any other
Credit Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of any transactions contemplated herein or in any
of the Transaction Documents (including, without limitation, the Viacom
Acquisition Documents and the Tender Offer Documents) or in any other Credit
Document or the exercise of any of their rights or remedies provided herein or
in the other Credit Documents, or (b) the non-compliance of any Real Property
with foreign, federal, state and local laws, regulations, and ordinances
(including applicable permits thereunder) applicable to any Real Property,
(excluding Environmental Laws which are governed by the Amended and Restated
Environmental Indemnity Agreement and the Environmental Indemnity Agreement)
owned or at any time operated by Holdings or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel and other consultants incurred in connection with any
such investigation, litigation or other proceeding (but excluding any losses,
liabilities, claims, damages or expenses to the extent incurred by reason of
the gross negligence or willful misconduct of the Person to be indemnified). To
the extent that the undertaking to indemnify, pay or hold harmless the Managing
Agent or any Bank set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Borrower shall make
the maximum contribution to the payment and satisfaction of each of the
indemnified liabilities which is permissible under applicable law.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the indemnification provided for in this Section 13.01 shall not
apply to
-132-
140
Environmental Claims, Hazardous Materials or Releases, all of which shall be
governed exclusively by the Amended and Restated Environmental Indemnity
Agreement and the Environmental Indemnity Agreement.
13.02 Right of Setoff; Collateral Matters. (a) In addition
to any rights now or hereafter granted under applicable law or otherwise, and
not by way of limitation of any such rights, upon the occurrence of an Event of
Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to Holdings or
the Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of Holdings or the Borrower
against and on account of the Obligations and liabilities of Holdings or the
Borrower to such Bank under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations
purchased by such Bank pursuant to Section 13.06(b), and all other claims of
any nature or description arising out of or connected with this Agreement or
any other Credit Document, irrespective of whether or not such Bank shall have
made any demand hereunder and although said Obligations, liabilities or claims,
or any of them, shall be contingent or unmatured.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY
TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY
LOCATED IN CALIFORNIA, NO BANK SHALL EXERCISE A RIGHT OF SETOFF, BANKER'S LIEN
OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY
PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE THAT IS NOT
TAKEN BY THE REQUIRED BANKS OR APPROVED IN WRITING BY THE REQUIRED BANKS IF
SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO SECTIONS 580a,
580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF
THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE
VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL
AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND
OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY BANK OF ANY SUCH
RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED BANKS SHALL BE NULL AND
VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE
MANAGING AGENT, THE COLLATERAL AGENT AND THE BANKS HEREUNDER AND SHALL NOT
CREATE ANY RIGHTS FOR THE BENEFIT OF ANY CREDIT PARTY OR ANY OTHER PERSON.
-133-
141
13.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, telecopier or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered: if to Holdings,
at Holdings' address specified opposite its signature below; if to the
Borrower, at the Borrower's address specified opposite its signature below; if
to any Bank, at its address specified opposite its name below; and if to the
Managing Agent, at its Notice Office; or, as to any Credit Party or the
Managing Agent, at such other address as shall be designated by such party in a
written notice to the other parties hereto and, as to each Bank, at such other
address as shall be designated by such Bank in a written notice to the Borrower
and the Managing Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company,
cable company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Managing Agent and
the Borrower shall not be effective until received by the Managing Agent or the
Borrower, as the case may be.
13.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit
Party may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document without the prior written consent
of the Banks and, provided further, that, although any Bank may transfer,
assign or grant participations in its rights hereunder, such Bank shall remain
a "Bank" for all purposes hereunder (and may not transfer or assign all or any
portion of its Commitments hereunder except as provided in Section 13.04(b))
and the transferee, assignee or participant, as the case may be, shall not
constitute a "Bank" hereunder and, provided further, that no Bank shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Maturity Date) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of
applicability of any postdefault increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan and an increase
in the available portion of any Commitment of any Bank shall be permitted
without the consent of any participant if the participant's participation is
not increased as a result thereof), (ii) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement or
(iii) release all or substantially all of the
-134-
142
Collateral under all of the Security Documents (except as expressly provided in
the Credit Documents) supporting the Loans hereunder in which such participant
is participating. In the case of any such participation, the participant shall
not have any rights under this Agreement or any of the other Credit Documents
(the participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Commitments (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans to (i) its parent company and/or any affiliate of such
Bank which is at least 50% owned by such Bank or its parent company or to one
or more Banks or (ii) in the case of any Bank that is a fund that invests in
bank loans, any other fund that invests in bank loans and is managed by the
same investment advisor of such Bank or by an Affiliate of such investment
advisor or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of such
Revolving Loan Commitments and outstanding principal amount of Term Loans
hereunder to one or more Eligible Transferees (treating any fund that invests
in bank loans and any other fund that invests in bank loans and is managed by
the same investment advisor of such fund or by an Affiliate of such investment
advisor as a single Eligible Transferee), each of which assignees shall become
a party to this Agreement as a Bank by execution of an Assignment and
Assumption Agreement, provided that, (i) at such time Schedule I shall be
deemed modified to reflect the Commitments (and/or outstanding Term Loans, as
the case may be) of such new Bank and of the existing Banks, (ii) upon
surrender of the old Notes, new Notes will be issued, at the Borrower's
expense, to such new Bank and to the assigning Bank, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments (and/or
outstanding Term Loans, as the case may be), (iii) the consent of the Managing
Agent shall be required in connection with any such assignment (which consent
shall not be unreasonably withheld) and (iv) the Managing Agent shall receive
at the time of each such assignment, from the assigning or assignee Bank, the
payment of a non-refundable assignment fee of $3,500 and, provided further,
that such transfer or assignment will not be effective until recorded by the
Managing Agent on the Register pursuant to Section 13.17 hereof. To
the extent of any assignment pursuant to this Section 13.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to its
assigned Commitments. At the time of each assignment pursuant to this Section
13.04(b) to a Person which is not already a Bank hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Bank shall
provide to the Borrower and
-135-
143
the Managing Agent the appropriate Internal Revenue Service Forms (and, if
applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To
the extent that an assignment of all or any portion of a Bank's Commitments and
related outstanding Obligations pursuant to Section 1.13 or this Section
13.04(b) would, at the time of such assignment, result in increased costs under
Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective
assigning Bank prior to such assignment, then the Borrower shall not be
obligated to pay such increased costs (although the Borrower shall be obligated
to pay any other increased costs of the type described above resulting from
changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit
any Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank
in support of borrowings made by such Bank from such Federal Reserve Bank and,
with the consent of the Agent, any Bank which is a fund may pledge all or any
portion of its Loans and Notes to its trustee in support of its obligations to
its trustee. No pledge pursuant to this clause (c) shall release the transferor
Bank from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay
on the part of the Managing Agent or any Bank or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit
Party and the Managing Agent or any Bank or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document expressly provided are cumulative and not
exclusive of any rights, powers or remedies which the Managing Agent or any
Bank or the holder of any Note would otherwise have. No notice to or demand on
any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Managing Agent or any Bank or the holder of any
Note to any other or further action in any circumstances without notice or
demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided
in this Agreement, the Managing Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise
-136-
144
of the right of setoff or banker's lien, by counterclaim or cross action, by
the enforcement of any right under the Credit Documents, or otherwise), which
is applicable to the payment of the principal of, or interest on, the Loans,
Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a sum which
with respect to the related sum or sums received by other Banks is in a greater
proportion than the total of such Obligation then owed and due to such Bank
bears to the total of such Obligation then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such excess payment
shall purchase for cash without recourse or warranty from the other Banks an
interest in the Obligations of the respective Credit Party to such Banks in
such amount as shall result in a proportional participation by all the Banks in
such amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 13.06(a) and (b) shall be
subject to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Banks as opposed to Defaulting
Banks.
13.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Banks); provided that, except as otherwise specifically
provided herein, all computations of Excess Cash Flow and all computations
determining compliance with Sections 9.07 through 9.10, inclusive, shall
utilize accounting principles and policies in conformity with those used to
prepare the historical financial statements delivered to the Banks pursuant to
Section 7.05(a) (with the foregoing generally accepted accounting principles,
subject to the preceding proviso, herein called "GAAP").
(b) All computations of interest, Commitment Commission
and Fees hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, Commitment Commission or Fees
are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAWS OF
-137-
000
XXX XXXXX XX XXX XXXX. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF HOLDINGS AND
THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY DESIGNATES,
APPOINTS AND EMPOWERS XXXX XXXXXXX, THE VICE PRESIDENT AND GENERAL MANAGER AT
WALK=AM/FM, 00 XXXXXXXX XXXXX, XXXXXXXXX, XXX XXXX 00000 AS ITS DESIGNEE,
APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF
FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE
TO ACT AS SUCH, EACH CREDIT PARTY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE
AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION
SATISFACTORY TO THE MANAGING AGENT UNDER THIS AGREEMENT. EACH OF HOLDINGS AND
THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY CREDIT
PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE MANAGING AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF ANY
NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
(b) EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES
-138-
146
NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Borrower and the Managing Agent.
13.10 Effectiveness. (a) This Agreement shall become
effective on the date (the "Second Restatement Effective Date") on which (i)
each of the Borrower, each Agent, each Continuing Bank and each New Bank shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile device) the same to the
Managing Agent at its Notice Office and (ii) the conditions contained in
Sections 5, 6 and 13.10(b) are met to the satisfaction of the Managing Agent and
the Required Banks (determined immediately after the occurrence of the Second
Restatement Effective Date). Unless the Managing Agent has received actual
notice from any Bank that the conditions contained in Sections 5 and 6 have not
been met to its satisfaction, upon the satisfaction of the condition described
in clause (i) of the immediately preceding sentence and upon the Managing
Agent's good faith determination that the conditions described in clause (ii) of
the immediately preceding sentence have been met, then the Second Restatement
Effective Date shall have been deemed to have occurred, regardless of any
subsequent determination that one or more of the conditions thereto had not been
met (although the occurrence of the Second Restatement Effective Date shall not
release the Borrower from any liability for failure to satisfy one or more of
the applicable conditions contained in Section 5 or 6). The Managing Agent will
give the Borrower and each Bank prompt written notice of the occurrence of the
Second Restatement Effective Date.
(b) On the Second Restatement Effective Date, each New
Bank and each Continuing Bank shall have delivered to the Managing Agent for
the account of the Borrower an amount equal to (i) in the case of each New
Bank, the Term Loans and Revolving Loans to be made by such New Bank on the
Second Restatement Effective Date and (ii) in the case of each Continuing Bank,
the amount by which the principal amount of Loans to be made and/or converted
by such Continuing Bank on the Second
-139-
147
Restatement Effective Date exceeds the amount of the Existing Loans of such
Continuing Bank outstanding on the Second Restatement Effective Date.
Notwithstanding anything to the contrary contained in this Section 13.10(b), in
satisfying the foregoing condition, unless the Managing Agent shall have been
notified by any Bank prior to the occurrence of the Second Restatement
Effective Date that such Bank does not intend to make available to the Managing
Agent such Bank's Term Loans and Revolving Loans required to be made by it on
such date, then the Managing Agent may, in reliance on such assumption, make
available to the Borrower the corresponding amounts in accordance with the
provisions of Section 1.04 of this Agreement, and the making available by the
Managing Agent of such amounts shall satisfy the condition contained in this
Section 13.10(b).
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement
nor any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks, provided that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank) (with Obligations being directly affected), (i) extend the final
scheduled maturity, or Scheduled Repayment of any Loan or Note or extend the
stated maturity of any Letter of Credit beyond July 2, 2004, or reduce the rate
or extend the time of payment of interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in interest rates),
or reduce the principal amount thereof (except to the extent repaid in cash),
(ii) release all or substantially all of the Collateral (except as expressly
provided in the Credit Documents) under all the Security Documents, (iii)
amend, modify or waive any provision of this Section 13.12, (iv) reduce the
percentage specified in the definition of Required Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Banks on substantially the same basis as the extensions of Term Loans and
Revolving Loan Commitments are included on the Second Restatement Effective
Date) or (v) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement; provided further, that no such
change, waiver, discharge or termination shall (u) increase the Commitments of
any Bank over the amount thereof then in effect without the consent of such
Bank (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the Total Commitment shall not constitute an increase of the Commitment of
any Bank, and that an increase in the available portion of any Commitment of
any Bank shall not constitute an increase in the Commitment of
-140-
148
such Bank), (v) without the consent of the Managing Agent and each other
Issuing Bank, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (w) without the
consent of the Managing Agent, amend, modify or waive any provision of Section
12 as same applies to such Managing Agent or any other provision as same
relates to the rights or obligations of such Managing Agent, (x) without the
consent of the Collateral Agent, amend, modify or waive, any provision relating
to the rights or obligations of the Collateral Agent, (y) without the consent
of the Supermajority Banks, amend, modify or waive the definition of
Supermajority Banks or this clause (y), and (z) without the consent of the
Total Supermajority Banks, amend, modify or waive Section 9.04(xii) or
9.04(xiii), reduce the percentage specified in the definition of Total
Supermajority Banks (it being understood that, with the consent of the Total
Supermajority Banks, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Total Supermajority Banks on
substantially the same basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Second Restatement Effective Date) or this
clause (z). Notwithstanding anything to the contrary contained herein, the
Managing Agent may enter into documentation (including any changes to this
Agreement or the other Credit Documents) necessary to effect the increase in
the Total Revolving Commitment pursuant to Section 9.04(xiv).
