UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(Mark One)
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the Quarterly Period ended June 30, 2011
or
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from to
Commission file number 1-11588
Saga Communications, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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38-3042953
(I.R.S. Employer
Identification No.)
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73 Kercheval Avenue
Grosse Pointe Farms, Michigan
(Address of principal executive offices)
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48236
(Zip Code)
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(313) 886-7070
(Registrants telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes
þ
No
o
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Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files).
Yes
þ
No
o
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
o
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Accelerated filer
þ
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Non-accelerated filer
o
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Smaller Reporting Company
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(Do not check if a smaller reporting company)
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). Yes
o
No
þ
The number of shares of the registrants Class A Common Stock, $.01 par value, and Class B
Common Stock, $.01 par value, outstanding as of August 4, 2011 was 3,654,488 and 597,859,
respectively.
PART I FINANCIAL INFORMATION
Item 1.
Financial Statements
SAGA COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
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June 30,
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December 31,
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2011
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2010
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(Unaudited)
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(Note)
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(In thousands)
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Assets
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Current assets:
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Cash and cash equivalents
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$
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12,863
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$
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12,197
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Short-term investments
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1,014
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1,007
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Accounts receivable, net
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19,830
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18,985
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Prepaid expenses and other current assets
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3,423
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2,002
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Barter transactions
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2,008
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1,377
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Deferred income taxes
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1,008
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991
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Total current assets
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40,146
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36,559
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Property and equipment
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160,856
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158,589
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Less accumulated depreciation
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96,311
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93,028
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Net property and equipment
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64,545
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65,561
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Other assets:
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Broadcast licenses, net
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90,584
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90,584
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Other intangibles, deferred costs and investments, net
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6,348
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7,099
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Total other assets
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96,932
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97,683
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$
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201,623
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$
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199,803
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Liabilities and stockholders equity
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Current liabilities:
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Accounts payable
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$
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1,779
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$
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1,683
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Payroll and payroll taxes
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6,979
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5,524
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Other accrued expenses
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3,750
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3,460
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Barter transactions
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2,113
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1,641
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Current portion of long-term debt
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3,000
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6,121
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Total current liabilities
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17,621
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18,429
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Deferred income taxes
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9,235
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7,105
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Long-term debt
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86,078
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89,957
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Other liabilities
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3,659
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4,234
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Total liabilities
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116,593
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119,725
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Commitments and contingencies
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Stockholders equity
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Common stock
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53
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53
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Additional paid-in capital
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50,535
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50,298
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Retained earnings
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63,032
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58,200
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Treasury stock
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(28,590
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(28,473
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Total stockholders equity
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85,030
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80,078
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$
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201,623
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$
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199,803
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Note:
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The balance sheet at December 31, 2010 has been derived from the audited financial statements at that
date but does not include all of the information and footnotes required by accounting principles generally
accepted in the United States for complete financial statements.
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See notes to unaudited condensed consolidated financial statements.
3
SAGA COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
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Three Months Ended
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Six Months Ended
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June 30,
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June 30,
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2011
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2010
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2011
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2010
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(Unaudited)
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(In thousands, except per share data)
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Net operating revenue
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$
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33,183
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$
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32,887
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$
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61,891
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$
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60,874
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Station operating expense
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23,623
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23,157
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46,359
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45,717
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Corporate general and administrative
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1,949
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1,897
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3,889
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3,779
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Operating income
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7,611
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7,833
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11,643
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11,378
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Other expenses, net:
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Interest expense
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1,034
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1,468
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2,191
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2,987
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Write-off revolving credit facility debt issuance costs
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1,326
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1,326
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Other (income) expense, net
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(95
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185
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(27
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(3,411
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Income before income tax
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5,346
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6,180
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8,153
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11,802
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Income tax provision
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2,176
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2,485
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3,321
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4,790
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Net income
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$
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3,170
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$
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3,695
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$
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4,832
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$
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7,012
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Earnings per share
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Basic
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$
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.75
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$
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.87
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$
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1.14
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$
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1.66
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Diluted
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$
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.75
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$
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.87
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$
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1.14
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$
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1.66
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Weighted average common shares
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4,242
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4,236
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4,237
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4,229
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Weighted average common and common equivalent shares
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4,245
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4,237
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4,242
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4,229
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See notes to unaudited condensed consolidated financial statements.
4
SAGA COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
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Six Months Ended
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June 30,
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2011
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2010
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(Unaudited)
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(In thousands)
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Cash flows from operating activities:
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Cash provided by operating activities
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$
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11,556
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$
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12,826
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Cash flows from investing activities:
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Acquisition of property and equipment
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(2,522
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(2,146
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Proceeds from license downgrade
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3,561
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Purchases of short-term investments
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(2005
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Other investing activities
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(104
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(7
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Net cash used in investing activities
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(2,626
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(597
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Cash flows from financing activities:
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Payments on long-term debt
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(99,100
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(7,500
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)
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Proceeds from long-term debt
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92,100
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Payments for debt issuance costs
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(1,147
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(1,503
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Purchase of shares held in treasury
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(117
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(78
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Net cash used in financing activities
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(8,264
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(9,081
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Net increase in cash and cash equivalents
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666
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3,148
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Cash and cash equivalents, beginning of period
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12,197
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12,899
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Cash and cash equivalents, end of period
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$
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12,863
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$
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16,047
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See notes to unaudited condensed consolidated financial statements.
5
SAGA COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been prepared in
accordance with accounting principles generally accepted in the United States for interim financial
information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly,
they do not include all of the information and footnotes required by accounting principles
generally accepted in the United States for annual financial statements.
In our opinion, the accompanying financial statements include all adjustments of a normal,
recurring nature considered necessary for a fair presentation of our financial position as of June
30, 2011 and the results of operations for the three and six months ended June 30, 2011 and 2010.
Results of operations for the six months ended June 30, 2011 are not necessarily indicative of the
results that may be expected for the year ending December 31, 2011.
For further information, refer to the consolidated financial statements and footnotes thereto
included in the Saga Communications, Inc. Annual Report on Form 10-K for the year ended December
31, 2010.
The Company has evaluated events and transactions occurring subsequent to the balance sheet
date of June 30, 2011, for items that should potentially be recognized in these financial
statements or discussed within the notes to the financial statements.
Earnings Per Share Information
The following table sets forth the computation of basic and diluted earnings per share:
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Three Months Ended June 30,
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Six Months Ended June 30,
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2011
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2010
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2011
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2010
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(In thousands, except per share data)
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Numerator:
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Net income available to common stockholders
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$
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3,170
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$
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3,695
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$
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4,832
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$
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7,012
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Denominator:
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Denominator for basic earnings per
share weighted average shares
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4,242
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4,236
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4,237
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4,229
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Effect of dilutive securities
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3
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1
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5
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Denominator for diluted earnings per
share adjusted weighted-average shares
and assumed conversions
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4,245
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4,237
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4,242
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4,229
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Basic earnings per share
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$
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.75
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$
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.87
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$
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1.14
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$
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1.66
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Diluted earnings per share
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$
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.75
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$
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.87
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$
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1.14
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$
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1.66
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The number of stock options outstanding that had an antidilutive effect on our
earnings per share calculation, and therefore have been excluded from diluted earnings per share
calculation, was 228,000 for the three and six months ended June 30, 2011 and 350,000 for the three
and six months ended June 30, 2010. The actual effect of these shares, if any, on the diluted
earnings per share calculation will vary significantly depending on the fluctuation in the stock
price.
6
SAGA COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Fair Value of Financial Instruments
Short-term investments, which include certificates of deposit, approximate fair value due to
their short maturities.
Income Taxes
Our effective tax rate is higher than the federal statutory rate as a result of the inclusion
of state taxes in the income tax amount.
Time Brokerage Agreements
We have entered into Time Brokerage Agreements (TBAs) or Local Marketing Agreements
(LMAs) in certain markets. In a typical TBA/LMA, the FCC licensee of a station makes available,
for a fee, blocks of air time on its station to another party that supplies programming to be
broadcast during that air time and sells their own commercial advertising announcements during the
time periods specified. Revenue and expenses related to TBAs/LMAs are included in the
accompanying unaudited Condensed Consolidated Statements of Income.
2. Recent Accounting Pronouncements
In October 2009, the Financial Accounting Standards Board (FASB) issued Accounting Standards
Update (ASU) 2009-13, which addresses the accounting for multiple-deliverable revenue
arrangements to enable vendors to account for products or services (deliverables) separately rather
than as a combined unit, and provides guidance regarding how to measure and allocate arrangement
consideration to one or more units of accounting. This guidance was effective on January 1, 2011
and adoption did not have a material impact on our consolidated financial statements.
In January 2010, the FASB issued new guidance for fair value measurements and disclosures
which requires a reporting entity to disclose separately the amounts of significant transfers in
and out of Level 1 and 2 fair value measurements and describe the reasons for the transfers. The
guidance also requires a reporting entity to present separately information about purchases, sales,
issuances, and settlements in the reconciliation for fair value measurements using significant
unobservable inputs (Level 3). The guidance was effective on January 1, 2010, except for
disclosures about purchases, sales, issuances, and settlements in the roll forward of activity in
Level 3 fair value measurements, which was effective for the Company on January 1, 2011. The
guidance adopted on January 1, 2011 did not have a material impact on our consolidated financial
statements.
7
SAGA COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
3. Intangible Assets
We evaluate our FCC licenses for impairment annually as of October 1
st
or
more frequently if events or circumstances indicate that the asset might be impaired. FCC licenses
are evaluated for impairment at the market level using a direct method. If the carrying amount of
FCC licenses is greater than their estimated fair value in a given market, the carrying amount of
FCC licenses in that market is reduced to its estimated fair value.
Intangible assets that have finite lives are amortized over their useful lives using the
straight-line method. Favorable lease agreements are amortized over the lives of the leases ranging
from 4 to 26 years. Other intangibles are amortized over one to eleven years.
4. Common Stock and Treasury Stock
The following summarizes information relating to the number of shares of our common stock
issued in connection with stock transactions through June 30, 2011:
|
|
|
|
|
|
|
|
|
|
|
Common Stock Issued
|
|
|
Class A
|
|
Class B
|
|
|
(Shares in thousands)
|
Balance, January 1, 2010
|
|
|
4,771
|
|
|
|
599
|
|
Conversion of shares
|
|
|
1
|
|
|
|
(1
|
)
|
Forfeiture of restricted stock
|
|
|
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2010
|
|
|
4,770
|
|
|
|
598
|
|
Conversion of shares
|
|
|
1
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
|
|
Balance, June 30, 2011
|
|
|
4,771
|
|
|
|
597
|
|
|
|
|
|
|
|
|
|
|
We have a Stock Buy-Back Program (the Buy-Back Program) to allow us to purchase up
to $60,000,000 of our Class A Common Stock. From its inception in 1998 through June 30, 2011, we
have repurchased 1,391,586 shares of our Class A Common Stock for approximately $45,680,000.
5. Stock-Based Compensation
2005 Incentive Compensation Plan
On May 9, 2005, our stockholders approved the 2005 Incentive Compensation Plan (the 2005
Plan) which replaced our 2003 Stock Option Plan (the 2003 Plan) as to future grants. The 2005
Plan extends through March 2015 and allows for the granting of restricted stock, restricted stock
units, incentive stock options, nonqualified stock options, and performance awards to officers and
a selected number of employees.
Stock-Based Compensation
Compensation expense of approximately $34,000 and $129,000, respectively, and related tax
benefits of $14,000 and $53,000, respectively, was recognized for the three and six months ended
June 30, 2011. For the three and six months ended June 30, 2010, the Company recognized
compensation expense of approximately $139,000 and $326,000, respectively, and related tax benefits
of $56,000 and $132,000, respectively. Compensation expense is reported in corporate general and
administrative expenses in our results of operations.
8
SAGA COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following summarizes the stock option transactions for the 2005 and 2003 Plans and the
1992 Stock Option Plan (the 1992 Plan) for the six months ended June 30, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted Average
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Remaining
|
|
|
Aggregate
|
|
|
|
Number of
|
|
|
Weighted Average
|
|
|
Contractual Term
|
|
|
Intrinsic
|
|
|
|
Options
|
|
|
Exercise Price
|
|
|
(Years)
|
|
|
Value
|
|
Outstanding at January 1, 2011
|
|
|
293,993
|
|
|
$
|
51.70
|
|
|
|
3.9
|
|
|
$
|
|
|
Granted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercised
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expired
|
|
|
(65,916
|
)
|
|
|
58.10
|
|
|
|
|
|
|
|
|
|
Forfeited
|
|
|
(282
|
)
|
|
|
37.96
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at June 30, 2011
|
|
|
227,795
|
|
|
$
|
49.86
|
|
|
|
4.1
|
|
|
$
|
98,468
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable at June 30, 2011
|
|
|
220,785
|
|
|
$
|
50.24
|
|
|
|
4.1
|
|
|
$
|
98,468
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following summarizes the non-vested stock option transactions for the 2005, 2003
and 1992 Plans for the six months ended June 30, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted Average
|
|
|
|
Number of
|
|
|
Grant Date Fair
|
|
|
|
Options
|
|
|
Value
|
|
Non-vested at January 1, 2011
|
|
|
35,155
|
|
|
$
|
18.51
|
|
Granted
|
|
|
|
|
|
|
|
|
Vested
|
|
|
(27,863
|
)
|
|
|
18.30
|
|
Forfeited/canceled
|
|
|
(282
|
)
|
|
|
19.30
|
|
|
|
|
|
|
|
|
Non-vested at June 30, 2011
|
|
|
7,010
|
|
|
$
|
19.30
|
|
|
|
|
|
|
|
|
The following summarizes the restricted stock transactions for the six months ended June 30, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
|
Average
|
|
|
|
|
|
|
|
Grant Date
|
|
|
|
Shares
|
|
|
Fair Value
|
|
Outstanding at January 1, 2011
|
|
|
21,120
|
|
|
$
|
28.73
|
|
Granted
|
|
|
|
|
|
|
|
|
Vested
|
|
|
(10,632
|
)
|
|
|
31.28
|
|
Forfeited
|
|
|
(463
|
)
|
|
|
25.87
|
|
|
|
|
|
|
|
|
Non-vested and outstanding at June 30, 2011
|
|
|
10,025
|
|
|
$
|
26.15
|
|
|
|
|
|
|
|
|
For the three and six months ended June 30, 2011 and the three and six months ended
June 30, 2010, we had approximately $41,000, $108,000, $91,000 and $202,000, respectively, of total
compensation expense related to restricted stock-based compensation arrangements. The associated
tax benefit recognized for the three and six months ended June 30, 2011 and the three and six
months ended June 30, 2010 was approximately $16,000, $44,000, $37,000 and $82,000, respectively.
9
SAGA COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
6. Long-Term Debt
Long-term debt consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
December 31,
|
|
|
|
2011
|
|
|
2010
|
|
|
|
(In thousands)
|
|
Credit Agreement:
|
|
|
|
|
|
|
|
|
Term loan
|
|
$
|
60,000
|
|
|
$
|
|
|
Revolving credit facility
|
|
|
28,000
|
|
|
|
|
|
Reducing revolver facility
|
|
|
|
|
|
|
95,000
|
|
Secured debt of affiliate
|
|
|
1,078
|
|
|
|
1,078
|
|
|
|
|
|
|
|
|
|
|
|
89,078
|
|
|
|
96,078
|
|
Amounts payable within one year
|
|
|
3,000
|
|
|
|
6,121
|
|
|
|
|
|
|
|
|
|
|
$
|
86,078
|
|
|
$
|
89,957
|
|
|
|
|
|
|
|
|
Future maturities of long-term debt are as follows:
|
|
|
|
|
Year Ending December 31,
|
|
(In thousands)
|
|
2011
|
|
$
|
1,500
|
|
2012
|
|
|
3,000
|
|
2013
|
|
|
3,000
|
|
2014
|
|
|
4,078
|
|
2015
|
|
|
3,000
|
|
Thereafter
|
|
|
74,500
|
|
|
|
|
|
|
|
$
|
89,078
|
|
|
|
|
|
On June 13, 2011, we entered into a new $120 million credit facility (the Credit
Facility) with a group of banks, to refinance our outstanding debt under the credit agreement in
place at March 31, 2011 (the Old Credit Agreement). The Credit Facility consists of a $60
million term loan (the Term Loan) and a $60 million revolving loan (the Revolving Credit
Facility) and matures on June 13, 2016.
We have pledged substantially all of our assets (excluding our FCC licenses and certain other
assets) in support of the Credit Facility and each of our subsidiaries has guaranteed the Credit
Facility and has pledged substantially all of their assets (excluding their FCC licenses and
certain other assets) in support of the Credit Facility.
We wrote-off unamortized debt issuance costs relating to the Old Credit Agreement of
approximately $1.3 million, pre-tax, due to this refinancing during the quarter ended June 30,
2011.
The proceeds from the Credit Facility were used to refinance our Old Credit Agreement and pay
transactional fees. The unused portion of the Revolving Credit Facility is available for general
corporate purposes, including working capital, capital expenditures, permitted acquisitions and
related transaction expenses and permitted stock buybacks.
The Term Loan principal amortizes in equal installments of 5% of the Term Loan during each
year, however, upon satisfaction of certain conditions, as defined in the Credit Facility, no
amortization payment is required. The Credit Facility is also subject to mandatory prepayment
requirements, including but not limited to, certain sales of assets, certain insurance proceeds,
certain debt issuances and certain sales of equity. Optional prepayments of the Credit Facility are
permitted without any premium or penalty, other than certain costs and expenses.
10
SAGA COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Interest rates under the Credit Facility are payable, at our option, at
alternatives equal to LIBOR plus 1.50% to 2.75% or the base rate plus 0.50% to 1.75%. The spread
over LIBOR and the base rate vary from time to time, depending upon our financial leverage. We also
pay quarterly commitment fees of 0.25% to 0.375% per annum on the unused portion of the Revolving
Credit Facility.
The Credit Facility contains a number of financial covenants (all of which we were in
compliance with at June 30, 2011) which, among other things, require us to maintain specified
financial ratios and impose certain limitation on us with respect to investments, additional
indebtedness, dividends, distributions, guarantees, liens and encumbrances.
We had approximately $32.0 million of unused borrowing capacity under the Revolving Credit
Facility at June 30, 2011.
Our Old Credit Agreement was a revolving line of credit maturing on July 29, 2012. Our
indebtedness under the Old Credit Agreement was secured by a first priority lien on substantially
all of our assets and of our subsidiaries, by a pledge of our subsidiaries stock and by a
guarantee of our subsidiaries. The Old Credit Agreement was used for general corporate purposes,
including working capital and capital expenditures.
Interest rates under the Old Credit Agreement were payable, at our option, at alternatives
equal to LIBOR at the reset date (0.3125% at December 31, 2010) plus 3.00% to 4.25% or the Agent
banks base rate plus 2.00% to 3.25%. The spread over LIBOR and the base rate vary from time to
time, depending upon our financial leverage. We were also required to pay quarterly commitment fees
of 0.375% to 0.625% per annum on the unused portion of the Old Credit Agreement.
In June 2011, approximately $1.1 million of secured debt of an affiliate was amended to extend
the maturity date to May 2014.
7. Related Party Transactions
Principal Stockholder Employment Agreement
In June 2011, we entered into a new employment agreement with Edward K. Christian, Chairman,
President and CEO, which became effective as of June 1, 2011, and replaces and supersedes his prior
employment agreement. The new employment agreement terminates on March 31, 2018. The agreement
provides for an annual base salary of $860,000 (subject to annual increases on each anniversary
date not less than the greater of 3% or a defined cost of living increase). Mr. Christian may defer
any or all of his annual salary.
Under the agreement, Mr. Christian is eligible for discretionary and performance bonuses,
stock options and/or stock grants in amounts determined by the Compensation Committee and will
continue to participate in the Companys benefit plans. The Company will maintain insurance
policies, will furnish an automobile, will pay for an executive medical plan and will maintain an
office for Mr. Christian at its principal executive offices and in Sarasota County, Florida. The
agreement provides certain payments to Mr. Christian in the event of his disability, death or a
change in control. Upon a change in control, Mr. Christian may terminate his employment. The
agreement also provides generally that, upon a change in control, the Company will pay Mr.
Christian an amount equal to 2.99 times the average of his total annual salary and bonuses for each
of the three immediately preceding periods of twelve consecutive months, plus an additional amount
for tax liabilities, related to the payment.
In addition, if Mr. Christians employment is terminated for any reason, other than for
cause, the Company will continue to provide health insurance and medical reimbursement and maintain
existing life insurance policies for a period of ten years, and the current split dollar life
insurance policy shall be transferred to Mr. Christian and his wife, and the Company shall
reimburse Mr. Christian for any tax consequences of such transfer. The agreement contains a
covenant not to compete restricting Mr. Christian from competing with the Company in any of its
markets if he voluntarily terminates his employment with the Company or is terminated for cause,
for a three year period thereafter.
11
SAGA COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
8. Segment Information
We evaluate the operating performance of our markets individually. For purposes of business
segment reporting, we have aligned operations with similar characteristics into two business
segments: Radio and Television.
The Radio segment includes twenty-three markets, which includes all ninety-one of our radio
stations and five radio information networks. The Television segment includes three markets and
consists of five television stations and four low power television (LPTV) stations. The Radio and
Television segments derive their revenue from the sale of commercial broadcast inventory. The
category Corporate general and administrative represents the income and expense not allocated to
reportable segments.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
|
|
Radio
|
|
|
Television
|
|
|
and Other
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Three Months Ended June 30, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating revenue
|
|
$
|
28,611
|
|
|
$
|
4,572
|
|
|
$
|
|
|
|
$
|
33,183
|
|
Station operating expense
|
|
|
20,004
|
|
|
|
3,619
|
|
|
|
|
|
|
|
23,623
|
|
Corporate general and administrative
|
|
|
|
|
|
|
|
|
|
|
1,949
|
|
|
|
1,949
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
$
|
8,607
|
|
|
$
|
953
|
|
|
$
|
(1,949
|
)
|
|
$
|
7,611
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
$
|
1,348
|
|
|
$
|
414
|
|
|
$
|
59
|
|
|
$
|
1,821
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
|
|
Radio
|
|
|
Television
|
|
|
and Other
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Three Months Ended June 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating revenue
|
|
$
|
28,661
|
|
|
$
|
4,226
|
|
|
$
|
|
|
|
$
|
32,887
|
|
Station operating expense
|
|
|
19,827
|
|
|
|
3,330
|
|
|
|
|
|
|
|
23,157
|
|
Corporate general and administrative
|
|
|
|
|
|
|
|
|
|
|
1,897
|
|
|
|
1,897
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
$
|
8,834
|
|
|
$
|
896
|
|
|
$
|
(1,897
|
)
|
|
$
|
7,833
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
$
|
1,444
|
|
|
$
|
409
|
|
|
$
|
54
|
|
|
$
|
1,907
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
|
|
Radio
|
|
|
Television
|
|
|
and Other
|
|
|
Consolidated
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
Six Months Ended June 30, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating revenue
|
|
$
|
53,117
|
|
|
$
|
8,774
|
|
|
$
|
|
|
|
$
|
61,891
|
|
Station operating expense
|
|
|
39,282
|
|
|
|
7,077
|
|
|
|
|
|
|
|
46,359
|
|
Corporate general and administrative
|
|
|
|
|
|
|
|
|
|
|
3,889
|
|
|
|
3,889
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
$
|
13,835
|
|
|
$
|
1,697
|
|
|
$
|
(3,889
|
)
|
|
$
|
11,643
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
$
|
2,687
|
|
|
$
|
826
|
|
|
$
|
113
|
|
|
$
|
3,626
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
153,029
|
|
|
$
|
26,543
|
|
|
$
|
22,051
|
|
|
$
|
201,623
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
|
|
Radio
|
|
|
Television
|
|
|
and Other
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Six Months Ended June 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating revenue
|
|
$
|
52,805
|
|
|
$
|
8,069
|
|
|
$
|
|
|
|
$
|
60,874
|
|
Station operating expense
|
|
|
39,050
|
|
|
|
6,667
|
|
|
|
|
|
|
|
45,717
|
|
Corporate general and administrative
|
|
|
|
|
|
|
|
|
|
|
3,779
|
|
|
|
3,779
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
$
|
13,755
|
|
|
$
|
1,402
|
|
|
$
|
(3,779
|
)
|
|
$
|
11,378
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
$
|
2,865
|
|
|
$
|
833
|
|
|
$
|
106
|
|
|
$
|
3,804
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
154,157
|
|
|
$
|
26,357
|
|
|
$
|
25,891
|
|
|
$
|
206,405
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12
Item 2.
Managements Discussion and Analysis of Financial Condition and Results of Operations
Results of Operations
The following discussion should be read in conjunction with the unaudited condensed
consolidated financial statements and notes thereto of Saga Communications, Inc. and its
subsidiaries contained elsewhere herein and the audited financial statements and Management
Discussion and Analysis contained in our Annual Report on Form 10-K for the year ended December 31,
2010. The following discussion is presented on both a consolidated and segment basis. Corporate
general and administrative expenses, interest expense, other (income) expense, and income tax
expense (benefit) are managed on a consolidated basis and are reflected only in our discussion of
consolidated results.
For purposes of business segment reporting, we have aligned operations with similar
characteristics into two business segments: Radio and Television. The Radio segment includes
twenty-three markets, which includes all ninety-one of our radio stations and five radio
information networks. The Television segment includes three markets and consists of five television
stations and four LPTV stations. The discussion of our operating performance focuses on segment
operating income because we manage our segments primarily on operating income. Operating
performance is evaluated for each individual market.
General
We are a broadcast company primarily engaged in acquiring, developing and operating radio and
television stations.
Radio Segment
Our radio segments primary source of revenue is from the sale of advertising for broadcast on
our stations. Depending on the format of a particular radio station, there are a predetermined
number of advertisements available to be broadcast each hour.
Most advertising contracts are short-term and generally run for a few weeks only. The majority
of our revenue is generated from local advertising, which is sold primarily by each radio markets
sales staff. For the six months ended June 30, 2011 and 2010, approximately 86% and 87%,
respectively, of our radio segments gross revenue was from local advertising. To generate national
advertising sales, we engage independent advertising sales representative firms that specialize in
national sales for each of our broadcast markets.
Our revenue varies throughout the year. Advertising expenditures, our primary source of
revenue, generally have been lowest during the winter months, which include the first quarter of
each year. We experienced a significant increase in political advertising in 2010 due to the number
of congressional, senatorial, gubernatorial and local elections in most of our markets. Since 2011
is not an election year, we expect political revenue in 2011 to significantly decline.
Our net operating revenue, station operating expense and operating income varies from market
to market based upon the markets rank or size which is based upon population and the available
radio advertising revenue in that particular market.
