Ex-10.2



 






EXHIBIT 10.2




EXECUTION VERSION




 

 






$30,000,000

SECOND LIEN SENIOR SECURED

CREDIT AGREEMENT



Dated as of December 30, 2005


Among


TRIPLE CROWN MEDIA, LLC,

as the Borrower,


TRIPLE CROWN MEDIA, INC.,

as the Parent and a Guarantor,


THE SUBSIDIARY GUARANTORS NAMED HEREIN,

as Guarantors,


THE INITIAL LENDERS NAMED HEREIN,

as Initial Lenders,


BANK OF AMERICA, N.A.,

as Syndication Agent,


and


WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent and Collateral Agent




WACHOVIA CAPITAL MARKETS, LLC

and

BANC OF AMERICA SECURITIES LLC,

as Joint Bookrunners and Joint Lead Arrangers





 

 






 









 












T A
B L E  O F  C O N T E N T S




	 	 	 	 	 
	Section	 	Page
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

	 	 	2	 
	 
	 	 	 	 
	SECTION 1.01. Certain Defined Terms

	 	 	2	 
	SECTION 1.02. Computation of Time Periods; Other Definitional Provisions

	 	 	24	 
	SECTION 1.03. Accounting Terms

	 	 	25	 
	 
	 	 	 	 
	ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES

	 	 	25	 
	 
	 	 	 	 
	SECTION 2.01. The Advances

	 	 	25	 
	SECTION 2.02. Making the Advances

	 	 	25	 
	SECTION 2.03. [Intentionally Omitted]

	 	 	26	 
	SECTION 2.04. Repayment of Advances

	 	 	26	 
	SECTION 2.05. Termination of the Commitments

	 	 	26	 
	SECTION 2.06. Prepayments

	 	 	26	 
	SECTION 2.07. Interest

	 	 	27	 
	SECTION 2.08. Fees

	 	 	28	 
	SECTION 2.09. Conversion of Advances

	 	 	28	 
	SECTION 2.10. Increased Costs, Etc.

	 	 	29	 
	SECTION 2.11. Payments and Computations

	 	 	30	 
	SECTION 2.12. Taxes

	 	 	32	 
	SECTION 2.13. Sharing of Payments, Etc.

	 	 	34	 
	SECTION 2.14. Use of Proceeds

	 	 	35	 
	SECTION 2.15. Defaulting Lenders

	 	 	35	 
	SECTION 2.16. Evidence of Debt

	 	 	36	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS OF LENDING

	 	 	37	 
	 
	 	 	 	 
	SECTION 3.01. Conditions Precedent to Initial Extension of Credit

	 	 	37	 
	SECTION 3.02. Determinations Under Section 3.01

	 	 	42	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES

	 	 	42	 
	 
	 	 	 	 
	SECTION 4.01. Representations and Warranties of the Loan Parties

	 	 	42	 
	 
	 	 	 	 
	ARTICLE V COVENANTS OF THE LOAN PARTIES

	 	 	50	 
	 
	 	 	 	 
	SECTION 5.01. Affirmative Covenants

	 	 	50	 
	SECTION 5.02. Negative Covenants

	 	 	58	 
	SECTION 5.03. Reporting Requirements

	 	 	67	 
	SECTION 5.04. Leverage Ratio

	 	 	71	 
	 
	 	 	 	 
	ARTICLE VI EVENTS OF DEFAULT

	 	 	71	 
	 
	 	 	 	 
	SECTION 6.01. Events of Default

	 	 	71	 






i









 






	 	 	 	 	 
	Section	 	Page
	ARTICLE VII THE AGENTS

	 	 	75	 
	 
	 	 	 	 
	SECTION 7.01. Authorization and Action

	 	 	75	 
	SECTION 7.02. Agents’ Reliance, Etc.

	 	 	76	 
	SECTION 7.03. Wachovia and Affiliates

	 	 	76	 
	SECTION 7.04. Lender Credit Decision

	 	 	76	 
	SECTION 7.05. Indemnification

	 	 	76	 
	SECTION 7.06. Successor Agents

	 	 	77	 
	SECTION 7.07. Administrative Agent May File Proofs of Claim

	 	 	77	 
	SECTION 7.08. Collateral and Guaranty Matters

	 	 	78	 
	SECTION 7.09. Other Agents; Arrangers and Managers

	 	 	78	 
	SECTION 7.10. Intercreditor Agreement

	 	 	79	 
	 
	 	 	 	 
	ARTICLE VIII GUARANTY

	 	 	79	 
	 
	 	 	 	 
	SECTION 8.01. Guaranty; Limitation of Liability

	 	 	79	 
	SECTION 8.02. Guaranty Absolute

	 	 	80	 
	SECTION 8.03. Waivers and Acknowledgments

	 	 	81	 
	SECTION 8.04. Payments Free and Clear of Taxes, Etc.

	 	 	81	 
	SECTION 8.05. Continuing Guaranty; Assignments

	 	 	81	 
	SECTION 8.06. Subrogation

	 	 	82	 
	SECTION 8.07. Guaranty Supplements

	 	 	82	 
	SECTION 8.08. Subordination

	 	 	82	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS

	 	 	83	 
	 
	 	 	 	 
	SECTION 9.01. Amendments, Etc.

	 	 	83	 
	SECTION 9.02. Notices, Etc.

	 	 	84	 
	SECTION 9.03. No Waiver; Remedies

	 	 	86	 
	SECTION 9.04. Costs and Expenses

	 	 	86	 
	SECTION 9.05. Right of Set-off

	 	 	88	 
	SECTION 9.06. Binding Effect

	 	 	88	 
	SECTION 9.07. Assignments and Participations

	 	 	88	 
	SECTION 9.08. Execution in Counterparts; Intercreditor Agreement

	 	 	92	 
	SECTION 9.09. [Intentionally Omitted]

	 	 	93	 
	SECTION 9.10. Confidentiality

	 	 	93	 
	SECTION 9.11. Release of Collateral

	 	 	93	 
	SECTION 9.12. Patriot Act Notice

	 	 	93	 
	SECTION 9.13. FCC Compliance

	 	 	93	 
	SECTION 9.14. JURISDICTION, ETC.

	 	 	93	 
	SECTION 9.15. GOVERNING LAW

	 	 	94	 
	SECTION 9.16. Market Flex

	 	 	94	 
	SECTION 9.17. WAIVER OF JURY TRIAL

	 	 	94	 






ii









 






	 	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	Schedule I

	 	-
	 	Commitments and Applicable Lending Offices
	Schedule II

	 	-
	 	Subsidiary Guarantors
	Schedule 1.1

	 	-
	 	EBITDA
	Schedule 4.01(b)

	 	-
	 	Loan Parties
	Schedule 4.01(c)

	 	-
	 	Subsidiaries
	Schedule 4.01(q)

	 	-
	 	Plans and Multiemployer Plans
	Schedule 4.01(v)

	 	-
	 	Existing Debt
	Schedule 4.01(w)

	 	-
	 	Surviving Debt
	Schedule 4.01(x)

	 	-
	 	Liens
	Schedule 4.01(y)

	 	-
	 	Owned Real Property
	Schedule 4.01(z)(1)

	 	-
	 	Leased Real Property (Lessee)
	Schedule 4.01(z)(2)

	 	-
	 	Leased Real Property (Lessor)
	Schedule 4.01(aa)

	 	-
	 	Investments
	Schedule 4.01(bb)

	 	-
	 	Intellectual Property
	Schedule 4.01(cc)

	 	-
	 	Material Contracts
	Schedule 4.01(hh)

	 	-
	 	FCC Licenses
	Schedule 5.01(q)(i)

	 	-
	 	Collateral Access Leases






	 	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	-
	 	Form of Note
	Exhibit B

	 	-
	 	Form of Notice of Borrowing
	Exhibit C

	 	-
	 	Form of Assignment and Acceptance
	Exhibit D

	 	-
	 	Form of Security Agreement
	Exhibit E

	 	-
	 	Form of Mortgage
	Exhibit F

	 	-
	 	Form of Solvency Certificate
	Exhibit G

	 	-
	 	Form of Intercreditor Agreement
	Exhibit H-1

	 	-
	 	Form of Opinion of Proskauer Rose LLP, Counsel to the Loan Parties
	Exhibit H-2

	 	-
	 	Form of Opinion of Troutman Sanders LLP, Counsel to the Loan Parties
	Exhibit I

	 	-
	 	Form of Opinion of Wyatt, Tarrant & Combs, LLP, Local Counsel to the Loan Parties
	Exhibit J

	 	-
	 	Form of Opinion of Blooston, Mordkofsky, Dickens, Duffy & Prendergast LLP,
Regulatory Counsel to the Loan Parties
	Exhibit K

	 	-
	 	Form of Local Counsel Opinion (Mortgages)
	Exhibit L

	 	-
	 	Form of Guaranty Supplement
	Exhibit M

	 	-
	 	Form of Collateral Access Agreement






iii









 






SECOND LIEN SENIOR SECURED CREDIT AGREEMENT




          SECOND LIEN SENIOR SECURED CREDIT AGREEMENT, dated as of December 30, 2005, among TRIPLE CROWN
MEDIA, LLC, a Delaware limited liability company (the “Borrower”), TRIPLE CROWN MEDIA, INC., a
Delaware corporation (the “Parent”), as a Guarantor (as hereinafter defined), the Subsidiary
Guarantors (as hereinafter defined), the Lenders (as hereinafter defined), WACHOVIA BANK, NATIONAL
ASSOCIATION (“Wachovia”), as collateral agent (together with any successor collateral agent
appointed pursuant to Article VII, in such capacity, the “Collateral Agent”) for the Secured
Parties (as hereinafter defined), BANK OF AMERICA, N.A., as Syndication Agent, Wachovia, as
administrative agent (together with any successor administrative agent appointed pursuant to
Article VII, in such capacity, the “Administrative Agent” and, together with the Collateral Agent,
the “Agents”) for the Lenders (as hereinafter defined) and WACHOVIA CAPITAL MARKETS, LLC and BANC
OF AMERICA SECURITIES LLC, as joint bookrunners (in such capacity, collectively, the “Bookrunners”)
and joint lead arrangers (in such capacity, collectively, the “Arrangers”).




PRELIMINARY STATEMENTS:




          (1) Gray Television, Inc., a Georgia corporation (“Gray”), has approved the spin-off of its
wholly owned direct subsidiary Triple Crown Media, Inc., a newly formed Delaware corporation
(“TCM”), to its shareholders (the “Spin-Off”). Prior to such Spin-Off, Gray will contribute (the
“Contribution”) its newspaper publishing and Graylink Wireless businesses, consisting of all of its
membership interests in Gray Publishing, LLC, a Delaware limited liability company (“Publishing”)
that also owns Graylink LLC and Porta-Phone Paging Licensee Corp., to TCM (TCM, Publishing and
Publishing’s subsidiaries being hereinafter referred to as the “Gray Businesses”).




          (2) Pursuant to an agreement and plan of merger dated August 2, 2005 (as amended, restated,
supplemented or otherwise modified in accordance with its terms, to the extent permitted in
accordance with the Loan Documents (as, along with all other capitalized terms not otherwise
defined in these Preliminary Statements, defined below), the “Merger Agreement”) entered into by
and among TCM, BR Acquisition Corp., a Georgia corporation and a wholly owned subsidiary of TCM,
and Bull Run Corporation, a Georgia corporation (“Bull Run”), immediately following the
Contribution and Spin-Off, Bull Run will be merged with and into BR Acquisition Corp. (the
“Merger”) whereby (a) each shareholder in Bull Run will receive either common stock of TCM or
preferred shares of stock of TCM, or a combination of both, (b) the existing shareholders of TCM
shall receive rollover equity consisting of new preferred and common stock in TCM (collectively,
the “Merger Consideration”) and (c) certain preferred stock shall be redeemed (the “Redemption”).
After giving effect to the Merger, TCM shall be a holding company with the Borrower as a direct
wholly owned subsidiary, and with the Borrower having as direct wholly owned subsidiaries Bull Run
and Publishing.




          (3) The Borrower has requested that after giving effect to the Contribution and the Spin-Off
and concurrently with the consummation of the Merger, the Lenders lend to the Borrower up to
$30,000,000 under this Agreement which, together with the proceeds of advances made to the Borrower
by the lenders under the First Lien Facilities (as defined below), shall be used to refinance in
full all Existing Debt of Bull Run and the Existing Debt attributed to the Gray Businesses (the
“Refinancing”) and to pay fees, expenses and costs related to the Transaction. The Lenders have
indicated their willingness to agree to lend such amount, but only on the terms and conditions of
this Agreement, including the granting of the Collateral pursuant to the Collateral Documents and
the making of the guarantees pursuant to Article VIII hereof.




          (4) Simultaneously with entering into this Agreement, (a) the Borrower is entering into a
First Lien Senior Secured Credit Agreement, dated as of the date hereof (as amended, amended and





1









 







restated, supplemented or otherwise modified from time to time in accordance with Section
5.02(k), the “First Lien Facilities”) with the Borrower, the guarantors party thereto, the lenders
party thereto, certain agents and arrangers party thereto and Wachovia, as administrative agent and
(b) the Collateral Agent and the collateral agent under the First Lien Facilities are entering into
the Intercreditor Agreement (as hereinafter defined), as acknowledged by the Loan Parties, and the
provisions of this Agreement shall be subject to the provisions of the Intercreditor Agreement.




          NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
contained herein, the parties hereto hereby agree as follows:




ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




     SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):




     “Administrative Agent” has the meaning specified in the recital of parties to this
Agreement.




     “Administrative Agent’s Account” means the account of the Administrative Agent
specified by the Administrative Agent in writing to the Lenders from time to time.




     “Advance” has the meaning specified in Section 2.01.




     “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term “control” (including the
terms “controlling”, “controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the Voting Interests of
such Person or to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Interests, by contract or otherwise.




     “Agents” has the meaning specified in the recital of parties to this Agreement.




     “Agreement” means this Second Lien Senior Secured Credit Agreement, as amended.




     “Agreement Value” means, for each Hedge Agreement, on any date of determination, an
amount determined by the Administrative Agent equal to: (a) in the case of a Hedge
Agreement documented pursuant to the Master Agreement (Multicurrency-Cross Border) published
by the International Swap and Derivatives Association, Inc. (the “Master Agreement”), the
amount, if any, that would be payable by any Loan Party or any of its Subsidiaries to its
counterparty to such Hedge Agreement, as if (i) such Hedge Agreement was being terminated
early on such date of determination, (ii) such Loan Party or Subsidiary was the sole
“Affected Party” and (iii) the Administrative Agent was the sole party determining such
payment amount (with the Administrative Agent making such determination pursuant to the
provisions of the form of Master Agreement); (b) in the case of a Hedge Agreement traded on
an exchange, the mark-to-market value of such Hedge Agreement, which will be the unrealized
loss on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party party to such
Hedge Agreement determined by the Administrative Agent based on the settlement price of such Hedge
Agreement



2









 






on such date of determination or (c) in all other cases, the mark-to-market value
of such Hedge Agreement, which will be the unrealized loss on such Hedge Agreement to the
Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement reasonably determined
by the Administrative Agent as the amount, if any, by which (i) the present value of the
future cash flows to be paid by such Loan Party or Subsidiary exceeds (ii) the present value
of the future cash flows to be received by such Loan Party or Subsidiary pursuant to such
Hedge Agreement. Capitalized terms used and not otherwise defined in this definition shall
have the respective meanings set forth in the above-described Master Agreement.




     “Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.




     “Applicable Margin” means 8.00% per annum for Base Rate Advances and 9.00% per annum
for Eurodollar Rate Advances.




     “Approvals” means (a) all material filings, recordings, and registrations with, and all
material validations or exemptions, approvals, orders, authorizations, consents, franchises,
licenses, certificates, and permits from, any Governmental Authority (other than the FCC),
including, without limitation, any of the foregoing authorizing or permitting the
acquisition, construction, or operation of any Network Facilities or to otherwise provide
the services related to the Telecommunications Business of the Parent and its Subsidiaries
and (b) all material filings, recordings, and registrations with, and all validations or
exemptions, approvals, orders, authorizations, consents, franchises, licenses, certificates
and permits from, the FCC, including, without limitation, those authorizing or permitting
the acquisition, construction, or operation of any Network Facilities or to otherwise
provide the services related to the Telecommunications Business of the Parent and its
Subsidiaries and those authorizing or permitting the execution, delivery and performance by
the Loan Parties of the Loan Documents and the grant and perfection of the Liens and
security interests thereunder.




     “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.




     “Arrangers” has the meaning specified in the recital of parties to this Agreement.




     “Assignment and Acceptance” means an assignment and acceptance entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is required by Section
9.07 or by the definition of “Eligible Assignee”) and accepted by the Administrative Agent,
in accordance with Section 9.07 and in substantially the form of Exhibit C hereto or any
other form approved by the Administrative Agent.




     “Bankruptcy Law” means any proceeding of the type referred to in Section 6.01(f) or
Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.




     “Base Rate” means a fluctuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to the higher of:




     (a) the rate of interest established by Wachovia in Charlotte, North Carolina
from time to time as Wachovia’s prime rate; and



3









 






     (b) 1/2 of 1% per annum above the Federal Funds Rate.




     The Base Rate is not intended to be nor will it necessarily be the lowest rate of
interest extended by Wachovia to its customers.




     “Base Rate Advance” means an Advance that bears interest as provided in Section
2.07(a)(i).




     “Bookrunners” has the meaning specified in the recital of parties to this Agreement.




     “Borrower” has the meaning specified in the recital of parties to this Agreement.




     “Borrower’s Account” means the account of the Borrower specified by the Borrower in
writing to the Administrative Agent from time to time.




     “Borrowing” means a borrowing consisting of simultaneous Advances of the same Type made
by the Lenders.




     “Bull Run” has the meaning specified in the Preliminary Statements.




     “Business Day” means a day of the year on which banks are not required or authorized by
law to close in New York, New York or Charlotte, North Carolina and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.




     “Capital Expenditures” means, for any Person for any period, all expenditures made,
directly or indirectly, by such Person or any of its Subsidiaries during such period for
equipment, fixed assets, real property or improvements, or for replacements or substitutions
therefor or additions thereto, that have been or should be, in accordance with GAAP,
reflected as additions to property, plant or equipment on a Consolidated balance sheet of
such Person or have a useful life of more than one year. For purposes of this definition,
(x) 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 of such purchase price less the credit granted by the
seller of such equipment for the equipment being traded in at such time or the amount of
such proceeds, as the case may be, and (y) the capitalized portion of the purchase price
payable in connection with any Permitted Acquisition shall not be included in Capital
Expenditures.




     “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.