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks are
treated as described in clauses (A) or (B) below, to either (A) replace each
such non-consenting Bank or Banks with one or more Replacement Banks pursuant
to Section 1.13 so long as at the time of such replacement, each such
Replacement Bank consents to the proposed change, waiver, discharge or
termination or (B) terminate such non-consenting Bank's Revolving Loan
Commitment and repay its Loans, in accordance with Sections 3.02(b) and
4.01(v), respectively, provided that in any event the Borrower shall not have
the right to replace a Bank, terminate its Revolving Loan Commitment or repay
its Loans solely as a result of the exercise of such Bank's rights ("and the
withholding of any required consent by such Bank) pursuant to the second
proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01 shall,
subject to Section 13.15 (to the extent applicable), survive the execution,
delivery and termination of this Agreement and the Notes the making and
repayment of the Loans and the assignment by any Bank of its Commitment in
accordance with Section 13.04(b).
-141-
149
13.14 Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Bank. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11,
2.05 or 4.04 from those being charged by the respective Bank prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes giving rise to such increased
costs after the date of the respective transfer).
13.15 Limitation on Additional Amounts, etc.
Notwithstanding anything to the contrary contained in Section 1.10, 1.11, 2.05
or 4.04 of this Agreement, unless a Bank gives notice to the Borrower that it
is obligated to pay an amount under the respective Section within one year
after the later of (x) the date the Bank incurs the respective increased costs,
Taxes, loss, expense or liability, reduction in amounts received or receivable
or reduction in return on capital or (y) the date such Bank has actual
knowledge of its incurrence of the respective increased costs, Taxes, loss,
expense or liability, reductions in amounts received or receivable or reduction
in return on capital, then such Bank shall only be entitled to be compensated
for such amount by the Borrower pursuant to said Section 1.10, 1.11, 2.05 or
4.04, as the case may be, to the extent the costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return
on capital are incurred or suffered on or after the date which occurs one year
prior to such Bank giving notice to the Borrower that it is obligated to pay
the respective amounts pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as
the case may be. This Section 13.15 shall have no applicability to any Section
of this Agreement other than said Sections 1.10, 1.11, 2.05 and 4.04.
13.16 Confidentiality. (a) Subject to the provisions of
clause (b) of this Section 13.16, each Bank agrees that it will use its best
efforts not to disclose without the prior consent of Holdings or the Borrower
(other than to its employees, auditors, advisors or counsel or to another Bank
if the Bank or such Bank's holding or parent company in its sole discretion
determines that any such party should have access to such information, provided
such Persons shall be subject to the provisions of this Section 13.16 to the
same extent as such Bank) any information with respect to Holdings or any of
its Subsidiaries which is now or in the future furnished pursuant to this
Agreement or any other Credit Document and which is designated by Holdings to
the Banks in writing as confidential, provided that any Bank may disclose any
such information (a) as has become generally available to the public, (b) as
may be required or appropriate in any report, statement or testimony submitted
to any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be
-142-
150
required or appropriate in respect to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order, regulation or
ruling applicable to such Bank, (e) to the Managing Agent or the Collateral
Agent and (f) to any prospective or actual transferee or participant in
connection with any contemplated transfer or participation of any of the Notes
or Commitments or any interest therein by such Bank or to any direct or
indirect contractual counterparties in swap agreements or such contractual
counterparties' professional advisors, provided that such prospective
transferee, swap counterparty or swap counterparty's professional advisor
agrees to abide by the provisions of this Section 13.16.
(b) Each of Holdings and the Borrower hereby acknowledges
and agrees that each Bank may share with any of its affiliates any information
related to Holdings or any of its Subsidiaries (including, without limitation,
any nonpublic customer information regarding the creditworthiness of Holdings
and its Subsidiaries, provided such Persons shall be subject to the provisions
of this Section 13.16 to the same extent as such Bank).
13.17 Register. The Borrower hereby designates the Managing
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.17, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Banks, the Loans made by each of
the Banks and each repayment in respect of the principal amount of the Loans of
each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such Bank
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Managing Agent with respect to ownership of such
Commitments and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Managing Agent on the Register
only upon the acceptance by the Managing Agent of a properly executed and
delivered Assignment and Assumption Agreement pursuant to Section 13.04(b).
Coincident with the delivery of such an Assignment and Assumption Agreement to
the Managing Agent for acceptance and registration of assignment or transfer of
all or part of a Loan, or as soon thereafter as practicable, the assigning or
transferor Bank shall surrender the Note evidencing such Loan, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Bank and/or the new Bank. The Borrower agrees to
indemnify the Managing Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Managing Agent in performing its duties under this
Section 13-17.
-143-
151
13.18 Additions of New Banks; Conversion of Existing Loans
of Continuing Banks; Termination of Commitments of Non-Continuing Banks. (a) On
and as of the occurrence of the Second Restatement Effective Date in accordance
with Section 13.10 hereof, each New Bank shall become a "Bank" under, and for
all purposes of, this Agreement and the other Credit Documents.
(b) The parties hereto acknowledge that each Existing
Bank has been offered the opportunity to participate in this Agreement, after
the occurrence of the Second Restatement Effective Date, as a Continuing Bank
hereunder, but that no Existing Bank is obligated to be a Continuing Bank.
(c) Notwithstanding anything to the contrary contained in
the Existing Credit Agreement, this Agreement or any other Credit Document, the
Borrower and each of the Banks hereby agree that on the Second Restatement
Effective Date, (i) each Bank with a Commitment as set forth on Schedule I
(after giving effect to the Second Restatement Effective Date) shall make or
maintain (including by way of conversion) that principal amount of Term Loans
and/or Revolving Loans to the Borrower as is required by Section 1.01, provided
that if the Existing Loans of any Continuing Bank outstanding on the Second
Restatement Effective Date (immediately before giving effect thereto) exceed
the aggregate principal amount of Loans required to be made available by such
Bank on such date (after giving effect to the Second Restatement Effective
Date), then Existing Loans of such Continuing Bank in an amount equal to such
excess shall be repaid on the Second Restatement Effective Date, together with
interest thereon, to such Continuing Bank and (ii) in the case of each
Non-Continuing Bank, all of such Non-Continuing Bank's Existing Loans
outstanding on the Second Restatement Effective Date shall be repaid in full on
such date, together with interest thereon and all accrued Fees (and any other
amounts) owing to such Non-Continuing Bank, and the Term Loan Commitment and/or
Revolving Loan Commitment (under, and as defined in, the Existing Credit
Agreement) of such Non-Continuing Bank, if any, shall be terminated, effective
upon the occurrence of the Second Restatement Effective Date. Notwithstanding
anything to the contrary contained in the Existing Credit Agreement, this
Agreement or any other Credit Document, the parties hereto consent to the
repayments and reductions required above, and agree that in the event that any
Existing Bank shall fail to execute a counterpart of this Agreement prior to
the occurrence of the Second Restatement Effective Date, such Existing Bank
shall be deemed to be a Non-Continuing Bank and, concurrently with the
occurrence of the Second Restatement Effective Date, the Revolving Loan
Commitment (under, and as defined in, the Existing Credit Agreement) of such
Existing Bank, if any, shall be terminated, all Existing Loans of such Existing
Bank outstanding on the Second Restatement Effective Date shall be repaid in
full, together with interest thereon and all accrued Fees (as defined in the
Existing Credit Agreement) (and any other amounts) owing to such Existing Bank
under the Existing Credit Agreement, and concurrently with the occurrence of
the
-144-
152
Second Restatement Effective Date, such Existing Bank shall no longer
constitute a "Bank" under this Agreement and the other Credit Documents,
provided that all indemnities of the Credit Parties under the Existing Credit
Agreement and the other Credit Documents (as in effect prior to the Second
Restatement Effective Date) for the benefit of such Existing Bank shall survive
in accordance with the terms thereof.
SECTION 14. Holdings Guaranty.
14.01 The Guaranty. In order to induce the Banks to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by Holdings from the proceeds of the Loans and
the issuance of the Letters of Credit and to induce the Banks or any of their
respective Affiliates to enter into Interest Rate Protection Agreements,
Holdings hereby agrees with the Banks as follows: Holdings hereby
unconditionally and irrevocably guarantees as primary obligor and not merely as
surety the full and prompt payment when due, whether upon maturity, by
acceleration or otherwise, of any and all of the Guaranteed Obligations of the
Borrower to the Secured Creditors. If any or all of the Guaranteed Obligations
of the Borrower to the Secured Creditors becomes due and payable hereunder,
Holdings unconditionally promises to pay such indebtedness to the Secured
Creditors, or order, on demand, together with any and all reasonable expenses
which may be incurred by the Managing Agent or the Secured Creditors in
collecting any of the Guaranteed Obligations.
14.02 Bankruptcy. Additionally, Holdings unconditionally
and irrevocably guarantees the payment of any and all of the Guaranteed
Obligations of the Borrower to the Secured Creditors whether or not then due or
payable by the Borrower upon the occurrence in respect of the Borrower of any
of the events specified in Section 10.05, and unconditionally and irrevocably
promises to pay such Guaranteed Obligations to the Secured Creditors, or order,
on demand, in lawful money of the United States.
14.03 Nature of Liability. The liability of Holdings
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations of the Borrower whether executed by Holdings, any
other guarantor or by any other party, and the liability of Holdings hereunder
shall not be affected or impaired by (a) any direction as to application of
payment by the Borrower or by any other party, or (b) any other continuing or
other guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the Guaranteed Obligations of the Borrower, or (c) any payment on
or in reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel by the
Borrower, or (e) any payment made to the Managing Agent or the Secured
Creditors on the indebtedness which the Managing Agent or such Secured
Creditors repay the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, xxxx-
-145-
153
torium or other debtor relief proceeding, and Holdings waives any right to the
deferral or modification of its obligations hereunder by reason of any such
proceeding.
14.04 Independent Obligation. The obligations of Holdings
hereunder are independent of the obligations of any other guarantor or the
Borrower, and a separate action or actions may be brought and prosecuted
against Holdings whether or not action is brought against any other guarantor
or the Borrower and whether or not any other guarantor or the Borrower be
joined in any such action or actions. Holdings waives, to the fullest extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by the Borrower or
other circumstance which operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations as to Holdings. This
Guaranty is a continuing one and all liabilities to which it applies or may
apply under the terms hereof shall be conclusively presumed to have been
created in reliance hereon.
14.05 Authorization. Holdings authorizes the Managing Agent
and the Secured Creditors without notice or demand (except as shall be required
by applicable statute and cannot be waived), and without affecting or impairing
its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment
of, and/or change or extend the time of payment of, renew,
increase, accelerate or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the
Guaranty herein made shall apply to the Guaranteed Obligations
as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any
rights against the Borrower or others or otherwise act or
refrain from acting;
(d) release or substitute any one or more
endorsers, guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including
any of those hereunder) incurred directly or
-146-
154
indirectly in respect thereof or hereof, and may subordinate
the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its
creditors other than the Banks;
(f) apply any sums by whomsoever paid or
howsoever realized to any liability or liabilities of the
Borrower to the Secured Creditors regardless of what liability
or liabilities of Holdings or the Borrower remain unpaid;
(g) consent to or waive any breach of, or any
act, omission or default under, this Agreement or any of the
instruments or agreements referred to herein, or otherwise
amend, modify or supplement this Agreement or any of such
other instruments or agreements; and/or
(h) take any other action which would, under
otherwise applicable principles of common law, give rise to a
legal or equitable discharge of Holdings from its liabilities
under the Holdings Guaranty.
14.06 Reliance. It is not necessary for the Managing Agent
or the Secured Creditors to inquire into the capacity or powers of the Borrower
or its Subsidiaries or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any Guaranteed Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
14.07 Subordination. Any of the indebtedness of the
Borrower relating to the Guaranteed Obligations now or hereafter owing to
Holdings is hereby subordinated to the Guaranteed Obligations of the Borrower
owing to the Managing Agent and the Secured Creditors; and if the Managing
Agent so requests at a time when an Event of Default exists, all such
indebtedness relating to the Guaranteed Obligations of the Borrower to Holdings
shall be collected, enforced and received by Holdings for the benefit of the
Secured Creditors and be paid over to the Managing Agent on behalf of the
Secured Creditors on account of the Guaranteed Obligations of the Borrower to
the Secured Creditors, but without affecting or impairing in any manner the
liability of Holdings under the other provisions of this Guaranty. Prior to
the transfer by Holdings of any note or negotiable instrument evidencing any of
the indebtedness relating to the Guaranteed Obligations of the Borrower to
Holdings, Holdings shall xxxx such note or negotiable instrument with a legend
that the same is subject to this subordination. The provisions of this Section
14.07 (and any claims of Holdings as described above) are subject to the
provisions of Section 14.08(c) and (d).