Our financial results are dependent on a number of factors, the most significant of which is
our ability to generate advertising revenue through rates charged to advertisers. The rates a
station is able to charge are, in large part, based on a stations ability to attract audiences in
the demographic groups targeted by its advertisers. In a number of our markets this is measured by
periodic reports generated by independent national rating services. In the remainder of our markets
it is measured by the results advertisers obtain through the actual running of an advertising
schedule. Advertisers measure these results based on increased demand for their goods or services
and/or actual revenues generated from such demand. Various factors affect the rate a station can
charge, including the general strength of the local and national economies, population growth,
ability to provide popular programming, local market competition, target marketing capability of
radio compared to other advertising media and signal strength.
The number of advertisements that can be broadcast without jeopardizing listening levels (and
the resulting ratings) is limited in part by the format of a particular radio station. Our stations
strive to maximize revenue by constantly managing the number of commercials available for sale and
adjusting prices based upon local market conditions and ratings. While there may be shifts from
time to time in the number of advertisements broadcast during a particular time of day, the total
number of advertisements broadcast on a particular station generally does not vary significantly
from year to year. Any change in our revenue, with the exception of those instances where stations
are acquired or sold, is generally the result of inventory sell out ratios and pricing adjustments,
which are made to ensure that the station efficiently utilizes available inventory.
Our radio stations employ a variety of programming formats. We periodically perform market
research, including music evaluations, focus groups and strategic vulnerability studies. Because
reaching a large and demographically attractive audience is crucial to a stations financial
success, we endeavor to develop strong listener loyalty. Our stations also employ audience
promotions to further develop and secure a loyal following. We believe that the diversification of
formats on our radio stations helps to insulate us from the effects of changes in musical tastes of
the public on any particular format.
13
The primary operating expenses involved in owning and operating radio stations are employee
salaries and commissions, depreciation, programming expenses, and advertising and promotion
expenses.
Although the recent global recession has negatively affected advertising revenues for a wide
variety of media businesses, radio revenue growth has been declining or stagnant over the last
several years, primarily in major markets that are dependent on national advertising. The radio
broadcasting industry is subject to rapid technological change, evolving industry standards and the
emergence of new media technologies and services (such as the Internet, satellite radio and mp3
players). These recent technologies and media are gaining advertising share against radio and other
traditional media.
During the six months ended June 30, 2011 and 2010 and the years ended December 31, 2010 and
2009, our Bellingham, Washington; Des Moines, Iowa; Manchester, New Hampshire; and Milwaukee,
Wisconsin markets, when combined, represented approximately 29%, 30%, 30% and 30%, respectively, of
our consolidated net operating revenue. An adverse change in any of these radio markets or our
relative market position in those markets could have a significant impact on our operating results
as a whole.
The following table describes the percentage of our consolidated net operating revenue
represented by each of these markets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of Consolidated
|
|
Percentage of Consolidated
|
|
|
Net Operating Revenue for
|
|
Net Operating Revenue
|
|
|
the Six Months Ended
|
|
for the Years Ended
|
|
|
June 30,
|
|
December 31,
|
|
|
2011
|
|
|
2010
|
|
|
2010
|
|
|
2009
|
|
Market:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bellingham, Washington
|
|
|
5%
|
|
|
|
5%
|
|
|
|
5%
|
|
|
|
5%
|
|
Des Moines, Iowa
|
|
|
7%
|
|
|
|
6%
|
|
|
|
6%
|
|
|
|
7%
|
|
Manchester, New Hampshire
|
|
|
5%
|
|
|
|
6%
|
|
|
|
6%
|
|
|
|
5%
|
|
Milwaukee, Wisconsin
|
|
|
12%
|
|
|
|
13%
|
|
|
|
13%
|
|
|
|
13%
|
|
We use certain financial measures that are not calculated in accordance with
generally accepted accounting principles in the United States of America (GAAP) to assess our
financial performance. For example, we evaluate the performance of our markets based on station
operating income (operating income plus corporate general and administrative expenses,
depreciation and amortization, impairment of intangible assets, less gain on asset exchange).
Station operating income is generally recognized by the broadcasting industry as a measure of
performance, is used by analysts who report on the performance of the broadcasting industry and it
serves as an indicator of the market value of a group of stations. In addition, we use it to
evaluate individual stations, market-level performance, overall operations and as a primary measure
for incentive based compensation of executives and other members of management. Station operating
income is not necessarily indicative of amounts that may be available to us for debt service
requirements, other commitments, reinvestment or other discretionary uses. Station operating income
is not a measure of liquidity or of performance in accordance with GAAP, and should be viewed as a
supplement to, and not a substitute for our results of operations presented on a GAAP basis.
During the six months ended June 30, 2011 and 2010 and the years ended December 31, 2010 and
2009, the radio stations in our four largest markets when combined, represented approximately 36%,
38%, 36% and 41%, respectively, of our consolidated station operating income. The following table
describes the percentage of our consolidated station operating income represented by each of these
markets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of Consolidated
|
|
Percentage of Consolidated
|
|
|
Station Operating Income (*)
|
|
Station Operating Income(*)
|
|
|
for the Six Months Ended
|
|
for the Years Ended
|
|
|
June 30,
|
|
December 31,
|
|
|
2011
|
|
|
2010
|
|
|
2010
|
|
|
2009
|
|
Market:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bellingham, Washington
|
|
|
6%
|
|
|
|
6%
|
|
|
|
7%
|
|
|
|
7%
|
|
Des Moines, Iowa
|
|
|
6%
|
|
|
|
5%
|
|
|
|
4%
|
|
|
|
7%
|
|
Manchester, New Hampshire
|
|
|
8%
|
|
|
|
8%
|
|
|
|
8%
|
|
|
|
7%
|
|
Milwaukee, Wisconsin
|
|
|
16%
|
|
|
|
19%
|
|
|
|
17%
|
|
|
|
20%
|
|
|
|
|
*
|
|
Operating income (excluding non-cash impairment charge) plus
corporate general and administrative expenses, depreciation and
amortization, less gain on asset exchange.
|
14
Television Segment
Our television segments primary source of revenue is from the sale of advertising for
broadcast on our stations. The number of advertisements available for broadcast on our television
stations is limited by network affiliation and syndicated programming agreements and, with respect
to childrens programs, federal regulation. Our television stations local market managers
determine the number of advertisements to be broadcast in locally produced programs only, which are
primarily news programming and occasionally local sports or information shows.
Our net operating revenue, station operating expense and operating income vary from market to
market based upon the markets rank or size, which is based upon population, available television
advertising revenue in that particular market, and the popularity of programming being broadcast.
Our financial results are dependent on a number of factors, the most significant of which is
our ability to generate advertising revenue through rates charged to advertisers. The rates a
station is able to charge are, in large part, based on a stations ability to attract audiences in
the demographic groups targeted by its advertisers, as measured principally by periodic reports by
independent national rating services. Various factors affect the rate a station can charge,
including the general strength of the local and national economies, population growth, ability to
provide popular programming through locally produced news, sports and weather and as a result of
syndication and network affiliation agreements, local market competition, the ability of television
broadcasting to reach a mass appeal market compared to other advertising media, and signal strength
including cable/satellite coverage, and government regulation and policies.
Our stations strive to maximize revenue by constantly adjusting prices for our commercial
spots based upon local market conditions, demand for advertising and ratings. While there may be
shifts from time to time in the number of advertisements broadcast during a particular time of the
day, the total number of advertisements broadcast on a particular station generally does not vary
significantly from year to year. Any change in our revenue, with the exception of those instances
where stations are acquired or sold, is generally the result of pricing adjustments, which are made
to ensure that the station efficiently utilizes available inventory.
Because audience ratings in the local market are crucial to a stations financial success, we
endeavor to develop strong viewer loyalty by providing locally produced news, weather and sports
programming. We believe that this emphasis on the local market provides us with the viewer loyalty
we are trying to achieve.
Most of our revenue is generated from local advertising, which is sold primarily by each
television markets sales staff. For the six months ended June 30, 2011 and 2010, approximately 82%
and 80%, respectively, of our television segments gross revenue was from local advertising. To
generate national advertising sales, we engage independent advertising sales representatives that
specialize in national sales for each of our television markets.
Our revenue varies throughout the year. Advertising expenditures, our primary source of
revenue, generally have been lowest during the winter months, which include the first quarter of
each year. We experienced a significant increase in political advertising in 2010 due to the number
of congressional, senatorial, gubernatorial and local elections in most of our markets. Since 2011
is not an election year, we expect political revenue in 2011 to significantly decline.
The primary operating expenses involved in owning and operating television stations are
employee salaries and commissions, depreciation, programming expenses, including news production
and the cost of acquiring certain syndicated programming, and advertising and promotion expenses.
Our television market in Joplin, Missouri represented approximately 14%, 12%, 13% and 14%,
respectively, of our consolidated operating income (excluding non-cash impairment charge in 2009)
for the six months ended June 30, 2011 and 2010 and the years ended December 31, 2010 and 2009.
15
Three Months Ended June 30, 2011 Compared to Three Months Ended June 30, 2010
Results of Operations
The following tables summarize our results of operations for the three months ended June 30,
2011 and 2010.
Consolidated Results of Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three
Months Ended
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
$ Increase
|
|
|
% Increase
|
|
|
|
2011
|
|
|
2010
|
|
|
(Decrease)
|
|
|
(Decrease)
|
|
|
|
(In thousands, except percentages and per share information)
|
|
Net operating revenue
|
|
$
|
33,183
|
|
|
$
|
32,887
|
|
|
$
|
296
|
|
|
|
0.9
|
%
|
Station operating expense
|
|
|
23,623
|
|
|
|
23,157
|
|
|
|
466
|
|
|
|
2.0
|
%
|
Corporate G&A
|
|
|
1,949
|
|
|
|
1,897
|
|
|
|
52
|
|
|
|
2.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
7,611
|
|
|
|
7,833
|
|
|
|
(222
|
)
|
|
|
(2.8
|
)%
|
Interest expense
|
|
|
1,034
|
|
|
|
1,468
|
|
|
|
(434
|
)
|
|
|
(29.6
|
)%
|
Write-off debt issuance costs
|
|
|
1,326
|
|
|
|
|
|
|
|
1,326
|
|
|
|
N/M
|
|
Other (income) expense, net
|
|
|
(95
|
)
|
|
|
185
|
|
|
|
(280
|
)
|
|
|
N/M
|
|
Income taxes
|
|
|
2,176
|
|
|
|
2,485
|
|
|
|
(309
|
)
|
|
|
(12.4
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
3,170
|
|
|
$
|
3,695
|
|
|
$
|
(525
|
)
|
|
|
(14.2
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per share
(basic and diluted)
|
|
$
|
.75
|
|
|
$
|
.87
|
|
|
$
|
(.12
|
)
|
|
|
(13.8
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Radio Broadcasting Segment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
$ Increase
|
|
|
% Increase
|
|
|
|
2011
|
|
|
2010
|
|
|
(Decrease)
|
|
|
(Decrease)
|
|
|
|
(In thousands, except percentages)
|
|
Net operating revenue
|
|
$
|
28,611
|
|
|
$
|
28,661
|
|
|
$
|
(50
|
)
|
|
|
(0.2
|
)%
|
Station operating expense
|
|
|
20,004
|
|
|
|
19,827
|
|
|
|
177
|
|
|
|
0.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
$
|
8,607
|
|
|
$
|
8,834
|
|
|
$
|
(227
|
)
|
|
|
(2.6
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Television Broadcasting Segment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
$ Increase
|
|
|
% Increase
|
|
|
|
2011
|
|
|
2010
|
|
|
(Decrease)
|
|
|
(Decrease)
|
|
|
|
(In thousands, except percentages)
|
|
Net operating revenue
|
|
$
|
4,572
|
|
|
$
|
4,226
|
|
|
$
|
346
|
|
|
|
8.2
|
%
|
Station operating expense
|
|
|
3,619
|
|
|
|
3,330
|
|
|
|
289
|
|
|
|
8.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
$
|
953
|
|
|
$
|
896
|
|
|
$
|
57
|
|
|
|
6.4
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16
Reconciliation of segment operating income to consolidated operating income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
|
|
Radio
|
|
|
Television
|
|
|
and Other
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Three Months Ended June 30, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating revenue
|
|
$
|
28,611
|
|
|
$
|
4,572
|
|
|
$
|
|
|
|
$
|
33,183
|
|
Station operating expense
|
|
|
20,004
|
|
|
|
3,619
|
|
|
|
|
|
|
|
23,623
|
|
Corporate general and administrative
|
|
|
|
|
|
|
|
|
|
|
1,949
|
|
|
|
1,949
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
$
|
8,607
|
|
|
$
|
953
|
|
|
$
|
(1,949
|
)
|
|
$
|
7,611
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
|
|
Radio
|
|
|
Television
|
|
|
and Other
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Three Months Ended June 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating revenue
|
|
$
|
28,661
|
|
|
$
|
4,226
|
|
|
$
|
|
|
|
$
|
32,887
|
|
Station operating expense
|
|
|
19,827
|
|
|
|
3,330
|
|
|
|
|
|
|
|
23,157
|
|
Corporate general and administrative
|
|
|
|
|
|
|
|
|
|
|
1,897
|
|
|
|
1,897
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
$
|
8,834
|
|
|
$
|
896
|
|
|
$
|
(1,897
|
)
|
|
$
|
7,833
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated
For the three months ended June 30, 2011, consolidated net operating revenue was $33,183,000
compared with $32,887,000 for the three months ended June 30, 2010, an increase of approximately
$296,000 or less than 1%. Gross national revenue and gross local revenue increased approximately
$298,000 and $255,000, respectively. Gross political revenue decreased approximately $213,000 in
the current year quarter. The increase in gross local revenue was primarily a result of increased
local advertising in our Joplin, MO market following a tornado that
caused significant damage in the market in May 2011. The increase
in gross national revenue was primarily the result of increased advertising from the automotive
industry. The decrease in gross political revenue was attributable to political advertising in the
prior year quarter as 2010 was an election year.
Station operating expense was $23,623,000 for the three months ended June 30, 2011, compared
with $23,157,000 for the three months ended June 30, 2010, an increase of $466,000 or 2%. Salaries
increased approximately $177,000, primarily as a result of the 2.5% reinstatement in April 2011 of
the 5% salary reductions implemented in March 2009. Our health
care costs increased approximately $285,000 as compared to the prior
year quarter primarily as a result of Health Care Reform. These
increases were partially offset by a reduction in depreciation and amortization expense of $91,000.
Operating income for the three months ended June 30, 2011 was $7,611,000 compared to
$7,833,000 for the three months ended June 30, 2010, a decrease of approximately $222,000 or 3%.
The decrease was a result of the increase in station operating expense, described in detail above,
and a $52,000 or 3% increase in corporate general and administrative charges.
We generated net income of approximately $3,170,000 ($.75 per share on a fully diluted basis)
during the three months ended June 30, 2011, compared with $3,695,000 ($.87 per share on a fully
diluted basis) for the three months ended June 30, 2010, a decrease of approximately $525,000 or
14%. In the current year quarter we had a decrease in operating income of $222,000, as described
above, and decreases in interest expense and income tax expense of $434,000 and $309,000,
respectively. The decrease in interest expense was attributable to an average decrease in market
interest rates and a decrease in debt. The decrease in income tax expense was directly attributable
to operating performance. Additionally, in the current year quarter we recognized a charge of
$1,326,000 for the write-off of unamortized debt issuance costs in conjunction with our previous
credit agreement. See Note 6 of the Notes to Condensed Consolidated Financial Statements. Other
income for the current year period includes a gain of approximately $105,000 recognized from the
construction of a tower at one of our markets. The tower was part of an agreement between the
Company and AT&T. Other expense for the prior year includes a loss of $248,000 recognized on the
disposal of our Doppler radar systems in two of our television markets.
17
Radio Segment
Net operating revenue of the radio segment was relatively unchanged for the three months ended
June 30, 2011, compared with the three months ended June 30, 2010. Gross national revenue increased
approximately $316,000 for the quarter. Gross political revenue and gross local revenue
decreased approximately $195,000 and $171,000, respectively. The increase in gross national revenue
was primarily the result of increased advertising from the automotive industry. The decrease in
gross political revenue was attributable to political advertising in the prior year quarter as 2010
was an election year. The decrease in gross local revenue was primarily the result of a softening
in local advertising in two of our markets.
Station operating expense for the radio segment was $20,004,000 for the three months ended
June 30, 2011, compared with $19,827,000 for the three months ended June 30, 2010, an increase of
approximately $177,000 or less than 1%. Salaries increased approximately $126,000, primarily as a
result of the 2.5% reinstatement in April 2011 of the 5% salary reductions implemented in March
2009. Our health care costs increased approximately $221,000
as compared to the prior year quarter, primarily as a result of Health
Care Reform. These increases were partially offset by a reduction in depreciation and amortization expense.
Operating income in the radio segment decreased approximately $227,000 to $8,607,000 for the
three months ended June 30, 2011, from $8,834,000 for the three months ended June 30, 2010. The
decrease was a direct result of the increase in station operating expense described in detail
above.
Television Segment
For the three months ended June 30, 2011, net operating revenue of our television segment was
$4,572,000 compared with $4,226,000 for the three months ended June 30, 2010, an increase of
$346,000 or 8%. The increase in net operating revenue was primarily a result of increased local
advertising in our Joplin, MO market following a tornado that caused
significant damage in the market in May 2011. Our television
stations that we own and operate in Joplin did not sustain damage in
the tornado.
Station operating expense in the television segment for the three months ended June 30, 2011
was $3,619,000, compared with $3,330,000 for the three months ended June 30, 2010, an increase of
approximately $289,000 or 9%. The increase in station operating expense was primarily a result of
increased sales expense and health care costs as compared to the prior year quarter.
Operating income in the television segment for the three months ended June 30, 2011 was
$953,000 compared with $896,000 for the three months ended June 30, 2010, an increase of
approximately $57,000 or 6%. The increase was a direct result of the improvement in net operating
revenue, described in detail above.
18
Six Months Ended June 30, 2011 Compared to Six Months Ended June 30, 2010
Results of Operations
The following tables summarize our results of operations for the six months ended June 30,
2011 and 2010.
Consolidated Results of Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
$ Increase
|
|
|
% Increase
|
|
|
|
2011
|
|
|
2010
|
|
|
(Decrease)
|
|
|
(Decrease)
|
|
|
|
(In thousands, except percentages and per share information)
|
|
Net operating revenue
|
|
$
|
61,891
|
|
|
$
|
60,874
|
|
|
$
|
1,017
|
|
|
|
1.7
|
%
|
Station operating expense
|
|
|
46,359
|
|
|
|
45,717
|
|
|
|
642
|
|
|
|
1.4
|
%
|
Corporate G&A
|
|
|
3,889
|
|
|
|
3,779
|
|
|
|
110
|
|
|
|
2.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
11,643
|
|
|
|
11,378
|
|
|
|
265
|
|
|
|
2.3
|
%
|
Interest expense
|
|
|
2,191
|
|
|
|
2,987
|
|
|
|
(796
|
)
|
|
|
(26.7
|
)%
|
Write-off debt issuance costs
|
|
|
1,326
|
|
|
|
|
|
|
|
1,326
|
|
|
|
N/M
|
|
Other (income) expense, net
|
|
|
(27
|
)
|
|
|
(3,411
|
)
|
|
|
3,384
|
|
|
|
N/M
|
|
Income taxes
|
|
|
3,321
|
|
|
|
4,790
|
|
|
|
(1,469
|
)
|
|
|
(30.7
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
4,832
|
|
|
$
|
7,012
|
|
|
$
|
(2,180
|
)
|
|
|
(31.1
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per share (basic and diluted)
|
|
$
|
1.14
|
|
|
$
|
1.66
|
|
|
$
|
(.52
|
)
|
|
|
(31.3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Radio Broadcasting Segment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
$ Increase
|
|
|
% Increase
|
|
|
|
2011
|
|
|
2010
|
|
|
(Decrease)
|
|
|
(Decrease)
|
|
|
|
(In thousands, except percentages)
|
|
Net operating revenue
|
|
$
|
53,117
|
|
|
$
|
52,805
|
|
|
$
|
312
|
|
|
|
0.6
|
%
|
Station operating expense
|
|
|
39,282
|
|
|
|
39,050
|
|
|
|
232
|
|
|
|
0.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
$
|
13,835
|
|
|
$
|
13,755
|
|
|
$
|
80
|
|
|
|
0.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Television Broadcasting Segment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
$ Increase
|
|
|
% Increase
|
|
|
|
2011
|
|
|
2010
|
|
|
(Decrease)
|
|
|
(Decrease)
|
|
|
|
(In thousands, except percentages)
|
|
Net operating revenue
|
|
$
|
8,774
|
|
|
$
|
8,069
|
|
|
$
|
705
|
|
|
|
8.7
|
%
|
Station operating expense
|
|
|
7,077
|
|
|
|
6,667
|
|
|
|
410
|
|
|
|
6.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
$
|
1,697
|
|
|
$
|
1,402
|
|
|
$
|
295
|
|
|
|
21.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19
Reconciliation of segment operating income to consolidated operating income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
|
|
Radio
|
|
|
Television
|
|
|
and Other
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Six Months Ended June 30, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating revenue
|
|
$
|
53,117
|
|
|
$
|
8,774
|
|
|
$
|
|
|
|
$
|
61,891
|
|
Station operating expense
|
|
|
39,282
|
|
|
|
7,077
|
|
|
|
|
|
|
|
46,359
|
|
Corporate general and administrative
|
|
|
|
|
|
|
|
|
|
|
3,889
|
|
|
|
3,889
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
$
|
13,835
|
|
|
$
|
1,697
|
|
|
$
|
(3,889
|
)
|
|
$
|
11,643
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
|
|
|
|
|
|
|
Radio
|
|
|
Television
|
|
|
and Other
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Six Months Ended June 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating revenue
|
|
$
|
52,805
|
|
|
$
|
8,069
|
|
|
$
|
|
|
|
$
|
60,874
|
|
Station operating expense
|
|
|
39,050
|
|
|
|
6,667
|
|
|
|
|
|
|
|
45,717
|
|
Corporate general and administrative
|
|
|
|
|
|
|
|
|
|
|
3,779
|
|
|
|
3,779
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
$
|
13,755
|
|
|
$
|
1,402
|
|
|
$
|
(3,779
|
)
|
|
$
|
11,378
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated
For the six months ended June 30, 2011, consolidated net operating revenue was $61,891,000
compared with $60,874,000 for the six months ended June 30, 2010, an increase of approximately
$1,017,000 or 2%. Gross national revenue and gross local revenue increased approximately $641,000
and $965,000, respectively. Gross political revenue decreased approximately $355,000 for the six
months ended June 30, 2011 as compared to the prior year period. The increase in gross national
revenue was primarily the result of increased advertising from the financial services and
automotive industries. The increase in gross local revenue was a result of increased local
advertising in our Joplin, MO market following a tornado that caused
significant damage in the market in May 2011, and an increase in
advertising spending in general. The decrease in gross political revenue was attributable to
political advertising in the prior year quarter as 2010 was an election year.
Station operating expense was $46,359,000 for the six months ended June 30, 2011, compared
with $45,717,000 for the six months ended June 30, 2010, an increase of approximately $642,000 or
1%. Salaries increased approximately $177,000, primarily as a result of the 2.5% reinstatement in
April 2011 of the 5% salary reductions implemented in
March 2009. Our health care costs increased approximately $775,000 as compared to the prior year
period, primarily as a result of Health Care Reform. Additionally, we had a decrease in
depreciation and amortization expense of $185,000 as compared to the prior year period.
Operating income for the six months ended June 30, 2011 was $11,643,000 compared to
$11,378,000 for the six months ended June 30, 2010, an increase of approximately $265,000, or 2%.
The increase was a direct result of the improvement in net operating revenue partially offset by an
increase in station operating expense, described in detail above, and an $110,000 or 3% increase in
corporate general and administrative charges. The increase in corporate general and administrative
charges was attributable to increased IT expenses.
We generated net income of approximately $4,832,000 ($1.14 per share on a fully diluted basis)
during the six months ended June 30, 2011, compared with $7,012,000 ($1.66 per share on a fully
diluted basis) for the six months ended June 30, 2010, a decrease of approximately $2,180,000 or
31%. In the current year period we had an increase in operating income of $265,000, as described
above, and decreases in interest expense and income tax expense of $796,000 and $1,469,000,
respectively. The decrease in interest expense was attributable to an average decrease in market
interest rates of approximately 0.64%, and a decrease in debt. The decrease in income tax expense
was directly attributable to operating performance. Additionally, in the current year period we
recognized a $1,326,000 charge for the write-off of unamortized debt issuance costs in conjunction
with our previous credit agreement. See Note 6 of the Notes to Condensed Consolidated Financial
Statements. Other income for the current year period includes a gain of approximately $105,000
recognized from the construction of a tower at one of our markets. The tower was part of an
agreement between the Company and AT&T. In the prior year period, we had non-recurring income of
$3,561,000 resulting from an agreement to downgrade an FCC license at one of our stations and a
loss of $248,000 recognized on the disposal of our Doppler radar systems in two of our television
markets.
20
Radio Segment
For the six months ended June 30, 2011, net operating revenue of the radio segment was
$53,117,000 compared with $52,805,000 for the six months ended June 30, 2010, an increase of
$312,000 or less than 1%. Gross national revenue and gross local revenue increased approximately
$646,000 and $105,000, respectively. Gross political revenue decreased approximately $307,000 for
the six months ended June 30, 2011 as compared to the prior year period. The increase in gross
national revenue was primarily the result of increased advertising from the financial services and
automotive industries. The decrease in gross political revenue was attributable to political
advertising in the prior year as 2010 was an election year.
Station operating expense for the radio segment was $39,282,000 for the six months ended June
30, 2011, compared with $39,050,000 for the six months ended June 30, 2010, an increase of
approximately $126,000 or less than 1%. Salaries increased approximately $126,000, primarily as a
result of the 2.5% reinstatement in April 2011 of the 5% salary reductions implemented in March
2009. Our health care costs increased approximately $635,000
as compared to the prior year period, primarily as a result of Health Care Reform. These increases were partially offset by reductions in bad
debt expense and ratings service expense of approximately $203,000 and $146,000, respectively. Additionally, we had a decrease in depreciation and amortization
expense of $178,000 as compared to the prior year period.
Operating income in the radio
segment was relatively unchanged for the six months ended June 30, 2011 compared with the six months ended June 30, 2010.
Television Segment
For the six months ended June 30, 2011, net operating revenue of our television segment was
$8,774,000 compared with $8,069,000 for the six months ended June 30, 2010, an increase of $705,000
or 9%. The increase in net operating revenue was a result of an increase in local advertising in
our Joplin, MO market following a tornado that caused significant damage in the market in May 2011, and improvements in advertising
spending in general.
Station operating expense in the television segment for the six months ended June 30, 2011 was
$7,077,000, compared with $6,667,000 for the six months ended June 30, 2010, an increase of
approximately $410,000 or 6%. The increase in station operating
expense was from an increase in sales commission and selling expenses
of $122,000 as a result of increased revenue. Additionally, our
health care costs increased approximately $140,000 in the current
year, primarily as a result of Health Care Reform.