     “Cash Equivalents” means any of the following, to the extent owned by the Borrower or
any of its Subsidiaries free and clear of all Liens (other than (i) Liens created under the
Collateral Documents and (ii) Permitted Liens): (a) marketable securities (i) issued or
directly and unconditionally guaranteed as to interest and principal by the United States
government or (ii) issued by any agency of the United States of America, in each case
maturing within one year after such date; (b) marketable direct obligations issued by any
state of the United States or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date and having,
at the time of the acquisition thereof, the highest rating obtainable from either Standard &
Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., or Moody’s Investors
Service, Inc.; (c) commercial paper, money-market funds



4









 






and business savings accounts issued by corporations, each of which shall have a
combined net worth of at least $100,000,000.00 and each of which conducts a substantial part
of its business in the United States, and rated “P-2” or better by Moody’s Investors
Service, Inc. or “A-2” or better by Standard & Poor’s Ratings Group, a division of The
McGraw-Hill Companies, Inc.; (d) certificates of deposit or bankers’ acceptances maturing
within one year after such date and issued or accepted by any Lender or by any commercial
bank organized under the laws of the United States or any state thereof or the District of
Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its
primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in the
regulations) of not less than $100,000,000.00; and (e) shares of any money market mutual
fund that (i) has at least ninety-five percent (95%) of its assets invested continuously in
the types of investments referred to in clauses (a), (b) and (c) above, (ii) has net assets
of not less than $500,000,000.00, and (iii) has the highest rating obtainable from either
Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., or Moody’s
Investors Service, Inc.




     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended from time to time.




     “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.




     “CFC” means an entity that is a controlled foreign corporation of the Borrower under
Section 957 of the Internal Revenue Code.




     “Change of Control” means the occurrence of any of the following: (a) any Person or
two or more Persons (other than any Permitted Holders) acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Interests of the Parent (or other
securities convertible into such Voting Interests) representing 35% or more of the combined
voting power of all Voting Interests of the Parent; or (b) during any period of up to 24
consecutive months, commencing before or after the date of this Agreement, Continuing
Directors shall cease for any reason to constitute a majority of the board of directors of
the Parent; or (c) any Person or two or more Persons acting in concert shall have acquired
by contract or otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the Parent; or (d)
the Parent shall cease to own 100% of the Equity Interests in the Borrower; or (e) any
“Change of Control” (or equivalent event) set forth in the Permitted Refinancing Debt
Documents shall have occurred.




     “Collateral” means all “Collateral” and “Mortgaged Property” referred to in the
Collateral Documents and all other property that is or is intended to be subject to any Lien
in favor of the Collateral Agent for the benefit of the Secured Parties.




     “Collateral Access Agreement” has the meaning specified in Section 5.01(q)(i).




     “Collateral Access Lease” means the Real Property Leases listed on Schedule
5.01(q)(i) and any New Collateral Access Lease that becomes Collateral after the Initial
Extension of Credit pursuant to Section 5.01(i).




     “Collateral Account” has the meaning specified in the Security Agreement.



5









 






     “Collateral Agent” has the meaning specified in the recital of parties to this
Agreement.




     “Collateral Documents” means the Security Agreement, the Mortgages, each of the
collateral documents, instruments and agreements delivered pursuant to Section 5.01(i), (j)
or (q), and each other agreement that creates or purports to create a Lien in favor of the
Collateral Agent for the benefit of the Secured Parties, including under any intellectual
property security agreement or supplement.




     “Commitment” means, with respect to any Lender at any time, the amount set forth
opposite such Lender’s name on Schedule I (which is on file with the Administrative
Agent) under the caption “Commitment”.




     “Communications” has the meaning specified in Section 9.02(b).




     “Communications Act” means the Communications Act of 1934, as amended, 47 U.S.C. § 151,
et seq.




     “Communications Laws” means the Communications Act and the rules and regulations of the
FCC in effect at any time thereunder.




     “Confidential Information” means information that any Loan Party furnishes to any Agent
or any Lender in a writing designated as confidential, but does not include any such
information that is or becomes generally available to the public other than as a result of a
breach by such Agent or any Lender of its obligations hereunder or that is or becomes
available to such Agent or such Lender from a source other than the Loan Parties.




     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




     “Contingent Obligation” means, with respect to any Person, any Obligation or
arrangement of such Person to guarantee or intended to guarantee any Debt, leases, dividends
or other payment Obligations (“primary obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without limitation, (a)
the direct or indirect guarantee, endorsement (other than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with recourse by
such Person of the Obligation of a primary obligor, (b) the Obligation to make take-or-pay
or similar payments, if required, regardless of nonperformance by any other party or parties
to an agreement or (c) any Obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any
such primary obligation or (B) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable pursuant to the terms
of the instrument evidencing such Contingent Obligation) or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder), as determined by such Person in good faith.



6









 






     “Continuing Directors” means the directors of the Parent on the Effective Date and each
other director if, in each case, such other director’s nomination for election to the board
of directors of the Parent is recommended by at least a majority of the then Continuing
Directors.




     “Contribution” has the meaning specified in the Preliminary Statements.




     “Conversion”, “Convert” and “Converted” each refer to a conversion of Advances of one
Type into Advances of the other Type pursuant to Section 2.09 or 2.10.




     “Debt” of any Person means (and without duplication for purposes of calculating
financial ratios), (a) all indebtedness of such Person for borrowed money, (b) all
Obligations of such Person for the deferred purchase price of property or services (other
than trade payables not overdue by more than 60 days from the date such trade payables are
originally due incurred in the ordinary course of such Person’s business), (c) all
Obligations of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (e) all Obligations
of such Person as lessee under Capitalized Leases, (f) all Obligations of such Person under
acceptance, letter of credit or similar facilities, (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity
Interests in such Person or any other Person or any warrants, rights or options to acquire
such Equity Interests, valued, in the case of Redeemable Preferred Interests, at the greater
of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends,
(h) all Obligations of such Person in respect of Hedge Agreements, valued at the Agreement
Value thereof, (i) all Contingent Obligations and Off-Balance Sheet Obligations of such
Person and (j) all indebtedness and other payment Obligations referred to in clauses (a)
through (i) above of another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such indebtedness or other
payment Obligations.




     “Default” means any Event of Default or any event that would constitute an Event of
Default but for the passage of time or the requirement that notice be given or both.




     “Default Interest” has the meaning specified in Section 2.07(b).




     “Defaulted Advance” means, with respect to any Lender at any time, the portion of any
Advance required to be made by such Lender to the Borrower pursuant to Section 2.01 or 2.02
at or prior to such time that has not been made by such Lender or by the Administrative
Agent for the account of such Lender pursuant to Section 2.02(d) as of such time.




     “Defaulted Amount” means, with respect to any Lender at any time, any amount required
to be paid by such Lender to any Agent or any other Lender hereunder or under any other Loan
Document at or prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender to (a) the Administrative
Agent pursuant to Section 2.02(d) to reimburse the Administrative Agent for the amount of
any Advance made by the Administrative Agent for the account of such Lender, (b) any other
Lender pursuant to Section 2.13 to purchase any participation in Advances owing to such
other Lender and (c) any Agent pursuant to Section 7.05 to reimburse such Agent for such
Lender’s ratable share of any amount required to be paid by the Lenders to such Agent as
provided therein. In the



7









 






event that a portion of a Defaulted Amount shall be deemed paid pursuant to Section
2.15(a), the remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan Document on the same
date as the Defaulted Amount so deemed paid in part.




     “Defaulting Lender” means, at any time, any Lender that, at such time, owes a Defaulted
Advance or a Defaulted Amount.




     “Domestic Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I (which is
on file with the Administrative Agent) or in the Assignment and Acceptance pursuant to which
it became a Lender, as the case may be, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative Agent.




     “EBITDA” means, at any date of determination, the sum, determined on a Consolidated
basis, of (a) net income (or net loss), plus (b) the amounts deducted in determining such
net income for (i) interest expense (net of any interest income), (ii) income tax expense,
(iii) depreciation expense, (iv) amortization expense, (v) non-cash non-recurring
extraordinary items, (vi) all charges attributable to the integration, automation and/or
centralization of the Gray Businesses and the business of Bull Run with the business of the
Borrower, which shall be for the purpose of increasing the overall efficiency of the
operations of the Parent and its Subsidiaries in an amount not to exceed $1,000,000, (vii)
all non-recurring costs incurred in respect of the Spin-Off and the Merger in an amount not
to exceed $2,000,000, (viii) any expenses paid for in capital stock of the Parent, including
any 401(k) contributions, directors’ fees and expenses for stock options issued, (ix) any
non-cash pension expenses, (x) any corporate overhead expenses and costs of Gray allocated
by Gray to the Parent or the Borrower and (xi) any expenses and costs related to the
Transaction and reimbursed to Gray on or after the Closing Date, minus the amounts added in
determining such net income for non-cash non-recurring extraordinary items, in each case of
the Parent and its Subsidiaries, determined in accordance with GAAP for the most recently
completed Measurement Period; provided that, for the fiscal quarters ended December 31,
2004, March 31, 2005, June 30, 2005 and September 30, 2005, EBITDA shall be as set forth on
Schedule 1.1 hereto.




     “Effective Date” has the meaning specified in Section 3.01.




     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than an individual) approved by (i) the Administrative
Agent and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed); provided, however, that neither
any Loan Party nor any Affiliate of a Loan Party shall qualify as an Eligible Assignee under
this definition.




     “Eligible SPV” means a single purpose corporate entity organized and existing under the
laws of the State of Delaware the sole assets of which shall consist of any and all FCC
Licenses necessary for the conduct of the Telecommunications Business of the Parent and its
Subsidiaries; provided that (a) such corporate entity shall be a wholly owned subsidiary of
the Borrower and shall be a Loan Party for purposes of the Loan Documents, (b) the
constituent documents of such corporate entity shall be in customary form and the operations
of such corporate entity shall be conducted, in each case so as to avoid substantive
consolidation with the bankruptcy estate of the Borrower or any other Loan Party and
otherwise in form and substance reasonably satisfactory to the Administrative Agent, (c) the
Equity Interests of such corporate entity shall constitute Pledged



8









 






Equity for purposes of the Collateral Documents, and (d) such corporate entity shall
not incur, assume or suffer to exist any Debt (other than pursuant to the Loan Documents).




     “Environmental Action” means any action, suit, written demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged
injury or threat to health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or regulatory authority or
third party for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.




     “Environmental Law” means any Federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, writ, judgment, injunction, decree or judicial or agency
written and officially promulgated policy or guidance relating to pollution or protection of
the environment, health, safety or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.




     “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, shares of capital stock of (or
other ownership or profit interests in) such Person, warrants, options or other rights for
the purchase or other acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, 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 other acquisition from such Person of such
            shares (or such other interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights or other
interests are authorized or otherwise existing on any date of determination.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.




     “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of any Loan Party, or under common control with any Loan Party,
within the meaning of Section 414 of the Internal Revenue Code.




     “ERISA Event” means (a) (i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with
respect to such event has been waived by the PBGC or (ii) the requirements of Section
4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12)
or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a



9









 






plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for imposition of a Lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the institution
by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to administer, such Plan.




     “Escrow Bank” has the meaning specified in Section 2.15(b).




     “Eurocurrency Liabilities” has the meaning specified in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.




     “Eurodollar Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I
(which is on file with the Administrative Agent) or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent.




     “Eurodollar Rate” means, for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period for a period equal to such Interest Period
(provided that, if for any reason such rate is not available, the term “Eurodollar Rate”
shall mean, for any Interest Period for all Eurodollar Rate Advances comprising part of the
same Borrowing, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits
in U.S. dollars at approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates), by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.




     “Eurodollar Rate Advance” means an Advance that bears interest as provided in
Section 2.07(a)(ii).




     “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.




     “Events of Default” has the meaning specified in Section 6.01.



10









 






     “Excess Cash Flow” means, for any Measurement Period, an amount (if positive) equal to
(a) Consolidated EBITDA for such period minus (b) the sum, without duplication, of the
amounts paid in such period of (i) Capital Expenditures, (ii) Interest Expense paid in cash
during Measurement Period, (iii) the provision for current taxes based on income of the
Parent and its Subsidiaries on a consolidated basis and paid in cash during such Measurement
Period and (iv) regularly scheduled and optional repayments or prepayments of principal on
outstanding term Debt, plus or minus, as the case may be, any changes in working capital for
such period.




     “Excluded Equity Issuances” means (a) any options, stock, or other equity incentive
compensation issued in connection with any option or equity plan of the Parent adopted by
its Board of Directors, (b) any stock issued upon the exercise of any options granted under
the plans referenced in clause (a) above, (c) any stock dividends issued by the Borrower to
the Parent or any stock dividends issued by any Subsidiary of the Borrower to the Borrower,
(d) any stock dividends permitted to be issued by the Parent hereunder or (e) any Equity
Interest of the Parent issued in connection with a Permitted Acquisition that is otherwise
permitted hereunder.




     “Existing Debt” means Debt of each Loan Party and its Subsidiaries outstanding
immediately before the occurrence of the Effective Date, as set forth on Schedule
4.01(v).




     “Extension of Credit” means the making of an Advance.




     “Extraordinary Receipt” means any cash received by or paid to or for the account of any
Person not in the ordinary course of business, including, without limitation, tax refunds,
pension plan reversions, proceeds of insurance (including, without limitation, any key man
life insurance but excluding proceeds of business interruption insurance to the extent such
proceeds constitute compensation for lost earnings), condemnation awards (and payments in
lieu thereof), indemnity payments and any purchase price adjustment received in connection
with any purchase agreement, including the Merger Agreement; provided, however, that an
Extraordinary Receipt shall not include cash receipts received from proceeds of insurance,
condemnation awards (or payments in lieu thereof) or indemnity payments to the extent that
such proceeds, awards or payments do not exceed $1,000,000 in the aggregate from the
Effective Date through and including the Termination Date and are received by any Person in
respect of any third party claim against such Person and applied to pay (or to reimburse
such Person for its prior payment of) such claim and the costs and expenses of such Person
with respect thereto within 180 days after receipt thereof, as confirmed in writing to the
Administrative Agent by such date of application.




     “Facility” means, at any time, the aggregate amount of the Lenders’ Commitments at such
time.




     “FCC” means the Federal Communications Commission and any successor regulatory body of
the United States of America having jurisdiction over any Loan Party or any Network
Facilities.




     “FCC License” means any Approval issued by the FCC from time to time for the Parent and
its Subsidiaries to acquire, construct or operate any Network Facilities or to otherwise
provide the services related to the Telecommunications Business of the Parent and its
Subsidiaries.




     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers, as



11









 






published for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.




     “Fee Letter” means the fee letter dated as of December 30, 2005, among the Parent, the
Administrative Agent, the Arrangers and Bank of America, N.A., as amended.




     “First Lien Collateral Agent” means the “Collateral Agent” as defined in the First Lien
Facilities.




     “First Lien Facilities” has the meaning specified in the Preliminary Statements.




     “First Lien Loan Documents” means the “Loan Documents” as defined in the First Lien
Facilities, as amended to the extent permitted under the Loan Documents.




     “First Lien Obligations” means the “Obligations” as defined in the First Lien
Facilities of any Loan Party in respect of the First Lien Loan Documents.




     “Fiscal Year” means a fiscal year of the Parent and its Consolidated Subsidiaries
ending on December 31 in any calendar year.




     “Fund” means any Person (other than an individual) 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 business.




     “GAAP” has the meaning specified in Section 1.03.




     “Governmental Authority” means any nation or government, any state, province, city,
municipal entity or other political subdivision thereof, and any governmental, executive,
legislative, judicial, administrative or regulatory agency, department, authority,
instrumentality, commission, board, bureau or similar body, whether federal, state,
provincial, territorial, local or foreign.




     “Governmental Authorization” means any authorization, approval, consent, franchise,
license, covenant, order, ruling, permit, certification, exemption, notice, declaration or
similar right, undertaking or other action of, to or by, or any filing, qualification or
registration with, any Governmental Authority.




     “Gray” has the meaning specified in the Preliminary Statements.




     “Gray Businesses” has the meaning specified in the Preliminary Statements.




     “Guaranteed Obligations” has the meaning specified in Section 8.01.




     “Guaranties” means the Parent Guaranty and the Subsidiary Guaranty.




     “Guarantors” means the Parent and the Subsidiary Guarantors.




     “Guaranty Supplement” has the meaning specified in Section 8.07.



12









 






     “Hazardous Materials” means (a) petroleum or petroleum products, by-products or
breakdown products, radioactive materials, friable or material quantities or concentrations
of asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other
chemicals, materials or substances defined, classified or regulated as hazardous or toxic or
as a pollutant or contaminant under any Environmental Law.




     “Hedge Agreements” means interest rate, commodity or currency swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other hedging agreements (including, without limitation, all
“swap agreements” as defined in 11 U.S.C. § 101).




     “Indemnified Party” has the meaning specified in Section 9.04(b).




     “Information Memorandum” means the information memorandum dated October, 2005, as
supplemented, based on information provided by Gray, Bull Run and the Parent used by the
Arrangers in connection with the syndication of the Commitments.




     “Initial Extension of Credit” means the initial Borrowing hereunder.




     “Initial Lenders” means the Initial Lenders.




     “Initial Lenders” means the banks, financial institutions and other institutional
lenders listed on the signature pages hereof as the Initial Lenders.




     “Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded
benefit liabilities, as defined in Section 4001(a)(18) of ERISA.




     “Intercreditor Agreement” means the Intercreditor Agreement, in substantially the form
of Exhibit G hereto, between the Collateral Agent and the collateral agent for the First
Lien Facilities and acknowledged by the Borrower, as amended.




     “Interest Period” means, for each Eurodollar Rate Advance comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar Rate Advance, and ending on the
last day of the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Borrower pursuant
to the provisions below. The duration of each such Interest Period shall be one, two, three
or six months, as the Borrower may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (Charlotte, North Carolina time) on the third Business Day prior to
the first day of such Interest Period, select; provided, however, that:




     (a) the Borrower may not select any Interest Period with respect to any
Eurodollar Rate Advance that ends after any principal repayment installment date
unless, after giving effect to such selection, the aggregate principal amount of
Base Rate Advances and of Eurodollar Rate Advances having Interest Periods that end
on or prior to such principal repayment installment date shall be at least equal to
the aggregate principal amount of Advances due and payable on or prior to such date;




     (b) Interest Periods commencing on the same date for Eurodollar Rate Advances
comprising part of the same Borrowing shall be of the same duration;



13









 






     (c) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and




     (d) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.




     “Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Parent’s internal controls
over financial reporting, to the extent described in the Securities Laws, but in any case
excluding any events publicly disclosed prior to the date hereof in respect of the
reclassification of dividends in respect of Preferred Interests.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.




     “Inventory” means all Inventory referred to in Section 1(b) of the Security Agreement.




     “Investment” in any Person means any loan or advance to such Person, any purchase or
other acquisition of any Equity Interests or Debt or the assets comprising a division or
business unit or a substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment in such Person,
including, without limitation, any acquisition by way of a merger or consolidation (or
similar transaction) and any arrangement pursuant to which the investor incurs Debt of the
types referred to in clause (i) or (j) of the definition of “Debt” in respect of such
Person.




     “Lease Agreement” means the lease agreement dated as of November 21, 2005 between the
Parent and Gray, as amended, to the extent permitted under the Loan Documents.




     “Leased Real Properties” means those properties listed in Schedule 4.01(z)(1).




     “Lenders” means the Initial Lenders and each Person that shall become a Lender
hereunder pursuant to Section 9.07 for so long as such Initial Lender or Person, as the case
may be, shall be a party to this Agreement.




     “Leverage Ratio” means, at any date of determination, the ratio of (a) Consolidated
Debt of the Parent and its Subsidiaries at such date to (b) Consolidated EBITDA of the
Parent and its Subsidiaries for the most recently completed Measurement Period.