14.08 Waiver. (a) Holdings waives any right (except as shall be
required by applicable statute and cannot be waived) to require the Managing
Agent or the Secured Creditors to (1) proceed against the Borrower, any other
guarantor or any
-147-
155
other party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party or (iii) pursue any other
remedy in the Managing Agent's or the Secured Creditors' power whatsoever.
Holdings waives any defense based on or arising out of any defense of the
Borrower, any other guarantor or any other party, other than payment in full of
the Guaranteed Obligations, based on or arising out of the disability of the
Borrower, any other guarantor or any other party, or the unenforceability of
the Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Borrower other than payment in full of
the Guaranteed Obligations. The Managing Agent and the Secured Creditors may,
at their election, foreclose on any security held by the Managing Agent, the
Collateral Agent or the Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law, including,
but not limited to, the Communications Act), or exercise any other right or
remedy the Managing Agent and the Secured Creditors may have against the
Borrower or any other party, or any security, without affecting or impairing in
any way the liability of Holdings hereunder except to the extent the Guaranteed
Obligations have been paid. Holdings waives any defense arising out of any such
election by the Managing Agent and the Secured Creditors, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of Holdings against any Borrower or any
other party or any security.
(b) Holdings waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Holdings assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks which
Holdings assumes and incurs hereunder, and agrees that the Managing Agent and
the Secured Creditors shall have no duty to advise Holdings of information
known to them regarding such circumstances or risks.
(c) Holdings understands that to the extent the
Guaranteed Obligations are secured by Real Property, Holdings shall be liable
for the full amount of the liability hereunder notwithstanding foreclosure on
any such Real Property by trustee sale or any other reason impairing Holdings'
or any secured creditors' right to proceed against the Borrower. Holdings
hereby waives, to the fullest extent permitted by applicable laws, all rights
and benefits under Sections 580a, 580b, 580d and 726 of the California Code of
Civil Procedure. In addition, Holdings hereby waives, to the fullest extent
permitted by applicable laws, without limiting the generality of the foregoing
or any other provision hereof, all rights and benefits which might otherwise be
available
-148-
156
to Holdings under California Civil Code Sections 2787 through 2855 inclusive,
2899 and 3433.
(d) Holdings understands, is aware and hereby
acknowledges that if the Banks elect to foreclose on any of the Mortgaged
Property security nonjudicially, any right of subrogation of Holdings against
the Borrower may be impaired or extinguished and that as a result of such
impairment or extinguishment of subrogation rights, Holdings may have a defense
to a deficiency judgment arising out of the operation of Section 580d of the
California Code of Civil Procedure and related principles of estoppel. Holdings
waives all rights and defenses arising out of an election of remedies by the
Banks, even though that election of remedies, such as a nonjudicial foreclosure
with respect to security for a guaranteed obligation, has destroyed the
guarantor's rights of subrogation and reimbursement against the principal by
the operation of Section 580d of the California Code of Civil Procedure or
otherwise.
14.09 Nature of Liability. It is the desire and intent of
Holdings and the Secured Creditors that this Holdings Guaranty shall be
enforced against Holdings to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
If, however, and to the extent that, the obligations of Holdings under this
Holdings Guaranty shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers), then the amount
of the Guaranteed Obligations of Holdings shall be deemed to be reduced and
Holdings shall pay the maximum amount of the Guaranteed Obligations which would
be permissible under applicable law.
-149-
157
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this Agreement as of the
date first above written.
Address:
00000 Xxxxx Xxxxxxx Xxxxx. CHANCELLOR BROADCASTING COMPANY
Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Financial Officer By
Telephone: (000) 000-0000 ----------------------------------
Telecopy: (000) 000-0000 Name:
Title:
with a copy to:
Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
00000 Xxxxx Xxxxxxx Xxxxx. CHANCELLOR RADIO BROADCASTING
Suite 405 COMPANY
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000 By
Telecopy: (000) 000-0000 ----------------------------------
Name:
Title:
with a copy to:
Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (214) 740-7355
000 Xxxxxxx Xxxxxx BANKERS TRUST COMPANY,
Xxx Xxxx, Xxx Xxxx 00000 Individually and as Managing Agent
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Prior By
----------------------------------
Name:
Title:
158
00 Xxxxx Xxxxxx XXXXXXX XXXXX CREDIT PARTNERS L.P.,
Xxx Xxxx, Xxx Xxxx 00000 Individually and as Documentation Agent
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx Xxxxx By
----------------------------------
Name:
Title:
000 Xxxx Xxxxxx XXXXXXXXXXX XX XXXXX, X.X.,
Xxxxxx, Xxxxx 00000 Individually and as Syndication Agent
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxx By
----------------------------------
Name:
Title:
00 Xxxx 00xx Xxxxxx XXXXXXX XXXXXXXX (XXXXX), INC.,
Xxx Xxxx, Xxx Xxxx 00000 Individually and as Syndication Agent
Tel: (000) 000-0000
Attention: Xxx Xxxxxxx
By
----------------------------------
Name:
Title:
ABN AMRO Bank N.V. Houston Agency
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
000
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
----------------------------------
Name:
Title:
BANK OF MONTREAL
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
----------------------------------
Name:
Title:
000
XXXXXX XXXXXXXXX XX XXXXXXXX
XXXXXXXXX
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By:
----------------------------------
Name:
Title:
BANQUE PARIBAS
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
161
BARCLAYS BANK PLC
By:
----------------------------------
Name:
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By:
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
----------------------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
162
CORESTATES BANK, N.A.
By:
----------------------------------
Name:
Title:
CITIBANK, N.A.
By:
----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
CYPRESSTREE INVESTMENT MANAGEMENT,
INC.
(As attorney in fact and on
behalf of First Allmerica
Financial Life Insurance Co.)
By:
----------------------------------
Name:
Title:
163
THE DAI ICHI KANGYO BANK, LTD.
NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
BANKBOSTON, N.A.
By:
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
BY:
----------------------------------
Name:
Title:
FLEET BANK, N.A.
By:
----------------------------------
Name:
Title:
164
THE FUJI BANK, LIMITED
By:
----------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By:
----------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
KZH-ING-1 CORPORATION
By:
----------------------------------
Name:
Title:
165
THE LONG TERM CREDIT BANK OF
JAPAN, LIMITED
By:
----------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
----------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:
----------------------------------
Name:
Title:
XXXXXX BANK LTD
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
166
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
----------------------------------
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase
Manhattan Bank)
By:
----------------------------------
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By:
----------------------------------
Name:
Title:
PRIME INCOME TRUST
By:
----------------------------------
Name:
Title:
167
SENIOR DEBT PORTFOLIO,
by Boston Management and Research.
as Investment Advisor
By:
----------------------------------
Name:
Title:
SOCIETE GENERALE
By:
----------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
----------------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
----------------------------------
Name:
Title:
168
SCHEDULE I
COMMITMENTS
Term Loan Revolving Loan
Bank Commitment Commitment Total
---- ---------- -------------- -----
Bankers Trust Company $ 20,000,000.00 $ 17,500,000.00 $ 47,500,000.00
Xxxxxxx Sachs Credit Partners $ 14,400,000.00 $ 12,600,000.00 $ 27,000,000.00
L.P.
NationsBank of Texas, N.A. $ 14,400,000.00 $ 12,600,000.00 $ 27,000,000.00
Toronto Dominion (Texas), Inc. $ 14,400,000.00 $ 12,600,000.00 $ 27,000,000.00
Bank of America National Trust $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
and Savings Association
BankBoston, N.A. $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Banque Paribas $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
The Chase Manhattan Bank $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Societe Generate $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Union Bank of California, N.A. $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Barclays Bank, PLC $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Bank of Montreal $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Bank of New York $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
The Bank of Nova Scotia $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Banque Francaise Du Commerce $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Exterieur
Corestates Bank, N.A. $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
169
Term Loan Revolving Loan
Bank Commitment Commitment Total
---- ---------- -------------- -----
Fuji Bank, Limited $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Industrial Bank of Japan, $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Limited, New York Xxxxxx
Xxxxxxx Xxxxx Senior Floating $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Rate Fund, Inc.
Mitsubishi Trust and Banking $ 12,000,000.00 $ 10,500,000.00 $ 22,500,000.00
Corporation
Xxx Xxxxxx American Capital $ 26,666,666.67 $ 23,333,333.33 $ 50,000,000.00
Prime Rate Income Trust
ABN AMRO Bank, N.V. Houston $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
Agency
Compagnie Financiere De CIC Et $ 9,333,333.34 $ 8,166,666.66 $ 17,500,000.00
De L'Union Europeenne
Citibank, N.A. $ 9,333,333.34 $ 8,166,666.66 $ 17,500,000.00
Caisse Nationale De Credit $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
Agricole
Credit Suisse First Boston $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
CypressTree Investment $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
Management
The Dai Ichi Kangyo Bank, Ltd. $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
Prime Income Trust $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
First Union National Bank $ 9,333,333.33 $ 8,166,666.67 $ 17,500,000.00
Fleet Bank, N.A. $ 9,333,333.33 $ 8,166,666.67 $ 17,500,000.00
Xxxxxx Financial, Inc. $ 4,800,000.00 $ 4,200,000.00 $ 9,000,000.00
KZH-ING-1 Corporation $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
170
Term Loan Revolving Loan
Bank Commitment Commitment Total
---- ---------- -------------- -----
Long Term Credit Bank of Japan, $ 5,333,333.33 $ 4,666,666.67 $ 10,000,000.00
Limited
Mellon Bank, N.A. $ 4,800,000.00 $ 4,200,000.00 $ 9,000,000.00
Xxxxxx Bank Ltd $ 5,333,333.33 $ 4,666,666.67 $ 10,000,000.00
Octagon Credit Investors Loan $ 9,333,333.33 $ 8,166,666.67 $ 17,500,000.00
Portfolio
Paribas Capital Funding LLC $ 6,400,000.00 $ 5,600,000.00 $ 12,000,000.00
TOTAL $400,000,000.00 $350,000,000.00 $750,000,000.00
171
SCHEDULE II
EXISTING LETTERS OF CREDIT
1. [Bankers Trust Company letters of credit to remain in place after closing.]
172
SCHEDULE III
REAL PROPERTY
I. MORTGAGED PROPERTY
A. REAL PROPERTY OWNED BY CHANCELLOR RADIO BROADCASTING COMPANY:
1. A parcel located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxx, including broadcast studios and
offices (KYOT-FM, KZON-FM, KOY-AM and KISO-AM Site).
2. A parcel located at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
Xxxxxx, Arizona, including a transmitter facility and tower
(KOY-AM Site).
3. A parcel located at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx
Xxxxxx, Arizona, including a transmitter facility and tower
(KISO-AM Site).
4. A parcel located in San Bernardino County, California,
including a transmitter building and three towers (KMEN
Transmitter/Studio Site).
5. A parcel located in El Dorado County, California, including a
transmitter building and four towers (KHYL Transmitter Site).
6. A parcel located in Xxxxxx County, California, including a
transmitter building and a tower (Xxxxxx County Site).
7. A parcel located at 00000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, including a transmitter facility
and 4 towers (WTEM-AM Site).
8. A parcel located at Highway 47, Anoka County, Minnesota,
including a transmitter facility and tower (KQQL-FM site).
173
9. A vacant parcel located in Dakota County, Minnesota (Minnesota
Property).
10. A parcel located in Suffolk County, New York, including two
transmitter buildings and a tower (WALK Transmitter Site).
11. A parcel located at 00 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxx, Xxx Xxxx, including a studio building and a tower (WALK
Studio/Office Site).
12. A parcel located in Xxxxxx County, Ohio, including a building
and a tower (WUBE Backup Transmitter Site).
B. REAL PROPERTY OWNED BY SHAMROCK BROADCASTING, INC.:
1. A parcel located at 00000 X. 00xx Xxxxx, Xxxx Xxxxx, Xxxxxxx,
XX (Transmitter Backup Site).
2. A parcel located at 0000 X. Xxxxxxx, Xxx Xxxxxxx, XX (AM
Transmitter Site).
3. A parcel located at 0000 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxx,
XX (AM transmitter site).
4. A parcel located at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxx
(Xxxx Xxxxxx), XX (Transmitter Site).
[5. A parcel located at 00000 Xxxx Xxxxxx, Xxxxx Xxxx, XX (AM
Transmitter Site).]
6. A parcel located at Xxxxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxxxxxxx,
XX (AM Transmitter Site).
