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Title: |
Credit Agreement |
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Entities: |
Bank of Montreal; Beasley Broadcast Group, Inc.; BNY Capital Markets, Inc.; Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.; FindWhat.com; Fleet National Bank; Wachovia Bank, NA; Bank of America, NA; Bank of New York |
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Date: |
2004 |
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Size: |
Preview shows 76KB of 382KB total |
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Price: |
$76 |
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ID: |
#1016128 |
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Start of Preview |
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CREDIT AGREEMENT
dated as of February 27, 2004
among
BEASLEY MEZZANINE HOLDINGS, LLC,
as Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
and
BANK OF MONTREAL, CHICAGO BRANCH,
as Administrative Agent
BANK OF NEW YORK
as Syndication Agent
HARRIS NESBITT
and
BNY CAPITAL MARKETS, INC.,
as Co- Lead Arrangers
BANK OF AMERICA N.A.,
ING CAPITAL, LLC
and
WELLS FARGO, NATIONAL ASSOCIATION
as Co- Documentation Agents
HARRIS NESBITT
as Sole Book Runner
TABLE OF CONTENTS
|
SECTION 1. |
DEFINITIONS | 1 | ||
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1.1 |
Certain Defined Terms | 1 | ||
|
1.2 |
Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement | 21 | ||
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1.3 |
Other Definitional Provisions and Rules of Construction | 22 | ||
|
SECTION 2. |
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS | 22 | ||
|
2.1 |
Commitments; Making of Loans; the Register; Notes | 22 | ||
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2.2 |
Interest on the Loans | 25 | ||
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2.3 |
Fees | 29 | ||
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2.4 |
Repayments, Prepayments and Reductions in Revolving Loan Commitments; General Provisions Regarding Payments | 29 | ||
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2.5 |
Use of Proceeds | 37 | ||
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2.6 |
Special Provisions Governing LIBOR Rate Loans | 37 | ||
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2.7 |
Increased Costs; Taxes; Capital Adequacy | 39 | ||
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2.8 |
Obligation of Lenders and Issuing Lenders to Mitigate | 43 | ||
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2.9 |
Affected Lenders; Replacement of a Lender | 43 | ||
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2.10 |
Guaranties of and Security for the Obligations | 44 | ||
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2.11 |
Incremental Facility | 45 | ||
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SECTION 3. |
LETTERS OF CREDIT | 46 | ||
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3.1 |
Issuance of Letters of Credit and Lenders' Purchase of Participations Therein | 46 | ||
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3.2 |
Letter of Credit Fees | 48 | ||
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3.3 |
Drawings and Reimbursement of Amounts Drawn Under Letters of Credit | 49 | ||
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3.4 |
Obligations Absolute | 51 | ||
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3.5 |
Indemnification; Nature of Issuing Lender's Duties | 51 | ||
|
3.6 |
Increased Costs and Taxes Relating to Letters of Credit | 52 | ||
|
SECTION 4. |
CONDITIONS TO LOANS AND LETTERS OF CREDIT | 53 | ||
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4.1 |
Conditions to Term Loans and Initial Revolving Loans | 53 | ||
|
4.2 |
Conditions to Permitted Acquisitions | 55 | ||
|
4.3 |
Conditions to All Loans | 57 | ||
|
4.4 |
Conditions to Letters of Credit | 57 | ||
i
|
SECTION 5. |
BORROWER'S REPRESENTATIONS AND WARRANTIES | 57 | ||
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5.1 |
Organization, Powers, Qualification, Good Standing, Business and Subsidiaries | 57 | ||
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5.2 |
Authorization of Borrowing, etc. | 60 | ||
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5.3 |
Financial Condition | 61 | ||
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5.4 |
No Material Adverse Change | 61 | ||
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5.5 |
Title to Properties; Liens; Intellectual Property | 61 | ||
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5.6 |
Litigation; Compliance with Laws | 62 | ||
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5.7 |
Payment of Taxes | 62 | ||
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5.8 |
Governmental Regulation | 62 | ||
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5.9 |