Operating income in the television segment for the six months ended June 30, 2011 was
$1,697,000 compared with $1,402,000 for the six months ended June 30, 2010, an increase of
approximately $295,000 or 21%. The increase was a direct result of the improvement in net operating
revenue partially offset by an increase in station operating expense, described in detail above.
21
Forward-Looking Statements
Statements contained in this Form 10-Q that are not historical facts are forward-looking
statements that are made pursuant to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. In addition, words such as believes, anticipates, estimates,
plans, expects, and similar expressions are intended to identify forward-looking statements.
These statements are made as of the date of this report or as otherwise indicated, based on current
expectations. We undertake no obligation to update this information. A number of important factors
could cause our actual results for 2011 and beyond to differ materially from those expressed in any
forward-looking statements made by or on our behalf. Forward-looking statements are not guarantees
of future performance as they involve a number of risks, uncertainties and assumptions that may
prove to be incorrect and that may cause our actual results and experiences to differ materially
from the anticipated results or other expectations expressed in such forward-looking statements.
The risks, uncertainties and assumptions that may affect our performance include our financial
leverage and debt service requirements, dependence on key personnel, dependence on key stations,
U.S. and local economic conditions, our ability to successfully integrate acquired stations,
regulatory requirements, new technologies, natural disasters and terrorist attacks. We cannot be
sure that we will be able to anticipate or respond timely to changes in any of these factors, which
could adversely affect the operating results in one or more fiscal quarters. Results of operations
in any past period should not be considered, in and of itself, indicative of the results to be
expected for future periods. Fluctuations in operating results may also result in fluctuations in
the price of our stock.
For a more complete description of the prominent risks and uncertainties inherent in our
business, see Item 1A. Risk Factors in our Annual Report on Form 10-K for the year ended December
31, 2010.
Liquidity and Capital Resources
Debt Arrangements and Debt Service Requirements
On June 13, 2011, we entered into a new $120 million credit facility (the Credit Facility)
with a group of banks, to refinance our outstanding debt under the credit agreement in place at
March 31, 2011 (the Old Credit Agreement). The Credit Facility consists of a $60 million term
loan (the Term Loan) and a $60 million revolving loan (the Revolving Credit Facility) and
matures on June 13, 2016. An additional $40 million financing may, in the future, be made available
to the Company subject to compliance with terms and conditions of the Credit Facility.
We have pledged substantially all of our assets (excluding our FCC licenses and certain other
assets) in support of the Credit Facility and each of our subsidiaries has guaranteed the Credit
Facility and has pledged substantially all of their assets (excluding their FCC licenses and
certain other assets) in support of the Credit Facility.
We wrote-off unamortized debt issuance costs relating to the Old Credit Agreement of
approximately $1.3 million, pre-tax, due to this refinancing during the quarter ended June 30,
2011.
The proceeds from the Credit Facility were used to refinance our Old Credit Agreement and pay
transactional fees. The unused portion of the Revolving Credit Facility is available for general
corporate purposes, including working capital, capital expenditures, permitted acquisitions and
related transaction expenses and permitted stock buybacks. The Credit Facility permits up to $25
million, annually, in aggregate amount of additional business acquisitions, subject to certain
terms and conditions as set forth in the Credit Facility in further detail, and also permits the
Company to make up to $20 million, annually, in aggregate amount of dividends, distributions and
stock redemptions.
The Term Loan principal amortizes in equal installments of 5% of the Term Loan during each
year, however, upon satisfaction of certain conditions, as defined in the Credit Facility, no
amortization payment is required. The Credit Facility is also subject to mandatory prepayment
requirements, including but not limited to, certain sales of assets, certain insurance proceeds,
certain debt issuances and certain sales of equity. Optional prepayments of the Credit Facility are
permitted without any premium or penalty, other than certain costs and expenses.
Interest rates under the Credit Facility are payable, at our option, at alternatives equal to
LIBOR plus 1.50% to 2.75% or the base rate plus 0.50% to 1.75%. The spread over LIBOR and the base
rate vary from time to time, depending upon our financial leverage. We also pay quarterly
commitment fees of 0.25% to 0.375% per annum on the unused portion of the Revolving Credit
Facility.
The Credit Facility contains a number of financial covenants (all of which we were in
compliance with at June 30, 2011) which, among other things, require us to maintain specified
financial ratios and impose certain limitation on us with respect to investments, additional
indebtedness, dividends, distributions, guarantees, liens and encumbrances.
We had approximately $32.0 million of unused borrowing capacity under the Revolving Credit
Facility at June 30, 2011.
In June 2011, approximately $1.1 million of secured debt of an affiliate was amended to extend
the maturity date to May 2014.
22
Sources and Uses of Cash
During the six months ended June 30, 2011 and 2010, we had net cash flows from operating
activities of $11,556,000 and $12,826,000, respectively. We believe that cash flow from operations
will be sufficient to meet quarterly debt service requirements for interest and scheduled payments
of principal under the Credit Facility. However, if such cash flow is not sufficient we may be
required to sell additional equity securities, refinance our obligations or dispose of one or more
of our properties in order to make such scheduled payments. There can be no assurance that we would
be able to effect any such transactions on favorable terms, if at all.
Our capital expenditures, exclusive of acquisitions, for the six months ended June 30, 2011
were approximately $2,522,000 ($2,146,000 for the corresponding period in 2010). We anticipate
capital expenditures in 2011 to be approximately $5.5 million, which we expect to finance through
funds generated from operations.
Summary Disclosures About Contractual Obligations and Commercial Commitments
We have future cash obligations under various types of contracts, including the terms of our
Credit Facility, operating leases, programming contracts, employment agreements, and other
operating contracts. For additional information concerning our future cash obligations see Item 7.
Managements Discussion and Analysis of Financial Condition and Results of Operation Summary
Disclosures About Contractual Obligations and Commercial Commitments in our Annual Report on Form
10-K for the year ended December 31, 2010.
With the exception of our new Credit Facility disclosed in Note 6 and the new employment
agreement with our Chairman, President and CEO disclosed in Note 7, there have been no material
changes to such contracts/commitments during the six months ended June 30, 2011. We anticipate that
our contractual cash obligations will be financed through funds generated from operations or
additional borrowings under the Credit Facility, or a combination thereof.
Critical Accounting Policies and Estimates
Our consolidated financial statements have been prepared in conformity with accounting
principles generally accepted in the United States, which require us to make estimates, judgments
and assumptions that affect the reported amounts of certain assets, liabilities, revenues, expenses
and related disclosures and contingencies. We evaluate estimates used in preparation of our
financial statements on a continual basis. There have been no significant changes to our critical
accounting policies that are described in Item 7. Managements Discussion and Analysis of
Financial Condition and Results of Operations Critical Accounting Policies in our Annual Report
on Form 10-K for the year ended December 31, 2010.
Inflation
The impact of inflation on our operations has not been significant to date. There can be no
assurance that a high rate of inflation in the future would not have an adverse effect on our
operations.
Item 3.
Quantitative and Qualitative Disclosures about Market Risk
Refer to Item 7A. Quantitative and Qualitative Disclosures about Market Risk and Item 7.
Managements Discussion and Analysis of Financial Condition and Results of Operations Market
Risk and Risk Management Policies in our Annual Report on Form 10-K for the year ended December
31, 2010 for a complete discussion of our market risk. There have been no material changes to the
market risk information included in our 2010 Annual Report on Form 10-K.
23
Item 4.
Controls and Procedures
As of the end of the period covered by this report, the Company carried out an evaluation,
under the supervision and with the participation of the Companys management, including its Chief
Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of
the Companys disclosure controls and procedures pursuant to Rule 13a-15 of the Securities Exchange
Act of 1934. Based upon that evaluation, the Companys Chief Executive Officer and Chief Financial
Officer concluded that the Companys disclosure controls and procedures are effective to cause the
material information required to be disclosed by the Company in the reports that it files or
submits under the Securities Exchange Act of 1934 to be recorded, processed, summarized and
reported within the time periods specified in the Commissions rules and forms. There were no
changes in the Companys internal controls over financial reporting during the quarter ended June
30, 2011, that have materially affected, or are reasonably likely to materially affect, the
Companys internal controls over financial reporting.
PART II OTHER INFORMATION
Item 1.
Legal Proceedings
We currently and from time to time are involved in litigation incidental to the conduct of our
business. We are not a party to any lawsuit or proceeding which, in the opinion of management, is
likely to have a material adverse effect on our financial position, cash flows or results of
operations.
Item 6.
Exhibits
|
|
|
10(a)
|
|
Credit Agreement dated as of June 13, 2011 among the Company and
Bank of America, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer, the Other Lenders party thereto, Merrill Lynch
Pierce, Fenner & Smith, Incorporated and J.P. Morgan Securities LLC,
as Joint Lead Arrangers and Joint Book Managers, JPMorgan Chase
Bank, N.A., as Syndication Agent, Huntington National Bank, as
Documentation Agent, and certain other financial institutions as
party thereto.
|
|
|
|
10(p)
|
|
Employment Agreement of Edward K. Christian dated as of June 17, 2011.
|
|
|
|
31.1
|
|
Certification of Chief Executive Officer Pursuant to Rule 13a-14(a)
and Rule 15d-14(a) of the Securities Exchange Act of 1934, as Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
31.2
|
|
Certification of Chief Financial Officer Pursuant to Rule 13a-14(a)
and Rule 15d-14(a) of the Securities Exchange Act1934, as Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
|
32
|
|
Certification of Chief Executive Officer and Chief Financial Officer
Pursuant to 18 U.S.C. Section 1350 and Rule 13-14(b) of the Securities
Exchange Act of 1934, as Adopted Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
|
|
|
101.INS
|
|
XBRL Instance Document
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Calculation Linkbase Document
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
24
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
|
|
|
|
SAGA COMMUNICATIONS, INC
|
|
Date: August 9, 2011
|
/s/ SAMUEL D. BUSH
|
|
|
Samuel D. Bush
|
|
|
Senior Vice President, Chief Financial Officer and
Treasurer (Principal Financial Officer)
|
|
|
|
|
|
Date: August 9, 2011
|
/s/ CATHERINE A. BOBINSKI
|
|
|
Catherine A. Bobinski
|
|
|
Vice President, Corporate Controller and Chief
Accounting Officer (Principal Accounting Officer)
|
|
|
25
Exhibit 10(a)
EXECUTION COUNTERPART
Published CUSIP Number: 78659XAC1
CREDIT AGREEMENT
Dated as of June 13, 2011
among
SAGA COMMUNICATIONS, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
L/C Issuer,
and
The Other Lenders Party Hereto
MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED AND
J.P. MORGAN SECURITIES LLC
as Joint Lead Arrangers and Joint Book Managers
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
HUNTINGTON NATIONAL BANK
as Documentation Agent
TABLE OF CONTENTS
|
|
|
|
|
Section
|
|
Page
|
|
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
|
|
|
|
|
|
1.01 Defined Terms
|
|
|
1
|
|
1.02 Other Interpretive Provisions
|
|
|
30
|
|
1.03 Accounting Terms
|
|
|
31
|
|
1.04 Rounding
|
|
|
31
|
|
1.05 Times of Day
|
|
|
31
|
|
1.06 Letter of Credit Amounts
|
|
|
31
|
|
1.07 Currency Equivalents Generally
|
|
|
31
|
|
|
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
|
|
|
|
|
|
2.01 The Loans
|
|
|
32
|
|
2.02 Borrowings, Conversions and Continuations of Loans
|
|
|
33
|
|
2.03 Letters of Credit
|
|
|
34
|
|
2.04 Swing Line Loans
|
|
|
42
|
|
2.05 Prepayments
|
|
|
45
|
|
2.06 Termination or Reduction of Commitments
|
|
|
47
|
|
2.07 Repayment of Loans
|
|
|
48
|
|
2.08 Interest
|
|
|
48
|
|
2.09 Fees
|
|
|
49
|
|
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
|
|
|
49
|
|
2.11 Evidence of Debt
|
|
|
50
|
|
2.12 Payments Generally; Administrative Agents Clawback
|
|
|
51
|
|
2.13 Sharing of Payments by Lenders
|
|
|
52
|
|
|
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
|
|
|
|
|
|
3.01 Taxes
|
|
|
53
|
|
3.02 Illegality
|
|
|
57
|
|
3.03 Inability to Determine Rates
|
|
|
57
|
|
3.04 Increased Costs; Reserves on Eurodollar Rate Loans
|
|
|
58
|
|
3.05 Compensation for Losses
|
|
|
59
|
|
3.06 Mitigation Obligations; Replacement of Lenders
|
|
|
60
|
|
3.07 Survival
|
|
|
60
|
|
|
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
|
|
|
|
|
|
4.01 Conditions of Initial Credit Extension
|
|
|
60
|
|
i
|
|
|
|
|
Section
|
|
Page
|
|
4.02 Conditions to all Credit Extensions
|
|
|
63
|
|
|
ARTICLE V
REPRESENTATIONS AND WARRANTIES
|
|
|
|
|
|
5.01 Existence, Qualification and Power
|
|
|
64
|
|
5.02 Authorization; No Contravention
|
|
|
64
|
|
5.03 Governmental Authorization; Other Consents
|
|
|
64
|
|
5.04 Binding Effect
|
|
|
65
|
|
5.05 Financial Statements; No Material Adverse Effect
|
|
|
65
|
|
5.06 Litigation
|
|
|
66
|
|
5.07 No Default
|
|
|
66
|
|
5.08 Ownership of Property; Liens; Investments
|
|
|
66
|
|
5.09 Environmental Compliance
|
|
|
67
|
|
5.10 Insurance
|
|
|
67
|
|
5.11 Taxes
|
|
|
67
|
|
5.12 ERISA Compliance
|
|
|
67
|
|
5.13 Subsidiaries; Equity Interests; Loan Parties
|
|
|
68
|
|
5.14 Margin Regulations; Investment Company Act
|
|
|
68
|
|
5.15 Disclosure
|
|
|
68
|
|
5.16 Compliance with Laws
|
|
|
68
|
|
5.17 Broadcasting Business
|
|
|
69
|
|
5.18 Solvency
|
|
|
69
|
|
5.19 Casualty, Etc.
|
|
|
69
|
|
|
ARTICLE VI
AFFIRMATIVE COVENANTS
|
|
|
|
|
|
6.01 Financial Statements
|
|
|
70
|
|
6.02 Certificates; Other Information
|
|
|
71
|
|
6.03 Notices
|
|
|
73
|
|
6.04 Payment of Obligations
|
|
|
74
|
|
6.05 Preservation of Existence, Etc.
|
|
|
74
|
|
6.06 Maintenance of Properties
|
|
|
74
|
|
6.07 Maintenance of Insurance
|
|
|
74
|
|
6.08 Compliance with Laws
|
|
|
74
|
|
6.09 Books and Records
|
|
|
74
|
|
6.10 Inspection Rights
|
|
|
75
|
|
6.11 Use of Proceeds
|
|
|
75
|
|
6.12 Covenant to Guarantee Obligations and Give Security
|
|
|
75
|
|
6.13 Compliance with Environmental Laws
|
|
|
76
|
|
6.14 Reserved
|
|
|
76
|
|
6.15 Further Assurances
|
|
|
76
|
|
6.16 Compliance with Terms of Leaseholds
|
|
|
76
|
|
6.17 Reserved
|
|
|
77
|
|
6.18 Reserved
|
|
|
77
|
|
6.19 Material Contracts
|
|
|
77
|
|
ii
|
|
|
|
|
Section
|
|
Page
|
|
6.20 Treasury Management
|
|
|
77
|
|
6.21 Additional Subsidiaries
|
|
|
77
|
|
|
ARTICLE VII
NEGATIVE COVENANTS
|
|
|
|
|
|
7.01 Liens
|
|
|
78
|
|
7.02 Indebtedness
|
|
|
79
|
|
7.03 Investments
|
|
|
80
|
|
7.04 Fundamental Changes
|
|
|
81
|
|
7.05 Dispositions
|
|
|
82
|
|
7.06 Restricted Payments
|
|
|
82
|
|
7.07 Change in Nature of Business
|
|
|
83
|
|
7.08 Transactions with Affiliates
|
|
|
83
|
|
7.09 Burdensome Agreements
|
|
|
83
|
|
7.10 Use of Proceeds
|
|
|
83
|
|
7.11 Financial Covenants
|
|
|
84
|
|
7.12 Amendments of Organization Documents
|
|
|
84
|
|
7.13 Accounting Changes
|
|
|
84
|
|
7.14 Prepayments, Etc. of Indebtedness
|
|
|
84
|
|
7.15 Amendment, Etc.
|
|
|
84
|
|
7.16 Local Marketing Agreements and Time Brokerage Agreements
|
|
|
84
|
|
7.17 Amendment, Etc.
|
|
|
85
|
|
|
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
|
|
|
|
|
|
8.01 Events of Default
|
|
|
85
|
|
8.02 Remedies upon Event of Default
|
|
|
87
|
|
8.03 Application of Funds
|
|
|
88
|
|
|
ARTICLE IX
ADMINISTRATIVE AGENT
|
|
|
|
|
|
9.01 Appointment and Authority
|
|
|
89
|
|
9.02 Rights as a Lender
|
|
|
89
|
|
9.03 Exculpatory Provisions
|
|
|
90
|
|
9.04 Reliance by Administrative Agent
|
|
|
91
|
|
9.05 Delegation of Duties
|
|
|
91
|
|
9.06 Resignation of Administrative Agent
|
|
|
91
|
|
9.07 Non-Reliance on Administrative Agent and Other Lenders
|
|
|
92
|
|
9.08 No Other Duties, Etc.
|
|
|
92
|
|
9.09 Administrative Agent May File Proofs of Claim
|
|
|
92
|
|
9.10 Collateral and Guaranty Matters
|
|
|
93
|
|
9.11 Secured Cash Management Agreements and Secured Hedge Agreements
|
|
|
94
|
|
iii
|
|
|
|
|
Section
|
|
Page
|
|
ARTICLE X
RESERVED
|
|
|
|
|
|
ARTICLE XI
MISCELLANEOUS
|
|
|
|
|
|
11.01 Amendments, Etc.
|
|
|
94
|
|
11.02 Notices; Effectiveness; Electronic Communications
|
|
|
96
|
|
11.03 No Waiver; Cumulative Remedies; Enforcement
|
|
|
98
|
|
11.04 Expenses; Indemnity; Damage Waiver
|
|
|
99
|
|
11.05 Payments Set Aside
|
|
|
100
|
|
11.06 Successors and Assigns
|
|
|
101
|
|
11.07 Treatment of Certain Information; Confidentiality
|
|
|
105
|
|
11.08 Right of Setoff
|
|
|
106
|
|
11.09 Interest Rate Limitation
|
|
|
106
|
|
11.10 Counterparts; Integration; Effectiveness
|
|
|
106
|
|
11.11 Survival of Representations and Warranties
|
|
|
107
|
|
11.12 Severability
|
|
|
107
|
|
11.13 Replacement of Lenders
|
|
|
107
|
|
11.14 Governing Law; Jurisdiction; Etc.
|
|
|
108
|
|
11.15 Waiver of Jury Trial
|
|
|
109
|
|
11.16 No Advisory or Fiduciary Responsibility
|
|
|
109
|
|
11.17 Electronic Execution of Assignments and Certain Other Documents
|
|
|
109
|
|
11.18 USA PATRIOT Act
|
|
|
110
|
|
11.19 Time of the Essence
|
|
|
110
|
|
11.20 ENTIRE AGREEMENT
|
|
|
110
|
|
11.21 FCC Licenses
|
|
|
110
|
|
|
|
|
|
|
|
SIGNATURES
|
|
|
S-1
|
|
iv
|
|
|
SCHEDULES
|
|
|
|
|
|
2.01
|
|
Commitments and Applicable Percentages
|
4.01(a)(xi)
|
|
Business Plan and Budget
|
5.03
|
|
Government Authorization; Other Consents
|
5.05
|
|
Financial Statements; No Material Adverse Effect
|
5.08
|
|
Ownership of Property; Liens; Investments
|
5.13
|
|
Subsidiaries; Equity Interests; Loan Parties
|
5.17
|
|
Broadcasting Business
|
6.12
|
|
Guarantors
|
7.02
|
|
Existing Indebtedness
|
7.09
|
|
Burdensome Agreements
|
7.16
|
|
Local Marketing Agreements and Time Brokerage Agreements
|
11.02
|
|
Administrative Agents Office, Certain Addresses for Notices
|
|
|
|
EXHIBITS
|
|
|
|
|
|
Form of
|
|
|
|
|
|
A
|
|
Committed Loan Notice
|
B
|
|
Swing Line Loan Notice
|
C-1
|
|
Term Note
|
C-2
|
|
Revolving Credit Note
|
D
|
|
Compliance Certificate
|
E-1
|
|
Assignment and Assumption
|
E-2
|
|
Administrative Questionnaire
|
F
|
|
Guaranty
|
G
|
|
Security Agreement
|
H
|
|
Reserved
|
I
|
|
Intellectual Property Security Agreement
|
J-1
|
|
Opinion Matters Counsel to Loan Parties
|
J-2
|
|
Opinion Matters Special Communications Counsel to Loan Parties
|
v
CREDIT AGREEMENT
This CREDIT AGREEMENT (
Agreement
) is entered into as of June 13, 2011, among SAGA
COMMUNICATIONS, INC., a Delaware corporation (the
Borrower
), each lender from time to
time party hereto (collectively, the
Lenders
and individually, a
Lender
),
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
PRELIMINARY STATEMENTS:
The Borrower has requested that the Lenders provide a term loan facility, a revolving credit
facility and an Accordion Loan, and the Lenders have indicated their willingness to lend and the
L/C Issuer has indicated its willingness to issue letters of credit, in each case, on the terms and
subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01
Defined Terms
. As used in this Agreement, the following terms shall have the
meanings set forth below:
Accordion Borrowing
means a borrowing consisting of simultaneous Accordion Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by
each of the Accordion Lenders pursuant to
Section 2.01(b
).
Accordion Commitment
means, as to each Person which has elected, in its sole and
absolute discretion, in writing to become an Accordion Lender, its obligation to make Accordion
Loans to the Borrower pursuant to
Section 2.01(b)
in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lenders name on a schedule
to be provided upon the inclusion of the Accordion Facility hereto, as such amount may be adjusted
from time to time in accordance with this Agreement.
Accordion Facility
means, at any time, all Accordion Commitments outstanding at
such time up to an aggregate principal amount of $40,000,000 the terms and conditions of such
facility are agreed to in writing, among the Borrower and the Accordion Lenders, which must be
approved, in writing, by the Administrative Agent such approval not to be unreasonably withheld or
delayed.
Accordion Lender
means at any time, any Lender that, in its sole and absolute
discretion, has elected in writing to provide an Accordion Loan hereunder which Lender must be
approved by the Borrower and the Administrative Agent in writing such approval not to be
unreasonably withheld or delayed.
Accordion Loan
means an advance made by any Accordion Lender under the Accordion
Facility.
Accordion Note
means a promissory note made by the Borrower in favor of a Accordion
Lender, evidencing Accordion Loans, in the form to be agreed to in writing among such Accordion
Lender, and the Borrower which must be approved in writing by the Administrative Agent such
approval not to be unreasonably withheld or delayed.
ACH Transactions
means any cash management or related services (including the
Automated Clearing House processing of electronic funds transfers through the direct Federal
Reserve Fedline system) provided by Bank of America, N.A. or its Affiliates for the account of the
Borrower or its Subsidiaries.
Acquisition
means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of any Person, business or division of a Person, (b) the acquisition of in excess of 50% of
the Equity Interests of any Person, or otherwise causing any Person to become a Subsidiary or (c) a
merger or consolidation or any other combination with another Person.
Adjusted Consolidated EBITDA
means for any period, the sum of Consolidated EBITDA
for such period
plus
, to the extent a Permitted Acquisition has been consummated during such
period, the Pro Forma EBITDA attributable to such Permitted Acquisition (but only that portion of
Pro Forma EBITDA attributable to the portion of such period that occurred prior to the date of the
consummation of such Permitted Acquisition).
Administrative Agent
means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.
Administrative Agents Office
means the Administrative Agents address and, as
appropriate, account as set forth on
Schedule 11.02
, or such other address or account as the
Administrative Agent may from time to time notify to the Borrower and the Lenders.
Administrative Questionnaire
means an Administrative Questionnaire in substantially
the form of
Exhibit E-2
or any other form approved by the Administrative Agent.
Affiliate
means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
Aggregate Commitments
means the Commitments of all the Lenders.
Aggregate Credit Exposures
means, at any time, in respect of (a) the Term Facility
or the Accordion Facility, the aggregate amount of the Term Loans or the Accordion Loans, as the
case may be, outstanding at such time and (b) in respect of the Revolving Credit Facility, the sum
of (i) the unused portion of the Revolving Credit Facility at such time and (ii) the Total
Revolving Credit Outstandings at such time.
Agreement
means this Credit Agreement.
Applicable Percentage
means (a) in respect of the Term Facility, with respect to
any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
2
Facility represented by (i) such Term Lenders Term Commitment on the Closing Date and (ii)
thereafter, the principal amount of such Term Lenders Term Loans at such time, (b) in respect of
the Accordion Facility, with respect to any Accordion Lender at any time, the percentage (carried
out to the ninth decimal place) of the Accordion Facility represented
by (i) such Accordion Lenders Accordion Commitment at the date of inclusion of such Accordion Facility and (ii) thereafter, the
principal amount of such Accordion Lenders Accordion Loans at such time and (c) in respect of the
Revolving Credit Facility, with respect to any Revolving Credit Lender on the Closing Date, the
percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by
such Revolving Credit Lenders Revolving Credit Commitment at such time. If the commitment of each
Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make
L/C Credit Extensions have been terminated pursuant to
Section 8.02
, or if the Revolving
Credit Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in
respect of the Revolving Credit Facility shall be determined based on the Applicable Percentage of
such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect,
giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in
respect of each Facility is set forth opposite the name of such Lender on
Schedule 2.01
or
in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable.
Applicable Rate
means (a) in respect of the Term Facility, the Revolving Credit
Facility and the Commitment Fee (i) from the Closing Date to the date on which the Administrative
Agent receives a Compliance Certificate pursuant to
Section 6.02(b)
for the fiscal quarter
ending June 30, 2011, 1.50% per annum for Base Rate Loans, 2.50% per annum for Eurodollar Rate
Loans and Letter of Credit Fees and 0.325% for the Commitment Fee and (ii) thereafter, the
applicable percentage per annum set forth below determined by reference to the Consolidated
Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to
Section 6.02(b)
:
|
|
|
|
|
|
|
|
|
|
|
|
|
Applicable Margin for
|
|
Applicable Margin
|
|
|
|
|
Consolidated
|
|
Eurodollar Loans/Letter
|
|
for
|
|
Commitment
|
Level
|
|
Leverage Ratio
|
|
of Credit Fees
|
|
Base Rate Loans
|
|
Fee
|
I
|
|
< 1.75 : 1.00
|
|
Eurodollar Rate + 1.50%
|
|
Base Rate + 0.50%
|
|
0.25%
|
II
|
|
≥ 1.75 but < 2.00 : 1.00
|
|
Eurodollar Rate + 1.75%
|
|
Base Rate + 0.75%
|
|
0.25%
|
III
|
|
≥ 2.00 : 1.00 but < 2.50 : 1.00
|
|
Eurodollar Rate + 2.25%
|
|
Base Rate + 1.25%
|
|
0.325%
|
IV
|
|
≥ 2.50 : 1.00 but < 3.00 : 1.00
|
|
Eurodollar Rate + 2.50%
|
|
Base Rate + 1.50%
|
|
0.325%
|
V
|
|
≥ 3.00 : 1.00
|
|
Eurodollar Rate + 2.75%
|
|
Base Rate + 1.75%
|
|
0.375%
|
and (b) in respect of the Accordion Loans agreed to in writing among the Accordion Lenders and
the Borrower which must be approved by the Administrative Agent, in its sole discretion.