C. REAL PROPERTY OWNED BY KYSR INC.
1. A parcel located at 0000 Xxxxxxxxxx Xxxx, Xxx Xxxxxxx, XX
(KYSR-FM Transmitter Site).
2
174
II. LEASEHOLD PROPERTY
A. REAL PROPERTY LEASED BY CHANCELLOR RADIO BROADCASTING COMPANY:
1. KOOL Main Broadcast Studio & Offices Lease, 0000 X. 0xx
Xxxxxx, Xxxxx 000, Xxxxxxx, XX (Valley Commerce Building)
Owned by: Valley Commerce Center Limited
Partnership
2. KOOL Transmitter Lease (Communications Site
License) Phoenix South Mountain Park, Arizona
Owned by: City of Phoenix, Arizona
3. KOOL Auxiliary Transmitter, Communication Site 7,
South Mountain, Arizona
Owned by: NW Communications
4. KOOL Remote Lease, Xxxx Butte, Arizona
Owned by: Shamrock Broadcasting, Inc.
5. KYOT-FM Transmitter Site License, Phoenix South Mountain Park,
Arizona
Owned by: City of Phoenix, Arizona
6. KZON-FM Transmitter Site License, Phoenix South Mountain Park,
Arizona
Owned by: City of Phoenix, Arizona
7. Remote Pick-up Antenna and Radio Receiver located at Xxxx
Butte, Arizona
Owned by: Shamrock Broadcasting, Inc.
8. KHYL Studio Office Lease, 0000 Xxxxxxx Xxxxxx, Xxxxx X,
Xxxxxxxxxx, Xxxxxxxxxx
Owned by: Xxxxx Xxxx Xxxx, Trustee for the
Xxxxx Xxxx Xxxx Revocable Living
Trust
3
175
9. KGGI FM Tower Lease, Running Springs, California
Owned by: Xxxxx Microwave
10. KGGI FM Backup Tower Ground Lease, Riverside, California
Owned by: Xxxxx Broadcasting Company
11. KMEN/KGGI Office/Studio Lease, 0000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx
Owned by: Xxxxxx Xxxx Xxxxxx Xxxxx, X.X.
00. WOMX Tower Lease, 00000 Xxxx Xxxxxxxxx Xxxx, Xxxxxx, XX.
Owned by: TowerCom, Limited
13. WOMX Studio/Office Lease, 0000 Xxx Xxxx, Xxxxx 000, Xxxxxx
Xxxx, XX.
Owned by: Winter Park Joint Venture
14. WJHM Studio/Office Lease, 37 Sky Line Drive, Suite 0000,
Xxxxxxx Xxxxxxxx Xxxx, Xxxx Xxxx, XX.
Owned by: First Atlanta Services Corp.
15. WJHM Tower Antenna License, 000 Xxxxxx Xxxx, Xxxxxx Xxxx, XX
Owned by: Lodestar Tower Orlando, LTD.
16. WXXL Tower Lease, 000 Xxxx Xxxxx Xxxx, Xxxxxx Xxxxxx,
XX.
Owned by: X.X. Xxxxxx Companies, Inc.
17. WXXL Xxxxxx/Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxx Xxxxxxx,
Xxxxxxxx Xxxxxx, XX.
Owned by: Teachers' Retirements System of the
State of Illinois
18. WOCL FM Tower License, Volusia County, Florida
Owned by: Lodestar Tower Orlando Ltd.
19. WOCL FM Studio/Office Lease, 0000 Xxxx Xxx. 000, Xxxxxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxx
Owned by: Spring Offices, Ltd.
4
176
20. WFYV Ground Lease, located between Xxxxx Road and Xxxxxx
Road in Xxxxx County, FL.
Owned by: Lodestar Towers, Inc.
21. WFYV Tower License, 0000 Xxxxxx Xxxx, Xxxxxxxx Xxxxx, XX.
Owned by: Lodestar Tower Jacksonville, Ltd.
22. WAPE Main Tower Site Lease, 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx, XX.
Owned by: Big League Tower Associates
23. WTEM/WBIG/WGMS Studio Office I-ease, 00000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, XX
Owned by: One Central Plaza Joint Venture
24. KTCJ AM Tower License, Hennepin County, Minnesota
Owned by: City of New Hope, Minnesota
25. KTCJ AM Transmitter Building Ground Lease, Hennepin County,
Minnesota
Owned by: Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx
26. KTCZ FM Tower Lease, Shoreview, Xxxxxx County, Minnesota
Owned by: United Television,Inc. and Chancellor
Broadcasting Company is actually a
general partner of Shoreview FM
Group which is the lessee under this
lease
27. KTCZ/KTCJ Studio/Office Lease, Minneapolis, Hennepin County,
Minnesota
Owned by: Xxxxxx Properties, LLC.
28. KDWB Studio Lease, South Third Street, Minneapolis,
Minnesota
5
177
29. KDWB Tower Lease, Shoreview, Minnesota
Owned by: United Television, Inc.
30. KQQL/WBOB Studio Office Lease, 000 Xxxx Xxxxx, 00 Xxxxx
0xx Xxxxxx, Xxxxxxxxxxx, XX.
Owned by: Brookfield Development California,
Inc.
31. WBOB Transmitter Lease, Shoreview, MN.
Owned by: United Television
32. WBOB Auxiliary Transmitter Lease, The University of
Minnesota
Owned by: Regents of the University of
Minnesota
33. Storage Space Leases at 10830 Greenbrier (KQQL) and 000 X.
0xx Xxxxxx (XXXX), Xxxxxxxxxxx, Xxxxxxxxx
Owned by: Minikahda Mini Storage
34. WYGY Transmitter Lease, Hamilton, Ohio
Owned by: Jacor Communications, Inc.
35. WUBE, FM Tower/Transmitter Lease, Cincinnati, Xxxxxxxx
County, Ohio
Owned by: Scripps-Xxxxxx Broadcasting
36. WUBE/ WYGY Studio/Office Lease, 000 X. Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx
Owned by: R.E. Xxxxx & Company, Inc.
37. WUBE AM Tower Lease, 0000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx
Owned by: City of Cincinnati
38. WBIG Transmitter Lease, 0000 Xxx Xxxxxxx, Xxxxxxxxx, XX
Owned by: XXXX Building Limited Partnership
39. WGMS/WBIG Auxiliary Transmitter Lease, 0000 Xxxxx Xxxxx,
X.X., Xxxxxxxxxx, XX
Owned by: Colfax Towers, Inc.
6
178
40. WGMS Transmitter Lease, America University, Washington, DC
Owned by: The America University
B. REAL PROPERTY LEASED BY SHAMROCK BROADCASTING INC.:
1. KMLE Radio Station Lease, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, XX
Owned by: CBS Investment Realty, Inc.
2. KMLE Radio Xxxxxxx Xxxxx, Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, XX
Owned by: KSAZ-TV
3. KMLE Radio Xxxxxxx Xxxxx, Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, XX
Owned by: City of Pheonix
4. Corporate Office Lease, 0000 Xxxxxxxx Xxxxx, 0xx Xxxxx,
Xxxxxxx, XX
Owned by: Shamrock Holdings of California
5. KZLA Radio Station Lease, 000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxx, XX
Owned by: WRC Properties, Inc.
6. KZLA Radio Station Lease, 000 XXX Xxxx, Xx. Xxxxxx, XX
Owned by: CBS, Inc.
7. KZLA Radio Xxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxx, XX
Owned by: Peak Property Corporation
8. KABL Radio Station Lease, Sand Island, Oakland, CA
Owned by: Port of Oakland
9. KABL-KBGG Radio Station Lease, 0000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX
Owned by: Soraya Imports, Inc.
7
179
10. KBGG Radio Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxx, XX
Owned by: Sundial Broadcasting
11. KBGG Radio Station Lease, Sunol Ridge, Pleasanton, CA
Owned by: Sunol Development Company
12. KBGG Radio Station Lease, 0000 Xxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxx, XX
Owned by: Xxxxxx Xxxxx
13. KSAN and KNEW Radio Station Lease, 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX
Owned by: Xxxxx X. Xxxxxxxxx
14. KBGG and KSAN Radio Stations Lease, 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX
Owned by: Xxxxxxx Xxxxx
15. KNEW Radio Station Lease, Pt. Xxxxxx, Richmond, CA
Owned by: City of Richmond
16. KNEW Radio Station Lease, Pt. Xxxxxx Treatment Plant,
Richmond, CA
Owned by: Xxxx Xxx Xxxxxxxxx Xxxxxxx Xxxxxxxx
00. KSAN Radio Station Lease, Radio Road, San Bruno Mountain, San
Mateo County, CA
Owned by: Xxxxxx Communication Systems, Inc.
18. KBGG and KSAN Radio Station Lease, Mount Diablo, Contra Costa
County, CA
Owned by: The RDS Company
19. KALC/KIMN Studio/Office Lease, The Xxxxx Center, 0000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, XX.
Owned by: Xxxxx Center Associates
20. KXXL Radio Station Lease, One Xxxxx Xxxxxx Xxxxx, 0000
Xxxxxxxx, Xxxxx 0000, Xxxxxx, XX
Owned by: Xxxxxxxx Oil Building Partnership
8
180
21. KXKL Radio Station Lease, Mount Chief, Jefferson County, CO
Owned by: Mikes-Stone Joint Venture
22. KXKL Radio Station Lease, 0000 Xxxxxxxx Xxxx, Xxxxxxx, XX
Owned by: Xxxxxxx X. Xxxxxxxx
23. KZDG Radio Station Lease, 0000 Xxxx Xxxxxx Xxxx 00, Xxxx
Xxxxxx, XX
Owned by: Tsunami Communications
24. WFOX Radio Station Lease, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, XX
Owned by: Carlyle Real Estate Partnership]
25. KEEY and KFAN Radio Stations Lease, Norwest Financial Center,
0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX
Owned by: Xxxxxx - Minnesota Limited
26. KEEY Radio Station Lease, 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX
Owned by: United Television
27. KEEY Radio Station Lease, 000 0xx Xxxxxx, XXX Xxxxxxxx,
Xxxxxxxxxxx, XX
Owned by: Broadcast Services, Inc.
28. KEEY and KFAN Radio Stations Lease, 000 Xxxxxxxxx Xxxxx, Xx.
Xxxx, XX
Owned by: 1400, Inc.
29. WHTZ Radio Xxxxxxx Xxxxx, Xxxxxx Xxxxx Xxxxx, 0xx Xxxxx, 000
Xxxxxxxxxxx Xxxxxxx, Xxxxxxxx, XX
Owned by: Xxxxx Mountain Associates
9
181
30. WHTZ Radio Station Lease, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX
Owned by: Xxxxx Securities, inc.
31. WHTZ Radio Xxxxxxx Xxxxx, Xxxxxx Xxxxx Xxxxxxxx, Xxx Xxxx, XX
Owned by: Empire State Building Company
32. WWSW Radio Station Lease, Xxx Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX
Owned by: Allegheny Center Associates
33. WWSW Radio Station Lease, 00 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, XX
Owned by: WPXI, Inc.
C. REAL PROPERTY LEASED BY WLIT INC.
1. WLIT Office/Studio Lease, 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX
Owned by: Park Place Associates
2. WLIT Main Transmitter Lease, 000 X. Xxxxxx Xxxxx, Xxxxx Xxxxx,
000xx xxxxx, Xxxxxxx, XX
Owned by: Sears, Xxxxxxx and Co.