     “Lien” means any lien, security interest or other charge or encumbrance of any kind, or
any other type of preferential arrangement, including, without limitation, the lien or
retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.



14









 






     “Loan Documents” means (a) this Agreement, (b) the Notes, (c) the Guaranties, (d) the
Collateral Documents, (e) the Fee Letter and (f) the Intercreditor Agreement, in each case
as amended.




     “Loan Parties” means the Borrower and the Guarantors.




     “Margin Stock” has the meaning specified in Regulation U.




     “Material Adverse Change” means any material adverse change in the business,
operations, condition (financial or otherwise), assets or liabilities (whether actual or
contingent) or prospects of (a) the Gray Businesses, (b) Bull Run and its Subsidiaries or
(c) the Parent and its Subsidiaries, in each case taken as a whole (including, without
limitation, in connection with any termination of or change to any Material Contracts).




     “Material Adverse Effect” means a material adverse effect on (a) the business,
operations, condition (financial or otherwise), assets or liabilities (actual or contingent)
or prospects of the Parent and its Subsidiaries, taken as a whole, (b) the rights and
remedies of any Agent or any Lender under any Transaction Document or (c) the ability of any
Loan Party to perform its Obligations under any Transaction Document to which it is or is to
be a party.




     “Material Contract” means, with respect to any Person, (a) each contract to which such
Person is a party with respect to such Person’s sports marketing or newspaper distribution
business involving aggregate consideration payable to such Person of $1,000,000 or more in
any year or (b) each contract to which such Person is a party (other than any contract
referred to in clause (a)) involving aggregate consideration payable to such Person of
$1,000,000 or more in any year or otherwise material to the business, condition (financial
or otherwise), operations, performance, properties or prospects of such Person, but
excluding any Related Documents and any First Lien Loan Documents.




     “Measurement Period” means, at any date of determination, the most recently completed
four consecutive fiscal quarters of the Parent ending on or prior to such date or, if less
than four consecutive fiscal quarters of the Parent have been completed since the date of
the Initial Extension of Credit, the fiscal quarters of the Parent that have been completed
since the date of the Initial Extension of Credit; provided that (a) for purposes of
determining an amount of any item included in the calculation of a financial ratio or
financial covenant (other than EBITDA) for the fiscal quarter ended March 31, 2006, such
amount for the Measurement Period then ended shall equal such item for such fiscal quarter
multiplied by four; (b) for purposes of determining an amount of any item included in the
calculation of a financial ratio or financial covenant (other than EBITDA) for the fiscal
quarter ended June 30, 2006, such amount for the Measurement Period then ended shall equal
such item for the two fiscal quarters then ended multiplied by two; and (c) for purposes of
determining an amount of any item included in the calculation of a financial ratio or
financial covenant (other than EBITDA) for the fiscal quarter ended September 30, 2006, such
amount for the Measurement Period then ended shall equal such item for the three fiscal
quarters then ended multiplied by 4/3.




     “Merger” has the meaning specified in the Preliminary Statements.




     “Merger Agreement” has the meaning specified in the Preliminary Statements.




     “Merger Consideration” has the meaning specified in the Preliminary Statements.



15









 






     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.




     “Mortgage Policies” has the meaning specified in Section 5.01(q)(ii)(B).




     “Mortgages” has the meaning specified in Section 5.01(q)(ii).




     “Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to
make contributions, or has within any of the preceding five plan years made or accrued an
obligation to make contributions.




     “Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained by a Loan Party for employees of any Loan Party
or any ERISA Affiliate and by at least one Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan
has been or were to be terminated.




     “Net Cash Proceeds” means (a) with respect to any sale, lease, transfer or other
disposition of any asset of the Parent or any of its Subsidiaries (other than any sale,
lease, transfer or other disposition of assets pursuant to clause (i), (ii), (iii), (iv),
(vi) or (viii) of Section 5.02(e)), the excess, if any, of (i) the sum of cash and Cash
Equivalents received in connection with such sale, lease, transfer or other disposition
(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 Debt (other than Debt under the Loan
Documents) that is secured by such asset and that is required to be repaid in connection
with such sale, lease, transfer or other disposition thereof, (B) the reasonable and
customary out-of-pocket costs, fees, commissions, premiums and expenses incurred by the
Parent or its Subsidiaries, (C) federal, state, provincial, foreign and local taxes
reasonably estimated (on a Consolidated basis) to be actually payable within the current or
the immediately succeeding tax year as a result of any gain recognized in connection
therewith, and (D) any amounts maintained in escrow to cover any indemnification obligations
or obligations in respect of employee benefits in connection with any such sale, lease,
transfer or other disposition; provided, however, that in the case of taxes that are
deductible under clause (C) above but for the fact that, at the time of receipt of such cash
and Cash Equivalents, such taxes have not been actually paid or are not then payable, such
Loan Party or such Subsidiary may deduct an amount (the “Reserved Amount”) equal to the
amount reserved in accordance with GAAP for such Loan Party’s or such Subsidiary’s
reasonable estimate of such taxes, other than taxes for which such Loan Party or such
Subsidiary is indemnified; provided further that, at any time such taxes are paid, an amount
equal to the amount, if any, by which the Reserved Amount for such taxes exceeds the amount
of such taxes actually paid shall constitute “Net Cash Proceeds” of the type for which such
taxes were reserved for all purposes hereunder; provided further that, at any time any
amounts under clause (D) above are released from escrow and returned to the Loan Parties and
their Subsidiaries, such amounts shall constitute “Net Cash Proceeds” for all purposes
hereunder and provided even further that Net Cash Proceeds shall not include any such
amounts to the extent (x) such amounts are reinvested in capital assets used or useful in
the business of the Parent and its Subsidiaries within 12 months after the date of receipt
thereof in an aggregate amount from the Effective Date through and including the Termination
Date not to exceed $1,000,000, or (y) such amount in respect of any sales, leases, transfers
or other dispositions (individually or in the aggregate) shall not exceed $250,000;



16









 






     (b) with respect to the incurrence or issuance of any Debt by the Parent or any of its
Subsidiaries (other than Debt incurred or issued pursuant to Section 5.02(b)), the excess of
(i) the sum of the cash and Cash Equivalents received in connection with such incurrence or
issuance over (ii) the underwriting discounts and commissions or other similar payments, and
other out-of-pocket costs, fees, commissions, premiums and expenses incurred by the Parent
or any of its Subsidiaries in connection with such incurrence or issuance to the extent such
amounts were not deducted in determining the amount referred to in clause (i);




     (c) with respect to the sale or issuance of any Equity Interests (including, without
limitation, the receipt of any capital contribution) by any Person, the excess of (i) the
sum of the cash and Cash Equivalents received in connection with such sale or issuance over
(ii) the underwriting discounts and commissions or similar payments, and other out-of-pocket
costs, fees, commissions, premiums and expenses, incurred by the Parent or any of its
Subsidiaries in connection with such sale or issuance to the extent such amounts were not
deducted in determining the amount referred to in clause (i); provided, however, that Net
Cash Proceeds shall not include any cash and Cash Equivalents received in connection with a
sale or issuance of Excluded Equity Issuances; and




     (d) with respect to any Extraordinary Receipt that is not otherwise included in clauses
(a), (b) or (c) above, the excess of (i) the sum of the cash and Cash Equivalents received
in connection therewith over (ii) any out-of-pocket costs, fees and expenses attributable to
claiming such Extraordinary Receipts; provided, however, that Net Cash Proceeds shall not
include any such amounts to the extent (x) such amounts are reinvested in capital assets
used or useful in the business of the Parent and its Subsidiaries within 12 months after the
date of receipt thereof, or (y) such amount in respect of any Extraordinary Receipts
(individually or in the aggregate) shall not exceed $1,000,000 in the aggregate from the
Effective Date through and including the Termination Date.




     “Network Facilities” means the switches and the network of digital and analog
facilities owned or leased by the Parent or any of its Subsidiaries for use in their
Telecommunications Business.




     “New Collateral Access Lease” has the meaning specified in Section 5.01(i).




     “New Owned Property” has the meaning specified in Section 5.01(i).




     “Note” means a promissory note of the Borrower payable to the order of any Lender, in
substantially the form of Exhibit A hereto, evidencing the indebtedness of the Borrower to
such Lender resulting from the Advance made by such Lender, as amended, endorsed or
replaced.




     “Notice of Borrowing” has the meaning specified in Section 2.02(a).




     “NPL” means the National Priorities List under CERCLA.




     “Obligation” means, with respect to any Person, any payment, performance or other
obligation of such Person of any kind, including, without limitation, any liability of such
Person on any claim, whether or not the right of any creditor to payment in respect of such
claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim
is discharged, stayed or otherwise affected by any proceeding referred to in Section
6.01(f). Without limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include



17









 






(a) the obligation to pay principal, interest, reimbursement amounts, charges,
expenses, fees, reasonable attorneys’ fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the obligation of such Loan Party
to reimburse any amount in respect of any of the foregoing that any Lender, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.




     “Off-Balance Sheet Obligation” means, with respect to any Person, any Obligation of
such Person under a synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing classified as an operating lease in accordance with
GAAP, if such Obligations would give rise to a claim against such Person in a proceeding
referred to in Section 6.01(f).




     “Other Taxes” has the meaning specified in Section 2.12(b).




     “Owned Real Property” means those properties listed in Schedule 4.01(y).




     “Paging Services” means sound and/or data messaging services provided through the
transmission of coded radio signals between fixed stations and mobile end user devices under
the authority of licenses issued by the FCC under Title 47, parts 22, 24 and/or 90 of the
Code of Federal Regulations.




     “Parent” has the meaning specified in the recital of parties to this Agreement.




     “Parent Guaranty” means the guaranty of the Parent set forth in Article VIII.




     “Participant Register” has the meaning specified in Section 9.07(k) of this Agreement.




     “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into
law October 26, 2001.




     “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).




     “Permitted Acquisition” has the meaning specified in Section 5.02(f)(vii) of this
Agreement.




     “Permitted Asset Exchange” means the exchange by the Parent and its Subsidiaries of the
assets and properties consisting of the newspaper The Goshen News of Goshen, Indiana
(“Goshen”) pursuant to an arm’s-length transaction the purpose of which is to acquire (and
such exchange actually results within 45 days of such exchange in the acquisition of) assets
and properties consisting of another newspaper (such assets and properties are hereinafter
referred to as the “Target Newspaper”); so long as (a) no Event of Default shall have
occurred and be continuing before or after giving effect to such exchange of assets or
properties, (b) the Target Newspaper shall have been acquired by the Parent or any of its
Subsidiaries pursuant to such exchange of assets and properties within 365 days after the
Closing Date, (c) EBITDA of the Target Newspaper for the twelve-month period most recently
ended prior to the effective date of such exchange shall be equal to or greater than the
EBITDA for the same period for Goshen, and the EBITDA of the Target Newspaper shall have a
positive historical trend during such twelve-month period, (d) the Target Newspaper shall be
located for circulation in a stable community or suburban newspaper market comparable to the
other newspaper properties of the Parent and its Subsidiaries and shall be located for
circulation outside of a city zone circulation area and/or



18









 






home county of a metropolitan daily newspaper, (e) the Target Newspaper shall be
located in a market with demonstrated regional economic growth for the five year period
prior to the effective date of such exchange of assets and properties and such market shall
have reasonable expectations of economic growth of at least the national average for the
five year period following such effective date, (f) the Target Newspaper shall own
comparable printing facilities to the printing facilities of the Parent and its Subsidiaries
which shall be exchanged as part of the Permitted Asset Exchange, (g) any cash consideration
paid by any party in connection with such exchange of assets and properties shall not exceed
10% of the cash and non-cash consideration paid by such party, and shall be subject in any
case to approval by the Administrative Agent, (h) the fair market value of the Target
Newspaper shall be equal to at least the fair market value of Goshen, (i) the Target
Newspaper shall be exchanged free and clear of any Debt and Liens (other than any immaterial
Debt or Liens), and no material suit, investigation, litigation, proceeding or other
liability shall be pending or outstanding in respect of the Target Newspaper and the Parent
and its Subsidiaries shall have conducted customary due diligence with respect to the Target
Newspapers with results satisfactory to them, and (j) the Administrative Agent shall have
received a certificate from the Borrower certifying as to all the foregoing and the
Administrative Agent shall be reasonably satisfied with such certificate and all evidence of
the foregoing.




     “Permitted Encumbrances” has the meaning specified in the Mortgages.




     “Permitted Holder” means (a) each of J. Mack Robinson and Robert S. Prather, Jr., (b)
their spouses and lineal descendants, (c) in the event of the incompetence or death of any
of the Persons described in clauses (a) or (b), such Person’s estate, executor,
administrator, committee and other personal representative, (d) any trusts created for the
benefit of the Persons described in clause (a) or (b), (e) any Person controlled by any of
the Persons described in clauses (a), (b), (c) or (d), or (f) any group of Persons (within
the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934) of which any
Person described in clauses (a) through (e), individually or collectively, has control over
such group. For purposes of this definition, “control”, as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through ownership of voting
securities or by agreement or otherwise.




     “Permitted Liens” means such of the following as to which no enforcement, collection,
execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes,
assessments and governmental charges or levies to the extent not required to be paid under
Section 5.01(b); (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’,
workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of
business securing obligations that (i) are not overdue for a period of more than 30 days and
(ii) individually or together with all other Permitted Liens outstanding on any date of
determination do not materially adversely affect the use of the property to which they
relate; (c) pledges or deposits in the ordinary course of business to secure obligations
under workers’ compensation laws or similar legislation or to secure public or statutory
obligations; (d) easements, rights of way and other encumbrances on title to real property
that do not render title to the encumbered property thereby unmarketable or materially
adversely affect the value or use of such property for its present purposes; (e) leases or
subleases granted by any Loan Party or any of its Subsidiaries to others in the ordinary
course of business not interfering in any material respect with the ordinary course of the
business of the grantor thereof; (f) licenses of trademarks and other intellectual property
rights granted by any Loan Party or any of its Subsidiaries in the ordinary course of
business and not interfering in any material respect with the ordinary course of the
business of the grantor thereof; (g) Liens securing any judgment not constituting an Event
of



19









 






Default or securing appeal or other surety bonds related to such judgments; (h) pledges
or deposits to secure the performance of tenders, bids, trade contracts and leases (other
than Indebtedness for borrowed money), statutory obligations, insurance statutory bonds,
surety and customs bonds (other than bonds related to judgments or litigation), performance
bonds and other obligations of a like nature incurred in the ordinary course of business;
(i) purported Liens evidenced by the filing of precautionary UCC financing statements
relating solely to operating leases of personal property entered into in the ordinary course
of business; (j) Liens solely on any cash earnest money deposits made by any Loan Party or
any of its Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder; (k) Liens on assets or property acquired pursuant to a Permitted
Acquisition or a Permitted Asset Exchange, or on assets or property of a Subsidiary of any
Loan Party in existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition; provided that (i) any Debt that is secured by such Liens is permitted to exist
under Section 5.02(b) and (ii) such Liens are not incurred in connection with, or in
contemplation or anticipation of, such Permitted Acquisition or Permitted Asset Exchange and
do not attach to any other Collateral; (l) Liens created under the “Security Agreement” (as
defined in the First Lien Facilities) to secure obligations in respect of Secured Hedge
Agreements (as defined in the First Lien Facilities); and (m) Permitted Encumbrances.




     “Permitted Refinancing Debt” means unsecured subordinated Debt of the Borrower (and
unsecured subordinated guarantees thereof by any Subsidiary Guarantor (for so long as such
Person remains a Subsidiary Guarantor)) incurred under Permitted Refinancing Debt Documents
so long as (a) the final maturity date thereof is no earlier than one year following the
latest Termination Date then in effect for outstanding Advances at the time of the issuance
of any such Permitted Refinancing Debt, (b) there are no scheduled amortization, mandatory
redemption or sinking fund provisions or similar provisions prior to the maturity of the
Permitted Refinancing Debt (other than provisions requiring an offer to purchase Permitted
Refinancing Debt to be made upon the occurrence of a change in control or asset sale on
terms reasonably satisfactory to the Administrative Agent), (c) the subordination provisions
applicable to the Permitted Refinancing Debt shall be in form and substance reasonably
satisfactory to the Administrative Agent, (d) the interest rates (calculated including any
original issue discount in respect thereof) and related premiums applicable to any issue of
Permitted Refinancing Debt shall be based on market interest rates existing at such time for
transactions of a similar nature with issuers that are similarly situated with the Borrower,
(e) the respective Permitted Refinancing Debt Documents shall not contain (i) any financial
maintenance covenants (or defaults having the same effect as a financial maintenance
covenant) or (ii) any cross-default provisions (although such Permitted Refinancing Debt
Documents may include a provision for a cross-acceleration and a cross-payment default at
final maturity to other material Debt), (f) all other terms and conditions of each issue of
Permitted Refinancing Debt shall be in form and substance reasonably satisfactory to the
Administrative Agent, (g) no Default or Event of Default then exists or would result from
the issuance of such Permitted Refinancing Debt, (h) prior to the issuance of any Permitted
Refinancing Debt, the Borrower shall have delivered to the Administrative Agent a
certificate of the Borrower’s Chief Financial Officer certifying (and showing the
calculations therefor in reasonable detail) that the Parent and its Subsidiaries shall be in
compliance with the financial covenant set forth in Section 5.04 on the date of the issuance
of the Permitted Refinancing Debt after giving effect thereto and the application of the
proceeds thereof on such date, (i) prior to the issuance of any Permitted Refinancing Debt,
the Borrower shall deliver evidence reasonably satisfactory to the Administrative Agent,
including a certificate of the Chief Financial Officer of the Borrower (accompanied by any
required financial calculations in reasonable detail) and an opinion of counsel for the
Borrower, that the issuance of such Permitted Refinancing Debt (and all related Permitted
Refinancing Debt Documents) are permitted by all other Permitted Refinancing Debt then
outstanding and (j) the Net Cash Proceeds of such Permitted Refinancing Debt shall be used,



20









 






first, to repay in full any amounts outstanding in respect of the First Lien Loan
Documents, and second, to repay in full any amounts outstanding in respect of the Loan
Documents.




     “Permitted Refinancing Debt Documents” means any and all documentation (including,
without limitation, any indenture or purchase agreement) entered into in connection with any
issuance of Permitted Refinancing Debt.




     “Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency thereof.




     “Plan” means a Single Employer Plan or a Multiple Employer Plan.




     “Platform” has the meaning specified in Section 9.02(b).




     “Pledged Debt” has the meaning specified in the Security Agreement.




     “Pledged Equity” has the meaning specified in the Security Agreement.




     “Post Petition Interest” has the meaning specified in Section 8.08(b).




     “Preferred Interests” means, with respect to any Person, Equity Interests issued by
such Person that are entitled to a preference or priority over any other Equity Interests
issued by such Person upon any distribution of such Person’s property and assets, whether by
dividend or upon liquidation.




     “Publishing” has the meaning specified in the Preliminary Statements.




     “Real Property Lease” means all of the leases of real property under which any Loan
Party or any of its Subsidiaries is the lessee from time to time.




     “Receivables” means all Receivables referred to in Section 1(c) of the Security
Agreement.