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the third Business Day following the date a Compliance
Certificate is delivered pursuant to
Section 6.02(b
);
provided
,
however
,
that if a Compliance Certificate is not delivered when due in accordance with such Section, then,
3
pricing Level V will apply, from the date on which such Compliance Certificate was required to have
been delivered and shall remain in effect until the third Business Day from the date on which the
required Compliance Certificate is delivered. The Event of Default arising for the failure to
deliver the Compliance Certificate as required by
Section 6.02(b)
is not waived by this
definition. Notwithstanding anything to the contrary contained in this definition, the
determination of the Applicable Rate for any period shall be subject to the provisions of Section
2.10(b).
Applicable Revolving Credit Percentage
means with respect to any Revolving Credit
Lender at any time, such Revolving Credit Lenders Applicable Percentage in respect of the
Revolving Credit Facility at such time.
Appropriate Lender
means, at any time, (a) with respect to any of the Term
Facility, the Accordion Facility or the Revolving Credit Facility, a Lender that has a Commitment
with respect to such Facility or holds a Term Loan, an Accordion Loan or a Revolving Credit Loan,
respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer
and (ii) if any Letters of Credit have been issued pursuant to
Section 2.03(a
), the
Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender
and (ii) if any Swing Line Loans are outstanding pursuant to
Section 2.04(a)
, the Revolving
Credit Lenders.
Approved Fund
means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.
Arranger
means Merrill Lynch, Pierce, Fenner & Smith, Incorporated, in its capacity
as joint lead arranger and joint book manager.
Assignee Group
means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption
means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06(b))
, and accepted by the Administrative Agent, in substantially the form of
Exhibit E-1
or any other form approved by the Administrative Agent.
Attributable Indebtedness
means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease or similar payments under the relevant
lease or other applicable agreement or instrument that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.
Audited Financial Statements
means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2010, and the related
consolidated statements of income or operations, shareholders equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.
4
Auxiliary License
means any governmental approval or authorization issued to
the Borrower or any Subsidiary by the FCC or acquired or otherwise transferred to the Borrower or
any Subsidiary, which is authorized under Title 47 CFR §§74.101
et
seq
. as
secondary services which includes Experimental Broadcast Stations, Remote Pickup Broadcast
Stations, Aural Broadcast Auxiliary Stations, Television Broadcast Auxiliary Stations, Low Power
TV, TV Translator, and TV Booster Stations, Low Power Auxiliary Stations, Instructional Television
Fixed Service, FM Broadcast Translator Stations and FM Broadcast Booster Stations, as such terms
are defined in the Communications Act.
Availability Period
means in respect of the Revolving Credit Facility, the period
from and including the Closing Date to the earliest of (i) the Maturity Date for the Revolving
Credit Facility, (ii) the date of termination of the Revolving Credit Commitments pursuant to
Section 2.06
, and (iii) the date of termination of the commitment of each Revolving Credit
Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to
Section 8.02
.
Bank of America
means Bank of America, N.A. and its successors.
Bank Product Agreements
means those certain agreements entered into from time to
time by the Borrower or its Subsidiaries in connection with any of the Bank Products.
Bank Product Obligations
means all obligations, liabilities, contingent
reimbursement obligations, fees, and expenses owing by the Borrower or its Subsidiaries to Bank of
America, N.A. or its Affiliates pursuant to or evidenced by the Bank Product Agreements and
irrespective of whether for the payment of money, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, and including all such amounts
that the Borrower is obligated to reimburse to Administrative Agent or any Lender as a result of
Administrative Agent or such Lender purchasing participations or executing indemnities or
reimbursement obligations with respect to the Bank Products provided to the Borrower or its
Subsidiaries pursuant to the Bank Product Agreements.
Bank Products
means any service or facility extended to the Borrower or its
Subsidiaries by Bank of America, N.A., or any Affiliate of Bank of America, N.A., including: (a)
credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH
Transactions, (f) cash management, including controlled disbursement, accounts or services, or (g)
foreign currency exchange agreements or other foreign currency agreements or arrangements.
Base Rate
means for any day a fluctuating rate per annum equal to the highest of
(a) the Federal Funds Rate
plus
1/2 of 1% (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its
prime rate, and (c) the
Eurodollar Rate
plus
1/2 of 1%. The prime rate is a rate set by Bank of America based
upon various factors including Bank of Americas costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change in such rate
announced by Bank of America shall take effect at the opening of business on the day specified in
the public announcement of such change.
5
Base Rate Loan
means a Revolving Credit Loan, a Term Loan or an Accordion Loan that
bears interest based on the Base Rate.
Borrower
has the meaning specified in the introductory paragraph hereto.
Borrower Materials
has the meaning specified in
Section 6.02
.
Borrowing
means a Revolving Credit Borrowing, a Swing Line Borrowing, a Term
Borrowing or an Accordion Borrowing, as the context may require.
Broadcasting Station
means all related licenses (including FCC Licenses),
franchises and permits issued under federal, state or local laws from time to time which authorize
a Person to receive or distribute, or both, over the airwaves, audio and/or visual, radio or
microwave signals within a geographic area for the purpose of providing commercial television or
radio programming, together with all property owned or used in connection therewith, and all
interest of such Person to receive revenues therefrom.
Business Day
means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agents Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.
Capital Expenditures
means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations).
For purposes of this definition, the purchase price of equipment that is purchased simultaneously
with the trade-in of existing equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit
granted by the seller of such equipment for the equipment being traded in at such time or the
amount of such insurance proceeds, as the case may be.
Capitalized Leases
means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.
Cash Collateralize
has the meaning specified in
Section 2.03(g)
.
Cash Equivalents
means any of the following types of Investments, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens
created under the Collateral Documents):
(a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof having maturities
of not more than 360 days from the date
of acquisition thereof;
provided
that the full faith and credit of the United
States of America is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under
6
the laws of the United States of America, any state thereof or the District of Columbia or
is the principal banking subsidiary of a bank holding company organized under the laws of
the United States of America, any state thereof or the District of Columbia, and is a
member of the Federal Reserve System, (ii) issues (or the parent of which issues)
commercial paper rated as described in clause (c) of this definition and (iii) has combined
capital and surplus of at least $1,000,000,000, in each case with maturities of not more
than 90 days from the date of acquisition thereof;
(c) commercial paper issued by any Person organized under the laws of any state of the
United States of America and rated at least Prime-1 (or the then equivalent grade) by
Moodys or at least A-1 (or the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of acquisition thereof; and
(d) Investments, classified in accordance with GAAP as current assets of the Borrower
or any of its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions that have
the highest rating obtainable from either Moodys or S&P, and the portfolios of which are
limited solely to Investments of the character, quality and maturity described in clauses
(a), (b) and (c) of this definition.
Cash Management Agreement
means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.
Cash Management Bank
means any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement.
CERCLA
means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980.
CERCLIS
means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.
CFC
means a Person that is a controlled foreign corporation under Section 957 of
the Code.
Change in Law
means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not
having the force of law) by any Governmental Authority;
provided
that notwithstanding
anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act
and all requests, rules, guidelines or directives thereunder or issued in connection therewith and
(y) all requests, rules, guidelines or directives promulgated by the Bank for International
settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or
the United States regulatory authorities, in
7
each case pursuant to Basel III, shall in each case be deemed to be a Change in Law, regardless
of the date enacted, adopted or issued.
Change of Control
means an event or series of events by which:
(a) any person or group (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have beneficial ownership of all securities that such
person or group has the right to acquire, whether such right is exercisable immediately or
only after the passage of time (such right, an
option
right
)), directly or
indirectly, other than Permitted Holders of 35% or more of the voting power of the combined
Class A Common Stock and Class B Common Stock of the Borrower, voting together in the
election of the board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first
day of such period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause (iii), any individual
whose initial nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened solicitation of
proxies or consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or on behalf
of the board of directors).
Christian
means Edward K. Christian.
Class A Common Stock
shall have the meaning given such term in the Borrowers
Organization Documents as in effect on the date hereof.
Class B Common Stock
shall have the meaning given such term in the Borrowers
Organization Documents as in effect on the date hereof.
Closing Date
means the first date all the conditions precedent in
Section
4.01
are satisfied or waived in accordance with
Section 11.01
.
Code
means the Internal Revenue Code of 1986.
8
Collateral
means all of the
Collateral
referred to in the Collateral
Documents and all of the other property that is or is intended under the terms of the Collateral
Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the
Secured Parties.
Collateral Documents
means, collectively, the Security Agreement, the Intellectual
Property Security Agreement, each of the collateral assignments, Security Agreement Supplements, IP
Security Agreement Supplements, security agreements, pledge agreements or other similar agreements
delivered to the Administrative Agent pursuant to
Section 6.12
, and each of the other
agreements, instruments or documents that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.
Commitment
means a Term Commitment, an Accordion Commitment or a Revolving Credit
Commitment, as the context may require.
Committed Loan Notice
means a notice of (a) a Term Borrowing, (b) a Revolving
Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of
Eurodollar Rate Loans, pursuant to
Section 2.02(a)
, which, if in writing, shall be
substantially in the form of
Exhibit A
.
Communications Act
means the Federal Communications Act of 1934 and the
resolutions, regulations, rules, policies and orders promulgated or issued thereunder.
Compliance Certificate
means a certificate substantially in the form of
Exhibit D
.
Consolidated EBITDA
means, at any date of determination, an amount equal to
Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period
plus
(a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision for Federal,
state, local and foreign income taxes payable, (iii) depreciation and amortization expense, (iv)
other non-recurring expenses reducing such Consolidated Net Income which do not represent a cash
item in such period or any future period (in each case of or by the Borrower and its Subsidiaries
for such Measurement Period), (v) all costs, fees and expenses (including fees of counsel) paid by
the Borrower or any of its Subsidiaries in connection with the execution and delivery of this
Agreement and the related Loan Documents, not to exceed $1,100,000 in the aggregate, and (vi) the
aggregate amount of any non-cash charges of the Borrower during such period (1) arising from the
issuance or vesting of any stock options, restricted stock, restricted stock units and performance
awards granted by Borrower to its employees or directors and (2) arising from any impairment
charges
minus
(b) the following to the extent included in calculating such Consolidated Net
Income: (i) Federal, state, local and foreign income tax credits, (ii) all non-cash items
increasing Consolidated Net Income (in each case of or by the Borrower and its Subsidiaries for
such Measurement Period), (iii) the aggregate amount of all cash television programming payments
made by the Borrower and its
Subsidiaries during such period; and (iv) the aggregate amount of any cash payments made by
the Borrower during such period relating to any non-cash charges described in clauses (a)(iv) and
(a)(vi) immediately preceding.
9
Consolidated Fixed Charge Coverage Ratio
means, at any date of determination, the
ratio of (a) Adjusted Consolidated EBITDA, divided by the sum of (b) (i) the aggregate amount of
all cash Capital Expenditures (other than any such Capital Expenditures made with the proceeds of
Indebtedness permitted under
Section 7.02(c)
and other than Capital Expenditures made in a
Permitted Acquisition), (ii) Consolidated Interest Charges, (iii) the aggregate principal amount of
all regularly scheduled principal payments or redemptions or similar acquisitions for value of
outstanding debt for borrowed money, but excluding any such payments to the extent refinanced
through the incurrence of additional Indebtedness otherwise expressly permitted under
Section 7.02
,
(iv) the aggregate amount of all Restricted Payments and (v) the aggregate amount of Federal,
state, local and foreign income taxes paid in cash, in each case, of or by the Borrower and its
Subsidiaries for the most recently completed Measurement Period; minus the amount of federal and
state income tax refunds received by the Borrower and its Subsidiaries during such period. The
Consolidated Interest Charges under section (ii) of this definition will be calculated on a
trailing four quarter basis using the amount of actual Consolidated Interest Charges for periods
prior to the Closing Date used in any Measurement Period. The aggregate principal amount of all
regularly scheduled principal payments under the Term Loan for all Measurement Periods following
the Closing Date, will be deemed to be $3,000,000.
Consolidated Funded Indebtedness
means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of business), (e)
all Attributable Indebtedness, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a)
through (f) above of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary is a general
partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower
or such Subsidiary.
Consolidated Interest Charges
means, for any Measurement Period, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses in connection with
borrowed money (including capitalized interest) or in connection with the deferred purchase price
of assets, in each case to the extent treated as interest in accordance with GAAP but excluding the
fees paid on the Closing Date referenced in
Section 2.09(b)
, (b) all interest paid or
payable with respect to discontinued operations and (c) the portion of rent expense under
Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by the
Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement
Period.
Consolidated Leverage Ratio
means, as of any date of determination, the ratio of
(a) Consolidated Funded Indebtedness as of such date to (b) Adjusted Consolidated EBITDA of
10
Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement
Period.
Consolidated Net Income
means, at any date of determination, the net income (or
loss) of the Borrower and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period;
provided
that Consolidated Net Income shall exclude (a) extraordinary
gains and extraordinary losses for such Measurement Period, (b) the net income of any Subsidiary
during such Measurement Period to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary of such income is not permitted by operation of the terms
of its Organization Documents or any agreement, instrument or Law applicable to such Subsidiary
during such Measurement Period, except that the Borrowers equity in any net loss of any such
Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income,
(c) any net gain or loss arising from the sale of capital assets, (d) any net gain or loss arising
from any write-up or write-down of assets, (e) any interest or other non-operating income of the
Borrower or any Subsidiary, (f) the effect of all barter transactions for such period, (g) proceeds
from any Swap Contract, (h) any restoration to income of any contingency reserve, except to the
extent that provision for such reserve was made out of income accrued during such Measurement
Period; and (i) any net gain arising from the acquisition of any securities, or the extinguishment
under GAAP, of any Indebtedness of such Person.
Contractual Obligation
means, as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to which such Person is
a party or by which it or any of its property is bound.
Control
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise.
Controlling
and
Controlled
have meanings correlative thereto.
Credit Extension
means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.
Debtor Relief Laws
means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
Default
means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate
means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate
plus
(ii) the Applicable
Rate, if any, applicable to Base Rate Loans under the Accordion Facility
plus
(iii) 2%
per annum;
provided
,
however
, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan
plus
11
2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Rate
plus
2% per annum.
Defaulting Lender
means any Lender that (a) has failed to fund any portion of the
Term Loans, Revolving Credit Loans, participations in L/C Obligations or participations in Swing
Line Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.
Disclosed Litigation
has the meaning set forth in
Section 5.06
.
Disposition
or
Dispose
means the sale, transfer, exclusive license,
lease or other disposition (including any sale and leaseback transaction) of any property by any
Person (or the granting of any option or other right to do any of the foregoing), including any
sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith but excluding any sub-lease of any real
property of which the Borrower or any of its Subsidiaries is the lessee.
Disqualified Equity Interest
means any Equity Interest of any Person that, by its
terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of
the holder thereof, in whole or in part.
Dollar
and
$
mean lawful money of the United States.
Domestic Subsidiary
means any Subsidiary that is organized under the laws of any
political subdivision of the United States.
Eligible Assignee
means any Person that meets the requirements to be an assignee
under
Section 11.06(b)(iii)
,
(v)
and
(vi)
(subject to such consents, if
any, as may be required under
Section 11.06(b)(iii)
).
Environmental Laws
means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
Environmental Liability
means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective
Subsidiaries directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into
12
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
Environmental Permit
means any permit, approval, identification number, license or
other authorization required under any Environmental Law.
Equity Interests
means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.
ERISA
means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate
means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).
ERISA Event
means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
Eurodollar Rate
means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (
BBA LIBOR
), as published by Reuters (or other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not
available at such time for any reason, then the Eurodollar Rate for such Interest Period
shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits
in Dollars for delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan
13
being made, continued or converted by Bank of America and with a term equivalent to such Interest
Period would be offered by Bank of Americas London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
Eurodollar Rate Loan
means a Revolving Credit Loan, a Term Loan or a Accordion Loan
that bears interest at a rate based on the Eurodollar Rate.
Event of Default
has the meaning specified in
Section 8.01
.
Excluded Assets
means all leased and owned real property and all motor vehicles and
all Excluded Collateral, as defined in the Security Agreement.
Excluded Taxes
means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to
comply with clause (A) of
Section 3.01(e)(ii)
, and (d) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under
Section 10.13
), any
United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign
Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or (ii) is attributable to such Foreign Lenders failure or
inability (other than as a result of a Change in Law) to comply with clause (B) of
Section
3.01(e)(ii)
, except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a)(ii)
or (iii)
.
Facility
means the Term Facility, the Accordion Facility or the Revolving Credit
Facility, as the context may require.
FCC
means the United States Federal Communications Commission or any agency
succeeding to the functions thereof.
FCC License
means any governmental approval or authorization issued to the Borrower
or any Subsidiary by the FCC or acquired or otherwise transferred to the Borrower or any
Subsidiary, pursuant to the Communications Act but excluding any non-material Auxiliary License,
non-material Secondary Station License, any non-material Satellite Earth Station License (as such
term is defined in the Communications Act) and
any non-material Relocation Weather Radar License (as such term is defined in the
Communication Act).
FCC Order
means an Initial FCC Order or a Final FCC Order as the context may
require.
14
Federal Funds Rate
means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day;
provided
that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.
Fee Letter
means the letter agreement, dated April 11, 2011, among the Borrower, the
Administrative Agent and the Arranger.
Final FCC Order
means, with respect to any assignment or transfer of FCC Licenses,
Auxiliary Licenses and Secondary Station Licenses, an Initial FCC Order which shall not have been
reversed, stayed, enjoined, annulled or suspended and the time for filing an appeal, petition for
certiorari or other request for administrative or judicial relief, or for instituting
administrative review of such order sua sponte, has expired and as to which no appeal, petition for
certiorari or other formal request for administrative or judicial relief, or for instituting
administrative review of such order sua sponte, has been filed and is pending or, if an appeal,
petition for certiorari or other request for administrative or judicial relief, or for instituting
administrative review of such order sua sponte, has been filed or taken, such Initial FCC Order has
been affirmed (or such appeal, petition or other request for administrative or judicial relief has
been dismissed as moot) by the highest court (or other tribunal having appellate jurisdiction over
such Initial FCC Order) to which such Initial FCC Order was appealed or the petition for certiorari
has been denied or, in the case of an Initial FCC Order which the FCC decided to review sua sponte,
the FCC has either withdrawn or dismissed such review, and the time to take any further appeal or
to seek further certiorari or judicial or administrative review has expired.
Foreign Lender
means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes (including such a Lender when
acting in the capacity of the L/C Issuer). For purposes of this definition, the United States, each
State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
FRB
means the Board of Governors of the Federal Reserve System of the United States.
Fund
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.
GAAP
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
15
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.
Governmental Authority
means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank) and further including, without limitation, the FCC and the SEC.
Guarantee
means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the
primary
obligor
) in any manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities
or services for the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by the guaranteeing Person in good faith. The term
Guarantee
as a verb has a corresponding meaning.
Guarantors
means, collectively, the Subsidiaries of the Borrower listed on
Schedule 6.12
and each other Subsidiary of the Borrower that shall be required to execute and
deliver a guaranty or guaranty supplement pursuant to
Section 6.12
.
Guaranty
means, collectively, the Guaranty made by a Guarantor in favor of the
Secured Parties, substantially in the form of
Exhibit F
, together with each other guaranty
and guaranty supplement delivered pursuant to
Section 6.12.
Hazardous Materials
means all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
16
Hedge Bank
means any Person that, at the time it enters into an interest rate Swap
Contract permitted under
Article VI
or
VII
, is a Lender or an Affiliate of a Lender, in its
capacity as a party to such Swap Contract.
Indebtedness
means, as to any Person at a particular time, without duplication,
all of the following, whether or not included as indebtedness or liabilities in accordance with
GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) the maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial),
bankers acceptances, bank
guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and not past
due for more than 90 days after the date on which such trade account was created);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease
Obligations of such Person and all Synthetic Debt of such Person;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person or
any warrant, right or option to acquire such Equity Interest, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference
plus
accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a
joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.
Indemnified Taxes
means Taxes other than Excluded Taxes.
Indemnitees
has the meaning specified in
Section 11.04(b)
.
17
Information
has the meaning specified in
Section 11.07
.
Initial
FCC Order
means, with respect to any assignment or transfer of FCC
Licenses, Auxiliary Licenses or Secondary Station Licenses the initial order or other initial
written action or actions by the FCC approving the assignment or transfer of such FCC Licenses,
Auxiliary Licenses or Secondary Station Licenses for each Broadcasting Station to be acquired as
part of such acquisition or transferred as part of a permitted transfer in the manner contemplated
by the applicable acquisition documents, all in form and substance satisfactory to the
Administrative Agent.
Intellectual Property Security Agreement
has the meaning specified in
Section
4.01(a)(v).
Interest Payment Date
means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made;
provided
,
however
, that if any Interest Period for a Eurodollar Rate
Loan exceeds three months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or
Swing Line Loan, the last Business Day of each March, June, September and December commencing on
June 30, 2011 and the Maturity Date of the Facility under which such Loan was made (with Swing Line
Loans being deemed made under the Revolving Credit Facility for purposes of this definition).
Interest Period
means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate
Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower
in its Committed Loan Notice;
provided
that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.
Investment
means, as to any Person, (a) any direct or indirect Acquisition or
investment by such Person or (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or interest in, another
Person. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.
18
IP Rights
has the meaning specified in
Section 5.17
.
IP Security Agreement Supplement
means a supplement to update the IP Security
Agreement or to add a party thereto.
IRS
means the United States Internal Revenue Service.
ISP
means, with respect to any Letter of Credit, the International Standby
Practices 1998 published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).
Issuer Documents
means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of
Credit.
Laws
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
L/C
Advance
means, with respect to each Revolving Credit Lender, such Lenders
funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving
Credit Percentage.
L/C Borrowing
means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving
Credit Borrowing.
L/C Credit Extension
means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Issuer
means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.
L/C Obligations
means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit
plus
the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with
Section 1.06
. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be outstanding in the amount so remaining available to be drawn.
19
Lead Arranger
means the Arranger and J.P. Morgan Securities LLC as joint lead
arrangers.
Lender
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.
Lending Office
means, as to any Lender, the office or offices of such Lender
described as such in such Lenders Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.
Letter of Credit
means any standby letter of credit issued hereunder.
Letter of Credit Application
means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
Letter of Credit Expiration Date
means the day that is seven days prior to the
Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business
Day, the next preceding Business Day).
Letter of Credit Fee
has the meaning specified in
Section 2.03(i)
.
Letter of Credit Sublimit
means an amount equal to $5,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Revolving Credit Facility.
Lien
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).
Loan
means an extension of credit by a Lender to the Borrower under
Article
II
in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.
Loan Documents
means, collectively, (a) this Agreement, (b) the Notes, (c) the
Guaranty, (d) the Collateral Documents and (e) the Fee Letter.
Loan Parties
means, collectively, the Borrower and each Guarantor.
Local Marketing Agreement
means, with respect to a Broadcasting Station operated by
a Person, an agreement or arrangement with a Broadcasting Station operated by another Person
pursuant to which the parties agree to function cooperatively in terms of programming, advertising,
sales, management, consulting or similar services.
Material Adverse Effect
means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or
financial condition of the Borrower and its Subsidiaries taken as a whole; (b) a material
impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan
Document, or of
20
the ability of any Loan Party to perform its obligations under any Loan Document to which it is a
party; or (c) a material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a party.
Material Contract
means, with respect to any Person, each contract to which such
Person is a party involving aggregate consideration payable to or by such Person of $2,000,000 or
more in any year or otherwise material to the business, financial condition, operations,
performance, or properties of such Person.
Maturity Date
means (a) with respect to the Revolving Credit Facility, June 13,
2016, (b) with respect to the Term Facility, June 13, 2016, and (c) with respect to the Accordion
Facility, the date agreed to in writing with the Accordion Lenders which must be approved in
writing by the Administrative Agent;
provided
,
however
, that, in each case, if such
date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
Measurement Period
means, at any date of determination, the most recently completed
four fiscal quarters of the Borrower.
Moodys
means Moodys Investors Service, Inc. and any successor thereto.
Multiemployer Plan
means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.
Net Cash Proceeds
means:
(a) with respect to any Disposition by any Loan Party or any of its Subsidiaries,
received or paid to the account of any Loan Party or any of its Subsidiaries, the excess,
if any, of (i) the sum of cash and Cash Equivalents received in connection with such
transaction (including any cash or Cash Equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured
by the applicable asset and that is required to be repaid in connection with such
transaction (other than Indebtedness under the Loan Documents), (B) the reasonable and
customary out-of-pocket expenses incurred by such Loan Party or such Subsidiary in
connection with such transaction and (C) income taxes reasonably estimated to be actually
payable within two years of the date of the relevant transaction as a result of any gain
recognized in connection therewith;
provided
that, if the amount of any estimated
taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in
cash in respect of such Disposition, the aggregate amount of such excess shall constitute
Net Cash Proceeds; and
(b) with respect to the sale or issuance of any Equity Interest by the Borrower, or
the incurrence or issuance of any Indebtedness by any Loan Party or any of its
Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received in
connection with such transaction over (ii) the underwriting discounts and commissions,
21
and other reasonable and customary out-of-pocket expenses, incurred by such Loan Party or
such Subsidiary in connection therewith.
Note
means a Term Note, an Accordion Note or a Revolving Credit Note, as the
context may require.
NPL
means the National Priorities List under CERCLA.
Obligations
means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case
whether direct or indirect (including those acquired by assumption), absolute or contingent, due or
to become due, now existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding and all other Bank Product Obligations.
Organization Documents
means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.
Other Taxes
means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
Outstanding Amount
means (a) with respect to Term Loans, Revolving Credit Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans and
Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C
Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the
L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.
Participant
has the meaning specified in
Section 11.06(d)
.
PBGC
means the Pension Benefit Guaranty Corporation.
22
Pension Plan
means any employee pension benefit plan (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.