3. WLIT Backup Transmitter Lease, 000 X. Xxxxxxxx Xxxxxx, Xxxx
Xxxxxxx Xxxxxx - Xxxx #0000, Xxxxxxx, XX
Owned by:
--------------------------------
10
182
D. REAL PROPERTY LEASED BY KYSR INC. AND KIBB INC.
1. KYSR/KIBB Office/Studio Lease, 0000 Xxxx Xxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, XX
Owned by: Toluca Lake Financial Center
2. KIBB Main Transmitter Lem, located at Mount Xxxxxx, Los
Angeles, CA
Owned by:
-------------------------------
3. KIBB-FM Translator Lease, located at Loop Canyon, Orange
County, CA
Owned by: Commercial Activities Company
11
183
SCHEDULE IV
FCC LICENSES
Part A. Chancellor Broadcasting License Company
KFBK(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KFBK(AM), SACRAMENTO, CALIFORNIA
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxx Xxxxxxx Xxxxxxx XXXX(XX) XXX-000000X0 12/30/93 12/01/97
-----------------------------------------------------------------------------------
Renewal of License KFBK(AM) BR-900730YT 11/26/90 12/01/97
(short form)
-----------------------------------------------------------------------------------
License KFBK(AM) BL-861217AA 02/10/87 12/01/97
(long form)
-----------------------------------------------------------------------------------
Emergency Broadcast System KFBK(AM) Issued 05/25/72 -- 12/01/97
Authorization
===================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KFBK(AM), SACRAMENTO, CALIFORNIA
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
Remote Pickup KPK-421 BPLRE-910304MA 07/29/91 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup KLP-415 BLRE-16595 12/04/68 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup KA-88936 BMLRE-890616ME 08/01/89 12/01/97
-----------------------------------------------------------------------------------
Aural Studio Transmitter Link WGI-267 BPLST-88101lMD 12/09/88 12/01/97
-----------------------------------------------------------------------------------
Aural Studio Transmitter Link WLI-688 BPLST-881011ML 12/05/88 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup(1) WHE-795 BPLRE-900123ME 05/10/90 12/01/97
===================================================================================
--------------------------
1. Authorization cannot be located in FCC files.
184
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
Remote Pickup KQQ-308 9301480153 03/09/93 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup KPE-890 BPLRE-850320ME 05/13/85 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup KPE-800 BPLRE-830315MK 08/13/84 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup KPE-866 BPLRE-850320MC 05/06/85 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup KPE-870 BPLRE-850320MD 05/06/85 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup KB-96924 BLNRE-871125MB 01/15/88 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup KEH-389 BMLRE-841011ME 11/07/84 12/01/97
===================================================================================
KGBY(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KGBY(FM), SACRAMENTO, CALIFORNIA
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
Main Station License KGBY(FM) XXXX-000000XX 12/30/93 12/01/97
----------------------------------------------------------------------------------
License for Auxiliary Antenna KGBY(FM) BLH-911021KC 06/05/92 12/01/97
----------------------------------------------------------------------------------
Renewal of License then, BRH-900730A7 11/21/90 12/01/97
(short form) KAER(FM)
----------------------------------------------------------------------------------
License then, BLH-850412KK 09/30/85 12/01/97
(long form) KAER(FM)
----------------------------------------------------------------------------------
Emergency Broadcast System then, Issued 10/10/78 -- 12/01/97
Authorization KAER(FM)
===================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KGBY(FM), SACRAMENTO, CALIFORNIA
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
Aural Studio Transmitter Link WLH-424 BPLST-851023MB 12/06/85 12/01/97
-----------------------------------------------------------------------------------
Remote Pickup(2) KPK-422 BPLRE-900123MF 05/10/90 12/01/97
===================================================================================
-------------------------
2. Authorization cannot be located in FCC files.
2
185
KHYL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION (FM), AUBURN, CALIFORNIA
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
Main Station license KHYL BALH-9404220GT 8/9/94 N/A
WLD-518
-----------------------------------------------------------------------------------
Auxiliary Antenna License KHYL BLH-930329KC 9/15/93 12/01/97
-----------------------------------------------------------------------------------
Transfer of Control KHYL XXXX-000000XX 3/29/93 N/A
From: Xxxxxx Xxxx WLD-518
To: Xxxxxx X. Xxxx
Revocable Trust
-----------------------------------------------------------------------------------
Assignment of License KHYL XXXX-000000XX 8/7/92 N/A
From: Xxxxxx X. Xxxxx, WLD-518
Receiver
To: National Radio
Partners, L.P.
-----------------------------------------------------------------------------------
Renewal of I.License KHYL BRH-9007317L 8/7/92 12/01/97
WLD-518
-----------------------------------------------------------------------------------
License KHYL BLH-850521KC 07/30/85 12/01/97
Reissued
11/19/92 for
corrections
-----------------------------------------------------------------------------------
License for Auxiliary KHYL BLH-800208AG 12/2/80 12/01/97
Antenna and
Transmitter(3)
-----------------------------------------------------------------------------------
Emergency Broadcast System KHYL N/A Issued 12/0l/97
Authorization 7/1/77
===================================================================================
--------------------
3. A copy of this authorization was not obtained. The file in which the
authorization is contained was transferred to Gettysburg, Pennsylvania.
3
186
CURRENT BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KHYL(FM), AUBURN, CALIFORNIA
===================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
===================================================================================
Aural STL License WLD-518 BPLST-890907MI 10/20/89 12/01/97
===================================================================================
WALK(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WALK(AM), PATCHOGUE, NEW YORK
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxx Xxxxxxx Xxxxxxx XXXX(XX) XXX-000000XX 07/29/94 06/01/98
WALK(FM) XXXX-000000XX Consent
and Corrected and
Auxiliaries Reissued
08/17/94
---------------------------------------------------------------------------------------
Consent to Transfer Control of WALK(AM) BTC-930419EG 04/29/93 N/A
American Media, Inc. WALK(FM) XXXX-000000XX
From: Xxxxxx X. Xxxx and
To: Xxxxxx X. Xxxx Auxiliaries
Revocable Trust
---------------------------------------------------------------------------------------
License Renewal Authorization WALK(AM) BR-910108UC 08/29/91 06/01/98
and
Auxiliaries
---------------------------------------------------------------------------------------
AM Broadcast Station License WALK(AM) BZ-851213AR 01/30/86 06/01/98
The "hours of operation are
specified in previous
authorization," which is
Modification of License
BZ-830909AH accompanied by
Standard Broadcast Station
License BR-810202H5/BZ-811022AI
---------------------------------------------------------------------------------------
Order to Show Cause Modifying WALK(AM) N/A Issued 06/01/98
License to Specify Nighttime 11/18/87
Operation with Nominal power of Effective
102 Xxxxx 12/01/87
=======================================================================================
4
187
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
Notice of Parameters for Operation WALK(AM) N/A Reissued 06/01/98
Under Pre-Sunrise Authority 04/26/94
(PSRA)
---------------------------------------------------------------------------------------
Revised Parameters for Operation WALK(AM) N/A Reissued 06/01/98
Under Post-Sunset Authority 04/26/94
(PSSA)
---------------------------------------------------------------------------------------
Emergency Broadcast System WALK(AM) EBSA 06/12/72 06/01/98
Authorization
=======================================================================================
CURRENT BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WALK(AM), PATCHOGUE, NEW YORK
FCC records indicate there are no auxiliary station licenses associated with
WALK(AM).
WALK-FM AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WALK-FM, PATCHOGUE, NEW YORK
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
Main Station License WALK-FM XXXX-000000XX 07/29/94 06/01/98
WALK(AM) BAL-940422GU Consent
and Corrected
Auxiliaries and
Reissued
08/17/94
---------------------------------------------------------------------------------------
Consent to Transfer Control of WALK-FM XXXX-000000XX 04/29/93 N/A
American Media, Inc. WALK(AM) BTC-930419EG
From: Xxxxxx X. Xxxx and
To: Xxxxxx X. Xxxx Auxiliaries
Revocable Trust
---------------------------------------------------------------------------------------
FM Broadcast Station License, WALK-FM BLH-930714KA 10/14/93 06/01/98
Auxiliary Antenna
---------------------------------------------------------------------------------------
FM Broadcast Station License, Main WALK-FM BRH-910108UB 05/17/91 06/01/98
Antenna and
Auxiliaries
=======================================================================================
5
188
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
License Renewal Authorization WALK-FM BRH-910108UB 05/17/91 06/01/98
and
Auxiliaries
---------------------------------------------------------------------------------------
Subsidiary Communications WALK-FM BRSCA-810202A2 05/29/81 06/01/98
Authorization BSCA-384 05/31/78
---------------------------------------------------------------------------------------
Emergency Broadcast System WALK-FM EBSA 05/22/72 06/01/98
Authorization
=======================================================================================
CURRENT BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WALK-FM, PATCHOGUE, NEW YORK
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
Aural STL License WGW-987 BMLST-920303MM 06/25/92 06/01/98
---------------------------------------------------------------------------------------
Aural Inter-City Relay (ICR) License WMF-954 BPLIC-921221ME 05/13/93 06/01/98
---------------------------------------------------------------------------------------
Remote Pickup Base Mobile System KPF-856 BPLRE-881020MF 12/09/88 06/01/98
License
Base No. 2
---------------------------------------------------------------------------------------
Remote Pickup Mobile System XX-00000 XXXXX-000000XX 12/05/88 06/01/98
License
=======================================================================================
WUBE(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WUBE(AM), CINCINNATI, OHIO
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxx Xxxxxxx Xxxxxxx XXXX(XX) XXX-000000XX 07/29/94 10/l/2004
---------------------------------------------------------------------------------------
Consent to Transfer Control WUBE(AM) BTC-930316GH 03/29/93 N/A
From: Xxxxxx X. Xxxx
To: Xxxxxx X. Xxxx
Revocable Trust
=======================================================================================
6
189
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
Consent to Assignment of License WUBE(AM) BAL-911122HO 01/02/92 N/A
From: American Media, Inc.
To: National Radio Partners,
L.P.
---------------------------------------------------------------------------------------
Renewal of License WUBE(AM) BR-890516UC 09/26/89 10/01/96
(short form)
---------------------------------------------------------------------------------------
License XXXX XX-890731AB 11/09/89 N/A
---------------------------------------------------------------------------------------
Emergency Broadcast System WUBE N/A Issued 10/01/96
Authorization 05/25/72
=======================================================================================
WUBE-FM AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WUBE(FM), CINCINNATI, OHIO
=======================================================================================
CURRENT
EXPIRATION
TYPE OF AUTHORIZATION CALL SIGN FCC FILE NUMBER GRANT DATE DATE
=======================================================================================
Main Station License WUBE-FM XXXX-000000XX 07/29/94 10/l/2004
---------------------------------------------------------------------------------------
Renewal of License WUBE-FM BRH-890516UD 09/28/89 10/01/96
(short-form)
---------------------------------------------------------------------------------------
Consent to Transfer Control WUBE-FM XXXX-000000XX 03/29/93 N/A
From: Xxxxxx X. Xxxx
To: Xxxxxx X. Xxxx
Revocable Trust
---------------------------------------------------------------------------------------
Consent to Assignment of License WUBE-FM XXXX-000000XX 01/02/92 N/A
From: American Media, Inc.
To: National Radio Partners,
L.P.
---------------------------------------------------------------------------------------
License WUBE-FM BLH-930707KB 10/07/93 10/01/96
---------------------------------------------------------------------------------------
Construction Permit WUBE-FM BPH-9304141D 06/16/93 12/16/94
---------------------------------------------------------------------------------------
Emergency Broadcast System WUBE-FM N/A 05/22/72 N/A
Authorization
=======================================================================================
7
190
CURRENT BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WUBE-FM, CINCINNATI, OHIO
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
Aural STL License WMU-278 BMLST-930723MD 10/08/93 10/01/96
=======================================================================================
WYGY(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WYGY(FM), HAMILTON, OHIO
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
Main Station License WYGY XXXX-000000XX 07/29/94 10/l/2004
KB-96945
---------------------------------------------------------------------------------------
Transfer of Control WYGY XXXX-000000XX 03/29/93 N/A
From: Xxxxxx X. Xxxx KB-96945
To: Xxxxxx X. Xxxx
Revocable Trust
---------------------------------------------------------------------------------------
Assignment of License WZRZ XXXX-000000XX 12/17/92 N/A
From: Xxxxx Broadcasting KB-96945
Corporation
To: National Radio
Partners, L.P.
---------------------------------------------------------------------------------------
Renewal of License WBVE BRH-890531WC 10/2/89 10/01/96
KB-96945
---------------------------------------------------------------------------------------
License WBVE BLH-860428KD 10/21/86 10/01/96
---------------------------------------------------------------------------------------
Emergency Broadcast System WSKS N/A Issued 10/01/96
Authorization
=======================================================================================
(NOTE: "WZRZ", "WBVE", AND "WSKS" are the former call letters of "WYGY". Old
authorizations will reflect these former call letters.)
8
191
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WYGY(FM), HAMILTON, OHIO
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
R/P Mobile System License KB-96945 BLNRE-880519 7/25/88 10/01/2004
=======================================================================================
WKYN(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WKYN(AM), FLORENCE, KENTUCKY
=======================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=======================================================================================
Main Station License WKYN(AM) * 10/01/2004
=======================================================================================
KTCJ(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KTCJ(AM), MINNEAPOLIS, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Direct Measurement KTCJ BZ-940111AB 09/28/93 04/01/2005
-----------------------------------------------------------------------------------------
Main Station license KICJ XXXX-000000XX 07/29/94 N/A
and
auxiliaries
-----------------------------------------------------------------------------------------
Consent to Transfer of Control KTCJ BTC-930316GJ 03/29/93 N/A
From: Xxxxxx X. Xxxx and
To: Xxxxxx X. Xxx auxiliaries
Revocable Trust
-----------------------------------------------------------------------------------------
Consent to Assignment of Permit and KTCJ XXXX-000000XX 07/07/92 N/A
License and
From: Xxxxxx X. Xxxxx auxiliaries
Receiver
To: National Radio Partners,
L.P.