Securities Activities | 62 | ||
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5.10 |
Employee Benefit Plans | 63 | ||
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5.11 |
Certain Fees | 63 | ||
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5.12 |
Environmental Protection | 63 | ||
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5.13 |
Employee Matters | 64 | ||
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5.14 |
Solvency | 64 | ||
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5.15 |
Insurance | 64 | ||
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5.16 |
Disclosure | 65 | ||
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SECTION 6. |
BORROWER'S AFFIRMATIVE COVENANTS | 65 | ||
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6.1 |
Financial Statements and Other Reports | 65 | ||
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6.2 |
Existence, etc. | 68 | ||
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6.3 |
Payment of Taxes and Claims; Tax Consolidation | 68 | ||
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6.4 |
Maintenance of Properties; Insurance | 68 | ||
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6.5 |
Inspection; Lender Meeting | 69 | ||
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6.6 |
Compliance with Laws; Maintenance of FCC Licenses | 69 | ||
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6.7 |
Environmental Disclosure and Inspection | 69 | ||
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6.8 |
Borrower's Remedial Action Regarding Hazardous Materials | 70 | ||
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6.9 |
Interest Rate Protection | 70 | ||
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SECTION 7. |
BORROWER'S NEGATIVE COVENANTS | 70 | ||
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7.1 |
Indebtedness | 70 | ||
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7.2 |
Liens and Related Matters | 71 | ||
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7.3 |
Investments; Joint Ventures | 72 | ||
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7.4 |
Contingent Obligations | 73 | ||
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7.5 |
Restricted Junior Payments | 74 | ||
ii
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7.6 |
Financial Covenants | 74 | ||
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7.7 |
Restriction on Fundamental Changes; Asset Sales and Acquisitions | 75 | ||
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7.8 |
Sales and Lease-Backs | 77 | ||
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7.9 |
Sale or Discount of Receivables | 77 | ||
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7.10 |
Transactions with Shareholders and Affiliates | 78 | ||
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7.11 |
Conduct of Business | 78 | ||
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7.12 |
Amendments or Waivers of Subordinated Debt Documents and Charter Documents | 78 | ||
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7.13 |
Fiscal Year | 79 | ||
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SECTION 8. |
EVENTS OF DEFAULT | 79 | ||
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8.1 |
Failure to Make Payments When Due | 79 | ||
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8.2 |
Default in Other Agreements | 79 | ||
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8.3 |
Breach of Certain Covenants | 80 | ||
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8.4 |
Breach of Warranty | 80 | ||
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8.5 |
Other Defaults Under Loan Documents | 80 | ||
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8.6 |
Involuntary Bankruptcy; Appointment of Receiver, etc. | 80 | ||
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8.7 |
Voluntary Bankruptcy; Appointment of Receiver, etc. | 80 | ||
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8.8 |
Judgments and Attachments | 81 | ||
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8.9 |
Dissolution | 81 | ||
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8.10 |
Employee Benefit Plans | 81 | ||
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8.11 |
Failure of Security, Guaranty or Subordination | 81 | ||
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8.12 |
FCC Licenses | 81 | ||
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8.13 |
Business Interruption | 82 | ||
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8.14 |
Change of Control | 82 | ||
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SECTION 9. |
ADMINISTRATIVE AGENT | 83 | ||
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9.1 |
Appointment | 83 | ||
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9.2 |
Powers and Duties; General Immunity | 84 | ||
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9.3 |