     “Redeemable” means, with respect to any Equity Interest, any such Equity Interest that
(a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of the holder.




     “Redemption” has the meaning specified in the Preliminary Statements.




     “Refinancing” has the meaning specified in the Preliminary Statements.




     “Register” has the meaning specified in Section 9.07(d).




     “Registered Loans” has the meaning specified in Section 9.07(d).




     “Registration Statement” means the registration statement on Form S-4 of the Parent
filed with the SEC on September 13, 2005, as amended.




     “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.



21









 






     “Related Documents” means the Merger Agreement, the Tax Sharing Agreement, the
Separation and Distribution Agreement and the Lease Agreement.




     “Related Party Assignment” has the meaning specified in Section 9.07(a).




     “Related Party Register” has the meaning specified in Section 9.07(d).




     “Required Lenders” means, at any time, Lenders owed or holding at least 51% in interest
of the aggregate principal amount of the Advances outstanding at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Required Lenders at such time the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender) and outstanding at
such time.




     “Responsible Officer” means any officer of any Loan Party or any of its Subsidiaries.




     “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
Person’s 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.




     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successors thereto.




     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002, as amended.




     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.




     “Secured Obligations” has the meaning specified in Section 2 of the Security Agreement.




     “Secured Parties” means the Agents and the Lenders.




     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley, and, in each case, the rules and regulations of the SEC promulgated
thereunder, and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable
date under this Agreement.




     “Security Agreement” has the meaning specified in Section 3.01(a)(ii).




     “Separation and Distribution Agreement” means the Separation and Distribution Agreement
dated as of August 2, 2005 between the Parent and Gray, as amended by Amendment No. 1 to
Separation and Distribution Agreement effective as of November 18, 2005 and as may be
further amended to the extent permitted under the Loan Documents.



22









 






     “Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained by a Loan Party for employees of any Loan Party or any
ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b)
was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been or were to be
terminated.




     “Solvent” and “Solvency” mean, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the total amount
of liabilities, including, without limitation, 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 Person’s ability to pay such debts and liabilities as
they mature and (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 Person’s property would
constitute an unreasonably small capital. 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.




     “Spin-Off” has the meaning specified in the Preliminary Statements.




     “Subordinated Obligations” has the meaning specified in Section 8.08.




     “Subordinated Debt” means, as to any Loan Party, any Debt of such Loan Party which, by
its terms, is subordinated or intended to be subordinated to the Obligations, including, the
Permitted Refinancing Debt, if any.




     “Subsidiary” of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding capital stock having ordinary voting power to elect a majority of the Board
of Directors of such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or more of such
Person’s other Subsidiaries.




     “Subsidiary Guarantors” means the Subsidiaries of the Borrower listed on Schedule
II hereto and each other Subsidiary of the Borrower that shall be required to execute
and deliver a guaranty pursuant to Section 5.01(i).




     “Subsidiary Guaranty” means the guaranty of the Subsidiary Guarantors set forth in
Article VIII together with each other guaranty and guaranty supplement delivered pursuant to
Section 5.01(i), in each case as amended, amended and restated, modified or otherwise
supplemented.




     “Supplemental Collateral Agent” has the meaning specified in Section 7.01(c).




     “Surviving Debt” means Debt of each Loan Party and its Subsidiaries outstanding
immediately before and after giving effect to the Initial Extension of Credit.



23









 






     “Tax Sharing Agreement” means the Tax Sharing Agreement dated as of August 2, 2005
between the Parent and Gray, as amended to the extent permitted under the Loan Documents.




     “Taxes” has the meaning specified in Section 2.12(a).




     “TCM” has the meaning specified in the Preliminary Statements.




     “Telecommunications Business” means the business of (a) transmitting, or providing
services relating to the transmission of, voice or data through owned or leased transmission
facilities, including, without limitation, any Paging Services and (b) constructing,
creating, developing or marketing communications-related network equipment, software and
other devices for use in the business described in clause (a) above.




     “Termination Date” means the earlier of (a) the date of the acceleration of the
Advances pursuant to Section 6.01 and (b) December 30, 2010.




     “Transaction” means the Contribution, the Spin-Off, the Merger, the Refinancing, the
Redemption, the payment of the Merger Consideration and the other transactions contemplated
by the Transaction Documents.




     “Transaction Documents” means, collectively, the Loan Documents and the Related
Documents.




     “Type” refers to the distinction between Advances bearing interest at the Base Rate and
Advances bearing interest at the Eurodollar Rate.




     “Unaccrued Indemnity Claims” means claims for indemnification that may be asserted by
the Administrative Agent or any Lender or any other Indemnified Party under the Loan
Documents that are unaccrued and contingent and as to which no claim, notice or demand has
been given to or made on any Loan Party (with a copy to the Administrative Agent) within 10
Business Days after the Borrower’s request therefor to the Administrative Agent (unless the
making or giving thereof is prohibited or enjoined by applicable law or any order of any
Governmental Authority).




     “Voting Interests” means shares of capital stock issued by a corporation, or equivalent
Equity Interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.




     “Wachovia” has the meaning specified in the Preliminary Statements.




     “Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of
ERISA.



     SECTION 1.02. Computation of Time Periods; Other Definitional Provisions. In this
Agreement and the other Loan Documents in the computation of periods of time from a specified date
to a later specified date, the word “from” means “from and including” and the words “to” and
“until” each mean “to but excluding”. References in the Loan Documents to any agreement or
contract “as amended” shall mean and be a reference to such agreement or contract as amended, amended and
restated, supplemented or otherwise modified from time to time in accordance with its terms.



24









 





     SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred to in Section 4.01(h) (“GAAP”).



ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES




     SECTION 2.01. The Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (an “Advance”) to the Borrower on the Effective
Date in an amount not to exceed such Lender’s Commitment at such time, consisting of Advances made
simultaneously by the Lenders ratably according to their Commitments. Amounts borrowed under this
Section 2.01 and repaid or prepaid may not be reborrowed.



     SECTION 2.02. Making the Advances. (a) The initial Borrowing as of the Effective Date
shall be made on notice, given not later than 11:00 A.M. (Charlotte, North Carolina time) on the
third Business Day prior to the date of such proposed Borrowing in the case of such Borrowing
consisting of Eurodollar Rate Advances, or on the same date of such proposed Borrowing (which shall
be a Business Day) in the case of such Borrowing consisting of Base Rate Advances, by the Borrower
to the Administrative Agent, which shall give to each Lender prompt notice thereof. Such notice of
a Borrowing (the “Notice of Borrowing”) shall be in writing, or by telephone, confirmed immediately
in writing, or by telecopier or electronic communication, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Advances
comprising such Borrowing, (iii) aggregate amount of such Borrowing and (iv) in the case of such
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each such Advance.
Each Lender shall, before 11:00 A.M. (Charlotte, North Carolina time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent’s Account, in same day funds, such Lender’s ratable portion of
such Borrowing in accordance with the respective Commitments of such Lender and the other Lenders.
After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make such funds available to the
Borrower by crediting the Borrower’s Account.



          (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for the initial Borrowing hereunder or for any Conversion during
the period from the date hereof until the earlier of (x) 30 days thereafter and (y) the completion
of the primary syndication of the Facility, as determined by the Arrangers in their sole
discretion, or for any Borrowing if the aggregate amount of such Borrowing is less than $1,000,000
or if the obligation of the Lenders to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.09 or 2.10 and (ii) the Advances may not be outstanding as part of more than
five separate Borrowings.




          (c) The Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of
the initial Borrowing that the Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any actual loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any actual loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance
to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure,
is not made on such date.




          (d) Unless the Administrative Agent shall have received written notice from any Lender prior
to the date of the initial Borrowing that such Lender will not make available to the Administrative





25









 







Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that
such Lender has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay
to the Administrative Agent forthwith on demand such corresponding amount and to pay interest
thereon, for each day from the date such amount is made available to the Borrower until the date
such amount is repaid or paid to the Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at such time under Section 2.07 to Advances comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate plus 1/2 of 1%. If such Lender shall pay
to the Administrative Agent such corresponding amount, such amount so paid shall constitute such
Lender’s Advance as part of such Borrowing for all purposes.




          (e) The failure of any Lender to make the Advance to be made by it as part of the initial
Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its
Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Advance to be made by such other Lender on the date of such Borrowing.




     SECTION 2.03. [Intentionally Omitted].



     SECTION 2.04. Repayment of Advances. The Borrower shall repay to the Administrative Agent
for the ratable account of the Lenders the aggregate outstanding principal amount of the Advances
on the Termination Date.



     SECTION 2.05. Termination of the Commitments. The Commitments shall be automatically and
permanently reduced on the date of the initial Borrowing as of the Effective Date (after giving
effect to such Borrowing), to zero.



     SECTION 2.06. Prepayments. (a) Optional. The Borrower may, after the payment and
cash collateralization in full of the First Lien Obligations and the termination of the First Lien
Facilities, upon at least one Business Day’s notice in the case of Base Rate Advances and three
Business Days’ notice in the case of Eurodollar Rate Advances, in each case to the Administrative
Agent stating the proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the aggregate principal amount prepaid; provided,
however, that (A) each partial prepayment shall be in an aggregate principal amount of $1,000,000
or an integral multiple of $1,000,000 in excess thereof and (B) if any prepayment of a Eurodollar Rate
Advance is made on a date other than the last day of an Interest Period for such Advance, the
Borrower shall also pay any amounts owing pursuant to Section 9.04(c). Each such prepayment shall
be applied to reduce the principal amount of the outstanding Advances of each of the Lenders on a
pro rata basis.



          (b) Mandatory. Subject to the provisions of the Intercreditor Agreement and subject
to the prior payment and cash collateralization of the First Lien Obligations in accordance with
the terms of the First Lien Facilities:




          (i) The Borrower shall, on the 120th day following the end of each Fiscal Year,
prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an
amount equal to 75% of the amount of Excess Cash Flow for such Fiscal Year (provided that, (A) to
the extent the Leverage Ratio for such Fiscal Year shall be less than 5.50:1.00 but equal to or
greater than 4.00:1.00, such amount shall be reduced to 50% of Excess Cash Flow for such Fiscal
Year, and (B) to the




26









 







extent the Leverage Ratio for such Fiscal Year shall be less than 4.00:1.00,
such amount shall be reduced to 0% of Excess Cash Flow for such Fiscal Year). Each such prepayment
shall be applied to reduce the principal amount of the outstanding Advances of each of the Lenders
on a pro rata basis based upon the outstanding Advances owing to each such Lenders.




          (ii) The Borrower shall, if at such time the First Lien Obligations have been paid and cash
collateralized in full, on the date of receipt of any Net Cash Proceeds by any Loan Party or any of
its Subsidiaries from (A) the sale, lease, transfer or other disposition of any assets of any Loan
Party or any of its Subsidiaries, (B) the incurrence or issuance by any Loan Party or any of its
Subsidiaries of any Debt, (C) the sale or issuance of any Equity Interests (including, without
limitation, the receipt of any capital contribution) by any Loan Party or any of its Subsidiaries
and (D) any Extraordinary Receipts received by or paid to or for the account of any Loan Party or
any of its Subsidiaries and not otherwise included in clause (A), (B) or (C) above, prepay an
aggregate principal amount of the Advances comprising part of the same Borrowings in an amount
equal to 100% of the amount of such Net Cash Proceeds in the case of clauses (A), (B), (C) and (D).
Each such prepayment shall be applied to reduce the principal amount of the outstanding Advances
of each of the Lenders on a pro rata basis based upon the outstanding Advances owing to each such
Lenders.




          (iii) All prepayments under this subsection (b) shall be made together with accrued interest
to the date of such prepayment on the principal amount prepaid, together with any amounts owing
pursuant to Section 9.04(c). If any payment of Eurodollar Rate Advances otherwise required to be
made under Section 2.06(b) would be made on a day other than the last day of the applicable
Interest Period therefor, the Borrower may direct the Administrative Agent to (and if so directed,
the Administrative Agent shall) deposit such payment in the Collateral Account until the last day
of the applicable Interest Period at which time the Administrative Agent shall apply the amount of
such payment to the prepayment of such Advances; provided, however, that such Advances shall
continue to bear interest as set forth in Section 2.07 until the last day of the applicable
Interest Period therefor.




          (c) Prepayment Premium. Any prepayment of Advances pursuant to Sections 2.06(a) or
(b) (other than prepayments resulting from Excess Cash Flow pursuant to Section 2.06(b)(i)) that is
made on or prior to the second anniversary of the Closing Date shall be accompanied by a premium
such that the aggregate amount of such prepayment shall equal (i) if such prepayment is made on or
prior to the first anniversary of the Closing Date, 102% of the principal amount prepaid and (ii)
if such prepayment is made after the first anniversary of the Closing Date but on or before the
second anniversary of the Closing Date, 101% of the principal amount prepaid.




     SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount
of each Advance owing to each Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:




     (i) Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from
time to time plus (B) the Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December during such periods
and on the date such Base Rate Advance shall be Converted or paid in full.




     (ii) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of (A) the Eurodollar Rate for such Interest Period for such Advance
plus (B) the Applicable Margin in effect on the first day of such Interest Period, payable
in arrears on the last day of such Interest Period and, if such Interest Period has a
duration of more than three months,



27









 






on each last day of a calendar quarter that occurs
during such Interest Period and on the date such Eurodollar Rate Advance shall be Converted
or paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent may, and upon the request of the Required Lenders shall, require
that the Borrower pay interest (“Default Interest”) on (i) the unpaid principal amount of each
Advance owing to each Lender, payable in arrears on the dates referred to in clause (i) or (ii) of
Section 2.07(a), as applicable, and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such Advance pursuant to clause (i) or (ii)
of Section 2.07(a), as applicable and (ii) to the fullest extent permitted by applicable law, the
amount of any interest, fee or other amount payable under this Agreement or any other Loan Document
to any Agent or any Lender that is not paid when due, from the date such amount shall be due until
such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid, in the case of interest, on the Type of Advance on which such interest has
accrued pursuant to clause (i) or (ii) of Section 2.07(a), as applicable, and, in all other cases,
on Base Rate Advances pursuant to clause (i) of Section 2.07(a); provided, however, that following
the acceleration of the Advances, or the giving of notice by the Agent to accelerate the Advances,
pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether or not
previously required by the Administrative Agent.




          (c) Notice of Interest Period and Interest Rate. Promptly after receipt of a Notice
of Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to Section 2.09 or a
notice of selection of an Interest Period pursuant to the terms of the definition of “Interest
Period”, the Administrative Agent shall give notice to the Borrower and each Lender of the
applicable Interest Period and the applicable interest rate determined by the Administrative Agent
for purposes of clause (a)(i) or (a)(ii) above.




     SECTION 2.08. Fees. The Borrower shall pay to each Agent for its own account such fees as
may from time to time be agreed between the Borrower and such Agent.



     SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (Charlotte,
North Carolina time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.07 and 2.10, Convert all or any
portion of the Advances of one Type comprising the same Borrowing into Advances of the other Type;
provided, however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be
made only on the last day of an Interest Period for such Eurodollar Rate Advances, any Conversion
of Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b), no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(b) and each Conversion of Advances comprising part of
the same Borrowing under shall be made ratably among the Lenders in accordance with their
Commitments or Advances. Each such notice of Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial Interest Period for such
Advances. Each notice of Conversion shall be irrevocable and binding on the Borrower.



          (b) Mandatory. (i) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $1,000,000, such Advances shall automatically Convert into Base Rate
Advances.




28









 








          (ii) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Administrative Agent will forthwith so notify the Borrower and the
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance.




          (iii) Upon the occurrence and during the continuance of any Event of Default, (A) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (B) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended.




     SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost to any Lender of agreeing to make or of
making, funding or maintaining Eurodollar Rate Advances, then the Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost; provided, however, that a Lender claiming additional amounts
under this Section 2.10(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable Lending Office if the
making of such a designation would avoid the need for, or reduce the amount of, such increased cost
that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate as to the amount of such increased cost, submitted
to the Borrower by such Lender, shall be conclusive and binding for all purposes, and shall be
prima facie evidence of the amount or amounts set forth therein.



          (b) [Intentionally Omitted.]




          (c) If, with respect to any Eurodollar Rate Advances, Lenders owed at least 51% of the then
aggregate unpaid principal amount thereof notify the Administrative Agent that the Eurodollar Rate
for any Interest Period for such Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each such Eurodollar
Rate Advance will automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lenders have determined that the circumstances causing such
suspension no longer exist.




          (d) Notwithstanding any other provision of this Agreement, if the introduction or
effectiveness of or any change in or in the interpretation of any law or regulation shall make it
unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for
any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar
Rate Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder, then, on
notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent,
(i) each Eurodollar Rate Advance will automatically, upon such demand, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify the Borrower that such
Lender has determined that the circumstances causing such suspension no longer exist; provided,
however, that, before making any such demand, such Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would allow such Lender or
its Eurodollar Lending Office to continue to perform its




29









 







obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would not, in the judgment
of such Lender, be otherwise disadvantageous to such Lender.




          (e) In the event that any Lender demands payment of costs or additional amounts pursuant to
Section 2.10 or Section 2.12 or any obligations under Section 2.10 or Section 2.12 shall accrue in
respect of the Loan Parties, or in the event that any Lender asserts, pursuant to Section 2.10(d),
that it is unlawful for such Lender to make Eurodollar Rate Advances or becomes a Defaulting Lender
then (subject to such Lender’s right to rescind such demand or assertion within 10 days after the
notice from the Borrower referred to below) or if such Lender is unable to designate a different
lending office which would result in Section 2.10(a) no longer being applicable to such Lender, the
Borrower may, so long as no Event of Default has occurred and is continuing and so long as such
costs or additional amounts are materially more than those charged by other Lenders, upon 20 days’
prior written notice to such Lender and the Administrative Agent, elect to cause such Lender to
assign its Advances and Commitments in full to one or more Persons selected by the Borrower so long
as (a) each such Person satisfies the criteria of an Eligible Assignee and is reasonably
satisfactory to the Administrative Agent, (b) such Lender receives payment in full in cash of the
outstanding principal amount of all Advances made by it and all accrued and unpaid interest thereon
and all other amounts due and payable to such Lender as of the date of such assignment (including,
without limitation, amounts owing pursuant to Sections 2.10, 2.12, 2.15 and 9.04) and (c) each such
Lender assignee agrees to accept such assignment and to assume all obligations of such Lender
hereunder in accordance with Section 9.07. Moreover, if any Lender has refused to consent to a
proposed change, waiver, discharge or release with respect to this Agreement or any other Loan
Document which has been approved by the Required Lenders as provided in Section 9.01, the Borrower
may, so long as no Event of Default has occurred, upon 20 days’ prior written notice to such Lender
and the Administrative Agent, elect to cause such Lender to assign its Advances in full to one or
more Persons selected by the Borrower so long as (a) each such Person satisfies the criteria of an
Eligible Assignee and is reasonably satisfactory to the Administrative Agent, (b) such Lender
receives payment in full in cash of the outstanding principal amount of all Advances made by it and
all accrued and unpaid interest thereon and all other amounts due and payable to such Lender as of
the date of such assignment (including, without limitation, amounts owing pursuant to Sections
2.10, 2.12, 2.15 and 9.04) and (c) each such Lender assignee agrees to accept such assignment and
to assume all obligations of such Lender hereunder in accordance with Section 9.07.