Permitted Acquisition
means an Acquisition which satisfies each of the following
conditions:
(a) any Subsidiary of the Borrower or a Subsidiary thereof created for the purpose of
effecting the Acquisition or acquired in connection therewith shall have complied with the
requirements of
Section 6.21
;
(b) the total cash and non-cash consideration paid by or on behalf of the Borrower or
such Subsidiary in connection with such Acquisition (including, without limitation, any
Permitted Seller Debt or Indebtedness assumed, incurred, or permitted to remain outstanding
by the Borrower or such Subsidiary or the acquired Subsidiary Guarantor) shall not exceed
$25,000,000 for each fiscal year;
(c) both before and after giving effect to any Acquisition, no Default or Event of
Default shall have occurred and be continuing;
(d) the Borrower shall have delivered to the Administrative Agent, at least 10
Business Days (or such shorter time period as the Administrative Agent may otherwise agree
in writing) prior to the consummation of such acquisition a certificate from a Responsible
Officer of the Borrower demonstrating (in detail reasonably satisfactory to the
Administrative Agent) pro forma compliance with the covenants set forth in
Section
7.11
;
(e) the Borrower shall have delivered to the Administrative Agent not less than 10
Business Days (or such shorter time period as the Administrative Agent may otherwise agree
in writing) prior to the consummation of the Acquisition a summary providing a reasonably
detailed description of the Target and the terms and conditions of the proposed
acquisition, material financial, business and legal due diligence information relating to
the Target as the Administrative Agent may reasonably request, and all material legal
documentation pertaining to such acquisition;
(f) the assets acquired in such acquisition shall be owned exclusively by the Borrower
or a Subsidiary;
(g) the Borrower and such Subsidiary shall have complied with the provisions of
Sections 6.15 and 6.21
with respect to such acquisition;
(h) if such Acquisition includes a Broadcasting Station, a copy of the Final FCC Order
approving such Acquisition shall be delivered to the Administrative Agent or, with the
prior written consent of the Administrative Agent, an Initial FCC Order; and
23
(i) the Target is engaged in the radio (including the radio news network) or
television broadcast business.
Permitted Holder
means (i) Christian, (ii) Christians spouse, (iii) members of
their immediate family and their respective spouses and issue, (iv) the respective heirs and
estates of each of the foregoing and (v) other than interests of remote contingent beneficiaries
referenced in the relevant trust documents, any trusts created solely for the benefit of any one or
more of the foregoing.
Person
means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
Plan
means any employee benefit plan (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.
Platform
has the meaning specified in
Section 6.02
.
Pledged
Equity
has the meaning given the term Pledged
Shares specified in the
Pledge Agreement.
Principal Payment Dates
has the meaning specified in
Section 2.07
.
Pro Forma EBITDA
means, with respect to any Target acquired in a Permitted
Acquisition, such Targets earnings before interest, income taxes, amortization and depreciation,
as calculated in accordance with GAAP, for the most recent twelve (12) month period as shown on
financial statements which are made available to the Administrative Agent prior to the consummation
of the Permitted Acquisition, calculated by the Borrower and acceptable to the Administrative
Agent, with such adjustments as can be verified and demonstrated by the Borrower and acceptable to
the Administrative Agent.
Register
has the meaning specified in
Section 11.06(c)
.
Related Parties
means, with respect to any Person, such Persons Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Persons Affiliates.
Reportable Event
means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.
Request for Credit Extension
means (a) with respect to a Borrowing, conversion or
continuation of Term Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to
an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan,
a Swing Line Loan Notice.
Required Lenders
means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit
Lenders risk participation and funded participation in L/C Obligations and Swing Line
24
Loans being deemed held by such Revolving Credit Lender for purposes of this definition) and
(b) aggregate unused Revolving Credit Commitments;
provided
that the unused Revolving
Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
Required Revolving Lenders
means, as of any date of determination, Revolving Credit
Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the
aggregate amount of each Revolving Credit Lenders risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed held by such Revolving Credit Lender for
purposes of this definition) and (b) aggregate unused Revolving Credit Commitments;
provided
that the unused Revolving Credit Commitment of, and the portion of the Total
Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Revolving Lenders.
Required Term Lenders
means, as of any date of determination, Term Lenders holding
more than 50% of the Term Facility on such date;
provided
that the portion of the Term Facility
held by any Defaulting Lender shall be excluded for purposes of making a determination of Required
Term Lenders.
Required Accordion Lenders
means, as of any date of determination, Accordion Lenders
holding more than 50% of the Accordion Facility on such date;
provided
that the portion of
the Accordion Facility held by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Accordion Lenders.
Responsible Officer
means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party and any other officer of the
applicable Loan Party so designated by any of the foregoing officers in a notice to the
Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of
a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
Restricted Payment
means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of any
Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such capital stock or other Equity
Interest, or on account of any return of capital to any Persons stockholders, partners or members
(or the equivalent of any thereof), or any option, warrant or other right to acquire any such
dividend or other distribution or payment, any payment of any subordinated Indebtedness or the
payment of any management or similar fees.
Revolving Credit Borrowing
means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Revolving Credit Lenders pursuant to
Section 2.01(b)
.
25
Revolving Credit Commitment
means, as to each Revolving Credit Lender, its obligation
to (a) make Revolving Credit Loans to the Borrower pursuant to
Section 2.01(b)
, (b)
purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in
an aggregate principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lenders name on
Schedule 2.01
under the caption Revolving Credit Commitment
or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement which amount on the Closing Date is $60,000,000.
Revolving Credit Facility
means, at any time, the aggregate amount of the Revolving
Credit Lenders Revolving Credit Commitments at such time.
Revolving Credit Lender
means, at any time, any Lender that has a Revolving Credit
Commitment at such time.
Revolving Credit Loan
has the meaning specified in
Section 2.01(c)
.
Revolving Credit Note
means a promissory note made by the Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be,
made by such Revolving Credit Lender, substantially in the form of
Exhibit C-2
.
S&P
means Standard & Poors Financial Services LLC, a subsidiary of The McGraw-Hill
Companies, Inc., and any successor thereto.
SEC
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
Secondary Station License
means any governmental approval or authorization issued to
the Borrower or any Subsidiary by the FCC or acquired or otherwise transferred to the Borrower or
any Subsidiary, which is a Low Power TV Station, TV Translator Station, TV Booster Station, FM
Broadcast Translator Station and/or FM Broadcast Booster Station, as such terms are defined in the
Communications.
Secured
Cash Management Agreement
means any Cash Management Agreement that is entered
into by and between any Loan Party and any Cash Management Bank.
Secured Hedge Agreement
means any Swap Contract permitted under
Article VI
or
VII
that is entered into by and between any Loan Party and any Hedge Bank.
Secured
Parties
means, collectively, the Administrative Agent, the Lenders, the L/C
Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to
Section 9.05
, and the other Persons the
Obligations owing to which are or are purported to be secured by the Collateral under the terms of
the Collateral Documents.
Security Agreement
has the meaning specified
in Section 4.01(a)(iii)
.
26
Security Agreement Supplement
means a supplement to update the Security Agreement or
to add a party thereto.
Shared Services Agreement
means, with respect to a Broadcasting Station operated by
a Person, an agreement (other than a Time Brokerage Agreement) for the cooperation of the licensee
of a Broadcasting Station licensed to another Person where one Person acts as an agent for the sale
of advertising on the other Broadcasting Station or provides technical or programming advice and/or
services to the other Broadcasting Station.
Solvent
and
Solvency
mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Persons ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Persons property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability.
Station License
means any governmental approval or authorization issued to the
Borrower or any Subsidiary by the FCC or acquired or otherwise transferred to the Borrower or any
Subsidiary, which is authorized under Title 47 CFR §§73.1-73.190; 73.201-73.333; and/or
73.601-73.699, which includes AM Broadcast Stations, FM Broadcast Stations, and Television
Broadcast Stations (as such terms are defined in the Communications Act), but excludes Secondary
Station Licenses.
Subsidiary
of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a
Subsidiary
or to
Subsidiaries
shall refer
to a Subsidiary or Subsidiaries of the Borrower.
Swap Contract
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing),
27
whether or not any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a
Master Agreement
), including any such obligations or liabilities under any Master
Agreement.
Swap Termination Value
means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).
Swing Line Borrowing
means a borrowing of a Swing Line Loan pursuant to
Section
2.04
.
Swing Line Lender
means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.
Swing Line Loan
has the meaning specified in
Section 2.04(a)
.
Swing Line Loan Notice
means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b)
, which, if in writing, shall be substantially in the form of
Exhibit
B
.
Swing Line Sublimit
means an amount equal to the lesser of (a) $5,000,000 and (b)
the Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility.
Synthetic Debt
means, with respect to any Person as of any date of determination
thereof, all obligations of such Person in respect of transactions entered into by such Person that
are intended to function primarily as a borrowing of funds but are not otherwise included in the
definition of
Indebtedness
or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP.
Synthetic Lease Obligation
means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).
Target
means the Person, business or division of any Person or substantially all of
the assets of a Person, acquired in an Acquisition.
28
Taxes
means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Term Borrowing
means a borrowing consisting of simultaneous Term Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the
Term Lenders pursuant to
Section 2.01(a)
.
Term Commitment
means, as to each Term Lender, its obligation to make Term Loans to
the Borrower pursuant to
Section 2.01(a)
in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Term Lenders name on
Schedule
2.01
under the caption Term Commitment or opposite such caption in the Assignment and
Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this Agreement which amount on the Closing
Date is $60,000,000.
Term Facility
means, at any time, the aggregate principal amount of the Term Loans
of all Term Lenders outstanding at such time.
Term Lender
means (a) at any time on or prior to the Closing Date, any Lender that
has a Term Commitment at such time and (b) at any time after the Closing Date, any Lender that
holds Term Loans at such time.
Term Lender
means, at any time, a Term Lender.
Term Loan
means an advance made by any Term Lender under the Term Facility.
Term Note
means a promissory note made by the Borrower in favor of a Term Lender
evidencing Term Loans made by such Term Lender, substantially in the form of
Exhibit C-1
.
Time Brokerage Agreement
means, with respect to a Broadcasting Station operated by a
Person, an agreement that results in the sale by a licensee of a Broadcasting Station of discrete
blocks of time to a broker that supplies the programming to fill such time block and sells the
commercial spot announcements in such time block.
Threshold Amount
means $2,500,000.
Total Revolving Credit Outstandings
means the aggregate Outstanding Amount of all
Revolving Credit Loans, Swing Line Loans and L/C Obligations.
Total Outstandings
means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
Type
means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.
UCC
means the Uniform Commercial Code as in effect in the State of New York;
provided
that, if perfection or the effect of perfection or non-perfection or the priority
of any
29
security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York,
UCC
means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions hereof relating to such
perfection, effect of perfection or non-perfection or priority.
Unfunded
Pension Liability
means the excess of a Pension Plans benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of
that Pension Plans assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.
United
States
and
U.S.
mean the United States of America.
Unreimbursed Amount
has the meaning specified in
Section 2.03(c)(i).
U.S. Loan Party
means any Loan Party that is organized under the laws of one of the
states of the United States of America and that is not a CFC.
1.02
Other Interpretive Provisions
. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words include,
includes and including shall be
deemed to be followed by the phrase without limitation. The word will shall be construed to
have the same meaning and effect as the word shall. Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such Persons
successors and assigns, (iii) the words herein,
hereof and hereunder, and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document
in which such references appear, (v) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law or regulation as
amended, modified or supplemented from time to time, and (vi) the words
asset
and
property
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the
word
from
means
from and
including
; the words
to
and
until
each mean
to but excluding;
and the word
through
means
to and including
.
30
(c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.
1.03
Accounting Terms
(a)
Generally
. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements,
except
as otherwise specifically prescribed herein.
(b)
Changes in GAAP
. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04
Rounding
. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05
Times of Day
. Unless otherwise specified, all references herein to times of day
shall be references to Eastern time (daylight or standard, as applicable).
1.06
Letter of Credit Amounts
. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time;
provided
,
however
, that with respect to any Letter of Credit
that, by its terms or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.
1.07
Currency Equivalents Generally
. Any amount specified in this Agreement (other
than in
Articles II
,
IX
and
X
) or any of the other Loan Documents to be in
Dollars shall also include the equivalent of such amount in any currency other than Dollars, such
equivalent amount thereof in the applicable currency to be determined by the Administrative Agent
at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency
with Dollars. For purposes of this
Section 1.07
, the
Spot Rate
for a currency
means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in
such
31
capacity as the spot rate for the purchase by such Person of such currency with another currency
through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date of such determination;
provided
that the Administrative
Agent may obtain such spot rate from another financial institution designated by the Administrative
Agent if the Person acting in such capacity does not have as of the date of determination a spot
buying rate for any such currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01
The Loans
. (a)
The Term Borrowing
. Subject to the terms and conditions
set forth herein, each Term Lender severally agrees to make a single loan to the Borrower on the
Closing Date in an amount not to exceed such Term Lenders Term Commitment. Each Term Borrowing
shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their
respective Applicable Percentage of the Term Facility. Amounts borrowed under this
Section
2.01(a)
and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
(b)
The Accordion Borrowing
. Subject to the terms and conditions set forth herein,
each Accordion Lender severally agrees to make loans to the Borrower from time to time, on any
Business Day during the period agreed to among the Borrower and the Accordion Lenders for the
Accordion Facility, which must be approved by the Administrative Agent, (such approval not to be
unreasonably withheld or delayed) in an aggregate amount not to exceed such Accordion Lenders
Accordion Commitment. Each Accordion Borrowing shall consist of Accordion Loans made simultaneously
by the Accordion Lenders in accordance with their respective Accordion Commitments and will be
advanced in increments of at least $10,000,000. Amounts borrowed under this
Section 2.01(b)
and repaid or prepaid may not be reborrowed. Accordion Loans may be Base Rate Loans or Eurodollar
Rate Loans as agreed to, in writing, among the Borrower and the Accordion Lenders which must be
approved by the Administrative Agent in writing (such approval not to be unreasonably withheld or
delayed).
(c)
The Revolving Credit Borrowings
. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a
Revolving Credit Loan
) to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of
such Lenders Revolving Credit Commitment;
provided
,
however
, that after giving
effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not
exceed the Revolving Credit Facility, and (ii) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Lender,
plus
such Revolving Credit Lenders Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations,
plus
such Revolving Credit
Lenders Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Revolving Credit Lenders Revolving Credit Commitment. Within the limits of
each Revolving Credit Lenders Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this
Section 2.01(c)
, prepay under
Section 2.05
, and reborrow under this
Section 2.01(c)
. Revolving Credit Loans may
be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
32
2.02
Borrowings, Conversions and Continuations of Loans
. (a) Each Term Borrowing,
each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrowers
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested
date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this
Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a
written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as
provided in
Sections 2.03(c)
and
2.04(c)
, each Borrowing of or conversion to Base
Rate Loans shall be in a principal amount of $100,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Term Borrowing, a Accordion Borrowing, a Revolving Credit Borrowing, a
conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or
Revolving Credit Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan
Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Term Loans or Revolving Credit Loans shall be made as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a Swing
Line Loan may not be converted to a Eurodollar Rate Loan. Each Accordion Borrowing shall be made as
agreed, in writing, among the Borrower and the Accordion Lenders and approved, in writing, by the
Administrative Agent.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the
applicable Term Loans or Revolving Credit Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify each Lender and
shall endeavor to provide an automatic continuation of a Eurodollar Rate Loan of the same Interest
Period, and failing to so automatically continue a Eurodollar Rate Loan there shall be an automatic
conversion to Base Rate Loans described in
Section 2.02(a)
. In the case of a Term Borrowing
or a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds
at the Administrative Agents
Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02
(and, if
such Borrowing is the initial Credit Extension,
Section 4.01)
, the Administrative Agent
shall make all funds so received available to the Borrower in like funds as
33
received by the Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower;
provided
,
however
, that if, on the date a Committed Loan
Notice with respect to a Revolving Credit Borrowing is given by the Borrower, there are L/C
Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing,
first
, shall
be applied to the payment in full of any such L/C Borrowings, and
second
, shall be made
available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of Americas prime rate used in
determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to
the other, and all continuations of Term Loans as the same Type, there shall not be more than 5
Interest Periods in effect in respect of the Term Facility. After giving effect to all Accordion
Borrowings, all conversions of Accordion Loans from one Type to the other, and all continuations of
Accordion Loans as the same Type, there shall not be more than 5 Interest Periods in effect in
respect of the Accordion Facility. After giving effect to all Revolving Credit Borrowings, all
conversions of Revolving Credit Loans from one Type to the other, and all continuations of
Revolving Credit Loans as the same Type, there shall not be more than 5 Interest Periods in effect
in respect of the Revolving Credit Facility.
2.03
Letters of Credit
. (a)
The Letter of Credit Commitment
. (i) Subject to
the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the
agreements of the Revolving Credit Lenders set forth in this
Section 2.03
, (1) from time to
time on any Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the Borrower and to amend Letters of
Credit previously issued by it, in accordance with
Section 2.03(b)
, and (2) to honor
drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower and any drawings
thereunder;
provided
that after giving effect to any L/C Credit Extension with respect to
any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving
Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any
Revolving Credit Lender,
plus
such Lenders Applicable Revolving Credit Percentage of the
Outstanding Amount of all L/C Obligations,
plus
such Lenders Applicable Revolving Credit
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lenders
Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed
the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so
34
requested complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers ability
to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance, unless the Required Revolving Lenders have approved such
expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry
date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit,
or any Law applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in good faith deems material to
it;
(B) the issuance of such Letter of Credit would violate one or more policies of the
L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such
Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or
(F) a default of any Lenders obligations to fund under
Section 2.03(c)
exists
or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has
entered into satisfactory arrangements with the Borrower or such Lender to eliminate the
L/C Issuers risk with respect to such Lender.
35
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not
be permitted at such time to issue such Letter of Credit in its amended form under the
terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith, and the L/C
Issuer shall have all of the benefits and immunities (A) provided to the Administrative
Agent in
Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer
in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term Administrative
Agent as used in
Article IX
included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b)
Procedures for Issuance and Amendment of Letters of Credit
. (i) Each Letter of
Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered
to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such
Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented
by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested
Letter of Credit; and (H) such other matters as the L/C Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer (1) the Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature
of the proposed amendment; and (4) such other matters as the L/C Issuer may require. Additionally,
the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
36
thereof. Unless the L/C Issuer has received written notice from any Revolving Credit
Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit, that one or
more applicable conditions contained in
Article IV
shall not then be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuers usual and
customary business practices. Immediately upon the issuance of each Letter of Credit, each
Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an
amount equal to the product of such Revolving Credit Lenders Applicable Revolving Credit
Percentage
times
the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.
(c)
Drawings and Reimbursements; Funding of Participations
. (i) Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on
the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an
Honor
Date
), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by
such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor
Date, the amount of the unreimbursed drawing (the
Unreimbursed Amount
), and the amount
of such Revolving Credit Lenders Applicable Revolving Credit Percentage thereof. In such event,
the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to
be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in
Section 2.02
for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Revolving Credit Commitments and
the conditions set forth in
Section 4.02
(other than the delivery of a Committed Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing;
provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender shall upon any notice pursuant to
Section
2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agents Office in an amount equal to its Applicable Revolving
Credit Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the provisions
of
Section 2.03(c)(iii)
, each Revolving Credit Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
37
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Credit Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02
cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which
L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest
at the Default Rate. In such event, each Revolving Credit Lenders payment to the Administrative
Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii)
shall be deemed
payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this
Section 2.03
.
(iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance
pursuant to this
Section 2.03(c)
to reimburse the L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lenders Applicable Revolving Credit Percentage of
such amount shall be solely for the account of the L/C Issuer.
(v) Each Revolving Credit Lenders obligation to make Revolving Credit Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c)
, shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing;
provided
,
however
, that each
Revolving Credit Lenders obligation to make Revolving Credit Loans pursuant to this
Section
2.03(c)
is subject to the conditions set forth in
Section 4.02
(other than delivery by
the Borrower of a Committed Loan Notice ). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this
Section 2.03(c)
by the time specified in
Section
2.03(c)(ii)
, the L/C Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by
the L/C Issuer in accordance with banking industry rules on interbank compensation,
plus
any administrative, processing or similar fees customarily charged by the L/C Issuer in connection
with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lenders Revolving Credit Loan included in the relevant
Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may
be. A certificate of the L/C Issuer submitted to any
38
Revolving Credit Lender (through the Administrative Agent) with respect to any amounts
owing under this
Section 2.03(c)(vi)
shall be conclusive absent manifest error.
(d)
Repayment of Participations.
(i) At any time after the L/C Issuer has made a
payment under any Letter of Credit and has received from any
Revolving Credit Lender such Lenders
L/C Advance in respect of such payment in accordance with
Section 2.03(c)
, if the
Administrative Agent receives for the account of the L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Applicable Revolving Credit Percentage
thereof in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to
Section 2.03(c)(i)
is required to be returned under any of the
circumstances described in
Section 11.05
(including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay
to the Administrative Agent for the account of the L/C Issuer its Applicable Revolving
Credit Percentage thereof on demand of the Administrative Agent,
plus
interest
thereon from the date of such demand to the date such amount is returned by such Lender, at
a rate per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e)
Obligations Absolute
. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement,
or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee
of such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such 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; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to
39
any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any of its Subsidiaries.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of
noncompliance with the Borrowers
instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f)
Role of L/C Issuer
. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Revolving Credit Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit;
provided
,
however
, that this
assumption is not intended to, and shall not, preclude the Borrowers pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under any other agreement.
None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of
the matters described in clauses (i) through (v) of
Section 2.03(e)
;
provided
,
however
, that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C Issuers willful
misconduct or gross negligence or the L/C Issuers willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
40
(g)
Cash Collateral
. Upon the request of the Administrative Agent, (i) if the
L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date,
any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.
Sections
2.05
and
8.02(c)
set forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this
Section 2.03
,
Section 2.05
and
Section
8.02(c)
,
Cash Collateralize
means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby
grants to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security
interest in all such cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts
at Bank of America. If at any time the Administrative Agent determines that any funds held as Cash
Collateral are subject to any right or claim of any Person other than the Administrative Agent or
that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C
Obligations, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to
the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any,
then held as Cash Collateral that the Administrative Agent determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as
Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to
reimburse the L/C Issuer.
(h)
Applicability of ISP and UCP
. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.
(i)
Letter of Credit Fees
. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the
Letter of Credit Fee
) for each Letter of Credit
equal to the Applicable Rate
times
the daily amount available to be drawn under such Letter
of Credit. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with
Section
1.06
. Letter of Credit Fees shall be (i) due and payable on the first Business Day after the
end of each March, June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable
Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall
be computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Revolving Lenders, while any Event of Default exists, all
Letter of Credit Fees shall accrue at the Default Rate.
41
(j)
Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer
. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily
amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period (or portion thereof,
in the case of the first payment), commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with
Section 1.06
. In addition,
the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(k)
Conflict with Issuer Documents
. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.
2.04
Swing Line Loans
. (a)
The Swing Line
. Subject to the terms and conditions
set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this
Section 2.04
, to make loans (each such loan, a
Swing Line
Loan
) to the Borrower from time to time on any Business Day during the Availability Period in
an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Revolving
Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lenders Revolving Credit
Commitment;
provided
,
however
, that after giving effect to any Swing Line Loan, (i)
the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility at such
time, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving
Credit Lender at such time,
plus
such Revolving Credit Lenders Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations at such time,
plus
such
Revolving Credit Lenders Applicable Revolving Credit Percentage of the Outstanding Amount of all
Swing Line Loans at such time shall not exceed such Lenders Revolving Credit Commitment, and
provided
further
that the Borrower shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Borrower may borrow under this
Section 2.04
, prepay under
Section 2.05
, and reborrow under this
Section 2.04
. Each Swing Line Loan shall bear
interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line Loan,
each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Revolving Credit Lenders Applicable Revolving Credit Percentage
times
the amount of such Swing Line Loan.
(b)
Borrowing Procedures
. Each Swing Line Borrowing shall be made upon the Borrowers
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and
42
the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $500,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line
Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly
after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m.
on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the first proviso to the first
sentence of
Section 2.04(a)
, or (B) that one or more of the applicable conditions specified
in
Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower.
(c)
Refinancing of Swing Line Loans
. (i) The Swing Line Lender at any time in its sole
and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes
the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base
Rate Loan in an amount equal to such Lenders Applicable Revolving Credit Percentage of the amount
of Swing Line Loans then outstanding. Such request shall be made in writing (which written request
shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the
requirements of
Section 2.02
, without regard to the minimum and multiples specified therein
for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving
Credit Facility and the conditions set forth in
Section 4.02
. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal to
its Applicable Revolving Credit Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds for the account of the Swing
Line Lender at the Administrative Agents Office not later than 1:00 p.m. on the day specified in
such Committed Loan Notice, whereupon, subject to
Section 2.04(c)(ii)
, each Revolving
Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing
Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with
Section 2.04(c)(i)
, the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a
request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk
participation in the relevant Swing Line Loan and each Revolving Credit Lenders payment to
the Administrative Agent for the account of the Swing Line Lender pursuant to
Section
2.04(c)(i)
shall be deemed payment in respect of such participation.
43
(iii) If any Revolving Credit Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this
Section 2.04(c)
by the time
specified in
Section 2.04(c)(i)
, the Swing Line Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation,
plus
any
administrative, processing or similar fees customarily charged by the Swing Line Lender in
connection with the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lenders Committed Loan included in
the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan,
as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.
(iv) Each Revolving Credit Lenders obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this
Section
2.04(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided
,
however
, that each Revolving Credit Lenders obligation to make
Revolving Credit Loans and, for avoidance of doubt, the conditions set forth in
Section
4.02
do not qualify each Revolving Credit Lenders obligation to purchase and fund risk
participations in Swing Line Loans pursuant to this
Section 2.04(c)
is subject to
the conditions set forth in
Section 4.02
. No such funding of risk participations
shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.
(d)
Repayment of Participations
. (i) At any time after any Revolving Credit Lender has
purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such
Revolving Credit Lender its Applicable Revolving Credit Percentage thereof in the same funds as
those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in
Section 11.05
(including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit
Lender shall pay to the Swing Line Lender its Applicable Revolving Credit Percentage
thereof on demand of the Administrative Agent,
plus
interest thereon from the date
of such demand to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate. The Administrative Agent will make such demand upon the request
44
of the Swing Line Lender. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.
(e)
Interest for Account of Swing Line Lender
. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving
Credit Lender funds its Base Rate Loan or risk participation pursuant to this
Section 2.04
to refinance such Revolving Credit Lenders Applicable Revolving Credit Percentage of any Swing
Line Loan, interest in respect of such Applicable Revolving Credit Percentage shall be solely for
the account of the Swing Line Lender.
(f)
Payments Directly to Swing Line Lender
. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.05
Prepayments
. (a)
Optional
. (i) Subject to the last sentence of this
Section 2.05(a)(i)
, the Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Term Loans, Accordion Loans and Revolving Credit Loans in
whole or in part without premium or penalty;
provided
that (A) such notice must be received
by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $100,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the date
and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans
are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of such Lenders ratable
portion of such prepayment (based on such Lenders Applicable Percentage in respect of the relevant
Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to
Section 3.05
. Each
prepayment of the outstanding Term Loans pursuant to this
Section 2.05(a)
shall be applied
first to the Term Facility and after it is repaid in full to the Accordion Facility and (y) to the
respective principal repayment installments thereof in inverse order of maturity, and each such
prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages
in respect of each of the relevant Facilities.
(ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line
Loans in whole or in part without premium or penalty;
provided
that (A) such notice
must be received by the Swing Line Lender and the Administrative Agent not later than 1:00
p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum
principal amount of $500,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein.
45
(b)
Mandatory
.
(i) If (1) the Borrower or any of its Subsidiaries Disposes of any property (other than the
sale of inventory in the ordinary course of business, the Disposition of Cash Equivalents, or the
Disposition of any assets by the Borrower or a Subsidiary to the Borrower or a Subsidiary) which
results in the realization by such Person of Net Cash Proceeds, the Borrower or such Subsidiary
shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds
immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in
clauses (vi) and (ix) below);
provided
,
however
, that, with respect to any Net Cash
Proceeds realized so long as no Default or Event of Default shall have occurred and be continuing,
the Borrower, at its election, or such Subsidiary, may reinvest all or any portion of such Net Cash
Proceeds from (i) sales of obsolete or worn out equipment no longer used or useful in the operation
of the business of the Borrower and its Subsidiaries, or (ii) sales of assets with a fair market
value not in excess of $2,000,000, in the aggregate, in any calendar year, provided that the
Borrower may retain up to $750,000 of such annual aggregate amount and all amounts between $750,001
and $2,000,000 may be reinvested in operating assets so long as within 180 days after the receipt
of such Net Cash Proceeds, such reinvestment shall have been consummated or which reinvestment is
subject to a binding written agreement with a third party which is not an Affiliate of Borrower
which agreement was entered into during such 180-day time period and which reinvestment is
consummated within 60 days after such 180-day period expires (as certified by the Borrower in
writing to the Administrative Agent upon request); and
provided
further
,
however
, that any Net Cash Proceeds not so reinvested shall be immediately applied to the
prepayment of the Loans as set forth in
Section 2.05(b)(iv)
; or (2) the Borrower or any of
its Subsidiaries are required to make a prepayment of the Loans from the proceeds of insurance as
provided in Section 3(d) of the Security Agreements.
(ii) Upon the sale or issuance by the Borrower of any of its Equity Interests, the Borrower
shall prepay an aggregate principal amount of Loans equal to 50% of all Net Cash Proceeds received
therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to
be applied as set forth in clauses (vi) below).
(iii) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any
Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to
Section 7.02)
, the Borrower shall prepay an aggregate principal amount of Loans equal to
100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower
or such Subsidiary (such prepayments to be applied as set forth in clauses (vi) below).
(iv) Each prepayment of Loans pursuant to the foregoing provisions of this
Section
2.05(b)
shall be applied,
first
, to the Term Facility and to the respective principal
repayment installments thereof in inverse order of maturity
second
, after the Term Facility
had been paid in full, to the Accordion Facility and to the respective principal repayment
installments thereof in inverse order of maturity and, after the Accordion Facility has been paid
in full,
third
, to the Revolving Credit Facility in the manner set forth in clause (vi) of
this
Section 2.05(b)
.
46
(v) If for any reason the Total Revolving Credit Outstandings at any time exceed the
Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving
Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C
Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vi) Prepayments of the Revolving Credit Facility made pursuant to this
Section
2.05(b)
,
first
, shall be applied ratably to the L/C Borrowings and the Swing
Line Loans,
second
, shall be applied ratably to the outstanding Revolving Credit
Loans, and,
third
, if a Default or Event of Default has occurred shall be used to
Cash Collateralize the remaining L/C Obligations;. Upon the drawing of any Letter of Credit
that has been Cash Collateralized, the funds held as Cash Collateral shall be applied
(without any further action by or notice to or from the Borrower or any other Loan Party)
to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
2.06
Termination or Reduction of Commitments
. (a)
Optional
. The Borrower may,
upon notice to the Administrative Agent, terminate the Revolving Credit Facility, the Letter of
Credit Sublimit or the Swing Line Sublimit, or from time to time permanently reduce the Revolving
Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit;
provided
that
(i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five
Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall
be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and
(iii) the Borrower shall not terminate or reduce (A) the Revolving Credit Facility if, after giving
effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings
would exceed the Revolving Credit Facility, (B) the Letter of Credit Sublimit if, after giving
effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder
would exceed the Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after giving effect
thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans
would exceed the Letter of Credit Sublimit.
(b)
Mandatory
. (i) The aggregate Term Commitments shall be automatically and
permanently reduced to zero on the date of the Term Borrowing; or
(ii) The aggregate Accordion Commitments, if created, shall be automatically and
permanently reduced to zero as agreed to, in writing, among the Accordion Lenders and the
Borrower and approved, in writing, by the Administrative Agent.
(c)
Application of Commitment Reductions; Payment of Fees
. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit,
Swing Line Sublimit or the Revolving Credit Commitment under this
Section 2.06
. Upon any
reduction of the Revolving Credit Commitments, the Revolving Credit Commitment of each Revolving
Credit Lender shall be reduced by such Lenders Applicable Revolving Credit Percentage of such
reduction amount. All fees in respect of the Revolving Credit Facility accrued until the effective
date of any termination of the Revolving Credit Facility shall be paid on the effective date of
such termination.
47
2.07
Repayment of Loans
. (a)
Term Loans
. The Borrower shall repay to the Term
Lenders on the last Business Day of each March, June, September and
December (each a Principal
Payment Date) commencing on September 30, 2011, a principal payment in the amount of Seven Hundred
Fifty Thousand Dollars ($750,000) as long as the Maximum Consolidated Leverage Ratio is greater
than 2.00:1.00 on a Principal Payment Date based upon the then most recently delivered financial
statements. So long as no Default or Event of Default has occurred and is continuing and the
Maximum Consolidated Leverage Ratio is equal to or less than 2.00:1.00 on a Principal Payment Date,
no amortization payment is required on such Principal Payment Date. The Maximum Consolidated
Leverage Ratio will be calculated as of the end of each fiscal quarter on a trailing four quarter
basis. Catch up payments will not be required for payments which were not required to be made on a
Principal Payment Date as provided in this
Section 2.07(a)
;
provided
,
however
, that the final principal repayment installment of the Term Loans shall be repaid
on the Maturity Date for the Term Facility and in any event shall be in an amount equal to the
aggregate principal amount of all Term Loans outstanding on such date.
(b)
Accordion Loans
. The Borrower shall repay to the Accordion Lenders the aggregate
principal amount of all Accordion Loans outstanding in accordance with any written agreement among
the Accordion Lenders and the Borrower and which must be approved, in writing, by the
Administrative Agent.
(c)
Revolving Credit Loans
. The Borrower shall repay to the Revolving Credit Lenders
on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all
Revolving Credit Loans outstanding on such date.
(d)
Swing Line Loans
. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date for the
Revolving Credit Facility.
2.08
Interest
. (a) Subject to the provisions of
Section 2.08(b),
(i) each
Eurodollar Rate Loan under a Facility shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest
Period
plus
the Applicable Rate for such Facility; (ii) each Base Rate Loan under a
Facility shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate
plus
the Applicable Rate for such
Facility; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus
the Applicable Rate for the Revolving Credit Facility.
(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the Borrower under
any Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request
48
of the Required Lenders such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate
to the fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.
2.09
Fees
. In addition to certain fees described in
Sections 2.03(i) and
(j):
(a)
Commitment Fee
. The Borrower shall pay to the Administrative Agent for the account
of each Revolving Credit Lender in accordance with its Applicable Revolving Credit Percentage, a
commitment fee equal to the Applicable Rate
times
the actual daily amount by which the
Revolving Credit Facility exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans
and (ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or more of the conditions in
Article IV
is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the last day of the Availability Period for the Revolving
Credit Facility. The commitment fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b)
Other Fees
. (i) The Borrower shall pay to the Arranger and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.
2.10
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
. (a)
All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of
Americas prime rate shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed (which results in more fees or interest, as
49
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid,
provided
that any Loan that
is repaid on the same day on which it is made shall, subject to
Section 2.12(a),
bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate
and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case
may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, automatically and without further action by the Administrative Agent, any Lender or
the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have
been paid for such period over the amount of interest and fees actually paid for such period. This
paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as
the case may be, under Section
2.03(c)(iii),
2.03(i)
or
2.08(b)
or under
Article VIII
. The Borrowers obligations under this paragraph shall survive the
termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
2.11
Evidence of Debt
. (a) The Credit Extensions made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of
any conflict between the accounts and records maintained by any Lender and the accounts and records
of the Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender
made through the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such
Lenders Loans in addition to
such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in
Section 2.11(a)
, each
Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and records maintained by
the Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.
50
2.12
Payments Generally; Administrative Agents Clawback
. (a)
General
.
All payments to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the
Administrative Agents Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in
respect of the relevant Facility (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lenders Lending Office. All payments received by
the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected on computing interest or
fees, as the case may be.
(b) (i)
Funding by Lenders; Presumption by Administrative Agent
. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
12:00 noon on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with
Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available
in accordance with and at the time required by
Section 2.02
) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation,
plus
any administrative,
processing or similar fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate
applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lenders Loan included in such Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.
(ii)
Payments by Borrower; Presumptions by Administrative Agent
. Unless the
Administrative Agent shall have received notice from the Borrower prior to the time at
which any payment is due to the Administrative Agent for the account of the Lenders or the
L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such
51
date in accordance herewith and may, in reliance upon such assumption, distribute to the
Appropriate Lenders or the L/C Issuer, as the case may be, the amount due. In such event,
if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or
the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.
(c)
Failure to Satisfy Conditions Precedent
. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this
Article II
, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(d)
Obligations of Lenders Several
. The obligations of the Lenders hereunder to make
Term Loans and Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line
Loans and to make payments pursuant to
Section 11.04(c)
and, if established, Accordion
Loans, are several and not joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under
Section 11.04(c)
on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase
its participation or to make its payment under
Section 11.04(c)
.
(e)
Funding Source
. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.
(f)
Insufficient Funds
. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i)
first
, toward payment
of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii)
second
, toward
payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.
2.13
Sharing of Payments by Lenders
. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any
the Facilities due and payable to such Lender hereunder and under the other Loan
52
Documents at such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount
of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under
the other Loan Documents at such time) of payments on account of the Obligations in respect of the
Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time
obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities
owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate
amount of the Obligations in respect of the Facilities owing (but not due and payable) to all
Lenders hereunder and under the other Loan Parties at such time) of payment on account of the
Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder
and under the other Loan Documents at such time obtained by all of the Lenders at such time then
the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations
in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as
shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of Obligations in respect of the Facilities then due and
payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be,
provided
that:
(i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof
(as to which the provisions of this Section shall apply).
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01
Taxes
. (a)
Payments Free of Taxes; Obligation to Withhold; Payments on Account of
Taxes
. (i) Any and all payments by or on account of any obligation of the Borrower hereunder or
under any other Loan Document shall to the extent permitted by applicable Laws be made free and
clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require
the Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld
or deducted in accordance with such Laws as determined by the Borrower or the Administrative Agent,
as the case may be, upon the basis of the information and documentation to be delivered pursuant to
subsection (e) below.
53
(ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or
make such deductions as are determined by the Administrative Agent to be required based
upon the information and documentation it has received pursuant to subsection (e) below,
(B) the Administrative Agent shall timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer,
as the case may be, receives an amount equal to the sum it would have received had no such
withholding or deduction been made.
(b)
Payment of Other Taxes by the Borrower
. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c)
Tax Indemnifications
. (i) Without limiting the provisions of subsection (a) or (b)
above, the Borrower shall, and does hereby indemnify the Administrative Agent, each Lender and the
L/C Issuer, and shall make payment in respect thereof within 10 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted
by the Borrower or the Administrative Agent or paid by the Administrative Agent, such Lender or the
L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrower
shall also, and does hereby indemnify the Administrative Agent, and shall make payment in respect
thereof within 10 days after demand therefor, for any amount which a Lender or the L/C Issuer for
any reason fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this
subsection. A certificate as to the amount of any such payment or liability delivered to the
Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.
(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and
the L/C Issuer shall, and does hereby, indemnify the Borrower and the Administrative Agent,
and shall make payment in respect thereof within 10 days after demand therefor, against any
and all Taxes and any and all related losses, claims, liabilities, penalties, interest and
expenses (including the fees, charges and disbursements of any counsel for the Borrower or
the Administrative Agent) incurred by or asserted against the Borrower or the
Administrative Agent by any Governmental Authority as a result of the failure by such
Lender or the L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such Lender or
the L/C Issuer, as the case may be, to the Borrower or the
54
Administrative Agent pursuant to subsection (e). Each Lender and the L/C Issuer hereby
authorizes the Administrative Agent to set off and apply any and all amounts at any time
owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any
other Loan Document against any amount due to the Administrative Agent under this clause
(ii). The agreements in this clause (ii) shall survive the resignation and/or replacement
of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender
or the L/C Issuer, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all other Obligations.
(d)
Evidence of Payments.
Upon request by the Borrower or the Administrative Agent,
as the case may be, after any payment of Taxes by the Borrower or the Administrative Agent to a
Governmental Authority as provided in this
Section 3.01
, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(e)
Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lenders entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lenders status for withholding tax
purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if the Borrower is resident for
tax purposes in the United States,
(A) any Lender that is a United States person within the meaning of
Section 7701(a)(30) of the Code shall deliver to the Borrower and the
Administrative Agent executed originals of Internal Revenue Service Form W-9 or
such other documentation or information prescribed by applicable Laws or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower
or the Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements; and
(B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to
payments hereunder or under any other Loan Document shall deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender
55
becomes a Lender under this Agreement (and from time to time thereafter upon the
request of the Borrower or the Administrative Agent, but only if such Foreign
Lender is legally entitled to do so), whichever of the following is applicable:
(I) executed originals of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(II) executed originals of Internal Revenue Service Form W-8ECI,
(III) executed originals of Internal Revenue Service Form W-8IMY and
all required supporting documentation,
(IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a bank
within the meaning of section 881(c)(3)(A) of the Code, (B) a 10 percent
shareholder of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a controlled foreign corporation described in section
881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or
(V) executed originals of any other form prescribed by applicable
Laws as a basis for claiming exemption from or a reduction in United
States Federal withholding tax together with such supplementary
documentation as may be prescribed by applicable Laws to permit the
Borrower or the Administrative Agent to determine the withholding or
deduction required to be made.
(iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed exemption
or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in
the reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding or
deduction for taxes from amounts payable to such Lender.
(f)
Treatment of Certain Refunds
. Unless required by applicable Laws, at no time shall
the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender
or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of
Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the
case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
56
refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund),
provided
that the Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid
over to the Borrower (
plus
any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative Agent,
any Lender or the L/C Issuer to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person.
3.02
Illegality
. If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest
rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.
3.03
Inability to Determine Rates.
If the Required Lenders determine that for any
reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of
the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any
pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a Committed
Borrowing of Base Rate Loans in the amount specified therein.
57
3.04
Increased Costs; Reserves on Eurodollar Rate Loans
. (a)
Increased Costs
Generally
. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by
Section 3.04(e))
or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by
Section 3.01
and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b)
Capital Requirements.
If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender
s or the L/C Issuers holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lenders or the L/C Issuers capital or on the
capital of such Lenders or the L/C Issuers holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lenders or the L/C Issuers holding company could
have achieved but for such Change in Law (taking into consideration
such Lenders or the L/C
Issuers policies and the policies of such Lenders or the L/C Issuers holding company with
respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer or such Lenders or the L/C Issuers holding company for any such reduction
suffered.
(c)
Certificates for Reimbursement
. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or
its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
58
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d)
Delay in Requests
. Failure or delay on the part of any Lender or the L/C Issuer to
demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lenders or the L/C Issuers right to demand such compensation, provided that the
Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions suffered more than nine
months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lenders or the L/C Issuers intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).
(e)
Reserves on Eurodollar Rate Loans
. The Borrower shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently
known as Eurocurrency
liabilities), additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan,
provided
the Borrower shall have
received at least 10 days prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.
3.05
Compensation for Losses
. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to
Section 11.13
;
including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
59
For
purposes of calculating amounts payable by the Borrower to the
Lenders under this
Section 3.05
,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate
Loan was in fact so funded.
3.06
Mitigation Obligations; Replacement of Lenders
. (a)
Designation of a
Different Lending Office
. If any Lender requests compensation under
Section 3.04
, or
the Borrower is required to pay any additional amount to any Lender, the L/C Issuer, or any
Governmental Authority for the account of any Lender or the L/C Issuer pursuant to
Section
3.01
, or if any Lender gives a notice pursuant to
Section 3.02
, then such Lender or the
L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Lender or the L/C Issuer, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section
3.01
or
3.04
, as the case may be, in the future, or eliminate the need for the notice
pursuant to
Section 3.02
, as applicable, and (ii) in each case, would not subject such
Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in
connection with any such designation or assignment.
(b)
Replacement of Lenders
. If any Lender requests compensation under
Section
3.04
, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 3.01
, the Borrower
may replace such Lender in accordance with
Section 11.13
.
3.07
Survival
. All of the Borrowers obligations under this
Article III
shall
survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01
Conditions of Initial Credit Extension
. The obligation of the L/C Issuer and each
Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:
(a) The Administrative Agents receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and each in form and
substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;
60
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a pledge and security agreement, in substantially the form of
Exhibit G
(together with each other pledge and security agreement and pledge and security agreement
supplement delivered pursuant to
Section 6.12
, in each case as amended, the
Security
Agreement
), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by
undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed
in blank (to the extent such Pledged Equity is certificated),
(B) stamped receipt copies of proper financing statements, duly filed on or before the
day of the initial Credit Extension under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in order to perfect the Liens
created under the Security Agreement, covering the Collateral described in the Security
Agreement,
(C) completed requests for information, dated on or before the date of the initial
Credit Extension, listing the financing statements referred to in clause (B) above and all
other effective financing statements filed in the jurisdictions referred to in clause (B)
above that name any Loan Party as debtor, together with copies of such other financing
statements,
(D) evidence of the completion of all other actions, recordings and filings of or with
respect to the Security Agreement that the Administrative Agent may deem necessary or
desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may deem necessary or
desirable in order to perfect the Liens created under the Security Agreement has been taken
(including receipt of duly executed payoff letters, UCC-3 termination statements and
termination of any landlords and bailees waiver and consent agreements);
(iv) landlord waivers or collateral access agreements in form and substance satisfactory to
the Administrative Agent for any material leased headquarters location, excluding the Norfolk, VA
location, as the Administrative Agent shall have requested;
(v) an intellectual property security agreement, in substantially the form of
Exhibit
I
(together with each other intellectual property security agreement and intellectual property
security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the
Intellectual Property Security Agreement
), duly executed by each Loan Party, together
with evidence that all action that the Administrative Agent may deem necessary or desirable in
order to perfect the Liens created under the Intellectual Property Security Agreement has been
taken;
61
(vi) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and
the other Loan Documents to which such Loan Party is a party or is to be a party;
(vii) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each of the
Borrower and its Subsidiaries are validly existing, in good standing and qualified to
engage in business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a favorable opinion of Bodman, counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters set forth in
Exhibit J-1
and such other matters concerning the Loan Parties and the Loan Documents as the Required
Lenders may reasonably request;
(ix) a favorable opinion of Smithwick & Belendiuk, P.C., special communications
counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in the
form set forth in
Exhibit J-2
and such other matters concerning the Loan Parties
and the Loan Documents as the Required Lenders may reasonably request;
(x) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in
Sections 4.02(a)
and
(b)
have been satisfied
and (B) that there has been no event or circumstance since the date of the Audited
Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;
(xi) a business plan and budget of the Borrower and its Subsidiaries on a consolidated
basis, materially in the form attached hereto as Schedule 4.01(a)(xi);
(xii) certificates attesting to the Solvency of each Loan Party before and after
giving effect to the Loans, from its chief financial officer; and
(xiii) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect, together with the certificates of insurance,
naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss
payee, as the case may be, under all insurance policies maintained with respect to the
assets and properties of the Loan Parties that constitutes Collateral.
(b) (i) All fees required to be paid to the Administrative Agent and the Arranger on or before
the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or
before the Closing Date shall have been paid.
62
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (
provided
that such estimate shall not thereafter preclude a final
settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 15, 2011.
(e) The Lenders shall have completed a due diligence investigation of the Borrower, in scope,
and with results, satisfactory to the Lenders, and shall have been given such access to the
management, records, books of account, contracts and properties of the Borrower and shall have
received such financial, business and other information regarding each of the foregoing Persons and
businesses as they shall have requested; All of the information made available to the
Administrative Agent prior to date of Commitment Letter shall be complete and correct in all
material respects; and no changes or developments shall have occurred, and no new or additional
information shall have been received or discovered by the Administrative Agent or the Lenders
regarding the Borrower, that either individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
Without limiting the generality of the provisions of the last paragraph of
Section 9.03
,
for purposes of determining compliance with the conditions specified in this
Section 4.01
,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date specifying its objection
thereto.
4.02
Conditions to all Credit Extensions
. The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of
Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following
conditions precedent:
(a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V
or any other Loan Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct in all material respects on
and as of the date of such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and correct in
all material respects as of such earlier date, and except that for purposes of this
Section
4.02
, the representations and warranties contained in
Sections 5.05(a)
and
(b)
shall be deemed to refer to the most recent statements furnished
pursuant to
Sections 6.01(a)
and
(b)
, respectively.
(b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.
63
(c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall
have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the
Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b)
have been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
5.01
Existence, Qualification and Power
. Each Loan Party and each of its Subsidiaries
(a) is duly organized or formed, validly existing and, as applicable, in good standing under the
Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and
authority and all requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is
licensed and, as applicable, in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.02
Authorization; No Contravention.
The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is or is to be a party have been duly
authorized by all necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Persons Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, or require any payment to be
made under (i) any Material Contract to which such Person is a party or affecting such Person or
the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or
decree of any Governmental Authority or (iii) any arbitral award to which such Person or its
property is subject where such conflict could reasonably be expected to have a Material Adverse
Effect; or (c) violate any Law where such violation could reasonably be expected to have a Material
Adverse Effect.
5.03
Governmental Authorization; Other Consents
. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority
(including, without limitation, the FCC and the SEC) or any other Person is necessary or required
in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan
Party of this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens
granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens
created under the Collateral Documents (including the first priority nature thereof subject to such
Liens as are permitted hereby) or (d) the exercise by the Administrative Agent or any Lender of its
rights under the Loan Documents or the remedies in
64
respect of the Collateral pursuant to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings listed on
Schedule 5.03
, all of which have been
duly obtained, taken, given or made and are in full force and effect and the filing of a copy of
the Credit Agreement and the Collateral Documents with the FCC and the filing of a copy of the
Credit Agreement with the Securities and Exchange Commission in accordance with applicable law,
which filings (or the failure to file) do not affect the validity or enforceability of the Loan.
5.04
Binding Effect
. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto in accordance with its terms except as enforcement thereof may be
limited by applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors rights, generally and by general principles of
equity (regardless of whether enforcement is considered in a proceeding in law or equity).
5.05
Financial Statements; No Material Adverse Effect
. (a) The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness.
(b) The unaudited consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries dated March 31, 2011, and the related consolidated and consolidating statements of
income or operations, shareholders equity and cash flows for the fiscal quarter ended on that date
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05
sets forth
all material indebtedness and other liabilities, direct or contingent, of the Borrower and its
consolidated Subsidiaries as of the date of such financial statements, including liabilities for
taxes, material commitments and Indebtedness not disclosed in such financial statements.
(c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.
(d) The consolidated and consolidating forecasted balance sheet, statements of income and cash
flows of the Borrower and its Subsidiaries delivered pursuant to
Section 4.01
or
Section 6.01(d)
were prepared in good faith on the basis of the assumptions stated therein,
which assumptions were fair in light of the conditions existing at the time of delivery of such
forecasts,
65
and
represented, at the time of delivery, the Borrowers best estimate of its future financial
condition and performance and are not a guaranty of future performance.
5.06
Litigation
. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental Authority (including,
without limitation, the FCC and the SEC), by or against the Borrower or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or pertain to this
Agreement, any other Loan Document or (b) either individually or in the aggregate, if determined
adversely, could reasonably be expected to have a Material Adverse Effect.
5.07
No Default
. Neither the Borrower nor any Subsidiary thereof is in default under
or with respect to, or a party to, any Contractual Obligation that could, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred
and is continuing or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.
5.08
Ownership of Property; Liens; Investments
. (a) The Borrower and each of its
Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary in the ordinary conduct of its business, except for such defects in
title as could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(b)
Schedule 5.08(b)
sets forth, as of the Closing Date, a complete and accurate list
of all Liens other than Liens created or permitted by the Loan Documents on the property or assets
of the Borrower and each of its Subsidiaries, showing as of the date hereof the lienholder thereof,
the principal amount of the obligations secured thereby and the property or assets of such Loan
Party or such Subsidiary subject thereto. The property of each Loan Party and each of its
Subsidiaries is subject to no Liens, other than Liens set forth on
Schedule 5.08(b)
, and as
otherwise permitted by
Section 7.01
.
(c)
Schedule 5.08(c)
sets forth, as of the Closing Date, a complete and accurate list
of all real property owned by the Borrower and each of its Subsidiaries, showing the street address
or other relevant jurisdiction, state and record owner. The Borrower and each of its Subsidiaries
has good, marketable and insurable fee simple title to the real property owned by such Loan Party
or such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan
Documents.
(d) (i)
Schedule 5.08(d)(i)
sets forth, as of the Closing Date, a complete
and accurate list of all leases of real property under which the Borrower or any Subsidiary of a
Loan Party is the lessee, showing as of the date hereof the street address, county or other
relevant jurisdiction, state, lessor and lessee.
(ii)
Schedule 5.08(d)(ii)
sets forth, as of the Closing Date, a complete and
accurate list of all leases of real property under which any Loan Party or any Subsidiary
of a Loan Party is the lessor, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, lessor, lessee and expiration date.
66
(e)
Schedule 5.08(e)
sets forth a complete and accurate list of all Investments held
by any Loan Party or any Subsidiary of a Loan Party on the date hereof, other than Acquisitions and
Investments held by one Loan Party in another Loan Party showing as of the date hereof the amount,
obligor or issuer and maturity, if any, thereof.
5.09
Environmental Compliance
. The Loan Parties and their respective Subsidiaries
conduct in the ordinary course of business a review of the effect of existing Environmental Laws
and claims alleging potential liability or responsibility for violation of any Environmental Law on
their respective businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that such Environmental Laws and claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.10
Insurance
. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the Borrower or the
applicable Subsidiary operates.
5.11
Taxes
. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.