=========================================================================================
9
192
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Consent to Assignment of license KTCJ BAL-920501EC 05/12/92 N/A
From: Xxxxxx Communications - and
Minneapolis, Inc. auxiliaries
To: Xxxxxxx X. Xxxxx
Receiver
-----------------------------------------------------------------------------------------
Renewal of License (short form) KTCJ BR-891130A2 03/23/90 04/01/97
-----------------------------------------------------------------------------------------
Pre-Sunrise/Post-Sunset KTCJ N/A Issued 04/01/97
Authorization 04/20/94
-----------------------------------------------------------------------------------------
Emergency Broadcast System KICJ N/A Issued N/A
Authorization 06/12/72
=========================================================================================
KTCZ-FM AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KTCZ-FM, MINNEAPOLIS, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KTCZ-FM XXXX-000000XX 07/29/94 4/01/2005
and
auxiliaries
-----------------------------------------------------------------------------------------
Consent to Transfer of Control KTCZ-FM XXXX-000000XX 03/29/93 N/A
From: Xxxxxx X. Xxxx and
To: Xxxxxx X. Xxxx auxiliaries
Revocable Trust
-----------------------------------------------------------------------------------------
Consent to Assignment of License KTCZ-FM XXXX-000000XX 07/07/92 N/A
From: Xxxxxx X. Xxxxx and
Receiver auxiliaries
To: National Radio Partners,
L.P.
-----------------------------------------------------------------------------------------
Consent to Assignment of license KTCZ-FM XXXX-000000XX 05/12/92 N/A
From: Xxxxxx Communications - and
Minneapolis, Inc. auxiliaries
To: Xxxxxxx X. Xxxxx
Receiver
-----------------------------------------------------------------------------------------
License KTCZ-FM BLH-910814KC 02/27/92 04/01/97
=========================================================================================
10
193
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Renewal of License (short form) KTCZ-FM BRH-891130A2 03/23/90 04/01/97
-----------------------------------------------------------------------------------------
Auxiliary Antenna KTCZ-FM XXXX-000000XX 03/02/92 04/01/97
-----------------------------------------------------------------------------------------
Emergency Broadcast System KTCZ-FM N/A 05/22/72 N/A
Authorization
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KTCZ-FM, MINNEAPOLIS, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxx XXX XXX-000 XXXXX-000000XX 01/15/88 04/01/2005
=========================================================================================
WOCL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WOCL(FM), DELAND, FLORIDA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station license WOCL XXXX-000000XX 07/29/94 2/01/2003
and
Auxiliaries
-----------------------------------------------------------------------------------------
Transfers of Control WOCL XXXX-000000XX 03/29/93(4) N/A
From: Xxxxxx X. Xxxx and
To: Xxxxxx X. Xxxx Auxiliaries
Revocable Trust
-----------------------------------------------------------------------------------------
Auxiliary Antenna WOCL BLH-90022OKD 12/21/90 10/ 1/95(5)
=========================================================================================
4. The FAIR notes a different grant date of July 12, 1993.
5. The expiration date on the authorization is correct.
11
194
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxx XXXX XXX-000000XX 1/31/90 2/l/96
and
Auxiliaries
-----------------------------------------------------------------------------------------
License WOCL BLH-870721KC 3/24/88 2/01/96
-----------------------------------------------------------------------------------------
Assignment of license' WOCL BALH-86021GGG 03/03/86 N/A
From: American Media, Inc. and
To: Mid-Florida Radio, Inc. Auxiliaries
-----------------------------------------------------------------------------------------
Emergency Broadcast System WDLF N/A Issued 2/l/96
Authorization 12/22/80
=========================================================================================
(Note: "WDLF" are former call letters of "WOCL". Old Authorizations will
reflect these former call letters.)
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WOCL, DELAND, FLORIDA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Aural STL License WLG-699 BPLST-851119MB 03/19/86 2/01/2003
-----------------------------------------------------------------------------------------
Aural STL License WLG-789 BPLST-851119MA 03/19/86 10/01/96
-----------------------------------------------------------------------------------------
R/P Mobile System License KB-96847 BLNRE-870108MA 5/06/87 10/01/96
-----------------------------------------------------------------------------------------
R/P Base Station License KPJ-322 BPLRE-851119MC 3/19/86 10/01/96
-----------------------------------------------------------------------------------------
R/P Mobile System license KB-97378 BLNRE-860725MJ 12/12/86 10101196
=========================================================================================
WAPE(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WAPE(FM), JACKSONVILLE, FLORIDA
--------------------
6. A copy of this authorization was not obtained. The file in which this
authorization is contained was retired to the Federal Records Center.
12
195
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station license WAPE(FM) * 2/01/2003
=========================================================================================
WFYV(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WFYV(FM), JACKSONVILLE, FLORIDA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WFYV(AM) * 2/01/2003
=========================================================================================
KMEN AND ASSOCIATED AUXILIARY STATIONS
KMEN(AM), SAN BERNARDINO, CALIFORNIA
MAIN STATION
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station license KMEN BAL-940422HE 07/29/94 12/l/97
-----------------------------------------------------------------------------------------
License KMEN BZ-940224AB 06/30/94 12/l/97
-----------------------------------------------------------------------------------------
License Modification KMEN BRC-94051 I AC 6/16/94 12/l/97
-----------------------------------------------------------------------------------------
Emergency Broadcast Service KMEN N/A 05/22/72 12/l/97
=========================================================================================
CURRENT BROADCAST AUXILIARY FCC AUTHORIZATIONS
ISSUED TO KMEN(AM), SAN BERNARDINO, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxx XXX XXX-000 XXXXX-000000 06/17/91 12/01/97
=========================================================================================
13
196
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxx XXX XXX-000 XXXXX-000000XX 7/25/91 12/l/97
=========================================================================================
KGGI AND ASSOCIATED AUXILIARY STATIONS
KGGI(FM), RIVERSIDE, CALIFORNIA
MAIN STATION
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxx Xxxxxxx xxxxxxx XXXX XXX-000000XX 07/29/94 12/l/97
License KGGI BLH-910802KF 03/17/92 12/l/97
Emergency Broadcast Service KGGI N/A 07/15/79 12/1/97
CURRENT BROADCAST AUXILIARY FCC AUTHORIZATIONS
KGGI(FM), RIVERSIDE, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Aural STL XXX-000 XXXXX-XX0000XX 03/11/85 12/01/97
-----------------------------------------------------------------------------------------
Aural STL WFW-618 BPIST-910227ME 6/17/91 12/1/97
=========================================================================================
KSTE(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KSTE(AM), RANCHO CORDOVA, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KSTE(AM) * 12/01/97
=========================================================================================
14
197
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
=========================================================================================
KDWB(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KDWB(FM), RICHFIELD, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KDWB(FM) BLH-910814KA 4/l/2005
-----------------------------------------------------------------------------------------
Auxiliary Antenna License KDWB(FM) BLH-920603KA 4/l/2005
=========================================================================================
CURRENT BROADCAST AUXILIARY FCC AUTHORIZATIONS
KDWB(FM), RICHFIELD, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Aural STL WLE-769 * 4/l/2005
-----------------------------------------------------------------------------------------
Aural STL WLP-728 * 4/l/2005
=========================================================================================
WTEM(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WTEM(AM), BETHESDA, MD
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WTEM(AM) * 10/01/2003
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPM-471 * 10/01/2003
-----------------------------------------------------------------------------------------
Aural STL WLO-430 * 10/01/2003
-----------------------------------------------------------------------------------------
Remote Pickup Base Mobile KPK-259 * 10/01/2003
=========================================================================================
15
198
WBIG(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WBIG(FM), ROCKVILLE, ME[)
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WBIG(FM) * 10/01/2003
-----------------------------------------------------------------------------------------
Auxiliary Antenna WBIG(FM) * 10/01/2003
-----------------------------------------------------------------------------------------
Aural STL WME-606 * 10/01/2003
=========================================================================================
WGMS(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WGMS(FM), WASHINGTON DC
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WGMS(FM) * 10/01/2003
-----------------------------------------------------------------------------------------
Auxiliary Antenna WGMS(FM) * 10/01/2003
-----------------------------------------------------------------------------------------
Aural STL WLO-429 * 10/01/2003
=========================================================================================
KOQL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KQQL(FM), ANOKA, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KQQL-(FM) * 4/01/2005
-----------------------------------------------------------------------------------------
Application for minor KQQL(FM) BPH-960603IA 4/01/2005
modification of construction
permit to requestauthority
to construct a new auxiliary
antenna facility filed on
June 3, 1996
-----------------------------------------------------------------------------------------
Aural STL WLF-665 * 4/01/2005
=========================================================================================
-------------------------
* Confirmation Pending
16
199
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Aural STL WIJ-391 * 4/01/2005
-----------------------------------------------------------------------------------------
Aural STL WLF-669 * 4/01/2005
=========================================================================================
WBOB(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WBOB(FM), MINNEAPOLIS, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WBOB(FM) * Renewal
Pending
-----------------------------------------------------------------------------------------
Auxiliary Antenna Construction WBOB-FM BPH-9504071B Renewal
Permit BPH-9504071B Pending
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPF-879 * Renewal
Pending
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPN-715 * Renewal
Pending
-----------------------------------------------------------------------------------------
Aural STL WMF-893 * Renewal
Pending
=========================================================================================
KOOL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KOOL(FM), PHOENIX, ARIZONA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KOOL(FM) * 10/01/97
-----------------------------------------------------------------------------------------
Aural STL WDD-710 * 10/01/97
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup WHE-837(7) * 10/01/97
=========================================================================================
-----------------------
(7) Not listed in Catalog.
17
200
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Intercity Relay WLD-681(8) 10/01/97
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPJ-938(8) 10/01/97
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPJ-983(9) * 10/01/97
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KA-35291 * 10/01/97
=========================================================================================
KZON(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KZON(FM), PHOENIX, ARIZONA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KZON(FM) * 10/01/97
-----------------------------------------------------------------------------------------
Auxiliary Antenna KZON(FM) * 10/01/97
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KPL,417 10/01/97
-----------------------------------------------------------------------------------------
Aural STL WKS-92 * 10/01/97
=========================================================================================
---------------------
8. License indicates that auxiliary is associated with Station KOOL(AM).
Application will be filed to change associated broadcast station to KOOL-FM.
9. Modification application filed July 8, 1996.
-----------------
* Cofirmation Pending
18
201
KOY(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KOY(AM), PHOENIX, ARIZONA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KOY(AM) * 10/01/97
-----------------------------------------------------------------------------------------
Aural STL WFW-714 * 10/01/97
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KTJ-600 * 10/01/97
-----------------------------------------------------------------------------------------
Low Power Broadcast Station BLP-00888 * 10/01/97
-----------------------------------------------------------------------------------------
Broadcast Auxiliary KY-5633(10) * 10/01/97
-----------------------------------------------------------------------------------------
Broadcast Auxiliary KY-5634(10) * 10/01/97
-----------------------------------------------------------------------------------------
Broadcast Auxiliary KY-5635(10) * 10/01/97
-----------------------------------------------------------------------------------------
Broadcast Auxiliary KV-4890(10) 10/01/97
-----------------------------------------------------------------------------------------
Broadcast Auxiliary KP-9376(10) 10/01/97
-----------------------------------------------------------------------------------------
Auxiliary Remote Pickup KBH-744(10) * 10/01/97
=========================================================================================
KYOT(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KYOT(FM), PHOENIX, ARIZONA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KYOT(FM) * 10/01/97
-----------------------------------------------------------------------------------------
Aural STL WAX-38 * 10/01/97
-----------------------------------------------------------------------------------------
Aural STL WHY-286 10/01/97
=========================================================================================
-------------
10. Schedule 1.2(a) to the Asset Purchase Agreement by and among Sundance
Broadcasting, Inc., Sundance Broadcasting of Idaho, Inc., Xxxxx X. Xxxxx and
Xxxxxx X. Xxxxx and Radio 95 of Phoenix Limited Partnership indicates that this
authorization is no longer in use. No notice of cancellation has been filed.
------------
* Confirmation Pending
19
202
KISO(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KISO(AM), PHOENIX, ARIZONA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KISO(AM) * 10/01/97
=========================================================================================
PART B. SHAMROCK BROADCASTING, INC.