     SECTION 2.11. Payments and Computations. (a) The Borrower shall make each payment
hereunder and under the other Loan Documents, irrespective of any right of counterclaim or set-off
(except as otherwise provided in Section 2.15), not later than 2:00 P.M. (Charlotte, North Carolina
time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative Agent’s
Account in same day funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The Administrative Agent
will promptly thereafter cause like funds to be distributed (i) if such payment by the Borrower is
in respect of principal, interest, commitment fees or any other Obligation then payable hereunder
and under the other Loan Documents to more than one Lender, to such Lenders for the account of
their respective Applicable Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lenders and (ii) if such payment by the Borrower is in
respect of any Obligation then payable hereunder to one Lender, to such Lender for the account of
its Applicable Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and
under the other Loan Documents in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly between themselves.



30









 





          (b) The Borrower hereby authorizes each Lender and each of its Affiliates, if and to the
extent payment owed to such Lender is not made when due hereunder or under the other Loan Documents
to charge from time to time, to the fullest extent permitted by law, against any or all of the
Borrower’s accounts with such Lender or such Affiliate any amount so due.




          (c) All computations of interest based on the Base Rate shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate or the Federal Funds Rate and of fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.




          (d) Whenever any payment hereunder or under the other Loan Documents shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of payment of interest
or commitment or letter of credit fee or commission, as the case may be; provided, however, that,
if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be made on the next preceding
Business Day.




          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to any Lender hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each such Lender on such due date an amount equal to
the amount then due such Lender. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.




          (f) Whenever any payment received by the Administrative Agent under this Agreement, any of the
other Loan Documents is insufficient to pay in full all amounts due and payable to the Agents and
the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such
payment shall be distributed by the Administrative Agent and applied by the Agents and the Lenders
in the following order of priority:





     (i) first, to the payment of all of the fees, indemnification payments, costs and
expenses that are due and payable to the Agents (solely in their respective capacities as
Agents) under or in respect of this Agreement and the other Loan Documents on such date,
ratably based upon the respective aggregate amounts of all such fees, indemnification
payments, costs and expenses owing to the Agents on such date;




     (ii) second, to the payment of all of the indemnification payments, costs and expenses
that are due and payable to the Lenders under Section 9.04 hereof, Section 24 of the
Security Agreement and any similar section of any of the other Loan Documents on such date,
ratably based upon the respective aggregate amounts of all such indemnification payments,
costs and expenses owing to the Lenders on such date;



31









 






     (iii) third, to the payment of all of the amounts that are due and payable to the
Administrative Agent and the Lenders under Sections 2.10 and 2.12 hereof on such date,
ratably based upon the respective aggregate amounts thereof owing to the Administrative
Agent and the Lenders on such date;




     (iv) fourth, to the payment of all of the accrued and unpaid interest on the
Obligations of the Borrower under or in respect of the Loan Documents that is due and
payable to the Administrative Agent and the Lenders under Section 2.07(b) on such date,
ratably based upon the respective aggregate amounts of all such interest owing to the
Administrative Agent and the Lenders on such date;




     (v) fifth, to the payment of all of the accrued and unpaid interest on the Advances
that is due and payable to the Administrative Agent and the Lenders under Section 2.07(a) on
such date, ratably based upon the respective aggregate amounts of all such interest owing to
the Administrative Agent and the Lenders on such date;




     (vi) sixth, ratably to the payment of the principal amount of all of the outstanding
Advances that is due and payable to the Administrative Agent and the Lenders on such date,
ratably based upon the respective aggregate amounts of all such principal owing to the
Administrative Agent and the Lenders on such date; and




     (vii) seventh, to the payment of all other Obligations of the Loan Parties owing under
or in respect of the Loan Documents that are due and payable to the Administrative Agent and
the other Secured Parties on such date, ratably based upon the respective aggregate amounts
of all such Obligations owing to the Administrative Agent and the other Secured Parties on
such date.



     SECTION 2.12. Taxes. (a) Any and all payments by any Loan Party to or for the account of
any Lender or any Agent hereunder or under the Notes or any other Loan Document shall be made, in
accordance with Section 2.11 or the applicable provisions of such other Loan Document, if any, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and
each Agent, taxes that are imposed on its overall net income by the United States and taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction under the laws of which such Lender or such Agent, as the case may be, is
organized or any political subdivision thereof and, in the case of each Lender, taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction of such Lender’s Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes or any other Loan Document being
hereinafter referred to as “Taxes”). If any Loan Party shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note or any other Loan Document
to any Lender or any Agent, (i) the sum payable by such Loan Party shall be increased as may be
necessary so that after such Loan Party and the Administrative Agent have made all required
deductions (including deductions applicable to additional sums payable under this Section 2.12)
such Lender or such Agent, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Loan Party shall make all such deductions and
(iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.



          (b) In addition, each Loan Party shall pay any present or future stamp, documentary, excise,
property, intangible, mortgage recording or similar taxes, charges or levies that arise from any
payment made by such Loan Party hereunder or under any Notes or any other Loan Documents or from




32









 







the execution, delivery or registration of, performance under, or otherwise with respect to, this
Agreement, the Notes, the Mortgages or the other Loan Documents (hereinafter referred to as “Other
Taxes”).




          (c) The Loan Parties shall indemnify each Lender and each Agent for and hold them harmless
against the full amount of Taxes and Other Taxes, and for the full amount of taxes of any kind
imposed or asserted by any jurisdiction on amounts payable under this Section 2.12, imposed on or
paid by such Lender or such Agent (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or such Agent (as the case
may be) makes written demand therefor.




          (d) Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall
furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a
certified copy of a receipt evidencing such payment, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the Notes or the other Loan
Documents by or on behalf of a Loan Party through an account or branch outside the United States or
by or on behalf of a Loan Party by a payor that is not a United States person, if such Loan Party
determines that no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall
cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel
reasonably acceptable to the Administrative Agent stating that such payment is exempt from Taxes.
For purposes of subsections (d) and (e) of this Section 2.12, the terms “United States” and “United
States person” shall have the meanings specified in Section 7701 of the Internal Revenue Code.




          (e) Each Lender organized under the laws of a jurisdiction outside the United States shall, on
or prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in
the case of each other Lender, and from time to time thereafter as reasonably requested in writing
by the Borrower (but only so long thereafter as such Lender remains lawfully able to do so),
provide the Administrative Agent for transmission to the Borrower (or in the case of an assignee
pursuant to an Assignment and Acceptance that is not delivered to the Administrative Agent in
accordance with the last sentence of Section 9.07(a) hereof, to the assigning Lender only) with an
original Internal Revenue Service Form W-8BEN, W-8IMY or W-8ECI (provided that if such Lender is
not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form W-8BEN or W-8IMY establishing a reduced rate of United
States withholding pursuant to a treaty or a W-8ECI, such Lender hereby represents and warrants
that such Lender is not (x) a “bank” within the meaning of section 881(c)(3)(A) of the Internal
Revenue Code, (y) a “10 percent shareholder” of Borrower within the meaning of section 881(c)(3)(B)
of the Internal Revenue Code, or (z) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Internal Revenue Code, and such Lender agrees that it shall promptly notify
Administrative Agent in the event any such representation is no longer accurate), as appropriate,
or any successor or other form prescribed by the Internal Revenue Service, certifying that such
Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement or the Notes or any other Loan Document or, in the case of a Lender that
is not a “bank” as described above, certifying that such Lender is a foreign corporation,
partnership, estate or trust. Notwithstanding anything herein to the contrary, if the forms
provided by a Lender at the time such Lender first becomes a party to this Agreement indicate a
United States interest withholding tax rate in excess of zero, withholding tax at such rate shall
be considered excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided, however, that if, at
the effective date of the Assignment





33









 







and Acceptance pursuant to which a Lender becomes a party to
this Agreement, the Lender assignor was entitled to payments under subsection (a) of this Section
2.12 in respect of United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed
in the future or other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Lender assignee on such date. If any form or document referred
to in this subsection (e) requires the disclosure of information, other than information necessary
to compute the tax payable and information required on the date hereof by Internal Revenue Service
Form W-8BEN, W-8IMY or W-8ECI, that the applicable Lender reasonably considers to be confidential,
such Lender shall give notice thereof to the Borrower and shall not be obligated to include in such
form or document such confidential information.




          (f) For any period with respect to which a Lender has failed to provide the Borrower with the
appropriate form, certificate or other document described in subsection (e) above (other than if
such failure is due to a change in law, or in the interpretation or application thereof, occurring
after the date on which a form, certificate or other document originally was required to be
provided or if such form, certificate or other document otherwise is not required under subsection
(e) above), such Lender shall not be entitled to indemnification under subsection (a) or (c) of
this Section 2.12 with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender become subject to Taxes because of its failure to deliver a
form, certificate or other document required hereunder, the Loan Parties shall take such steps as
such Lender shall reasonably request to assist such Lender to recover such Taxes.




          (g) Any Lender claiming any additional amounts payable pursuant to this Section 2.12 agrees to
use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Applicable Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue
and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.




          (h) If any Lender determines, in its sole discretion, that it has actually and finally
realized, by reason of a refund, deduction or credit of any Taxes paid or reimbursed by Borrower
pursuant to subsection (a) or (c) above in respect of payments under the Loan Documents, a current
monetary benefit that it would otherwise not have obtained, and that would result in the total
payments under this Section 2.12 exceeding the amount needed to make such Lender whole, such Lender
shall pay to the Borrower, with reasonable promptness following the date on which it actually
realizes such benefit, an amount equal to the lesser of the amount of such benefit or the amount of
such excess, in each case net of all out-of-pocket expenses in securing such refund, deduction or
credit.




     SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain at any time any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise, other
than as a result of an assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender hereunder and under the Notes and the other Loan 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 due and
payable to all Lenders hereunder and under the Notes and the other Loan Documents at such time) of
payments on account of the Obligations due and payable to all Lenders hereunder and under the Notes
and the other Loan Documents at such time obtained by all the Lenders at such time or (b) on
account of Obligations owing (but not due and payable) to such Lender hereunder and under the Notes
and 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 to such Lender at such time to (ii) the
aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and
under the Notes and the other Loan Documents at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lenders hereunder and under the Notes at such



34









 




time obtained by all of the Lenders at such time, such Lender shall forthwith purchase from the
other Lenders such interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase
price to the extent of such Lender’s ratable share (according to the proportion of (i) the purchase
price paid to such Lender to (ii) the aggregate purchase price paid to all Lenders) of such
recovery together with an amount equal to such Lender’s ratable share (according to the proportion
of (i) the amount of such other Lender’s required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered; provided further that, so long as the
Obligations under the Loan Documents shall not have been accelerated, any excess payment received
by any Lender shall be shared on a pro rata basis only with other Lenders. Each of the Loan
Parties agrees that any Lender so purchasing an interest or participating interest from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such interest or participating
interest, as the case may be, as fully as if such Lender were the direct creditor of the Loan
Parties in the amount of such interest or participating interest, as the case may be.




     SECTION 2.14. Use of Proceeds. The proceeds of the Advances shall be available (and the
Borrower agrees that it shall use such proceeds) solely to consummate the Merger, the Refinancing
and the Redemption and to pay fees and expenses in connection therewith and to provide working
capital for the Parent and its Subsidiaries.



     SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Amount to any Agent or any of the other Lenders and (iii)
the Borrower shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the Administrative Agent may,
on its behalf or on behalf of such other Agents or such other Lenders and to the fullest extent
permitted by applicable law, apply at such time the amount so paid by the Borrower to or for the
account of such Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply
any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by
the Administrative Agent shall constitute for all purposes of this Agreement and the other Loan
Documents payment, to such extent, of such Defaulted Amount on such date. Any such amount so
applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by
the Administrative Agent to such other Agents or such other Lenders, ratably in accordance with the
respective portions of such Defaulted Amounts payable at such time to the Administrative Agent,
such other Agents and such other Lenders and, if the amount of such payment made by the Borrower
shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent, such other Agents and such other Lenders, in the following order of priority:




     (i) first, to the Agents for any Defaulted Amounts then owing to them, in their
capacities as such, ratably in accordance with such respective Defaulted Amounts then owing
to the Agents; and




     (ii) second, to any other Lenders for any Defaulted Amounts then owing to such other
Lenders, ratably in accordance with such respective Defaulted Amounts then owing to such
other Lenders.



35









 




Any portion of such amount paid by the Borrower for the account of such Defaulting Lender
remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified in subsection (b) of this
Section 2.15.




          (b) In the event that, at any one time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall not owe a Defaulted Advance or a Defaulted Amount and (iii) the Borrower,
any Agent or any other Lender shall be required to pay or distribute any amount hereunder or under
any other Loan Document to or for the account of such Defaulting Lender, then the Borrower or such
Agent or such other Lender shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law, hold in escrow such
amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this
subsection (b) shall be deposited by the Administrative Agent in an account with a bank (the
“Escrow Bank”) selected by the Administrative Agent, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (b). The terms applicable
to such account, including the rate of interest payable with respect to the credit balance of such
account from time to time, shall be the Escrow Bank’s standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in
accordance with the provisions of, this subsection (b). The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to
the extent necessary to make any Advances required to be made by such Defaulting Lender and to pay
any amount payable by such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender, as and when such Advances or amounts are required to be
made or paid and, if the amount so held in escrow shall at any time be insufficient to make and pay all such Advances and amounts required to be made or paid at such
time, in the following order of priority:





     (i) first, to the Agents for any amounts then due and payable by such Defaulting Lender
to them hereunder, in their capacities as such, ratably in accordance with such respective
amounts then due and payable to the Agents;




     (ii) second, to any other Lenders for any amount then due and payable by such
Defaulting Lender to such other Lenders hereunder, ratably in accordance with such
respective amounts then due and payable to such other Lenders; and




     (iii) third, to the Borrower for any Advance then required to be made by such
Defaulting Lender pursuant to a Commitment of such Defaulting Lender.


In the event that any Lender that is a Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at such time with respect
to such Lender shall be distributed by the Administrative Agent to such Lender and applied by such
Lender to the Obligations owing to such Lender at such time under this Agreement and the other Loan
Documents ratably in accordance with the respective amounts of such Obligations outstanding at such
time.




          (c) The rights and remedies against a Defaulting Lender under this Section 2.15 are in
addition to other rights and remedies that the Borrower may have against such Defaulting Lender
with respect to any Defaulted Advance and that any Agent or any Lender may have against such
Defaulting Lender with respect to any Defaulted Amount.




     SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting



36









 




from each Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder. The Borrower
agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the
Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender to evidence (whether for purposes of pledge,
enforcement or otherwise) the Advances owing to, or to be made by, such Lender, the Borrower shall
promptly execute and deliver to such Lender, with a copy to the Administrative Agent, a Note, in
substantially the form of Exhibit A hereto, payable to the order of such Lender in a principal
amount equal to the Commitment of such Lender. All references to Notes in the Loan Documents shall
mean Notes, if any, to the extent issued hereunder.




          (b) The Register maintained by the Administrative Agent pursuant to Section 9.07(d) shall
include a control account, and a subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of
Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto,
(ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender’s share thereof.




          (c) Entries made in good faith by the Administrative Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a)
above, shall be prima facie evidence of the amount of principal and interest due and payable or to
become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of
such account or accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Administrative Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrower under this Agreement.




ARTICLE III




CONDITIONS OF LENDING




     SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The obligation of each
Lender to make an Advance on the occasion of the Initial Extension of Credit hereunder is subject
to the satisfaction of the following conditions precedent before or concurrently with the Initial
Extension of Credit (and Article II of this Agreement shall become effective on and as of the first
date (the “Effective Date”) on which such conditions precedent have been satisfied):




     (a) The Administrative Agent shall have received on or before the day of the Initial
Extension of Credit the following, each dated such day (unless otherwise specified), in form
and substance reasonably satisfactory to the Administrative Agent (unless otherwise
specified):




     (i) The Notes payable to the order of the Lenders to the extent requested by
the Lenders pursuant to the terms of Section 2.16.




     (ii) A security agreement in substantially the form of Exhibit D hereto
(together with each other security agreement and security agreement supplement
delivered pursuant to Section 5.01(i) or otherwise, in each case as amended, the
“Security Agreement”), duly executed by each Loan Party, together with:



37









 






     (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,




     (B) proper financing statements in form appropriate for filing under
the Uniform Commercial Code of all jurisdictions that the Administrative
Agent may deem reasonably necessary or desirable in order to perfect and
protect the second priority (subject only to the Lien of the First Lien
Collateral Agent in favor of the holders of the First Lien Obligations)
liens and security interests 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 Extension of Credit, listing all effective financing statements
filed in the jurisdictions referred to in clause (B) above that name any of
the Loan Parties as debtor, together with copies of such other financing
statements, all as reasonably satisfactory to the Administrative Agent,




     (D) evidence of the completion of all other recordings and filings of
or with respect to the Security Agreement that the Administrative Agent may
reasonably deem necessary or desirable in order to perfect and protect the
security interest created thereunder,




     (E) evidence of the insurance required by the terms of the Security
Agreement, and




     (F) evidence that all other action that the Administrative Agent may
reasonably deem necessary or desirable in order to perfect and protect the
second priority (subject only to the Lien of the First Lien Collateral Agent
in favor of the holders of the First Lien Obligations) liens and security
interests created under the Security Agreement has been taken (including,
without limitation, receipt of duly executed payoff letters and UCC-3
termination statements).




     (iii) Certified copies of the resolutions of the Board of Directors of each
Loan Party approving the Transaction and each Transaction Document to which it is or
is to be a party as in full force and effect, and of all documents evidencing other
necessary corporate action and governmental and other third party approvals and
consents, if any, with respect to the Transaction and each Transaction Document to
which it is or is to be a party.




     (iv) A copy of a certificate of the Secretary of State of the jurisdiction of
formation of each Loan Party, dated reasonably near the date of the Initial
Extension of Credit, certifying (A) as to a true and correct copy of the charter or
similar organizational document of such Loan Party and each amendment thereto on
file in such Secretary’s office and (B) that (1) such amendments are the only
amendments to such Loan Party’s charter (or similar organization document) on file
in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the
date of such certificate and (3) such Loan Party is duly organized and in good
standing or presently subsisting under the laws of the State of the jurisdiction of
its organization.



38









 






     (v) A certificate of each Loan Party, signed on behalf of such Loan Party by
its President or a Vice President and its Secretary or any Assistant Secretary, or
in the case such Loan Party does not have a Secretary or any Assistant Secretary,
any other duly qualified officer of such Loan Party, dated the date of the Initial
Extension of Credit (the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying as to (A) the absence
of any amendments to the charter or similar organizational document of such Loan
Party since the date of the Secretary of State’s certificate referred to in Section
3.01(a)(iv), (B) a true and correct copy of the bylaws of such Loan Party as in
effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were
adopted and on the date of the Initial Extension of Credit, (C) the due organization
and good standing or valid existence of such Loan Party under the laws of the
jurisdiction of its organization, and the absence of any proceeding for the
dissolution or liquidation of such Loan Party, (D) the truth, in all material
respects, of the representations and warranties contained in the Loan Documents as
though made on and as of the date of the Initial Extension of Credit (other than any
such representations and warranties that, by their express terms, refer to a
specific date, in which case as of such specific date) and (E) the absence of any
event occurring and continuing, or resulting from the Initial Extension of Credit,
that constitutes a Default.