Representations and Warranties; No Responsibility For Appraisal of Creditworthiness | 85 | ||
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9.4 |
Right to Indemnity | 85 | ||
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9.5 |
Successor Administrative Agent | 86 | ||
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9.6 |
Security Documents, Etc. | 86 | ||
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9.7 |
Administrative Agent May File Proofs of Claim | 87 | ||
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SECTION 10 |
MISCELLANEOUS | 88 | ||
iii
|
10.1 |
Assignments and Participations in Loans and Letters of Credit | 88 | ||
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10.2 |
Expenses | 90 | ||
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10.3 |
Indemnity | 90 | ||
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10.4 |
Set-Off | 91 | ||
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10.5 |
Ratable Sharing | 91 | ||
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10.6 |
Amendments and Waivers | 92 | ||
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10.7 |
Independence of Covenants | 92 | ||
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10.8 |
Notices | 92 | ||
|
10.9 |
Survival of Representations, Warranties and Agreements | 93 | ||
|
10.10 |
Failure or Indulgence Not Waiver; Remedies Cumulative | 93 | ||
|
10.11 |
Marshalling; Payments Set Aside | 93 | ||
|
10.12 |
Severability | 94 | ||
|
10.13 |
Obligations Several; Independent Nature of Lenders' Rights | 94 | ||
|
10.14 |
Headings | 94 | ||
|
10.15 |
Applicable Law | 94 | ||
|
10.16 |
Successors and Assigns | 94 | ||
|
10.17 |
Consent to Jurisdiction and Service of Process | 94 | ||
|
10.18 |
Waiver of Jury Trial | 95 | ||
|
10.19 |
Confidentiality | 95 | ||
|
10.20 |
Counterparts; Effectiveness | 96 | ||
|
10.21 |
Limitation of Liability | 96 | ||
iv
EXHIBITS
| I | FORM OF NOTICE OF BORROWING | |
| II | FORM OF NOTICE OF CONVERSION/CONTINUATION | |
| III | FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT | |
| IV | FORM OF TERM NOTE | |
| V | FORM OF REVOLVING NOTE | |
| VI | FORM OF COMPLIANCE CERTIFICATE | |
| VII | FORM OF OPINION OF OBLIGORS COUNSEL | |
| VIII | FORM OF BFT CONSENT LETTER | |
| IX | FORM OF ASSIGNMENT AGREEMENT | |
| X | FORM OF INCREMENTAL TERM LOAN NOTE | |
v
SCHEDULES
| 2.1 | LENDERS COMMITMENTS AND PRO RATA SHARES | |
| 5.1D | SUBSIDIARIES | |
| 5.1E | FCC LICENSES AND STATION MATTERS | |
| 5.1E(vii) | MARKETING AGREEMENTS | |
| 5.1F | COLLATERAL MATTERS | |
| 5.5B | INTELLECTUAL PROPERTY | |
| 5.12 | ENVIRONMENTAL MATTERS | |
| 7.1 | EXISTING INDEBTEDNESS | |
| 7.3 | EXISTING INVESTMENTS | |
| 7.4 | EXISTING CONTINGENT OBLIGATIONS | |
vi
BEASLEY MEZZANINE HOLDINGS, LLC
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of February 27, 2004, and entered into by, between and among BEASLEY MEZZANINE HOLDINGS, LLC (Borrower), THE FINANCIAL INSTITUTIONS PARTY HERETO (as further defined below, each individually referred to herein as a Lender and collectively as Lenders), and BANK OF MONTREAL, CHICAGO BRANCH (Bank of Montreal), as administrative agent for Lenders (in such capacity, Administrative Agent).
R E C I T A L S
WHEREAS, Borrower has requested that Lenders (i) extend revolving and term credit facilities to Borrower of TWO HUNDRED TWENTY-FIVE MILLION DOLLARS ($225,000,000) in the aggregate for (a) the repayment and termination of all Indebtedness under the Existing Credit Agreement, (b) the making of Permitted Acquisitions, (c) the payment of fees and expenses hereunder and fees and expenses related to Permitted Acquisitions, and (d) the provisions of funds for working capital and other general corporate purposes of Borrower and its Subsidiaries and other purposes permitted hereunder; and for these purposes, Lenders are willing to make certain loans and other extensions of credit to Borrower of such amount upon the terms and conditions set forth herein, and (ii) provide for the making of certain additional uncommitted credit facilities to Borrower of up to SEVENTY-FIVE MILLION DOLLARS ($75,000,000) in the aggregate which may be used for general corporate purposes, including financing certain Permitted Acquisitions; and
WHEREAS, Borrower desires to secure all of the Obligations hereunder and under the other Loan Documents by granting to Administrative Agent, for the benefit of Administrative Agent and the Lenders, a first priority Lien, except as otherwise expressly provided, on all of Borrowers and its Subsidiaries existing and after-acquired property (to the fullest extent permitted by law) pursuant to this Agreement and the Security Documents, including, without limitation, a pledge of all of the capital stock of Borrower and its Subsidiaries, including License Subs; and
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