WWSW(AM) AND ASSOCIATED ASSOCIATED STATIONS
MAIN STATION WWSW(AM), PITTSBURGH, PENNSYLVANIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WWSW(AM) * 8/1/98
=========================================================================================
WWSW(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WWSW(FM), PITTSBURGH, PENNSYLVANIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WWSW(FM) * 8/1/98
-----------------------------------------------------------------------------------------
License for Auxiliary Antenna WWSW(FM) * 8/l/98
=========================================================================================
-----------------
* Confirmation Pending
20
203
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WWSW(FM), PITTSBURGH, PENNSYLVANIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Remote Pickup Base KGB-258 * 8/l/98
-----------------------------------------------------------------------------------------
Aural STL WFD-489 * 8/l/98
-----------------------------------------------------------------------------------------
Aural STL WFD-545 * 8/l/98
-----------------------------------------------------------------------------------------
Aural STL WFD-546 * 8/l/98
-----------------------------------------------------------------------------------------
Remote Pickup-Automatic Relay WZB-714 * 8/1/98
-----------------------------------------------------------------------------------------
Receive Only Earth Station E-6966 * 8/19/98
-----------------------------------------------------------------------------------------
Business Radio WNVY-920 * 11/03/98
=========================================================================================
KVOD(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KVOD(FM), GREELEY, COLORADO
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KVOD(FM) * 4/01/2005
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KVOD(FM) GREELEY, COLORADO
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Auxiliary license KPM-379 * 4/01/2005
-----------------------------------------------------------------------------------------
Auxiliary license KB-96246 * 4/01/2005
-----------------------------------------------------------------------------------------
Auxiliary license WLF-617 * 4/01/2005
-----------------------------------------------------------------------------------------
Auxiliary license WLO-631 * 4/01/2005
=========================================================================================
----------
* Cofirmation Pending
21
204
KRRF(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION (AM, DENVER, COLORADO
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KRRF(AM) * 4/l/2005
=========================================================================================
KRRG(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KRRF(FM), DENVER, COLORADO
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KRRF(FM) * 4/l/2005
-----------------------------------------------------------------------------------------
License for Auxiliary Antenna KRRF(FM) * 4/l/2005
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
(FM), DENVER, COLORADO
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
FM Booster KRRF(FM) * 4/l/2005
-----------------------------------------------------------------------------------------
Aural STL WHY-442 * 4/l/2005
-----------------------------------------------------------------------------------------
Aural STL WHY-443 * 4/l/2005
-----------------------------------------------------------------------------------------
Remote Pickup Base KPF-237 * 4/l/2005
=========================================================================================
----------------
* Confirmation Pending
22
205
KMLE(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KMLE(FM), CHANDLER, ARIZONA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KMLE(FM) * 10/l/97
-----------------------------------------------------------------------------------------
License for Auxiliary Antenna KMLE(FM) * 10/l/97
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KMLE(FM), CHANDLER, ARIZONA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Aural STL WLI-670 * 10/l/97
-----------------------------------------------------------------------------------------
Aural STL WGI-232 * 10/1/97
-----------------------------------------------------------------------------------------
Remote Pickup-Mobile KS-62911 * 10/l/97
=========================================================================================
KLAC(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KLAC(AAI), LOS ANGELES, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KLAC(AM) * 12/l/97
=========================================================================================
KZLA(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KZLA(FM), LOS ANGELES, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KZLA(FM) * 12/1/97
-----------------------------------------------------------------------------------------
License for Auxiliary Antenna KZLA(FM) * 12/l/97
=========================================================================================
-------------
* Confirmation Pending
23
206
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KZLA(FM), LOS ANGELES, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Aural STL WLF-542 * 12/l/97
-----------------------------------------------------------------------------------------
POFMS WLF-835 * 6/l/98
=========================================================================================
KABL(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KABL(AM), OAKLAND, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KABL(AM) * 12/1/97
=========================================================================================
KBGG(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KBGG(FM), SAN FRANCISCO, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KBGG(FM) * 12/l/97
-----------------------------------------------------------------------------------------
FM Booster (Walnut Creek) KABL(FM1) * 12/l/97
-----------------------------------------------------------------------------------------
FM Booster (Pleasanton) KABL(FM2) * 12/l/97
-----------------------------------------------------------------------------------------
Construction Permit for FM KBGG(FM1) * 1/20/97
Booster (Concord)
-----------------------------------------------------------------------------------------
Remote Pickup-Base KOS-332 * 12/l/97
-----------------------------------------------------------------------------------------
Remote Pickup-Base/Mobile KRS-519 * 12/l/97
-----------------------------------------------------------------------------------------
Aural STL KVB-60 * 12/l/97
-----------------------------------------------------------------------------------------
Aural later-City Relay WLP-333 * 12/l/97
=========================================================================================
f
------------
* Confirmation Pending
24
207
KNEW(AM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KNEW(AM), OAKLAND, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KNEW(AM) * 12/l/97
=========================================================================================
KSAN(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KSAN(FM), SAN FRANCISCO, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KSAN(FM) * 12/l/97
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KSAN(FM), SAN FRANCISCO, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
FM Booster KSAN(FM1) * 12/l/97
-----------------------------------------------------------------------------------------
Aural STL WCY-22 * 12/l/97
-----------------------------------------------------------------------------------------
Aural STL WLD-656 * 12/l/97
=========================================================================================
----------------
* Confirmation Pending
25
208
KFAN(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KFAN(AM), MINNEAPOLIS, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
License Application Pending KFAN(AM) XX-000000XX Xxxxxxx
Pending
-----------------------------------------------------------------------------------------
Construction Permit Pending KFAN BP-940802A-C
=========================================================================================
KFEY(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KEEY(FM), MINNEAPOLIS, MINNESOTA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KEEY(FM) * 4/l/2005
------------------------------------------------------------------------------------------
Auxiliary Antenna KEEY(AM) * Renewal
Pending
------------------------------------------------------------------------------------------
Remote Pickup-Mobile KA-74989 * Renewal
Pending
------------------------------------------------------------------------------------------
Aural XXX X-X-000 * Renewal
Pending
------------------------------------------------------------------------------------------
Remote Pickup-Mobile KK-7690 * Renewal
Pending
------------------------------------------------------------------------------------------
RP Automatic Relay KGJ-999 * Renewal
Pending
------------------------------------------------------------------------------------------
Auxiliary KPF-980 * Renewal
Pending
------------------------------------------------------------------------------------------
Remote Pickup-Base/Mobile KFZ-941 * Renewal
Pending
=========================================================================================
---------------
* Confirmation Pending
26
209
WHTZ(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WHTZ(FM), NEW YORK, NEW YORK
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station license WHTZ(FM) * 6/l/98
-----------------------------------------------------------------------------------------
Auxiliary Antenna (application to WHTZ(FM) XXXX-000000XX 6/l/98
modify license pending)
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
WHTZ(FM), NEW YORK, NEW YORK
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Aural STL WLF-541 * 6/l/98
-----------------------------------------------------------------------------------------
POFMS WNEG-653 * 6/2/98
-----------------------------------------------------------------------------------------
POFMS WNEI-922 * 6/2/98
=========================================================================================
WFOX(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WFOX(FM), GAINESVILLE, GEORGIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WFOX(FM) * 4/01/2004
=========================================================================================
-----------------
* Confirmation Pending
27
210
WOMX(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WOMX(FM), ORLANDO, FLORIDA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WOMX(FM) * 2/01/2003
=========================================================================================
WXXL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WJHM(FM), DAYTONA BEACH, FLORIDA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WJHM(FM) * 2/01/2003
=========================================================================================
WXXL(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION (FM), LEESBURG, FLORIDA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WXXL(FM) * 2/01/2003
=========================================================================================
BROADCAST AUXILIARY STATION ASSOCIATED WITH
WXXL(FM) LEESBURG, FLORIDA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Auxiliary License WHB-992 * 2/01/2003
-----------------------------------------------------------------------------------------
Auxiliary license WLJ-566 * 2/01/2003
-----------------------------------------------------------------------------------------
Auxiliary License KB-55884 * 2/01/2003
=========================================================================================
PART C. WLIT INC.
-------------
* Confirmation Pending
28
211
WLIT(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION WLIT (FM), CHICAGO, ILLINOIS
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License WLIT(FM) 12/01/2004
=========================================================================================
PART D. KIBB INC.
KIBB(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KIBB(FM), LOS ANGELES, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KIBB(FM) * 12/01/97
-----------------------------------------------------------------------------------------
FM Translator K261AB * 12/01/97
-----------------------------------------------------------------------------------------
FM Translator (Renewal) BRFT61126YS 12/01/97
-----------------------------------------------------------------------------------------
License to cover BLH961210KA 12/01/97
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KIBB(FM), LOS ANGELES, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
KSZ-63 * 12/01/97
=========================================================================================
-----------
* Confirmation Pending
29
212
PART E. KYSR INC.
KYSR AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KYSR(FM), LOS ANGELES, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KYSR(FM) * 12/01/97
-----------------------------------------------------------------------------------------
Commercial Paging SCA 2574-CD-P/ML-01-
95
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KYSR(FM), LOS ANGELES, CALIFORNIA
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
WHY-988 * 12/01/97
=========================================================================================
----------
* Confirmation Pending
30
213
PART F. SHAMROCK BROADCASTING LICENSES OF DENVER, INC.
KIMN(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION (FW), DENVER, COLORADO
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KIMN(FM) * Renewal
Pending
=========================================================================================
BROADCAST AUXILIARY STATIONS ASSOCIATED WITH
KIMN(FM) DENVER, COLORADO
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
FM Booster KIMN-FM(1) * Renewal
Pending
-----------------------------------------------------------------------------------------
Auxiliary License WCD-984 * Renewal
Pending
=========================================================================================
KALC(FM) AND ASSOCIATED AUXILIARY STATIONS
MAIN STATION KALC(FM), DENVER, COLORADO
=========================================================================================
Current
Expiration
Type of Authorization Call Sign FCC File Number Grant Date Date
=========================================================================================
Main Station License KALC(FM) * Renewal
Pending
=========================================================================================
---------------------
* Confirmation Pending
214
SCHEDULE V
INSURANCE
(See Attached)
215
ISSUE DATE (MM/DD/YY)
[XXXXX LOGO] CERTIFICATE OF INSURANCE [ ] 6/24/97
PRODUCER -------------------------------------------
THIS CERTIFICATE IS USED AS A MATTER OF
Aon Risk Services of MO, Inc. INFORMATION ONLY AND CONFERS NO RIGHTS UPON
0000 Xxxxxxxx Xxxxxx THE CERTIFICATE HOLDER. THIS CERTIFICATE
Xx. Xxxxx, XX 00000 DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE
Contact: Xxxx Xxxxx AFFORDED BY THE POLICIES BELOW.
314-721-5100 --------------------------------------------
COMPANIES AFFORDING COVERAGE
--------------------------------------------
---------------------------------- COMPANY
INSURED LETTER A Federal Insurance Company
--------------------------------------------
Chancellor Broadcasting Co. COMPANY
Attn: Xxxx Xxxxxxx LETTER B Westchester Fire Ins. Co.
00000 X. Xxxxxxx Xxxxx, #000 --------------------------------------------
Dallas COMPANY
TX 75243 LETTER C National Casualty Company
--------------------------------------------
---------------------------------- COMPANY
LETTER D
--------------------------------------------
COMPANY
LETTER E
--------------------------------------------
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED
TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT
TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED
BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND
CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
-------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
O6 POLICY EFFECTIVE POLICY EXPIRATION
LTR TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY)
--------------------------------------------------------------------------------------------
GENERAL LIABILITY
A [X] COMMERCIAL GENERAL LIABILITY 73210058 4/01/97 4/01/98
[ ][ ] CLAIMS MADE [X] OCCUR.
[ ] OWNER'S & CONTRACTOR'S PROT.
[ ]
---------------------------
--------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
A [X] ANY AUTO 73210057 4/01/97 4/01/98
[ ] ALL OWNED AUTOS
[ ] SCHEDULED AUTOS 73210059 (TX) 4/01/97 4/01/98
[X] HIRED AUTOS
[X] NON-OWNED AUTOS COMP. - $500 DEDUCT.
[ ] GARAGE LIABILITY
[ ] COLL. - $500 DEDUCT.
--------------------------------------------------------------------------------------------
EXCESS LIABILITY
B [X] UMBRELLA FORM CUA1036790 4/01/97 4/01/98
[ ] OTHER THAN UMBRELLA FORM
--------------------------------------------------------------------------------------------
WORKER'S COMPENSATION
A AND 71632579 4/01/97 4/01/98
EMPLOYERS' LIABILITY
--------------------------------------------------------------------------------------------
XXXXX
X Xxxxxxxxxxxx Xxxx. XX000000X 12/01/96 12/01/97
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
06
LTR LIMITS
--------------------------------------------------------------------------------------------
GENERAL LIABILITY GENERAL AGGREGATE $ 2,000,000
--------------------------------------------------------
PRODUCTS-COMP/OP AGG. $ 1,000,000
--------------------------------------------------------
PERSONAL & ADV. INJURY $ 1,000,000
--------------------------------------------------------
EACH OCCURRENCE $ 1,000,000
--------------------------------------------------------
FIRE DAMAGE (Any one fire) $ 1,000,000
--------------------------------------------------------
MED. EXPENSE (Any one person) $ 10,000
--------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY COMBINED SINGLE
LIMIT $ 1,000,000
--------------------------------------------------------
BODILY INJURY
(Per person)
--------------------------------------------------------
BODILY INJURY
(Per accident)
--------------------------------------------------------
PROPERTY DAMAGE
--------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH OCCURRENCE $ 5,000,000
--------------------------------------------------------
AGGREGATE $ 5,000,000
--------------------------------------------------------
--------------------------------------------------------------------------------------------
WORKER'S COMPENSATION [ ] STATUTORY LIMITS
AND --------------------------------------------------------
EMPLOYERS' LIABILITY EACH ACCIDENT $ 1,000,000
--------------------------------------------------------
DISEASE-POLICY LIMIT $ 1,000,000
--------------------------------------------------------
DISEASE-EACH EMPLOYEE $ 1,000,000
--------------------------------------------------------------------------------------------
OTHER $2,000,000 Ea. Loss
--------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
Certificate Holder is added as an additional insured with respects to their
financial interest in the acquisition of four (4) Viacom stations.