5.12
ERISA Compliance
. (a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and no application for
a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
67
to incur, any liability (and no event has occurred which, with the giving of notice under Section
4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to
a Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
5.13
Subsidiaries; Equity Interests; Loan Parties
. As of the Closing Date, the
Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule
5.13
, and all of the outstanding Equity Interests in such Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by a Loan Party in the amounts specified on
Part (a) of
Schedule 5.13
free and clear of all Liens except those created under the
Collateral Documents. The Borrower has no equity investments in any other corporation or entity
other than those specifically disclosed in Part (b) of
Schedule 5.13
. Set forth on Part (d)
of
Schedule 5.13
is a complete and accurate list of all Loan Parties, showing as of the
Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address of its
principal place of business and its U.S. taxpayer identification number or, in the case of any
non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique
identification number issued to it by the jurisdiction of its incorporation. The copy of the
charter of each Loan Party and each amendment thereto, as of the Closing Date, provided pursuant to
Section 4.01(a)(vii)
is a true and correct copy of each such document, each of which is
valid and in full force and effect.
5.14
Margin Regulations; Investment Company Act
. (a) The Borrower is not engaged and
will not engage, principally or as one of its important activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an investment company under the Investment Company Act of 1940.
5.15
Disclosure
. The Borrower has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. No report, financial
statement, certificate or other information furnished (whether in writing or orally) by or on
behalf of any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or
under any other Loan Document (in each case as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
provided
that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
5.16
Compliance with Laws
. Each Loan Party and each Subsidiary thereof is in
compliance in all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being contested in good faith
by
68
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17
Broadcasting Business
. (a) Each of the Borrower and its Subsidiaries are the
holders of all FCC Licenses duly issued in respect of all Broadcasting Stations owned and operated
by the Borrower and its Subsidiaries. As of the Closing Date, all of the FCC Licenses issued to the
Borrower or any of its Subsidiaries are as set forth on
Schedule 5.17
. Such FCC Licenses
constitute all of the authorizations by the FCC or any other Governmental Authority necessary for
the operation of the business of the Borrower and its Subsidiaries substantially in the manner
presently being conducted by it, and such FCC Licenses are validly issued and in full force and
effect, unimpaired by any act or omission by the Borrower or its Subsidiaries. To the best of the
Borrowers knowledge, except as set forth in
Schedule 5.17
, neither the Borrower nor any of
its Subsidiaries is a party to any investigation, notice of violation, order or complaint issued by
or before the FCC which could reasonably be expected to have a Material Adverse Effect. Except for
applications for renewal of FCC Licenses that are pending or may become pending during the term of
this Credit Agreement, such proceedings that affect the radio or television broadcasting industry
generally and as set forth in
Schedule 5.17
, there are no proceedings by or before the FCC,
which could in any manner materially threaten or adversely affect the validity of any of such FCC
Licenses. Neither the Borrower nor any of its Subsidiaries has knowledge of a threat of any
investigation, notice of violation, order, complaint or proceeding before the FCC which could
reasonably be expected to have a Material Adverse Effect or has any reason to believe that any of
such FCC License will not be renewed in the ordinary course.
(b) The Borrower and each of its Subsidiaries (i) have duly and timely filed all filings which
are required to be filed by the Borrower and such Subsidiary under the Communications Act and the
rules and regulations of the FCC, the failure to file of which could reasonably be expected to have
a Material Adverse Effect, and (ii) are in all respects in compliance with the Communications Act,
including the rules and regulations of the FCC relating to the transmission of radio and television
signals, the failure to comply of which could reasonably be expected to have a Material Adverse
Effect.
(c) Except as set forth on
Schedule 5.17
, as of the Closing Date, neither the Borrower
nor any of its Subsidiaries is a party to any Local Marketing Agreement or Time Brokerage
Agreement.
(d) As of the Closing Date, none of the Auxiliary Licenses, Secondary Station Licenses,
Satellite Earth Station Licenses (as such term is defined in the Communication Act) or Relocation
Weather Radar Licenses (as such term is defined in the Communication Act) are material to the
business of the Borrower or any of its Subsidiaries.
5.18
Solvency
. Each Loan Party is, individually and together with its Subsidiaries on
a consolidated basis, Solvent.
5.19
Casualty, Etc
. Neither the businesses nor the properties of any Loan Party or any
of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor
69
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding
(excluding any Bank Product Obligation and contingent indemnity and reimbursement obligations which
survive termination of the Loan Documents and in respect of which no claim has been made), the
Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01
,
6.02
,
6.03
and
6.11
) cause each Subsidiary to:
6.01
Financial Statements
. Deliver to the Administrative Agent and each Lender, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 100 days after the end of each fiscal year
of the Borrower, a consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year, and the related consolidated and consolidating
statements of income or operations, changes in shareholders equity, and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be
audited and accompanied by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders, which report and
opinion shall be prepared in accordance with generally accepted auditing standards and shall not be
subject to any going concern or like qualification or exception or any qualification or exception
as to the scope of such audit, and such consolidating statements to be certified by the chief
executive officer, chief financial officer, treasurer or controller of the Borrower to the effect
that such statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Borrower and its Subsidiaries;
(b) as soon as available, but in any event within 55 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, a consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated and consolidating statements of income or operations,
changes in shareholders equity,
and cash flows for such fiscal quarter and for the portion of the
Borrowers fiscal year then
ended, setting forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all
in reasonable detail, such consolidated statements to be certified by the chief executive officer,
chief financial officer, treasurer or controller of the Borrower as fairly presenting the financial
condition, results of operations, shareholders equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes and such consolidating statements to be certified by the chief executive
officer, chief financial officer, treasurer or controller of the Borrower to
70
the effect that such statements are fairly stated in all material respects when considered in
relation to the consolidated financial statements of the Borrower and its Subsidiaries; and
(c) as soon as available, but in any event at least 30 days after the end of each fiscal year
of the Borrower, an annual business plan and budget of the Borrower and its Subsidiaries,
materially in form as set forth on Schedule 4.01(a)(xi), for such fiscal year.
As to any information contained in materials furnished pursuant to
Section 6.02(d)
, the
Borrower shall not be separately required to furnish such information under
Section 6.01(a)
or
(b)
above, but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in
Sections 6.01(a)
and
(b)
above at the times specified therein.
6.02
Certificates; Other Information
. Deliver to the Administrative Agent and each
Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required
Lenders:
(a) concurrently with the delivery of the financial statements referred to in
Section
6.01(a)
, a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Default under the financial covenants set forth herein or, if any such Default
shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in
Sections
6.01(a)
, a duly completed Compliance Certificate signed by the chief executive officer, chief
financial officer, treasurer or controller of the Borrower;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of any Loan Party by independent accountants in
connection with the accounts or books of any Loan Party or any of its Subsidiaries, or any audit of
any of them;
(d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange
Act of 1934, or with any national securities exchange, and in any case not otherwise required to be
delivered to the Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of
any indenture, loan or credit or similar agreement and not otherwise required to be furnished to
the Lenders pursuant to
Section 6.01
or any other clause of this
Section 6.02
;
(f) as soon as available, but in any event within 30 days after the end of each fiscal year of
the Borrower, a report summarizing the insurance coverage (specifying type, amount and carrier) in
effect for each Loan Party and its Subsidiaries and containing such additional
71
information as the Administrative Agent, or any Lender through the Administrative Agent, may
reasonably specify;
(g) promptly, and in any event within ten days after receipt thereof by any Loan Party or any
Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning (i) any investigation or
possible investigation or (ii) other inquiry (other than any routine inquiry in the ordinary course
of business) by such agency regarding financial or other operational results of any Loan Party or
any Subsidiary thereof;
(h) as soon as practicable, and in any event within 10 days after the issuance, filing or
receipt thereof, or upon obtaining knowledge of a material complaint as provided in (iii) below,
(i) copies of any order or notice of the FCC or a court of competent jurisdiction which designates
any Station License, or any application therefor, for a hearing or which refuses renewal or
extension of, or revokes or suspends the authority of any broadcast station to which the Borrower
or any of its Subsidiaries provides services under a local marketing agreement to operate, (ii) a
copy of any citation, Notice of Violation or Order to Show Cause issued by the FCC, (iii) a copy of
any material complaint filed by or with the FCC, or a petition to deny any application, in each
case with respect to such Borrower or any of its Subsidiaries, and (iv) a copy of any notice or
application by the Borrower of any of its Subsidiaries requesting authority to cease broadcasting
on any broadcast station for any period in excess of forty-eight (48) hours;
(i) copies of each FCC form 323 Ownership Report (or any comparable form which may be
substituted therefore by the FCC) filed with the FCC with respect to each Broadcasting Station
owned by Borrower or any of its Subsidiaries as soon as practicable, and in any event within 30
days following (i) a request in writing by the Administrative Agent; (ii) filing such form if such
form is not available publicly by accessing the FCCs worldwide web site (
e.g.,
http://licensing.fcc.gov/prod/cdbs/pubacc/prod/own_search.htm
); or (iii) upon consummation
of a Permitted Acquisition.
(j) promptly, such additional information regarding the business, financial, legal or
corporate affairs of any Loan Party or any Subsidiary thereof, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to
Section 6.01(a)
or
(b)
or
Section 6.02(d)
(to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrowers website on the Internet at the website address listed on
Schedule 11.02
; or
(ii) on which such documents are posted on the Borrowers behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent);
provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender that requests the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by telecopier or electronic
72
mail) of the posting of any such documents and provide to the Administrative Agent by electronic
mail electronic versions (
i.e.
, soft copies) of such documents. Notwithstanding anything contained
herein, in every instance the Borrower shall be required upon request of the Administrative Agent
to provide paper copies of the Compliance Certificates required by
Section 6.02(b)
to the
Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have
no obligation to request the delivery or to maintain copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by the Borrower with any such
request for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
The Borrower hereby acknowledges that the Administrative Agent and/or the Arranger will make
available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf
of the Borrower hereunder (collectively,
Borrower
Materials
) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the
Platform
).
6.03
Notices
. Notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default within five (5) days of obtaining knowledge thereof;
(b) promptly, of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any litigation or
proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) promptly, of the occurrence of any ERISA Event which could reasonably be expected to
result in a liability in excess of $1,000,000;
(d) promptly, of any material change in accounting policies or financial reporting practices
by any Loan Party or any Subsidiary thereof; and
(e) promptly, of the (i) occurrence of any Disposition of property or assets for which the
Borrower is required to make a mandatory prepayment pursuant to
Section 2.05(b)(ii)
, (ii)
occurrence of any sale of capital stock or other Equity Interests for which the Borrower is
required to make a mandatory prepayment pursuant to
Section 2.05(b)(iii)
, and (iii)
incurrence or issuance of any Indebtedness for which the Borrower is required to make a mandatory
prepayment pursuant to
Section 2.05(b)(iv)
.
Each notice pursuant to
Section 6.03
(other than
Section 6.03(e)
or
(f)
) shall be accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a)
shall
describe with particularity any and all provisions of this Agreement and any other Loan Document
that have been breached.
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6.04
Payment of Obligations
. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and
when due and payable subject to such grace period as are set forth in the definition of
Indebtedness and to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
6.05
Preservation of Existence, Etc
. (a) Preserve, renew and maintain in full force
and effect its legal existence and good standing under the Laws of the jurisdiction of its
organization; (b) take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business, except to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material Adverse Effect.
6.06
Maintenance of Properties
. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals
and replacements thereof except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
6.07
Maintenance of Insurance
. Maintain with financially sound and reputable
insurance companies not Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30 days prior notice
to the Administrative Agent of termination, lapse or cancellation of such insurance.
6.08
Compliance with Laws
. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property including, without limitation, under the Communications Act and the Federal Aviation
Administration, applicable to it, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being properly contested in good faith by appropriate
proceedings diligently conducted if so permitted under applicable Law including, without
limitation, the Communications Act; or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect. The Borrower and each of its Subsidiaries shall at all
times maintain the Station Licenses and all other licenses, permits, permissions and other
authorizations necessary to operate the radio and television stations as currently operated by such
Borrower and its Subsidiaries.
6.09
Books and Records
. (a) Maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the Borrower or such
Subsidiary, as the case may be; and (b) maintain such books of record and account in material
74
conformity with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
6.10
Inspection Rights
. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Borrower and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided
,
however
, that so long as no Default or Event of Default has occurred and is continuing
the Borrower will not be required to pay for more than one such inspection in any calendar year and
further
provided
however
, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice.
6.11
Use of Proceeds
. Use the proceeds of the Credit Extensions (i) to refinance
certain existing Indebtedness of the Borrower; (ii) to pay fees and expenses incurred in connection
with the Facilities; (iii) for Permitted Acquisitions; and (iv) for working capital and for general
corporate purposes not in contravention of any Law or of any Loan Document.
6.12
Covenant to Guarantee Obligations and Give Security
. (a) Upon the acquisition of
any property, other than an Excluded Asset, by any Loan Party, if such property, in the judgment of
the Administrative Agent, shall not already be subject to a perfected first priority security
interest in favor of the Administrative Agent for the benefit of the Secured Parties, then the
Borrower shall, at the Borrowers expense:
(i) within 10 Business Days after such acquisition, or such longer period as may be
agreed to in writing by the Administrative Agent, furnish to the Administrative Agent a
description of the property so acquired in detail satisfactory to the Administrative Agent,
(ii) within 15 Business Days after such acquisition, or such longer period as may be
agreed to in writing by the Administrative Agent, cause the applicable Loan Party to duly
execute and deliver to the Administrative Agent Security Agreement Supplements, IP Security
Agreement Supplements and other security and pledge agreements, as specified by and in form
and substance satisfactory to the Administrative Agent, securing payment of all the
Obligations of the applicable Loan Party under the Loan Documents and constituting Liens on
all such properties,
(iii) within 30 days after such acquisition, or such longer period as may be agreed to
in writing by the Administrative Agent, cause the applicable Loan Party to take whatever
action (including the filing of Uniform Commercial Code financing statements) may be
necessary or advisable in the opinion of the Administrative Agent to vest in the
Administrative Agent (or in any representative of the Administrative Agent designated by
it) valid and subsisting Liens on such property, enforceable against all third parties, and
75
(iv) within 60 days after such acquisition, or such longer period as may be agreed to
in writing by the Administrative Agent, deliver to the Administrative Agent, upon the
request of the Administrative Agent in its sole discretion, a signed copy of a favorable
opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel
for the Loan Parties acceptable to the Administrative Agent as to the matters contained in
clauses (ii) and (iii) above and as to such other matters as the Administrative Agent may
reasonably request.
(b) At any time upon request of the Administrative Agent, promptly execute and deliver any and
all further instruments and documents and take all such other action as the Administrative Agent
may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting
and preserving the Liens of, such guaranties, Security Agreement Supplements, IP Security Agreement
Supplements and other security and pledge agreements.
6.13
Compliance with Environmental Laws
. Comply, and cause all lessees and other
Persons operating or occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean
up all Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws;
provided
,
however
, that neither the Borrower nor any of its Subsidiaries shall
be required to undertake any such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances in accordance with GAAP.
6.14
Reserved
.
6.15
Further Assurances
. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent, (a) correct any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof,
and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and other instruments as
the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require
from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,
(ii) to the fullest extent permitted by applicable law, subject
any Loan Partys or any of its
Subsidiaries properties, assets, rights or interests to the Liens now or hereafter intended to be
covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the Liens intended to be created
thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted
to the Secured Parties under any Loan Document or under any other instrument executed in connection
with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party,
and cause each of its Subsidiaries to do so.
6.16
Compliance with Terms of Leaseholds
. Make all payments and otherwise perform all
obligations in respect of all leases of real property to which the Borrower or any of
76
its Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the aggregate,
could not be reasonably likely to have a Material Adverse Effect.
6.17
Reserved
.
6.18
Reserved
.
6.19
Material Contracts
. Perform and observe all the terms and provisions of each
Material Contract to be performed or observed by it, maintain each such Material Contract in full
force and effect, enforce each such Material Contract in accordance with its terms, take all such
action to such end as may be from time to time requested by the Administrative Agent and, upon
request of the Administrative Agent, make to each other party to each such Material Contract such
demands and requests for information and reports or for action as any Loan Party or any of its
Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
6.20
Treasury Management
. Within 150 days after closing, the Borrower and its
Domestic Subsidiaries shall maintain all of its treasury, depository and cash management
arrangements with Bank of America to the extent that the fees, charges, interest payments and other
account arrangements are competitive with those of similar banks in the marketplace, excluding (i)
petty cash accounts holding in the aggregate, for all of such accounts at any time, of not more
than $2,500,000, and (ii) payroll and benefit accounts and (i) and (ii) immediately preceding will
not be subject to any deposit account control agreements. In the event that Borrower reasonably
determines that Bank of America is not so competitive, the Borrower and its Domestic Subsidiaries
may maintain other such accounts so long as such party delivers a deposit control agreement
therefor reasonably satisfactory to the Administrative Agent.
6.21
Additional Subsidiaries
. If any Subsidiary is formed or acquired after the
Closing Date, the Borrower will notify the Administrative Agent in writing thereof not later than
the fifteenth Business Day after the date on which such Subsidiary is formed or acquired and (i)
the Borrower will cause such Subsidiary to (a) execute and deliver each applicable Collateral
Document (or otherwise become a party thereto in the manner provided therein) and become a party to
each applicable Loan Document in the manner provided therein, in each case not later than the tenth
Business Day after the date on which such Subsidiary is formed (or such longer period as may be
agreed to in writing by the Administrative Agent), (b) within 30 days after such formation or
acquisition (or such longer period as may be agreed to in writing by the Administrative Agent),
cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already
done so) to take whatever action (including the filing of Uniform Commercial Code financing
statements and the giving of notices) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent valid and subsisting Liens on the property
(other than the Excluded Assets) purported to be subject to Security Agreement Supplements, IP
Security Agreement Supplements and security and pledge
77
agreements delivered pursuant to this
Section 6.21
, enforceable against all third parties
in accordance with their terms, and (c) promptly take such other actions to create and perfect
Liens on such Subsidiarys assets to secure the Obligations as the Administrative Agent or the
Required Lenders shall reasonably request and (ii) the Borrower will cause the Equity Interests of
such Subsidiary and promissory notes and other instruments evidencing loans, advances and other
debt of such Subsidiary held by the Borrower or any other Subsidiary to be pledged pursuant to the
Collateral Documents not later than the fifteenth Business Day after the date on which such
Subsidiary is formed or acquired or by such later date as agreed to in writing by the
Administrative Agent.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding
(excluding any Bank Product Obligation and contingent indemnity and reimbursement obligations which
survive termination of the Loan Documents and in respect of which no claim has been made), the
Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:
7.01
Liens
. Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to
exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the
Borrower or any of its Subsidiaries as debtor, or assign any accounts or other right to receive
income, including, without limitation, in any Excluded Assets, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on
Schedule 5.08(b)
and any renewals
or extensions thereof,
provided
that (i) the property covered thereby is not changed, (ii)
the amount secured or benefited thereby is not increased except as contemplated by
Section
7.02(g)
, (iii) the direct or any contingent obligor with respect thereto is not changed, and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.02(g)
;
(c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(d) carriers, warehousemens, mechanics , materialmens,
repairmens or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) pledges
or deposits in the ordinary course of business in connection with workers
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;
78
(f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an Event of Default
under
Section 8.01(h);
(i) Purchase money security interests on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary,
provided
that (i) such security interests
secure Indebtedness permitted by
Section 7.02(c)
, (ii) such security interests and the
Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital assets, (iv) such
security interest shall not apply to any other property or assets of the Borrower or any Subsidiary
and (v) the amount of Indebtedness permitted to be secured hereunder, shall not exceed $5,000,000
in the aggregate at any time outstanding; and
(j) Security interests existing on any property or asset prior to the acquisition thereof by
the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the Closing Date prior to the time such Person becomes a Subsidiary
,
provided
that (i) such security interests secure Indebtedness permitted by
Section
7.02(d),
(ii) such security interests are not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as applicable, (iii) such security interests
shall not apply to any other property or assets of the Borrower or any Subsidiary and (iv) such
security interests shall secure only the Indebtedness that they secure on the date of such
acquisition or the date such Person becomes a Subsidiary, as applicable, and any extensions,
renewals and replacements thereof that do not increase the outstanding principal amount thereof.
7.02
Indebtedness
. Create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.02
and any
refinancings, refundings, renewals or extensions thereof;
provided
that the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and the direct or any contingent obligor with respect
thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal
or extension;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease
79
Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof,
provided
that (A) such Indebtedness is incurred prior to or within 90 days after
such acquisition or the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this subsection (c) shall not, without duplication,
exceed $5,000,000 at any time outstanding;
(d) Indebtedness of any Person that becomes a Subsidiary after the Closing Date,
provided
that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and
is not created in contemplation of or in connection with Such Person becoming a Subsidiary and (B)
the aggregate principal amount of Indebtedness permitted by this subsection (d) shall not, without
duplication, exceed $5,000,000 at any time outstanding;
(e) Indebtedness of the Borrower to any Guarantor and of any Guarantor to the Borrower or any
other Guarantor;
(f) Guarantees by the Borrower of Indebtedness of any Guarantor and by any Guarantor of
Indebtedness of the Borrower or any other Guarantor,
provided
that such Indebtedness is
otherwise permitted by this
Section 7.02;
(g) other unsecured Indebtedness of the Borrower and its Subsidiaries in an aggregate
principal amount not exceeding $5,000,000 at any time outstanding;
(h) Indebtedness from the guaranty of obligations of Surtsey Media, LLC in an aggregate amount
not to exceed $1,100,000 in form and substance otherwise reasonably acceptable to the
Administrative Agent; and
(i) Indebtedness in respect of Swap Contracts,
provided
that such transaction is
entered into for risk management purposes and not for speculative purposes.
7.03
Investments
. Make or hold any Investments, except:
(a) Investments held by the Borrower and its Subsidiaries in the form of Cash Equivalents;
(b) Investments amongst the Borrower and its Subsidiaries;
(c) so long as no Default or Event of Default shall have occurred and be continuing or would
result from such Investment, additional Investments by the Borrower and its Subsidiaries, up to an
aggregate amount of all such Investments made after the Closing Date not to exceed $1,000,000;
(d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;
80
(e) Guarantees permitted by
Section 7.02
;
(f) Investments existing on the date hereof and set forth on
Schedule 5.08(e)
;
(g) any Permitted Acquisition and any deposits, loans and advances in connection with any
Permitted Acquisition,
provided
that any such loan or advance shall be in lieu of a deposit, shall
be on a short-term basis pending the closing of such permitted acquisition and, if such loan or
advance is secured, the applicable Loan Partys security interest shall be assigned to the
Administrative Agent;
(h) Investments constituting deposits made in connection with the purchase of goods or
services in the ordinary course of business;
(i) Investments in respect of Swap Contracts,
provided
that such transaction is
entered into for risk management purposes and not for speculative purposes; and
(j) loans to directors, officer and employees of the Borrower or any Subsidiary,
provided
that (i) at the time thereof and immediately after giving effect thereto no
Default or Event of Default shall have occurred and be continuing, (ii) loans to any one director,
officer or employee shall not exceed $300,000 at any time outstanding, (iii) the aggregate amount
of loans to all directors, officers and employees shall not exceed $1,000,000 in the aggregate at
any time outstanding, (iv) no loan may be made to a director or executive officer of the Borrower
and (v) to the extent prohibited by applicable law, no loan may be made to a director or executive
officer of any Subsidiary.
7.04
Fundamental Changes
. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default or Event of Default exists or would result therefrom:
(a) any wholly-owned Subsidiary may merge into the Borrower in a transaction in which the
Borrower is the surviving entity, and any wholly-owned Subsidiary may merge into any Subsidiary
Guarantor in a transaction in which such Subsidiary Guarantor is the surviving entity;
(b) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all
of its assets to the Borrower or to any Subsidiary Guarantor;
(c) the Borrower or any Subsidiary may sell, transfer, lease or otherwise dispose of its
assets in a transaction that is not permitted by subsection (c) of this
Section 7.04)
,
provided
that such sale, transfer, lease or other disposition is permitted by
Section
7.05;
(d) the Borrower may declare and pay, and agree to pay, dividends with respect to its Equity
Interests payable solely in perpetual common Equity Interests; and
(e) any wholly-owned Subsidiary may declare and pay dividends with respect to its Equity
Interests to the Borrower.
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7.05
Dispositions
. Make any Disposition or enter into any agreement to make any
Disposition, except:
(a) Dispositions of obsolete or worn out property or property no longer used or useful in the
business of the Borrower and its Subsidiaries, whether now owned or hereafter acquired, in the
ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned
Subsidiary;
provided
that if the transferor of such property is a Guarantor, the transferee
thereof must either be the Borrower or a Guarantor;
(e) non-exclusive licenses of IP Rights in the ordinary course of business and substantially
consistent with past practice for terms not exceeding five years;
(f) Disposition of Cash Equivalents in the ordinary course of business;
(g) Dispositions of owned or leased vehicles in the ordinary course of business;
(h) Disposition of leased real estate in the ordinary course of business; and
(i) so long as no Default or Event of Default has occurred and is continuing, other
Dispositions of property where the fair market value thereof is not in excess of an aggregate
amount of $2,000,000 in any calendar year provided that the Net Proceeds thereof are used in
accordance with
Section 2.05(b).
7.06
Restricted Payments
. Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity
Interests or accept any capital contributions, except that, so long as no Default or Event of
Default shall have occurred and be continuing at the time of any action described below or would
result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the
Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such
Subsidiary, ratably according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person;
82
(c) except to the extent the Net Cash Proceeds thereof are required to be applied to the
prepayment of the Loans pursuant to
Section 2.05(b)(iii)
, the Borrower and each Subsidiary
may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received
from the substantially concurrent issue of new common Equity Interests or from the dividends
permitted under subsection (d) immediately following;
(d) so long as no Default or Event of Default has occurred and is continuing, and no Default
or Event of Default would occur after giving effect to such dividend or repurchase, the Borrower
may (i) declare or pay cash dividends to its stockholders and (ii) repurchase any outstanding
Equity Interests held by its stockholders, if after giving effect thereto the aggregate amount of
such dividends paid and repurchases made during any fiscal year does not exceed in the aggregate,
$20,000,000; and
(e) the Borrower may issue and sell its common Equity Interests, so long as the Net Cash
Proceeds thereof are applied to the repayment of Loans pursuant to
Section 2.05(b)(iii).
7.07
Change in Nature of Business
. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower and its Subsidiaries
on the date hereof or any business substantially related or incidental thereto, or permit Saga Air,
LLC, a Delaware limited liability company to own any asset other than an interest in an aircraft
and any assets incidental to such ownership.
7.08
Transactions with Affiliates
. Enter into any transaction of any kind with any
Affiliate of the Borrower, whether or not in the ordinary course of business, other than on fair
and reasonable terms substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arms length transaction
with a Person other than an Affiliate.
7.09
Burdensome Agreements
. Enter into or permit to exist any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the ability (i) of any
Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer
property to or invest in the Borrower or any Guarantor, except for any agreement in effect (A) on
the date hereof and set forth on
Schedule 7.09
or (B) at the time any Subsidiary becomes a
Subsidiary of the Borrower, so long as such agreement was not entered into solely in contemplation
of such Person becoming a Subsidiary of the Borrower, (ii) of any Subsidiary to Guarantee the
Indebtedness of the Borrower or (iii) of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist Liens on property of such Person;
provided,
however,
that this
clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under
Section 7.02(i)
solely to the extent any such negative pledge
relates to the property financed by or the subject of such Indebtedness; or (b) requires the grant
of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation
of such Person.