     (vi) A certificate of the President or a Vice President and the Secretary or an
Assistant Secretary of each Loan Party, or in the case such Loan Party does not have
a Secretary or any Assistant Secretary, any other duly qualified officer of such
Loan Party, certifying the names and true signatures of the officers of such Loan
Party authorized to sign each Loan Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder.




     (vii) Certified copies of each of the Related Documents, duly executed by the
parties thereto and in form and substance reasonably satisfactory to the Lenders,
together with all agreements, instruments and other documents delivered in
connection therewith as the Administrative Agent shall reasonably request,
including, without limitation, evidence of the consent of the board of directors of
each of Bull Run, Gray and TCM and the shareholders of Bull Run.




     (viii) A certificate in substantially the form of Exhibit F hereto, attesting
to the Solvency of each of the Loan Parties, before and after giving effect to the
Transaction, from the Chief Financial Officer of the Borrower.




     (ix) The Intercreditor Agreement, in substantially the form of Exhibit G
hereto.




     (x) Evidence of the Loan Parties’ insurance coverage reasonably satisfactory to
the Administrative Agent, demonstrating that the Loan Parties’ existing insurance
coverage remains in effect, together with endorsements naming the Administrative
Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case
may be.




     (xi) A Notice of Borrowing relating to the Initial Extension of Credit.




     (xii) A favorable opinion of (A) Proskauer Rose LLP, counsel to the Loan
Parties, in substantially the form of Exhibit H-1 hereto and (B) Troutman Sanders
LLP, counsel to the Loan Parties in substantially the form of Exhibit H-2 hereto.



39









 






     (xiii) A favorable opinion of Wyatt, Tarrant & Combs, LLP, local counsel for
the Loan Parties in Kentucky, in substantially the form of Exhibit I hereto and as
to such other matters as the Administrative Agent may reasonably request.




     (xiv) A favorable opinion of Blooston, Mordkofsky, Dickens, Duffy & Prendergast
LLP, regulatory counsel for the Loan Parties, in substantially the form of Exhibit J
hereto and as to such other matters as the Administrative Agent may reasonably
request.




     (b) The Arrangers shall be satisfied with the corporate and legal structure and
capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which
Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and
conditions of the charter or similar organizational document, bylaws and each class of
Equity Interest in each Loan Party and each such Subsidiary and of each agreement or
instrument relating to such structure or capitalization (including, without limitation, as
to the ability of any Subsidiary of the Borrower to pay dividends or make distributions to
or otherwise advance funds to, its equity holders), and any FCC Licenses shall be held by an
Eligible SPV.




     (c) After giving pro forma effect to the Transaction and the Initial Extension of
Credit hereunder, the Parent and its Subsidiaries shall have (i) a pro forma consolidated
EBITDA (calculated on a pro forma basis in accordance with Regulation S-X under the
Securities Act of 1933, as amended and including other adjustments, if any, agreed to by the
Arrangers and the Parent, the “Closing Date Pro Forma EBITDA”) for the twelve-month period ended
September 30, 2005 of at least $18,000,000, (ii) a ratio of Consolidated Debt of the Parent
and its Subsidiaries as of the Closing Date to Closing Date Pro Forma EBITDA of not greater
than 6.75:1.00, and (iii) a ratio of Consolidated Debt of the Parent and its Subsidiaries as
of the Closing Date secured or intended to be secured by a first-priority perfected Lien on
any property or assets of the Parent or any of its Subsidiaries to Closing Date Pro Forma
EBITDA of not greater than 5.25:1.00.




     (d) The Arrangers shall have received, in form and substance reasonably satisfactory to
the Arrangers, (i) copies of the financial statements referred to in Sections 4.01(h) and
4.01(i) and (ii) forecasts prepared by management of balance sheets, income statements and
cashflow statements of the Parent and its Subsidiaries, which shall be quarterly for Fiscal
Year 2005 and Fiscal Year 2006 and annual thereafter for the term of the this Agreement and
the First Lien Facilities.




     (e) The Administrative Agent shall be satisfied that all Existing Debt of the Parent
and its Subsidiaries (including such Existing Debt attributed to the Gray Businesses) and
Bull Run and its Subsidiaries, other than Surviving Debt, has been prepaid, redeemed or
defeased in full or otherwise satisfied and extinguished and all commitments relating
thereto terminated, any and all liens securing such indebtedness shall have been released
and that all Surviving Debt shall be in an amount and on terms and conditions reasonably
satisfactory to the Administrative Agent.




     (f) The Arrangers shall be reasonably satisfied with the terms and amounts of any
intercompany indebtedness among the Loan Parties and the flow of funds, as of the Effective
Date, in connection with this Agreement and the First Lien Facilities.




     (g) The Loan Parties shall comply with the terms of the Fee Letter.



40









 






     (h) The Arrangers shall be reasonably satisfied with senior management of the Loan
Parties.




     (i) All Governmental Authorizations, Approvals and third party consents necessary in
connection with the Transaction shall have been obtained (including, without limitation, the
consents of the board of directors of each of Bull Run, Gray and TCM and the shareholders of
Bull Run and, in any case, without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect; all applicable waiting periods in connection
with the Transaction shall have expired without any action being taken by any competent
authority, and no law or regulation shall be applicable in the judgment of the Lenders, in
each case that restrains, prevents or imposes materially adverse conditions upon the
Transaction or the operation of the businesses of the Loan Parties or the rights of the Loan
Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them.




     (j) There shall exist no action, suit, labor dispute, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the Loan
Parties’ knowledge, threatened before any Governmental Authority that (i) could be
reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of any Transaction Document or the consummation of the
Transaction.




     (k) The Arrangers shall have completed their legal and confirmatory business, tax,
accounting, ERISA, and environmental due diligence concerning the Parent, Bull Run and their respective Subsidiaries (including the Gray Businesses), with results in all respects
reasonably satisfactory to the Arrangers (including, without limitation, as to the tax free
nature of the Merger, the Spin-Off and the Transaction) and shall not have become aware of
any material information or other matter (including any matter relating to financial models
and underlying assumptions relating to the projections affecting the Parent, Bull Run or
their respective Subsidiaries (including the Gray Businesses), that in the judgment of the
Arrangers is inconsistent in a material and adverse manner with any due diligence results or
with any information or other matter previously disclosed to the Arrangers.




     (l) The Arrangers shall be reasonably satisfied that (i) the Parent and its
Subsidiaries will be able to meet their obligations under all employee and retiree welfare
plans, (ii) the employee benefit plans of the Parent and its ERISA affiliates are, in all
material respects, funded in accordance with the minimum statutory requirements, (iii) no
“reportable event” (as defined in ERISA, but excluding events for which reporting has been
waived) has occurred as to any such employee benefit plan, and (iv) no termination of, or
withdrawal from, any such employee benefit plan has occurred or is contemplated that could
reasonably be expected to result in a material liability.




     (m) The Arrangers shall have received such other documents, agreements and opinions in
connection with this Agreement, all reasonably satisfactory in form and substance, as the
Arrangers may reasonably request.




     (n) The Merger Agreement and the Separation and Distribution Agreement shall be in full
force and effect, and the Spin-Off and the Merger shall have been consummated, in all
material respects, in accordance with the terms of the Merger Agreement and the Separation
and Distribution Agreement, without any waiver or amendment that is adverse to the Lenders
unless consented to by the Arrangers of any term, provision or condition set forth therein,
and in compliance with all applicable laws.



41









 






     (o) The Borrower shall have received not more than $93,000,000 in gross cash proceeds
from the advances under the First Lien Facilities, and the Merger Consideration shall have
been paid upon terms and to investors reasonably satisfactory to the Arrangers.




     (p) The Borrower shall have paid all accrued fees of the Agents and Arrangers and all
reasonable expenses of the Agents and Arrangers (including the reasonable accrued fees and
expenses of counsel to the Administrative Agent and local counsel to the Lenders).




     (q) The representations and warranties contained in each Loan Document are true and
correct in all material respects on and as of the date of the Initial Extension of Credit,
before and after giving effect to the initial Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, other than any such
representations or warranties that, by their express terms, refer to a specific date other
than the date of such Borrowing, in which case as of such specific date.




     (r) No Default has occurred and is continuing, or would result from such Borrowing or
from the application of the proceeds therefrom.




     (s) The Administrative Agent shall have received such other approvals, opinions or
documents as the Administrative Agent may reasonably request.



     SECTION 3.02. Determinations Under Section 3.01. For purposes of determining compliance with the conditions specified in Section 3.01, each
Lender 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 the Lenders unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from such Lender prior
to the Initial Extension of Credit specifying its objection thereto and, if the Initial Extension
of Credit consists of a Borrowing, such Lender shall not have made available to the Administrative
Agent such Lender’s ratable portion of such Borrowing.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     SECTION 4.01. Representations and Warranties of the Loan Parties. Each Loan Party
represents and warrants as follows:




     (a) Each Loan Party and each of its Subsidiaries (i) is a corporation, limited
liability company or limited partnership duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation, (ii) is duly qualified and in
good standing as a foreign corporation or company in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it to so qualify or
be licensed except where the failure to so qualify or be licensed could not be reasonably
likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited
liability company or limited partnership (as applicable) power and authority (including,
without limitation, all Governmental Authorizations) to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to be conducted.
All of the outstanding Equity Interests in the Parent have been validly issued, are fully
paid and non-assessable.




     (b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all
Loan Parties, showing as of the date hereof (as to each Loan Party) the jurisdiction of its
incorporation,



42









 






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 provided pursuant to Section 3.01(a)(iv) is a true and correct copy of
each such document, each of which is valid and in full force and effect.




     (c) Set forth on Schedule 4.01(c) hereto is a complete and accurate list of all
Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary)
the jurisdiction of its formation, the number of shares, membership interests or partnership
interests (as applicable) of each class of its Equity Interests authorized, and the number
outstanding, on the date hereof and the percentage of each such class of its Equity
Interests owned by such Loan Party and the number of shares covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights at the date hereof.
All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of
its Subsidiaries free and clear of all Liens, except those created under the Collateral
Documents.




     (d) The execution, delivery and performance by each Loan Party of each Transaction
Document to which it is or is to be a party, and the consummation of the Transaction, are
within such Loan Party’s corporate, limited liability company or limited partnership (as
applicable), powers, have been duly authorized by all necessary corporate, limited liability company
or limited partnership (as applicable), action, and do not (i) contravene such Loan Party’s
charter, bylaws, limited liability company agreement, partnership agreement or other
constituent documents, (ii) violate, in any material respect, any law, rule, regulation
(including, without limitation, Regulation U and Regulation X of the Board of Governors of
the Federal Reserve System), order, writ, judgment, injunction, decree, determination or
award, (iii) conflict with or result in the material breach of, or constitute a default or
require any payment to be made under, any material contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party,
any of its Subsidiaries or any of their properties or (iv) except for the Liens created
under the Loan Documents, result in or require the creation or imposition of any Lien upon
or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No
Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which could be reasonably likely to have a Material Adverse Effect.




     (e) No Governmental Authorization, and no notice to or filing with any Governmental
Authority or any other third party, is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of any Loan Document to which it is or
is to be a party, (ii) the grant by any Loan Party of the Liens granted by it pursuant to
the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the
Collateral Documents (including the second priority (subject only to the Lien of the First
Lien Collateral Agent in favor of the holders of the First Lien Obligations) nature thereof)
or (iv) the exercise by any Agent or any Lender of its rights under the Loan Documents or
the remedies in respect of the Collateral pursuant to the Collateral Documents, except for
the authorizations, approvals, actions, notices and filings already obtained, taken, given
or made and which are in full force and effect. No Governmental Authorization, and no notice
or a filing with any Governmental Authority or any other third party, is required for the
due execution, delivery or performance by any Loan Party of any Transaction Document (other
than any Loan Documents) to which it is or is to be a party, or



43









 






for the consummation of the
Transaction, except for the authorization, approvals, actions, notices and filings set forth
in the Related Documents, all of which have been duly obtained, taken, given or made and
which are in full force and effect or for those required to be taken, given or made
following the Effective Date in accordance with such Related Documents. All applicable
waiting periods in connection with the Transaction have expired without any action having
been taken by any competent authority restraining, preventing or imposing materially adverse
conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on, any properties now
owned or hereafter acquired by any of them. The Spin-Off and the Merger have been
consummated, in all material respects, in accordance with the Separation and Distribution
Agreement and the Merger Agreement (without any modifications thereof or waivers thereunder)
and applicable law.




     (f) There is no action, suit, investigation, litigation or proceeding affecting any
Loan Party or any of its Subsidiaries, including any Environmental Action, pending or to the
Loan Parties’ knowledge threatened before any Governmental Authority or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of any Transaction Document or the consummation of the
Transaction.




     (g) This Agreement has been, and each other Transaction Document when delivered
hereunder will have been, duly executed and delivered by each Loan Party party thereto.
This Agreement is, and each other Transaction Document when delivered hereunder will be, the
legal, valid and binding obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms.




     (h) The Consolidated balance sheet of the Gray Businesses as at December 31, 2004, and
the related Consolidated statement of income and Consolidated statement of cash flows of the
Gray Businesses for the fiscal year then ended, duly certified by the Chief Financial
Officer of Gray, and the Consolidated balance sheet of the Gray Businesses as at September
30, 2005, and the related Consolidated statement of income and Consolidated statement of
cash flows of the Gray Businesses for the nine months then ended, duly certified by the
Chief Financial Officer of Gray, copies of which have been furnished to each Lender, fairly
present, in all material respects, the Consolidated financial condition of the Gray
Businesses as at such dates and the Consolidated results of operations of the Gray
Businesses for the periods ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis, and since December 31, 2004, there has
been no Material Adverse Change and no Internal Control Event has occurred. Such financial
statements set forth all material liabilities, actual or contingent, of the Gray Businesses
as of the date of such financial statements. The Consolidated balance sheet of Bull Run and
its Subsidiaries as at August 31, 2005, and the related Consolidated statement of income and
Consolidated statement of cash flows of Bull Run and its Subsidiaries for the fiscal year
then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent
public accountants, and the Consolidated balance sheet of Bull Run and its Subsidiaries as
at September 30, 2005, and the related Consolidated statement of income and Consolidated
statement of cash flows of Bull Run and its Subsidiaries for the one month then ended, duly
certified by the Chief Financial Officer of Bull Run, copies of which have been furnished to
each Lender, fairly present, in all material respects, the Consolidated financial condition
of Bull Run and its Subsidiaries as at such dates and the Consolidated results of operations
of Bull Run and its Subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles applied on a consistent basis, and since August 31,
2005, there has been no Material Adverse Change and no Internal Control Event has occurred.
Such financial statements set forth all material liabilities, actual or contingent, of Bull
Run and its consolidated Subsidiaries as of the date of such financial statements.



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     (i) The Consolidated pro forma balance sheet of the Parent and its Subsidiaries as at
September 30, 2005, and related Consolidated pro forma statements of income and cash flows
of Bull Run and its Subsidiaries for the twelve months then ended, certified by the Chief
Financial Officer of the Parent, copies of which have been furnished to each Lender, fairly
present, in all material respects, the Consolidated pro forma financial condition of the
Parent and its Subsidiaries as at such date and the Consolidated pro forma results of
operations of the Parent and its Subsidiaries for the period ended on such date, in each
case giving effect to the Transaction, all in accordance with GAAP. The Consolidated pro
forma balance sheet of the Parent and its Subsidiaries as at the Effective Date, certified
by the Chief Financial Officer of the Parent, copies of which have been furnished to each
Lender, fairly present, in all material respects, the Consolidated pro forma financial
condition of the Parent and its Subsidiaries as at such date after giving effect to the
Transaction, all in accordance with GAAP.




     (j) The Consolidated forecasted balance sheet, statement of income and statement of
cash flows of the Parent and its Subsidiaries delivered to the Lenders pursuant to Section
3.01(d)(ii) or 5.03 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, and represented, at the time of delivery, the Borrower’s best
estimate of its future financial performance. It is acknowledged and understood that the
projections as they relate to future events are not to be reviewed as representations and warranties that such events
will occur and that actual results may differ significantly from the projected results.




     (k) Neither the Information Memorandum nor the Registration Statement nor any other
information, exhibit or report furnished by or on behalf of any Loan Party to any Agent or
any Lender in connection with the negotiation and syndication of the Loan Documents or
pursuant to the terms of the Loan Documents, taken as a whole, contained any untrue
statement of a material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.




     (l) The Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock, and no proceeds of any Advance will be used, directly
or indirectly, to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock.




     (m) Neither any Loan Party nor any of its Subsidiaries is an “investment company”, or
an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as amended.
Neither the making of any Advances, nor the application of the proceeds or repayment thereof
by the Borrower, nor the consummation of the other transactions contemplated by the
Transaction Documents, will violate any provision of any such Act or any rule, regulation or
order of the SEC thereunder.




     (n) Neither any Loan Party nor any of its Subsidiaries is a party to any indenture,
loan or credit agreement or any lease or other agreement or instrument or subject to any
charter or corporate restriction that could be reasonably likely to have a Material Adverse
Effect.




     (o) All filings and other actions necessary or desirable to perfect and protect the
security interest in the Collateral created under the Collateral Documents have been duly
made or taken and are in full force and effect, and the Collateral Documents create in favor
of the Collateral Agent for the benefit of the Secured Parties a valid and, together with
such filings and other actions, perfected first priority security interest in the
Collateral, securing the payment of the Secured Obligations, and all filings and other
actions necessary or desirable to perfect and protect



45









 






such security interest have been duly
taken. The Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the liens and security interests created or permitted under
the Loan Documents.




     (p) Each Loan Party is, individually and together with its Subsidiaries, Solvent.




     (q) (i) Set forth on Schedule 4.01(q) hereto is a complete and accurate list
of all Plans and Multiemployer Plans.




     (ii) No ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan that has resulted in or is reasonably expected to result in a material liability of any
Loan Party or any ERISA Affiliate.




     (iii) Schedule B (Actuarial Information) to the most recent annual report (Form 5500
Series) for each Plan, copies of which have been filed with the Employee Benefits Security
Administration and furnished to the Lenders, is complete and accurate and fairly presents
the funding status of such Plan, and since the date of such Schedule B there has been no
material adverse change in such funding status.




     (iv) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably
expected to incur any Withdrawal Liability exceeding $600,000 to any Multiemployer Plan.




     (v) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of
a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within the meaning of Title
IV of ERISA.




     (r) (i) The operations and properties of each Loan Party and each of its Subsidiaries
comply in all material respects with all applicable Environmental Laws and Environmental
Permits, all past non-compliance with such Environmental Laws and Environmental Permits has
been resolved without ongoing obligations or costs, and no circumstances exist that could be
reasonably likely to (A) form the basis of an Environmental Action against any Loan Party or
any of its Subsidiaries or any of their properties that could have a Material Adverse Effect
or (B) cause any such property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law.