-------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES
BE CANCELLED BEFORE THE EXPIRATION DATE
THEREOF, THE ISSUING COMPANY WILL ENDEAVOR
TO MAIL 30 DAYS WRITTEN NOTICE TO THE
Bankers Trust Company, as CERTIFICATE HOLDER NAMED TO THE LEFT, BUT
Managing Agent and Arranger FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO
000 Xxxxxxx Xxxxxx XXXXXXXXXX XX LIABILITY OF ANY KIND XXXX
Xxx Xxxx, XX 00000 THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
/s/ J. XXXXXX XXXXXX 730080009
216
DATE (MM/DD/YY)
[XXXXX LOGO] EVIDENCE OF PROPERTY INSURANCE [ ] 6/25/97
THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED,
IS IN FORCE, AND CONVEYS ALL THE RIGHTS AND PRIVILEGES AFFORDED UNDER
THE POLICY.
---------------------------------------------------------------------------------------------------------------
PRODUCER COMPANY
Aon Risk Services of MO Lexington Insurance Co. (DE)
0000 Xxxxxxxx Xxxxxx American International Group
Xx. Xxxxx, XX 00000 000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
000-000-0000
CODE SUB-CODE
---------------------------------------------------------------------------------------------------------------
INSURED LOAN NUMBER POLICY NUMBER
Chancellor Broadcasting Co. 8793049
Attn: Xxxx Xxxxxxx ----------------------------------------------------
00000 X. Xxxxxxx Xxxxx, #000 EFFECTIVE DATE EXPIRATION DATE CONT. UNTIL
Dallas (MM/DD/YY) (MM/DD/YY) XXXXXXXXXX
XX 00000 4/01/97 4/01/98 IF CHECKED [ ]
----------------------------------------------------
THIS REPLACES PRIOR EVIDENCE DATED:
---------------------------------------------------------------------------------------------------------- ----
PROPERTY INFORMATION
LOCATION/DESCRIPTION
Four (4) Viacom stations
--------------------------------------------------------------------------------
COVERAGE INFORMATION
COVERAGE/PERILS/FORMS AMOUNT OF INSURANCE DEDUCTIBLE
---------------------------------------------------------------------------------------------------------------
Building, Personal Property, 5,000
Business Interruption
Boiler & Machinery
All Risk including theft
Subject to policy terms,
conditions and exclusions
---------------------------------------------------------------------------------------------------------------
REMARKS (Including Special Conditions)
See attached addendum for policy layering of the Master Property
Program for Hicks, Muse, Xxxx & Xxxxx $400,000,000 Policy Limit
--------------------------------------------------------------------------------
CANCELLATION
THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR
EACH POLICY PERIOD. SHOULD THE POLICY BE TERMINATED, THE COMPANY WILL
GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW 30 DAYS WRITTEN NOTICE,
AND WILL SEND NOTIFICATION OF ANY CHANGES TO THE POLICY THAT WOULD
AFFECT THAT INTEREST, IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS
REQUIRED BY LAW.
--------------------------------------------------------------------------------
ADDITIONAL INTEREST
NAME AND ADDRESS NATURE OF INTEREST
[ ] MORTGAGEE [ ] ADDITIONAL INSURED
Bankers Trust Company, as [X] LOSS PAYEE [ ] (OTHER)
Managing Agent and Arranger ---------
000 Xxxxxxx Xxxxxx
Xxx Xxxx XX 00000 ----------------------------------------
SIGNATURE OF AUTHORIZED AGENT OF COMPANY
/s/ J. XXXXXX XXXXX 730090 9
XXXXX 27 (2/88) XXXXX CORPORATION 1988
217
SCHEDULE VI
EXISTING LIENS
I. Shamrock Broadcasting, Inc.
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- --------------------------
ARIZONA: SOS 827154 4/12/95 AT&T
CALIFORNIA: SOS 86232680 9/15/86 Leasing Service Corp.
cont. 6/17/91
86321096 12/26/86 Leasing Service Corp.
cont. 9/9/91
9514660807 5/25/95 The Xxxxxxx Funding Group, Inc.
9529360805 10/18/95 Orix USA Corp.
MICHIGAN: SOS B846160 9/16/86 Leasing Service Corporation
cont. 6/17/91
C490755
TEXAS: SOS 86271373 9/16/86 Leasing Service Corporation
cont. 6/17/91
50102704
87037353 2/9/87 Credit Alliance Corporation
cont. 11/4/91
50172087
94102637 5/23/94 Southwestern Xxxx
Telecommunications, Inc.
II. Chancellor Radio Broadcasting Company(1)
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- ------------------------------
ARIZONA: SOS 896146 5/2/96 Advanta Business Services Corp.
amendment 9/12/96
-------------------------
1. Radio 95 of Phoenix Limited Partnership is currently the debtor.
218
III. KIBB Inc.
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- -------------
None
IV. KYSR Inc.
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- -------------
CALIFORNIA: SOS 93049234(2) 3/10/93 Westlake Audit, Inc.
V. WLIT Inc.
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- -------------
ILLINOIS: SOS 3075856(3) 1/21/93 Ameritech Credit Corporation
VI. WDRQ Inc.
Filing
Jurisdiction File Number Date Secured Party
------------ ----------- ---- -------------
None
-------------------------
2. Debtor has satisfied all obligations in connection with the Equipment
secured by the UCC-1. UCC-3 to be provided by Secured Party.
3. Viacom International Inc. is currently the Debtor.
219
SCHEDULE VII
EXISTING INDEBTEDNESS
1. Acquisition of the transmitter tower and transmitter site of WKYN-AM.
220
ANNEX 5.07
1. Indecency compliant has been lodged with the FCC against Station KALC
(FM) Denver, Colorado. This complaint has not advanced to a stage
where the licensee has an opportunity to review and respond to the
allegations.
2. WXXI Public Broadcasting Council filed with the FCC a Petition for
Issuance of Order to Show Cause ("Petition") against radio station
WALK (AM), Patchogue, New York, seeking to reduce the nighttime power
of that station from 102 xxxxx to 41.8 xxxxx.
3. Station KFAN (AM), Minneapolis, Minnesota is operating under an STA
with parameters at variance pending completion of adjustments to its
directional antenna pattern.
4. The tower for Station WUBE (AM), Cincinnati, Ohio was constructed at a
location that varies slightly from the coordinates specified in its
license. This was discovered in connection with the FCC's tower
registration process and appropriate applications have been filed with
the FCC to correct this discrepancy.
5. The towers for Stations KISO, Phoenix, Arizona and WFOX, Gainsville,
Georgia have been constructed at locations varying slightly from the
coordinates in their licenses. This was discovered in connection with
the FCC's tower registration process. Applications correcting these
discrepancies have not yet been filed.
221
12655 North Central Expwy. CHANCELLOR RADIO BROADCASTING
Suite 405 COMPANY
Xxxxxx, XX 00000
By /s/XXXXXXX XXXXXXX
-----------------------------
Xxxxxxx Xxxxxxx
with a copy to: Senior Vice President
Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx 0. Xxxxx,
Xxxx X. Muse,
Xxxx X. Xxxxx and
Xxxxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Hicks, Muse, Xxxx & Xxxxx
Incorporated
1325 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
222
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
00000 Xxxxx Xxxxxxx Xxxxx. CHANCELLOR BROADCASTING COMPANY
Xxxxx 000
Xxxxxx, XX 00000
By /s/ XXXXXXX XXXXXXX
--------------------------------
Xxxxxxx Xxxxxxx
with a copy to: Senior Vice President
Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx 0. Xxxxx,
Xxxx X. Muse,
Xxxx X. Xxxxx and
Xxxxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Hicks, Muse, Xxxx & Xxxxx
Incorporated
1325 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
223
000 Xxxxxxx Xxxxxx BANKERS TRUST COMPANY,
Individually and as Managing Agent
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Prior By /s/ XXXX XXX XXXXX
-----------------------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
224
KZH-ING-1 CORPORATION
By: /s/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
225
CAISSE NATIONALE DE CREDIT
AGRICOLE
By: /s/ ILLEGIBLE
-----------------------------------
Name:
Title:
226
SOCIETE GENERALE
By: /s/ XXXX XXXXX
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
227
SOCIETE GENERALE
By: /s/ XXXXXXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: V.P. and Manager
228
FLEET BANK, N.A.
By: /s/ XXXXXXX XXXX
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Banking Officer
229
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
230
FIRST UNION NATIONAL BANK
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
231
00 Xxxx 00xx Xxxxxx XXXXXXX XXXXXXXX (XXXXX), INC.,
Xxx Xxxx, Xxx Xxxx 00000 Individually and as Syndication Agent
Tel: (000) 000-0000
Attention: Xxx Xxxxxxx
By: /s/ XXXXXXX XXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
232
XXXXXX FINANCIAL, INC.
By: /s/ XXXXXXX XXXXX
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
000
XXX XXXXXXXXXX XXXX XX XXXXX,
XXXXXXX, XXX XXXX BRANCH
By: /s/ XXXXXXX XXXX
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
000
XXXX XX XXXXXXX NATTIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
235
00 Xxxxx Xxxxxx XXXXXXX XXXXX CREDIT PARTNERS L.P.,
Xxx Xxxx, Xxx Xxxx 00000 Individually and as Documentation Agent
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx Xxxxx By:
-----------------------------------
Name:
Title:
000 Xxxx Xxxxxx -- 64th Floor NATIONSBANK OF TEXAS, N.A.,
Xxxxxx, Xxxxx 00000 Individually and as Syndication Agent
Tel: (000) 000-0000
Fax: (000) 000-0000 By: /s/ XXXXXXXX X. XXXXXX
Attention: Xxxxxxxx Xxxxxx -----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
000
XXX XXXX XX XXXX XXXXXX
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
237
THE FUJI BANK, LIMITED
By: /s/ XXXXXX X. XXXXXXXX III
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx III
Title: Vice President & Manager
000
XXXXXX XXXXXXXXX XX XXXXXXXX
XXXXXXXXX
By: /s/ XXXXX XXXXXX
----------------------
Name: Xxxxx Xxxxxx
Title: Vice President
/s/ XXXXXXX X. XXXXX
----------------------
Xxxxxxx X. Xxxxx
VP-Group Manager
239
BANKBOSTON, N.A.
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Director
240
ABN AMRO Bank N.V. Houston Agency
By: /s/ XXXXXX X. XXXX
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Group Vice President
By: /s/ DIEGO PUIGGARI
-----------------------------------
Name: Diego Puiggari
Title: Vice President
241
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ XXXXXXXX X. XXXX
-----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
000
XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ XXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SCHEDULE I
243
PARIBAS CAPITAL FUNDING LLC
By: /s/ [ILLEGIBLE]
-----------------------------------
Name:
Title:
244
BARCLAYS BANK PLC
By: /s/ XXX XXX
-----------------------------------
Name: Xxx Xxx
Title: Director
245
CITIBANK, N.A.
By: /s/ XXXX X. XXXXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
246
CORESTATES BANK, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
247
00 Xxxxx Xxxxxx XXXXXXX XXXXX CREDIT PARTNERS L.P.,
Xxx Xxxx, Xxx Xxxx 00000 Individually and as Documentation Agent
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx Xxxxx By: /s/ XXXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Authorized Signatory
248
MELLON BANK, N.A.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
000
XXX XXXX XX XXX XXXX
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Re: Chancellor 6/26/97
Agreements
250
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ XXXXXXXX XXXXX XX XXXX
-----------------------------------
Name: Xxxxxxxx Xxxxx xx Xxxx
Title: Senior Vice President
251
BANQUE PARIBAS
By: /s/ XXXX X. XXXXX
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Group Vice President,
Media Group
By: /s/ XXX X. XXXXXX
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President, Media Group
252
OCTAGON CREDIT INVESTORS LAON
PORTFOLIO (a unit of The Chase
Manhattan Bank)
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
253
THE LONG TERM CREDIT BANK OF
JAPAN, LIMITED
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Joint General Manager
254
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of
First Allmerica Financial Life
Insurance Company
By: /s/ XXXX X. XXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
255
CREDIT SUISSE FIRST BOSTON
By: /s/ XXXX X. XXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
000
XXXX XX XXXXXXXX
By: /s/ X.X. XXXXXX
-----------------------------------
Name: X.X. Xxxxxx
Title: Director
257
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By: /s/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /s/ XXXXX X'XXXXX
-----------------------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
258
THE DAI ICHI KANGYO BANK, LTD.
NEW YORK BRANCH
By: /s/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
259
XXXXXX BANK LTD
NEW YORK BRANCH
By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ XXXXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