7.10
Use of Proceeds
. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the
83
purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for
such purpose.
7.11
Financial Covenants
.
(a)
Consolidated Leverage Ratio
. Permit the Consolidated Leverage Ratio as of the end of any
fiscal quarter during any period of four fiscal quarters of the Borrower to be greater than
3.50:1.00; and
(b)
Consolidated Fixed Charge Coverage Ratio
. Permit the Consolidated Fixed Charge Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than 1.15:1.00.
7.12
Amendments of Organization Documents
. The Borrower will not, and will not permit its
Subsidiaries to amend, modify or waive any of its rights under its Organizational Documents other
than immaterial amendments, modifications or waivers that could not reasonably be expected to
adversely affect the Administrative Agent or any of the Lenders.
7.13
Accounting Changes
. Make any change in (a) accounting policies or reporting practices,
except as required by GAAP, or (b) fiscal year.
7.14
Prepayments, Etc. of Indebtedness
. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Indebtedness, except (a) the prepayment of the Credit Extensions in
accordance with the terms of this Agreement and (b) regularly scheduled or required repayments or
redemptions of Indebtedness set forth in
Schedule 7.02
and refinancings and refundings of such
Indebtedness in compliance with
Section 7.02(b)
.
7.15
Amendment, Etc.
. Amend, modify or change in any manner any term or condition of any
Indebtedness set forth in
Schedule 7.02
, except for any refinancing, refunding, renewal or
extension thereof permitted by
Section 7.02(b)
.
7.16
Local Marketing Agreements and Time Brokerage Agreements
.
(a) The Borrower will not, and will not permit any Subsidiary to, enter into any Local
Marketing Agreements (other than with the Borrower or any Subsidiary with respect to another
Broadcasting Station of the Borrower or any Subsidiary), except for any Local Marketing Agreements
in effect on the Closing Date and listed on
Schedule 7.16
or otherwise established on commercially
reasonable terms (as determined in the reasonable opinion of the Borrower) in connection with a
Permitted Acquisition.
(b) The Borrower will not, and will not permit any Subsidiary to, enter into any Time
Brokerage Agreements (other than with the Borrower or any Subsidiary with respect to another
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Broadcasting Station of the Borrower or any Subsidiary), except for any Time Brokerage
Agreements in effect on the Closing Date and listed on
Schedule 7.16
.
(c) The Borrower will not, and will not permit any Subsidiary to, enter into any Shared
Services Agreements (other than the Borrower or any Subsidiary with respect to another Broadcasting
Station of the Borrower or any Subsidiary), except for any Shared Services Agreements in effect on
the Closing Date and listed on
Schedule 5.17
or otherwise established on commercially
reasonably terms (as determined in the reasonably opinion of the Borrower and approved by the
Administrative Agent, such approval not to be unreasonably withheld or delayed) in connection with
one or more Permitted Acquisitions.
7.17
Amendment, Etc
. The Borrower will not issue any Disqualified Equity Interests, or
be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem,
retire, acquire or make any other payment in respect of any Equity Interests of the Borrower,
except as permitted under
Section 7.06
. The Borrower will not permit any Subsidiary to issue any
Equity Interest which is not pledged to the Administrative Agent.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01
Events of Default
. Any of the following shall constitute an Event of Default:
(a)
Non-Payment
. The Borrower or any other Loan Party fails to (i) pay when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit
any funds as Cash Collateral in respect of L/C Obligations, or (ii) pay within three days after the
same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or
(iii) pay within five days after the same becomes due, any other amount payable hereunder or under
any other Loan Document; or
(b)
Specific Covenants
. The Borrower fails to perform or observe any term, covenant or
agreement contained in any of
Section 6.01
,
6.02
,
6.03
,
6.05
,
6.07
,
6.10
,
6.11
,
6.12
,
6.15
,
6.20
,
6.21
or
Article VII
; or
(c)
Other Defaults
. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in
Section 8.01(a)
or
(b)
above) contained in any Loan Document on its
part to be performed or observed and such failure continues for 30 days; or
(d)
Representations and Warranties
. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e)
Cross-Default
. (i) Any Loan Party or any Subsidiary thereof (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
85
(including undrawn committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B)
fails to observe or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or
any other event occurs, the effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold
Amount; or
(f)
Insolvency Proceedings, Etc
. Any Loan Party or any Subsidiary thereof institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g)
Inability to Pay Debts; Attachment
. (i) Any Loan Party or any Subsidiary thereof
becomes unable or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h)
Judgments
. There is entered against any Loan Party or any Subsidiary thereof (i)
one or more final judgments or orders for the payment of money in an aggregate amount (as to all
such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer is rated at least A by A.M. Best Company, has
been notified of the potential claim and does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period of 10 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
86
(i)
ERISA
. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or
(j)
Invalidity of Loan Documents
. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect;
or any Loan Party or any other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or further liability or
obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind
any provision of any Loan Document; or
(k)
Change of Control.
There occurs any Change of Control; or
(l)
Collateral Documents
. Any Collateral Document after delivery thereof pursuant to
Section 4.01
or
6.12
shall for any reason (other than pursuant to the terms thereof) cease to
create a valid and perfected first priority Lien (subject to Liens
permitted by
Section 7.01
) on
the Collateral purported to be covered thereby; or
(m)
FCC Licenses
. Any FCC License of the Borrower or any Subsidiary is revoked or
canceled, expires or is suspended for more than five consecutive days, other than (to the extent
not otherwise prohibited by the Loan Documents) by reason of (i) a voluntary surrender (consented
to by the Administrative Agent), not in response to any adverse action or threatened adverse action
by any Governmental Authority, or (ii) a disposition permitted by this Credit Agreement, and such
revocation, cancellation, expiration or suspension has a Material Adverse Effect.
8.02
Remedies upon Event of Default
. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and
87
(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan Documents;
provided
,
however
, that upon the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation
of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions
shall automatically terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.
8.03
Application of Funds
. After the exercise of remedies provided
for in
Section 8.02
(or after the Loans have automatically become immediately due and payable and the L/C Obligations
have automatically been required to be Cash Collateralized as set
forth in the proviso to
Section 8.02
), any amounts received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First
, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under
Article III
) payable to the Administrative Agent in
its capacity as such;
Second,
to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer arising under the Loan Documents and amounts payable under
Article III
, ratably
among them in proportion to the respective amounts described in this
clause
Second
payable to them;
Third
, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under
the Loan Documents, ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause
Third
payable to them;
Fourth,
to payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and Obligations then owing under Secured Hedge Agreements and Secured
Cash Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash
Management Banks in proportion to the respective amounts described in
this clause
Fourth
held by
them;
Fifth
, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit; and
Last,
the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.
88
Subject to
Section 2.03(c)
, amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause
Fifth
above shall be applied to satisfy drawings under such
Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above if the
Administrative Agent has not received written notice thereof, together with such supporting
documentation as the Administrative Agent may request, from the applicable Cash Management Bank or
Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to the Credit
Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,
be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to
the terms of
Article IX
hereof for itself and its Affiliates as if a Lender party
hereto.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01
Appointment and Authority
. (a) Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.
(b) The Administrative Agent shall also act as the
collateral agent
under the Loan
Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a
potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of
acquiring, holding and enforcing any and all Liens on
Collateral granted by any of the Loan Parties
to secure any of the Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as collateral agent and any
co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to
Section 9.05
for purposes of holding or enforcing any Lien on the Collateral (or
any portion thereof) granted under the Collateral Documents, or for exercising any rights and
remedies thereunder at the direction of the Administrative Agent), shall be entitled to the
benefits of all provisions of this
Article IX
and
Article XI
(including
Section 11.04(c)
, as though such co-agents, sub-agents and attorneys-in-fact were the
collateral agent under the Loan Documents) as if set forth in full herein with respect thereto.
9.02
Rights as a Lender
. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term Lender or
Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires,
89
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.
9.03
Exculpatory Provisions
. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.
(d) The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall
be necessary, under the circumstances as provided in
Sections 11.01
and
8.02)
or
(ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
(e) The Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document, or the creation, perfection or priority of any Lien purported to be created
by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (v) the
satisfaction of any condition set forth in
Article IV
or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.
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9.04
Reliance by Administrative Agent
. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05
Delegation of Duties
. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
9.06
Resignation of Administrative Agent
. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above;
provided
that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successors appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights,
91
powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged therefrom as provided above in this Section).
The fees payable by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such successor. After
the retiring Administrative Agents resignation hereunder and under the other Loan Documents, the
provisions of this Article and
Section 11.04
shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a successors appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing
Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of
their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.
9.07
Non-Reliance on Administrative Agent and Other Lenders
. Each Lender and the L/C
Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.
9.08
No Other Duties, Etc
. Anything herein to the contrary notwithstanding, none of
the Joint Book Managers or Joint Lead Arrangers listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09
Administrative Agent May File Proofs of Claim
. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party,
the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
92
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under
Sections 2.03(i)
and
(j)
,
2.09
and
11.04
) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, if the Administrative Agent shall consent to the making
of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under
Sections 2.09
and
11.04
.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer or in any such proceeding.
9.10
Collateral and Guaranty Matters
. Each of the Lenders (including in its capacities
as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the Administrative Agent under
any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all
Obligations (other than (A) contingent indemnification obligations and (B) obligations and
liabilities under Secured Cash Management Agreements and Secured Hedge Agreements as to which
arrangements satisfactory to the applicable Cash Management Bank of Hedge Bank shall have been
made) and the expiration or termination of all Letters of Credit (other than Letters of Credit as
to which other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have
been made), (ii) that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in
writing in accordance with
Section 11.01
;
(b) to release any Guarantor from its obligations under the Guaranty if such Person ceases to
be a Subsidiary as a result of a transaction permitted hereunder; and
(c) to subordinate any Lien on any property granted to or held by the Administrative Agent
under any Loan Document to the holder of any Lien on such property that is permitted by
Section
7.01(i)
.
93
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agents authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the Guaranty
pursuant to this
Section 9.10
. In each case as specified in this
Section 9.10
, the
Administrative Agent will, at the Borrowers expense, execute and deliver to the applicable Loan
Party such documents as such Loan Party may reasonably request to evidence the release of such item
of Collateral from the assignment and security interest granted under the Collateral Documents or
to subordinate its interest in such item, or to release such Guarantor from its obligations under
the Guaranty, in each case in accordance with the terms of the Loan Documents and this
Section
9.10
.
9.11
Secured Cash Management Agreements and Secured Hedge Agreements
. Except as
otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the
benefits of
Section 8.03
, or any Collateral by virtue of the provisions hereof or any
Collateral Document shall have any right to notice of any action or to consent to, direct or object
to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral
(including the release or impairment of any Collateral) other than in its capacity as a Lender and,
in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any
other provision of this
Article IX
to the contrary, the Administrative Agent shall not be
required to verify the payment of, or that other satisfactory arrangements have been made with
respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge
Agreements unless the Administrative Agent has received written notice of such Obligations,
together with such supporting documentation as the Administrative Agent may request, from the
applicable Cash Management Bank or Hedge Bank, as the case may be.
ARTICLE X
RESERVED
ARTICLE XI
MISCELLANEOUS
11.01
Amendments, Etc
. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or
the applicable Loan Party, as the case may be, and a fully executed copy thereof is delivered to
the Administrative Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given;
provided
,
however
, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in
Section 4.01
(other than
Section
4.01(b)(i)
or
(c)
), or, in the case of the initial Credit Extension,
Section
4.02
, without the written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to
Section 8.02
) without the written consent of such Lender;
94
(c) postpone any date fixed by this Agreement or any other Loan Document for any
payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under such other Loan Document without the written consent of
each Lender entitled to such payment;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to the second proviso to this
Section 11.01
) any fees or other
amounts payable hereunder or under any other Loan Document, or change the manner of computation of
any financial ratio (including any change in any applicable defined term) used in determining the
Applicable Rate that would result in a reduction of any interest rate on any Loan or any fee
payable hereunder without the written consent of each Lender entitled to such amount;
(e) change (i)
Section 2.13
or
Section 8.03
in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of each Lender or (ii)
the order of application of any reduction in the Commitments or any prepayment of Loans among the
Facilities from the application thereof set forth in the applicable provisions of
Section
2.05(b)
or
2.06(b)
, respectively, in any manner that materially and adversely affects
the Lenders under a Facility without the written consent of (i) if such Facility is the Term
Facility, the Required Term Lenders, (ii) if such Facility is the Accordion Facility, the Required
Accordion Lenders and (iii) if such Facility is the Revolving Credit Facility, the Required
Revolving Lenders;
(f) change (i) any provision of this
Section 11.01
or the definition of Required
Lenders or any other provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder (other than the definitions specified in clause (ii) of this
Section
11.01(f)
), without the written consent of each Lender or (ii) the definition of Required
Revolving Lenders, Required Term Lenders, or Required Accordion Lenders without the written
consent of each Lender under the applicable Facility;
(g) release all or substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender;
(h) release all or substantially all of the value of the Guaranty, without the written consent
of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted
pursuant to
Section 9.10
(in which case such release may be made by the Administrative
Agent acting alone); or
(i) impose any greater restriction on the ability of any Lender under a Facility to
assign any of its rights or obligations hereunder without the written consent of (i) if
such Facility is the Term Facility, the Required Term Lenders, (ii) if such Facility is
the Accordion Facility, the Required Accordion Lenders and (iii) if such Facility is
the Revolving Credit Facility, the Required Revolving Lenders;
and
provided
,
further
, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and
95
signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.
If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders, the Borrower may replace such non-consenting Lender in accordance with
Section 11.13
;
provided
that such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this paragraph).
11.02
Notices; Effectiveness; Electronic Communications
. (a)
Notices
Generally
. Except in the case of notices and other communications expressly permitted to be
given by telephone (and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as follows, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on
Schedule 11.02
; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices and other communications sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in subsection (b) below shall be
effective as provided in such subsection (b).
(b)
Electronic Communications
. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent,
provided
that the foregoing shall not apply to notices to any Lender or
the L/C Issuer pursuant to
Article II
if such Lender or the L/C Issuer, as applicable,
has notified the Administrative Agent that it is incapable of receiving notices under such Article
by electronic communication. The Administrative Agent or the Borrower may, in its discretion,
agree to
96
accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it,
provided
that approval of such procedures may be limited to
particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement
from the intended recipient (such as by the return receipt requested function, as available,
return e-mail or other written acknowledgement),
provided
that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c)
The Platform
. THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the
Agent Parties
) have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrowers or the
Administrative Agents transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party;
provided
,
however
, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any
other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).
(d)
Change of Address, Etc
. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the Private Side Information or similar designation
97
on the content declaration screen of the Platform in order to enable such Public Lender or its
delegate, in accordance with such Public Lenders compliance procedures and applicable Law,
including United States Federal and state securities Laws, to make reference to Borrower Materials
that are not made available through the Public Side Information portion of the Platform and that
may contain material non-public information with respect to the Borrower or its securities for
purposes of United States Federal or state securities laws.
(e)
Reliance by Administrative Agent, L/C Issuer and Lenders
. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of
the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.
11.03
No Waiver; Cumulative Remedies; Enforcement
. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any
right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and
provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with
Section 8.02
for the benefit of all the Lenders and
the L/C Issuer;
provided
,
however
, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with
Section 11.08
(subject to the terms of
Section 2.13
), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided
,
further
, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to
Section 8.02
and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject
to
Section 2.13
, any Lender may,
98
with the consent of the Required Lenders, enforce any rights and remedies available to it and as
authorized by the Required Lenders.
11.04
Expenses; Indemnity; Damage Waiver
. (a)
Costs and Expenses
. The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer) in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b)
Indemnification by the Borrower
. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an Indemnitee) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other
Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case
of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or
the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor
a demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto;
provided
that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such
99
Indemnitees obligations hereunder or under any other Loan Document, if the Borrower or such Loan
Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.
(c)
Reimbursement by Lenders
. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lenders Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount,
provided
that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of
Section 2.12(d)
.
(d)
Waiver of Consequential Damages, Etc
. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.
(e)
Payments
. All amounts due under this Section shall be payable not later than 15
Business Days after demand therefor.
(f)
Survival
. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.
11.05
Payments Set Aside
. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative
Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds
of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any
100
Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the
L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus
interest thereon from the date of such demand to the date such payment is made at a
rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the
Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in
full of the Obligations and the termination of this Agreement.
11.06
Successors and Assigns
. (a)
Successors and Assigns Generally
. The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that neither the Borrower nor
any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee
in accordance with the provisions of
Section 11.06(b)
, (ii) by way of participation in
accordance with the provisions of
Section 11.06(d)
or (iii) by way of pledge or assignment
of a security interest subject to the restrictions of
Section 11.06(f)
(and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b)
Assignments by Lenders
. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment(s) and the Loans (including for purposes of
this
Section 11.06(b)
,
participations in L/C Obligations and in Swing Line Loans) at the
time owing to it);
provided
that
any such assignment shall be subject to the following conditions:
(i)
Minimum Amounts
.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lenders Commitment under any Facility and the Loans at the time owing to
it under such Facility or in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if Trade Date is
specified in the Assignment and Assumption, as of the Trade Date, shall
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not be less than $5,000,000, in the case of any assignment in respect of the
Revolving Credit Facility, or $1,000,000, in the case of any assignment in respect
of either Term Facility, unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed);
provided
,
however
, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;
(ii)
Proportionate Amounts
. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lenders rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not (A) apply to the Swing Line Lenders rights and obligations in respect
of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights
and obligations among separate Facilities on a non-pro rata basis;
(iii)
Required Consents
. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be
required unless (1) an Event of Default has occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided
that the Borrower shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the Administrative Agent within five
(5) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(1) any Term Commitment or Revolving Credit Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the applicable Facility,
an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2)
any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund;
(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of the
Revolving Credit Facility.
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(iv)
Assignment and Assumption
. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500;
provided
,
however
,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
(v)
No Assignment to Borrower
. No such assignment shall be made to the
Borrower or any of the Borrowers Affiliates or Subsidiaries.
(vi)
No Assignment to Natural Persons
. No such assignment shall be made to a
natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lenders rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of
Sections 3.01
,
3.04
,
3.05
and
11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
Section
11.06(d)
.
(c)
Register
. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agents Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the
Register
). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d)
Participations
. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrowers Affiliates or Subsidiaries) (each, a
Participant
) in all or a portion of such Lenders rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lenders
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided
that (i)
such Lenders obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain
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solely responsible to the other parties hereto for the performance of such obligations and (iii)
the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lenders rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement;
provided
that
such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 11.01
that affects such Participant. Subject to
subsection (e)
of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01
,
3.04
and
3.05
to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to
Section 11.06(b)
. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 11.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13
as though it were a Lender.
(e)
Limitations upon Participant Rights
. A Participant shall not be entitled to
receive any greater payment under
Section 3.01
or
3.04
than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrowers prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of
Section 3.01
unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e)
as though it were a Lender.
(f)
Certain Pledges
. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank;
provided
that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.
(g)
Resignation as L/C Issuer or Swing Line Lender after Assignment
. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Revolving Credit Commitment and Revolving Credit Loans pursuant to
Section 11.06(b)
, Bank
of America may, (i) upon 30 days notice to the Borrower and the Lenders, resign as L/C Issuer
and/or (ii) upon 30 days notice to the Borrower, resign as Swing Line Lender. In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided
,
however
, that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of
America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the
L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of
its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to
Section 2.03(c
)). If Bank of America resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation,
104
including the right to require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to
Section 2.04(c)
. Upon the appointment of a
successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing
Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.
11.07
Treatment of Certain Information; Confidentiality
. Each of the Administrative
Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates respective partners, directors, officers, employees, agents, trustees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to
Section 2.15(c)
or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section,
Information
means all information received from any Loan Party
or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any
Subsidiary thereof,
provided
that, in the case of information received from a Loan Party or
any such Subsidiary after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of
105
material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including United States Federal and state securities Laws.
11.08
Right of Setoff
. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Administrative Agent,
to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or
any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party
against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of
whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrower or such Loan Party may be
contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the
Borrower and the Administrative Agent promptly after any such setoff and application,
provided
that the failure to give such notice shall not affect the validity of such setoff
and application.
11.09
Interest Rate Limitation
. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
Maximum Rate
).
If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower. In determining whether the interest contracted
for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts
the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10
Counterparts; Integration; Effectiveness
. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01
, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic
106
imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
11.11
Survival of Representations and Warranties
. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.12
Severability
. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
11.13
Replacement of Lenders
. If any Lender requests compensation under
Section
3.04
, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 3.01
, or if any
Lender is a Defaulting Lender or if any other circumstance exists hereunder that gives the Borrower
the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by,
Section 11.06
), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment),
provided
that:
(a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 11.06(b)
;
(b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under
Section 3.05
)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04
or payments required to be made pursuant to
Section 3.01
, such
assignment will result in a reduction in such compensation or payments thereafter; and
107
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
11.14
Governing Law; Jurisdiction; Etc
. (a)
GOVERNING LAW
. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b)
SUBMISSION TO JURISDICTION
. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)
WAIVER OF VENUE
. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(d)
SERVICE OF PROCESS
. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN
SECTION 11.02
. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY
108
PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW
11.15
Waiver of Jury Trial
. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16
No Advisory or Fiduciary Responsibility
. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i)
(A) the arranging and other services regarding this Agreement provided by the Administrative Agent
and the Arranger, and the other Lead Arranger(s) are arms-length commercial transactions between
the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arranger and
the other Lead Arranger(s), on the other hand, (B) the Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent, the Arranger and each other Lead Arranger each is and has been acting solely as a principal
and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will
not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any
other Person and (B) neither the Administrative Agent, the Arranger nor any other Lead Arranger has
any obligation to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; and (iii) the Administrative Agent , the Arranger and the other Lead Arranger(s) and
their respective Affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent,
the Arranger nor any other Lead Arranger has any obligation to disclose any of such interests to
the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives
and releases any claims that it may have against the Administrative Agent, the Arranger and the
other Lead Arranger(s) with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.
11.17
Electronic Execution of Assignments and Certain Other Documents
. The words
execution, signed, signature, and words of like import in any Assignment and Assumption or in
any amendment or other modification hereof (including waivers and consents) shall be
109
deemed to include electronic signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed signature or
the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided
for in any applicable law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state
laws based on the Uniform Electronic Transactions Act.
11.18
USA PATRIOT Act
. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the
Act
), it is required to obtain, verify and
record information that identifies each Loan Party, which information includes the name and address
of each Loan Party and other information that will allow such Lender or the Administrative Agent,
as applicable, to identify each Loan Party in accordance with the Act. The Borrower shall, promptly
following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to comply with its
ongoing obligations under applicable know your customer an anti-money laundering rules and
regulations, including the Act.
11.19
Time of the Essence
. Time is of the essence of the Loan Documents.
11.20
ENTIRE AGREEMENT
. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
11.21
FCC Licenses
. Notwithstanding anything to the contrary contained herein or in
any of the Collateral Documents, the Administrative Agent and the other Credit Parties will not
take any action pursuant to this Credit Agreement or any of the Collateral Documents that would
constitute or result in any assignment of an FCC License, Auxiliary License, Secondary Station
License, Satellite Earth Station License or Relocation Weather Radar License, or any change of
control of the Broadcasting Stations if such assignment of FCC License, Auxiliary License,
Secondary Station License, Satellite Earth Station License or Relocation Weather Radar License, or
change of control would require under then existing law (including the published rules and
regulations promulgated by the FCC), the prior approval of the FCC, without first obtaining such
approval of the FCC. The Administrative Agent and each other Credit Party specifically agree that
(a) voting rights in the Equity Interests of the Loan Parties (the
Pledged Equity
Interests
) will remain with the holders of such voting rights upon and following the
occurrence of an Event of Default unless any required prior approvals of the FCC to the transfer of
such voting rights shall have been obtained; (b) upon and following the occurrence of any Event of
Default and foreclosure upon the Pledged Equity Interests by the Administrative Agent and the
Credit Parties, there will be either a public or private arms-length sale of the Pledged Equity
Interests; and (c) prior to the exercise of voting rights by the purchaser at any such sale, all
prior consents of the FCC required by applicable law will be obtained. The Borrower agrees to take
any action which the Administrative Agent and/or the other Credit Parties may reasonably request in
order to obtain and enjoy the full rights and benefits granted to the Administrative Agent and the
110
Credit Parties by this Credit Agreement including specifically, at the Borrowers own cost and
expense, the use of the commercially reasonable efforts of the Borrower to assist in obtaining
approval of the FCC, if applicable, for any action or transaction contemplated by this Credit
Agreement or the Collateral Documents which is then required by law, and specifically, without
limitation, upon request following the occurrence of an Event of Default, to prepare, sign and file
(or cause to be prepared, signed or filed) with the FCC any portion of any application or
applications for consent to the assignment of license or transfer of control required to be signed
by the Borrower and necessary or appropriate under the FCCs rules and regulations for approval of
any sale or transfer of any of the Equity Interests or assets of the Borrower or any Subsidiary or
any transfer of control over any FCC License, Auxiliary License, Secondary Station License,
Satellite Earth Station License or Relocation Weather Radar License.
111
IN WITNESS WHEREOF
, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
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SAGA COMMUNICATIONS, INC.
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By:
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/s/ Samuel D. Bush
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Name:
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Samuel D. Bush
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Title:
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Senior Vice President, Treasurer and
Chief Financial Officer
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[Signature Page to Credit Agreement]
S-1
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BANK OF AMERICA, N.A., as
Administrative Agent
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By:
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/s/ Roberto Salazar
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Name:
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Roberto Salazar
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Title:
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Vice President
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[Signature Page to Credit Agreement]
S-2
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BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
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By:
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/s/ Christopher Allen
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Name:
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Christopher Allen
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Title:
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Senior Vice President
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[Signature Page to Credit Agreement]
S-3
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JPMORGAN CHASE BANK, N.A., as a Lender
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By:
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/s/ M
itchell
W. D
angremond
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Name:
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M
itchell
W. D
angremond
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Title:
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V
ice
P
resident
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[Signature Page to Credit Agreement]
S-4
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HUNTINGTON NATIONAL BANK, as a Lender
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By:
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/s/ Peter Stasevich
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Name:
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Peter Stasevich
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Title:
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Vice President
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[Signature Page to Credit Agreement]
S-5
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RBS CITIZENS, N.A., as a Lender
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By:
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/s/ Michael Kill
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Name:
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Michael Kill
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Title:
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Vice President
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[Signature Page to Credit Agreement]
S-6
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PEOPLES UNITED BANK, as a Lender
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By:
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/s/ R
ichard
T. L
arkin
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Name:
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R
ichard
T. L
arkin
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Title:
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S
enior
V
ice
P
resident
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[Signature Page to Credit Agreement]
S-7