     (ii) None of the properties currently or, to the knowledge of the Loan Parties, formerly
owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is
adjacent to any such property; there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons
in which Hazardous Materials are being or have been treated, stored or disposed on any
property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the
best of its knowledge, on any property formerly owned or operated by any Loan Party or any
of its Subsidiaries; there are no friable or material quantities or concentrations of
asbestos or asbestos-containing material on any property currently owned or operated by any
Loan Party or any of its Subsidiaries; and Hazardous Materials have not been released,
discharged or disposed of on any property currently or formerly owned or operated by any
Loan Party or any of its Subsidiaries that is reasonably likely to result in an
Environmental Action against any Loan Party or any of their Subsidiaries or otherwise is
reasonably likely to result in a material liability under applicable Environmental Laws.



46









 






     (iii) Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not
completed, either individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have
been disposed of in a manner not reasonably expected to result in material liability to any
Loan Party or any of its Subsidiaries.




     (s) (i) Neither any Loan Party nor any of its Subsidiaries is party to any tax sharing
agreement other than the Tax Sharing Agreement or any other tax sharing agreement approved
by the Required Lenders.




     (ii) Each Loan Party and each of its Subsidiaries and Affiliates has filed, has caused
to be filed or has been included in all tax returns (Federal, state, local and foreign)
required to be filed and all taxes shown thereon to be due, together with applicable
interest and penalties have been paid.




     (iii) The Spin-Off and the Merger will not be taxable to Bull Run, the Parent or their
respective Subsidiaries, or to the Gray Businesses.




     (t) Neither the business nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or
other casualty (whether or not covered by insurance) that could be reasonably likely to have
a Material Adverse Effect.




     (u) The properties of each Loan Party 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 such Loan
Party or the applicable Subsidiary operates.




     (v) Set forth on Schedule 4.01(v) hereto is a complete and accurate list of all
Existing Debt (other than Surviving Debt), showing as of the date hereof the obligor and the
principal amount outstanding thereunder.




     (w) Set forth on Schedule 4.01(w) hereto is a complete and accurate list of all
Surviving Debt, showing as of the date hereof the obligor and the principal amount
outstanding thereunder, the maturity date thereof and the amortization schedule therefor.




     (x) Set forth on Schedule 4.01(x) hereto is a complete and accurate list of all
Liens on the property or assets of any Loan Party or any 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.




     (y) Set forth on Schedule 4.01(y) hereto is a complete and accurate list of all
real property owned by any Loan Party or any of its Subsidiaries (“Owned Real Property”),
showing as of the date hereof, and as of any date such Schedule is required to be
supplemented pursuant to Section 5.03(l), the street address, county or other relevant
jurisdiction, state, record owner and the sum of the book value and total amount of
depreciation deducted from such book value from



47









 






the date the real property was acquired
thereof. Each Loan Party or such Subsidiary has good, marketable and insurable fee simple
title to such real property, free and clear of all Liens, other than Liens created or
permitted by the Loan Documents.




     (z) (1) Set forth on Schedule 4.01(z)(1) hereto is a complete and accurate
list of all Real Property Leases under which any Loan Party or any of its Subsidiaries is
the lessee, showing as of the date hereof, and as of any date such Schedule is required to
be supplemented pursuant to Section 5.03(l), the street address, county or other relevant
jurisdiction, state, names of the lessor and lessee, expiration date and annual rental cost
thereof. Each such lease is the legal, valid and binding obligation of the lessor thereof,
enforceable in accordance with its terms.




     (2) Set forth on Schedule 4.01(z)(2) hereto is complete and accurate list of
all leases of real property under which any Loan Party is the lessor, showing as of the date
hereof, and as of any date such Schedule is required to be supplemented pursuant to Section
5.03(l), the street address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the legal, valid and
binding obligation of the lessee thereof, enforceable in accordance with its terms.




     (aa) Set forth on Schedule 4.01(aa) hereto is a complete and accurate list of
all Investments in Debt or Equity Interests held by any Loan Party or any of its
Subsidiaries on the date hereof, showing as of the date hereof, as to any Debt, the amount,
obligor or issuer and maturity, if any, thereof, and as to any Equity Interests, the amount,
the issuer and the nature thereof.




     (bb) Set forth on Schedule 4.01(bb) hereto is a complete and accurate list of
all registered patents, trademarks, trade names, service marks and copyrights, and all
applications therefor and licenses thereof, of each Loan Party or any of its Subsidiaries,
showing as of the date hereof the jurisdiction in which registered, the registration number,
the date of registration and the expiration date.




     (cc) Set forth on Schedule 4.01(cc) hereto is a complete and accurate list of
all Material Contracts of each Loan Party and its Subsidiaries, showing as of the date
hereof the parties, subject matter and term thereof (it being understood that for purposes
of Schedule 4.01(cc) only, the amount set forth in clause (b) of the definition of
Material Contract shall be deemed $2,500,000). Each Material Contract has been duly
authorized, executed and delivered by all parties thereto, has not been amended or otherwise
modified, is in full force and effect and is binding upon and enforceable against all
parties thereto in accordance with its terms, and there exists no default under any Material
Contract by any party thereto.




     (dd) Each Loan Party is in compliance in all material respects with the requirements of
all laws (including, without limitation, the Patriot Act), rules, regulations and all
orders, writs, injunctions, decrees, determinations or awards applicable to it or to its
properties, except in such instances in which (i) such requirement of law, rule, regulation,
order, writ, injunction, decree, determination or award is being contested in good faith by
appropriate proceedings diligently conducted or (ii) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be likely to have a Material Adverse
Effect, except that no representations or warranties are made hereunder with respect to any
laws, rules or regulations that are the subject of the representations and warranties set
forth in Sections 4.01(f), (m), (q), (r) and (s). Neither the Parent nor any of its
Subsidiaries is in material violation of any laws relating to terrorism or money laundering,
including, without limitation, the Patriot Act.



48









 






     (ee) None of the Loan Parties nor any of their Subsidiaries is (i) named on the list of
Specially Designated Nationals or Blocked Persons maintained by the U.S. Department of the
Treasury’s Office of Foreign Assets Control available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or (ii) (A) an agency of
the government of a country, (B) an organization controlled by a country, or (C) a person
resident in a country that is subject to a sanctions program identified on the list
maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control and
available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as
otherwise published from time to time, as such program may be applicable to such agency,
organization or person, and the proceeds from any Advances hereunder will not be used to
fund any operations in, finance any investments or activities in, or make any payments to,
any such country, agency, organization or person.




     (ff) The Obligations of the Loan Parties under the Loan Documents constitute “Senior
Debt” (or any comparable term) or the sole “Designated Senior Debt” (or any comparable term)
under the provisions of any Subordinated Debt.




     (gg) The representations and warranties and information contained herein and in the
Merger Agreement and the Separation and Distribution Agreement are true and correct in all
material respects and the Parent shall have no indemnification obligations under Section
2.04(b) of the Tax Sharing Agreement.




     (hh) (i) Set forth on Schedule 4.01(hh) is a complete list, as of the Closing
Date, of each of the FCC Licenses issued to the Parent or any of its Subsidiaries and, with
respect to each such FCC License, the name of the licensee, the type of service that may be
provided thereunder and the expiration date.




     (ii) Each of the Parent and its Subsidiaries has all necessary FCC Licenses required
under the Communications Laws to own and operate its properties and carry on its businesses
as now conducted and to execute and deliver the Loan Documents, to perform its obligations
thereunder and to grant and perfect the Liens and security interests contemplated thereby,
and for the exercise by the Secured Parties of their rights and remedies under the Loan
Documents. Each such FCC License was validly issued to respective Subsidiary and is in full
force and effect. The FCC Licenses constitute in all material respects all of the Approvals
necessary for the operation of the Parent’s and its Subsidiaries’ business in the same
manner as it is presently conducted.




     (iii) Each of the Parent and its Subsidiaries have taken all actions and performed all
of their material obligations that are necessary to maintain each FCC License without
adverse modification or impairment and no event has occurred which (A) results in, or after
notice or lapse of time or both would result in, any revocation, suspension, materially
adverse modification, non-renewal or termination, material impairment of value of, or any
materially adverse order of forfeiture with respect to, any FCC License or (B) materially
and adversely affects or in the future may be reasonably likely to materially adversely
affect any of the rights of the Parent or any Subsidiary with respect to any FCC License
(provided, however, that any events referred to in this subclause (B) shall be limited to
those matters which are pending before the FCC).




     (iv) Neither the Parent nor any of its Subsidiaries (A) is a party to or has knowledge
of any investigation, notice of apparent liability, violation, forfeiture or other order or
complaint issued by or before any court or regulatory body, including the FCC, or of any
other proceedings which could in any manner threaten or adversely affect the validity or
continued effectiveness of



49









 






its or its Subsidiaries’ FCC Licenses or (B) has any reason to
believe that any FCC License will not be renewed in the ordinary course, in each case to the
extent such events could reasonably be expected to result in a Material Adverse Effect.




     (v) The Parent and its Subsidiaries have made all material filings which are required
to be filed by it under the Communications Laws, including, without limitation, payments of
all regulatory fees and assessments, and are in all material respects in compliance with the
Communications Laws relating to the operation of any Network Facilities or to otherwise
provide the services related to the Telecommunications Business of the Parent and its
Subsidiaries or for the execution, delivery and performance by the Loan Parties of the Loan
Documents and the grant and perfection of the Liens and security interests thereunder and
the exercise by the Secured Parties of their rights and remedies under the Loan Documents.




     (vi) Each FCC License is currently held by an Eligible SPV.



ARTICLE V




COVENANTS OF THE LOAN PARTIES




     SECTION 5.01. Affirmative Covenants. So long as any Advance or any other Obligation of any
Loan Party under any Loan Document shall remain unpaid (other than any Unaccrued Indemnity Claims)
or any Lender shall have any Commitment hereunder, each Loan Party will:




     (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA, the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970 and
the Patriot Act.




     (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, all material
obligations and liabilities including, without limitation, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its property and (ii) all lawful
claims that, if unpaid, might by law become a Lien upon its property; provided, however,
that no Loan Party shall be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable.




     (c) Compliance with Environmental Laws. Comply, and take commercially
reasonable steps to cause each of its Subsidiaries and 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, and cause each of
its Subsidiaries to obtain and renew, all Environmental Permits necessary for its operations
and properties; and conduct, and cause each of its Subsidiaries to 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 and as required pursuant to all applicable Environmental
Laws; provided, however, that neither the Parent 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.



50









 






     (d) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to
maintain insurance, including, without limitation, hazard and business interruption
insurance, with responsible and reputable insurance companies or associations and such
insurance shall be maintained in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties in the same general
areas in which any Loan Party or any of its Subsidiaries operates.




     (e) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its existence, material permits,
licenses, approvals, privileges, franchises, FCC Licenses and other Approvals; provided,
however, that the Parent and its Subsidiaries may consummate the Spin-Off, the Merger and
any other merger or consolidation permitted under Section 5.02(d).




     (f) Visitation Rights. At any reasonable time and from time to time upon prior
notice during normal business hours, permit any of the Agents or any of the Lenders, or any
agents or representatives thereof, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Parent and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the Parent and any of its
Subsidiaries with any of their officers or directors and with their independent certified
public accountants, all at the expense of the Borrower; provided, however, that if (i) no
Default or Event of Default shall be continuing, the Borrower shall not be required to pay
for more than two visits or inspections during any calendar year and (ii) with respect to
environmental inspections of the Properties, representatives of the Administrative Agent
shall only have the right to inspect once every twelve months, unless the Administrative
Agent has a reasonable basis to believe that a condition exists or an event has occurred
which could reasonably be expected to give rise to material liabilities under applicable
Environmental Laws.




     (g) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Parent and each such Subsidiary in
accordance with generally accepted accounting principles in effect from time to time.




     (h) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Subsidiaries to maintain and preserve in the ordinary course of business, all of its
properties that are used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted; and do, and cause each of its Subsidiaries to
do, all things necessary to obtain, renew, extend and continue in effect all FCC Licenses
and Approvals which may at any time and from time to time be necessary for the Parent and
its Subsidiaries to operate their businesses in compliance, in all material respects, with
applicable law, to execute and deliver any Loan Documents from time to time, to perform
their obligations under the Loan Documents, to grant and perfect the Liens and security
interests contemplated thereby or for the exercise by the Secured Parties of their rights
and remedies under the Loan Documents.




     (i) Covenant to Guarantee Obligations and Give Security. Subject to the
Intercreditor Agreement, upon (v) the request of the Collateral Agent following the
occurrence and during the continuance of an Event of Default, (w) the formation or
acquisition of any new direct or indirect Subsidiaries by any Loan Party, (x) the
acquisition of fee owned real property by a Loan Party or any of its Subsidiaries with a
value in excess of $500,000 (a “New Owned Property”), (y) the entry into a new lease of real
property in which rentable square footage exceeds 10,000 square feet (a “New Collateral
Access Lease”) or (z) the acquisition of any personal property by any Loan Party or any of
its Subsidiaries, and such property, in the judgment of the Collateral Agent,



51









 






shall not
already be subject to a perfected second priority (subject only to the Lien of the First
Lien Collateral Agent in favor of the holders of the First Lien Obligations and to Permitted
Liens) security interest in favor of the Collateral Agent for the benefit of the Secured
Parties, then in each case at the Borrower’s expense:




     (i) in connection with the formation or acquisition of a Subsidiary that is not
(x) a CFC or (y) a Subsidiary that is held directly or indirectly by a CFC, within
10 days after such formation or acquisition, cause each such Subsidiary, and cause
each direct and indirect parent of such Subsidiary (if it has not already done so),
to duly execute and deliver to the Collateral Agent a guaranty or guaranty
supplement, in form and substance reasonably satisfactory to the Collateral Agent,
guaranteeing the other Loan Parties’ obligations under the Loan Documents,




     (ii) within 10 days after (A) such request furnish to the Collateral Agent a
description of the real and personal properties of the Loan Parties and their
respective Subsidiaries in detail reasonably satisfactory to the Collateral Agent
and (B) such formation or acquisition, furnish to the Collateral Agent a description
of the real and personal properties of such Subsidiary or the real and personal
properties so acquired, in each case in detail reasonably satisfactory to the
Collateral Agent,




     (iii) within 30 days after (A) such request or acquisition of property by any
Loan Party or any of its Subsidiaries, duly execute and deliver, and cause each such
Subsidiary of such Loan Party to duly execute and deliver, to the Collateral Agent
such additional mortgages (with respect to fee owned real property), pledges,
assignments, security agreement supplements, intellectual property security
agreement supplements and other security agreements as specified by, and in form and
substance reasonably satisfactory to, the Collateral Agent, securing (subject to the
Intercreditor Agreement) payment of all the Obligations of such Loan Party under the
Loan Documents and constituting Liens on all such properties and (B) such formation
or acquisition of any new Subsidiary, duly execute and deliver and cause each
Subsidiary to duly execute and deliver to the Collateral Agent mortgages, pledges,
assignments, security agreement supplements, intellectual property security
agreement supplements and other security agreements as specified by, and in form and
substance reasonably satisfactory to the Collateral Agent, securing (subject to the
Intercreditor Agreement) payment of all of the Obligations of such Subsidiary under
the Loan Documents; provided that (A) the stock of any Subsidiary held by a CFC
shall not be pledged and (B) if such new property is Equity Interests in a CFC, only
66% of such Equity Interests shall be pledged in favor of the Secured Parties,




     (iv) notwithstanding anything to the contrary contained in this Section
5.01(i), (x) in connection with the acquisition of a New Owned Property, (A)
within 10 days after such acquisition, furnish to the Administrative Agent a
description, in detail reasonably satisfactory to the Administrative Agent, of such
New Owned Property and (B) within 45 days after such acquisition, furnish to the
Administrative Agent (1) each of the items set forth in Sections 5.01(q)(ii)(A),
(ii)(B), (ii)(C), (ii)(D) and (ii)(F), mutatis mutandis, in each case in respect of
such New Owned Property and (2) such other approvals, opinions or documents as the
Administrative Agent may reasonably request, and (y) in connection with the entry
into a New Collateral Access Lease, (A) within 10 days after entry into such New
Collateral Access Lease, furnish to the Administrative Agent a description, in
detail reasonably satisfactory to the Administrative Agent, of such lease and (B)
within 45 days after entry into a New Collateral Access Lease, furnish to



52









 






the Administrative Agent (1) a Collateral Access Agreement to the extent set forth in
Section 5.01(q)(i), mutatis mutandis, in respect of such New Collateral Access Lease
and (2) such other approvals, opinions or documents as the Administrative Agent may
reasonably request,




     (v) within 30 days after such request, formation or acquisition, take, and
cause each Loan Party and each newly acquired or newly formed Subsidiary (other than
any Subsidiary that is a CFC or a Subsidiary that is held directly or indirectly by
a CFC) to take, whatever action (including, without limitation, the recording of
mortgages, the filing of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be necessary or
advisable in the reasonable opinion of the Collateral Agent to vest in the
Collateral Agent (or in any representative of the Collateral Agent designated by it)
valid and subsisting Liens on the properties purported to be subject to the mortgages, pledges, assignments,
security agreement supplements, intellectual property security agreement supplements
and security agreements delivered pursuant to this Section 5.01(i), enforceable
against all third parties in accordance with their terms,




     (vi) within 60 days after such request, formation or acquisition, deliver to
the Collateral Agent, upon the request of the Collateral Agent in its sole
discretion, a signed copy of a favorable opinion, addressed to the Collateral Agent
and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable
to the Collateral Agent as to (1) the legal matters contained in Sections
5.01(i)(i), (iii), (iv) and (v) above, (2) such guaranties, guaranty supplements,
mortgages, pledges, assignments, security agreement supplements, intellectual
property security agreement supplements and other security agreements being legal,
valid and binding obligations of each Loan Party party thereto enforceable in
accordance with their terms, as to the matters contained in Section 5.01(i)(v)
above, (3) such recordings, filings, notices, endorsements and other actions being
sufficient to create valid perfected Liens on such properties and (4) such other
matters as the Collateral Agent may reasonably request,




     (vii) as promptly as practicable after such request, formation or acquisition,
deliver, upon the request of the Collateral Agent in its sole discretion, to the
Collateral Agent with respect to each parcel of real property owned by any Loan
Party or any of its Subsidiaries and each newly acquired or newly formed Subsidiary
(other than any Subsidiary that is a CFC or a Subsidiary that is held directly or
indirectly by a CFC) title reports, surveys and engineering, soils and other
reports, and environmental assessment reports, each in scope, form and substance
reasonably satisfactory to the Collateral Agent, provided, however, that to the
extent that any Loan Party or any of its Subsidiaries shall have otherwise received
any of the foregoing items with respect to such real property, such items shall,
promptly after the receipt thereof, be delivered to the Collateral Agent,




     (viii) upon the occurrence and during the continuance of an Event of Default,
promptly cause to be deposited any and all cash dividends paid or payable to it or
any of its Subsidiaries from any of its Subsidiaries from time to time into the
Collateral Account, and with respect to all other dividends paid or payable to it or
any of its Subsidiaries from time to time, promptly execute and deliver, or cause
such Subsidiary to promptly execute and deliver, as the case may be, any and all
further instruments and take or cause such Subsidiary to take, as the case may be,
all such other action as the Collateral Agent may reasonably deem necessary or
desirable in order to obtain and



53









 






maintain from and after the time such dividend is
paid or payable a perfected, second priority (subject only to the Lien of the First
Lien Collateral Agent in favor of the holders of the First Lien Obligations) lien on
and security interest in such dividends, and




     (ix) at any time and from time to time, promptly execute and deliver, and cause
to execute and deliver, each Loan Party and each newly acquired or newly formed
Subsidiary (other than any Subsidiary that is a CFC or a Subsidiary that is held
directly or indirectly by a CFC) any and all further instruments and documents and
take, and cause each Loan Party and each newly acquired or newly formed Subsidiary
(other than any Subsidiary that is a CFC or a Subsidiary that is held directly or
indirectly by a CFC) to take, all such other action as the Collateral Agent may
reasonably deem necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving (subject to the Intercreditor Agreement) the Liens of,
such guaranties, mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement
supplements and security agreements.




     (j) Further Assurances. (i) Promptly upon request by any Agent, or any Lender
through the Administrative Agent, correct, and cause each of its Subsidiaries promptly to
correct, any material defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and




     (ii) Promptly upon request by any Agent, or any Lender through the Administrative Agent,
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, conveyances, pledge agreements, mortgages,
deeds of trust, trust deeds, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender through the Administrative Agent, may reasonably
require from time to time in order to (A) carry out more effectively the purposes of the
Loan Documents, (B) to the fullest extent permitted by applicable law, subject any Loan
Party’s 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, (C) 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 (D) 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, all subject to the terms and provisions of the Intercreditor
Agreement.




     (k) Notices. Promptly notify the Administrative Agent and each Lender of (i)
any material change in accounting policies or financial reporting practices by any Loan
Party or any of its Subsidiaries, and (ii) the (A) occurrence of any disposition of property
or assets for which the Borrower is required to make a mandatory repayment pursuant to
Section 2.06(b)(ii), (B) sale or issuance of any Equity Interests (including, without
limitation, the receipt of any capital contribution) for which the Borrower is required to
make a mandatory repayment pursuant to Section 2.06(b)(ii), (C) incurrence or issuance of
any Debt for which the Borrower is required to make a mandatory repayment pursuant to
Section 2.06(b)(ii) and (D) receipt of any Extraordinary Receipts for which the Borrower is
required to make a mandatory repayment pursuant to Section 2.06(b)(ii). Each notice
pursuant to this Section 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.



54









 






     (l) Performance of Related Documents. Perform and observe, and cause each of
its Subsidiaries to perform and observe, in all material respects, all of the terms and
provisions of each Related Document to be performed or observed by it, maintain each such
Related Document in full force and effect in accordance with its terms, enforce such Related
Document in accordance with its terms, take all such action to such end as may be from time
to time reasonably requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each such Related Document 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 Related Document.




     (m) Preparation of Environmental Reports. At the request of the Administrative
Agent or the Collateral Agent from time to time (but no more frequently than once every 12
months unless an Event of Default is continuing), provide to the Lenders within 60 Business
Days after such request, at the expense of the Borrower, an environmental site assessment report for
any of its or its Subsidiaries’ properties described in the Mortgages, prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent or the
Collateral Agent, indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in connection with any
Hazardous Materials on such properties; without limiting the generality of the foregoing, if
the Administrative Agent or the Collateral Agent reasonably determines at any time that a
material risk exists that any such report will not be provided within the time referred to
above, the Administrative Agent or the Collateral Agent may retain a nationally recognized
environmental consulting firm to prepare such report at the expense of the Borrower, and the
Parent hereby grants and agrees to cause any Subsidiary that owns any property described in
the Mortgages to grant at the time of such request to the Agents, the Lenders, such firm and
any agents or representatives thereof an irrevocable non-exclusive license, subject to the
rights of tenants, to enter onto their respective properties to undertake such an
assessment.




     (n) Compliance with Terms of Leaseholds. Make all payments and otherwise
perform all obligations in respect of all leases of real property to which the Parent or any
of its Subsidiaries is a party, keep such leases in full force and effect in accordance with
its terms and not allow (through any action or omission of Parent or any of its
Subsidiaries) 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.




     (o) Interest Rate Hedging. Enter into on or prior to the date which is 60 days
after the Effective Date, and maintain for a period of three years thereafter, interest rate
Hedge Agreements with a Lender (or Lenders) covering a notional amount of not less than 50%
of the sum of the “Term Advances” (as defined in the First Lien Facilities) plus the
Advances and providing for such Lender (or Lenders ) to make payments thereunder for a
period of no less than three years, all on terms reasonably satisfactory to the
Administrative Agent.




     (p) Performance of 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 in accordance with its terms, enforce each such
Material Contract in accordance with its terms, take all such action to such end as may be
from time to time reasonably requested by the Administrative Agent and, upon such request of
the Administrative Agent, make to each other party to each such Material Contract such
demands and requests for



55









 






information and reports or for action as such 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 be reasonably likely to have a Material Adverse Effect.




     (q) Conditions Subsequent. (i) Within 60-days after the Initial Extension of
Credit, the Borrower shall use commercially reasonable efforts to obtain a Collateral Access
Agreement, in substantially the form of Exhibit M attached hereto or in form otherwise
reasonably satisfactory to the Administrative Agent, in each case, executed by the lessor
under the applicable Collateral Access Leases. Notwithstanding anything to the contrary in
this Agreement, if the Borrower shall fail to obtain the collateral access agreement with
respect to any Collateral Access Lease within such 60-day period, after using commercially
reasonable efforts to do so, the Borrower shall have no further obligation to execute and
deliver to the Administrative Agent the same and the condition set forth in this Section 5.01(q)(i) with respect thereto shall be deemed to
be satisfied by the Borrower. As used in this Section 5.01(q)(i), “commercially reasonable
efforts” shall require the Borrower to commence and prosecute the matter referred to with
diligence and in a manner consistent with customary business practices, but shall not
require that the Borrower expend any sums of money except such sums which are designed to
compensate a lessor for reasonable expenses in reviewing the applicable documentation
(including reasonable legal fees). The Borrower shall promptly, upon request, provide the
Administrative Agent with a report in reasonable detail summarizing the commercially
reasonable efforts undertaken to obtain the collateral access agreements referenced in this
Section 5.01(q)(i).




     (ii) Within 45 days after the Initial Extension of Credit (provided that so long as the
Borrower shall have used commercially reasonable efforts to satisfy the conditions set forth
below within such 45-day period, the Administrative Agent shall, upon the request of the
Borrower, extend the 45-day period for such additional period as shall be requested by the
Borrower, not to exceed 45 additional days; provided further that any additional extensions
thereafter shall be subject to the approval of the Required Lenders), furnish to the
Administrative Agent deeds of trust, trust deeds and mortgages in substantially the form of
Exhibit E hereto (with such changes as may be reasonably satisfactory to the Administrative
Agent and its counsel to account for local law matters) and otherwise in form and substance
reasonably satisfactory to the Administrative Agent and covering the properties listed on
Schedule 4.01(y) hereto (together with the Assignments of Leases and Rents referred
to therein and each other mortgage delivered pursuant to Section 5.01(i), in each case as
amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:




     (A) evidence that counterparts of the Mortgages have been either (x) duly
recorded or (y) duly executed, acknowledged and delivered in form suitable for
filing or recording, with all filing or recording offices that the Administrative
Agent may reasonably deem necessary or desirable in order to create a valid second
(subject only to the Lien of the First Lien Collateral Agent in favor of the holders
of the First Lien Obligations) and subsisting Lien on the property described therein
in favor of the Collateral Agent for the benefit of the Secured Parties and that all
filing and recording taxes and fees have been paid or adequate provisions for their
payment shall have been made,




     (B) with respect to the Owned Real Properties, fully paid American Land Title
Association Lender’s Extended Coverage title insurance policies (the “Mortgage
Policies”) in form and substance, with endorsements and in amount reasonably
acceptable to the Administrative Agent, issued, coinsured and reinsured by title
insurers



56









 






acceptable to the Administrative Agent, insuring the Mortgages to be valid
second (subject only to the Lien of the First Lien Collateral Agent in favor of the
holders of the First Lien Obligations) and subsisting Liens on the property
described therein, free and clear of all defects (including, but not limited to,
mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted
Encumbrances, and providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and for mechanics’ and
materialmen’s Liens) and such coinsurance and direct access reinsurance as the
Administrative Agent may deem necessary or desirable,




     (C) with respect to the Owned Real Properties, American Land Title
Association/American Congress on Surveying and Mapping form surveys, for which all
necessary fees have been paid, dated no more than 30 days before the date the
related Mortgage is recorded, certified to the Administrative Agent and the issuer
of the Mortgage Policies in a manner reasonably satisfactory to the Administrative
Agent by a land surveyor duly registered and licensed in the states in which the
property described in such surveys is located and acceptable to the Administrative
Agent, showing all buildings and other improvements, any off-site improvements, the
location of any easements, parking spaces, rights of way, building set-back lines
and other dimensional regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other than encroachments and
other defects reasonably acceptable to the Administrative Agent,




     (D) such consents and agreements of lessors and other third parties, and such
estoppel letters and other confirmations, as the Administrative Agent may reasonably
deem necessary or desirable,




     (E) evidence of the insurance required by the terms of the Mortgages,




     (F) Favorable opinions of local counsel for the Loan Parties (i) in states in
which the Owned Real Properties are located, with respect to the enforceability and
perfection of the Mortgages and any related fixture filings, substantially in the
form of Exhibit K hereto and otherwise in form and substance satisfactory to the
Administrative Agent and including such assumptions and qualifications to account
for local law matters as the Administrative Agent and its counsel shall approve in
their reasonable discretion and (ii) in states in which the Loan Parties party to
the Mortgages are organized or formed, with respect to the valid existence,
corporate power and authority of such Loan Parties in the granting of the Mortgages
in form and substance reasonably satisfactory to the Administrative Agent and
including such assumptions and qualifications to account for local law matters as
the Administrative Agent and its counsel shall approve in their reasonable
discretion, and




     (G) evidence that all other action that the Administrative Agent may reasonably
deem necessary or desirable in order to create valid second (subject only to the
Lien of the First Lien Collateral Agent in favor of the holders of the First Lien
Obligations) and subsisting Liens on the property described in the Mortgages has
been taken.




     (iii) Within 45 days after the Initial Extension of Credit (which time period may be
extended by an additional 45 days at the sole discretion of the Collateral Agent), the
Borrower shall furnish to the Collateral Agent Account Control Agreements (as defined in the
Security Agreement), Securities Account Control Agreements (as defined in the Security
Agreement) or



57









 






such other “control agreements” in form and substance reasonably satisfactory
to the Collateral Agent covering all of the Loan Parties’ Account Collateral or Security
Collateral (each as defined in the Security Agreement).



     SECTION 5.02. Negative Covenants. So long as any Advance or any other Obligation of any
Loan Party under any Loan Document shall remain unpaid (other than any Unaccrued Indemnity Claims)
or any Lender shall have any Commitment hereunder, no Loan Party nor any of its Subsidiaries will,
at any time:




     (a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with respect to any
of its properties of any character (including, without limitation, accounts) whether now
owned or hereafter acquired, or sign or file or suffer to exist, or permit any of its Subsidiaries to sign or file
or suffer to exist, under the Uniform Commercial Code of any jurisdiction, a financing
statement that names any Loan Party or any of its Subsidiaries as debtor, or sign or suffer
to exist, or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such financing statement, or
assign, or permit any of its Subsidiaries to assign, any accounts or other right to receive
income, except:




     (i) Liens created under the Loan Documents;




     (ii) Permitted Liens for the Parent and its Subsidiaries;




     (iii) Liens existing on the date hereof and described on Schedule
4.01(x) hereto;




     (iv) purchase money Liens upon or in real property or equipment acquired or
held by the Borrower or any of its Subsidiaries in the ordinary course of business
or assumed by the Borrower or any of its Subsidiaries pursuant to a Permitted Asset
Exchange, in each case to secure the purchase price of such property or equipment or
to secure Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment to be subject to such
Liens, or Liens existing on any such property or equipment at the time of
acquisition (other than any such Liens created in contemplation of such acquisition
that do not secure the purchase price), or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the property or equipment
being acquired, constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced; and provided further that the aggregate
principal amount of the Debt secured by Liens permitted by this clause (iv) shall
not exceed the amount permitted under Section 5.02(b)(iii)(B) at any time
outstanding;




     (v) Liens arising in connection with Capitalized Leases of the Borrower or any
of its Subsidiaries permitted under Section 5.02(b)(iii)(C); provided that no such
Lien shall extend to or cover any Collateral or assets other than the assets subject
to such Capitalized Leases;




     (vi) Liens created under the First Lien Loan Documents securing obligations
under the First Lien Loan Documents, in all cases subject to the provisions of the
Intercreditor Agreement; and



58









 






     (vii) so long as no Default has occurred and is continuing, other Liens
securing Debt of the Parent and its Subsidiaries outstanding in an aggregate
principal amount not to exceed $1,750,000; provided that no such Lien shall extend
to or cover any Collateral.




     (b) Debt. Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:




     (i) in the case of the Borrower,




     (A) Debt in respect of Hedge Agreements required pursuant to Section
5.01(o) or other Hedge Agreements designed to hedge against fluctuations in
interest rates incurred in the ordinary course of business and consistent
with prudent business practice; provided that the aggregate notional amount
for all such Hedge Agreements shall not exceed $75,000,000 at any time, and




     (B) Debt owed to a wholly owned Subsidiary of the Borrower, which Debt
(x) shall constitute Pledged Debt, (y) shall be on subordinated terms
reasonably acceptable to the Administrative Agent and (z) shall be evidenced
by promissory notes in form and substance reasonably satisfactory to the
Administrative Agent and such promissory notes shall be pledged as security
for the Obligations of the holder thereof under the Loan Documents to which
such holder is a party and delivered to the Collateral Agent pursuant to the
terms of the Security Agreement;




     (ii) in the case of any Subsidiary of the Borrower, Debt owed to the Borrower
or to a wholly owned Subsidiary of the Borrower, provided that, in each case, such
Debt (x) shall constitute Pledged Debt, (y) shall be on terms reasonably acceptable
to the Administrative Agent and (z) shall be evidenced by promissory notes in form
and substance reasonably satisfactory to the Administrative Agent and such
promissory notes shall be pledged as security for the Obligations of the holder
thereof under the Loan Documents to which such holder is a party and delivered to
the Collateral Agent pursuant to the terms of the Security Agreement; and




     (iii) the Guaranties and, in the case of the Borrower and its Subsidiaries,




     (A) Debt under the Loan Documents,




     (B) (x) so long as no Default has occurred and is continuing, Debt
secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the
aggregate $3,000,000 at any time outstanding, and (y) Debt assumed pursuant
to a Permitted Asset Exchange and secured by Liens permitted by Section
5.02(a)(iv) not to exceed, together with any Debt assumed pursuant to clause
(C)(y) below, $1,000,000,




     (C) (x) Capitalized Leases not to exceed in the aggregate $3,000,000 at
any time outstanding, and (y) Capitalized Leases assumed pursuant to a
Permitted Asset Exchange not to exceed, together with any Debt assumed
pursuant to clause (B)(y) above, $1,000,000,



59









 






     (D) Debt of any Person that becomes a Subsidiary of the Borrower after
the date hereof in accordance with the terms of Section 5.02(f) which Debt
does not exceed $3,000,000 in the aggregate and is existing at the time such
Person becomes a Subsidiary of the Borrower,




     (E) the Surviving Debt and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, any Surviving Debt; provided
that the terms of any such extending, refunding or refinancing Debt, and of
any agreement entered into and of any instrument issued in connection
therewith, are otherwise permitted by the Loan Documents; provided further
that the principal amount of such Surviving Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such extension,
refunding or refinancing, and the direct and contingent obligors therefor
shall not be changed, as a result of or in connection with such extension,
refunding or refinancing; and provided further that the terms relating to
this principal amount, amortization, maturity, collateral (if any) and
subordination (if any), and other material terms taken as a whole, of any
such extending, refunding or refinancing Debt, and of any agreement entered
into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lenders than
the terms of any agreement or instrument governing the Surviving Debt being
extended, refunded or refinanced and the interest rate applicable to any
such extending, refunding or refinancing Debt does not exceed the then
applicable market interest rate,




     (F) any Permitted Refinancing Debt in an aggregate principal amount not
to exceed $120,000,000 at any one time outstanding,




     (G) Debt under the First Lien Facilities, and




     (H) so long as no Default has occurred and is continuing, other Debt of
the Borrower in an aggregate principal amount not to exceed $1,750,000 at
any one time outstanding.




     (c) Change in Nature of Business. Make, or permit any of its Subsidiaries to
make, any material change in the nature of its business as carried as of the Closing Date,
provided that, in any event, the Parent shall not engage in any business other than to own
the Equity Interests of the Borrower.




     (d) Mergers, Etc. Merge into or consolidate with any Person or permit any
Person to merge into it, or permit any of its Subsidiaries to do so, except that:




     (i) the Parent and its Subsidiaries may consummate the Merger;




     (ii) any Subsidiary of the Borrower may merge into or consolidate with any
other Subsidiary of the Borrower, provided that, in the case of any such merger or
consolidation, the Person formed by such merger or consolidation shall be a wholly
owned Subsidiary of the Borrower, and provided further that, in the case of any such
merger or consolidation to which a Subsidiary Guarantor is a party, the Person
formed by such merger or consolidation shall be a Subsidiary Guarantor;



60









 






     (iii) any Subsidiary of the Borrower may merge into or consolidate with the
Borrower, provided that the Borrower shall be the Person surviving such merger;




     (iv) in connection with any acquisition permitted under Section 5.02(f), any
Subsidiary of the Borrower may merge into or consolidate with any other Person or
permit any other Person to merge into or consolidate with it; provided that the
Person surviving such merger shall be a wholly owned Subsidiary of the Borrower and
the provisions of Section 5.01(i) shall have been complied with; and




     (v) in connection with any sale or other disposition permitted under Section
5.02(e)(iv), any Subsidiary of the Borrower may merge into or consolidate with any
other Person or permit any other Person to merge into or consolidate with it;




provided, however, that in each case, immediately before and after giving effect thereto, no
Default shall have occurred and be continuing.




     (e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose of, or
permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets,
or grant any option or other right to purchase, lease or otherwise acquire any assets,
except:




     (i) sales of Inventory in the ordinary course of its business and the granting
of any option or other right to purchase, lease or otherwise acquire Inventory in
the ordinary course of its business;




     (ii) in a transaction authorized by Section 5.02(d) (other than subsection (iv)
thereof);




     (iii) sales, transfers or other dispositions of assets among the Borrower and
Subsidiary Guarantors;




     (iv) sales, transfers or other dispositions from a Subsidiary of the Borrower
to the Borrower;




     (v) the sale of any asset by the Borrower or any of its Subsidiaries (other
than a bulk sale of Inventory and a sale of Receivables other than delinquent
accounts for collection purposes only) so long as (A) no Default shall occur and be
continuing, (B) the purchase price paid to the Borrower or such Subsidiary for such
asset shall be no less than the fair market value of such asset at the time of such
sale, (C) the purchase price for such asset shall be paid to the Borrower or such
Subsidiary in at least 90% cash and (D) the fair market value of such asset, when
added to the fair market value of all other assets sold by the Borrower and its
Subsidiaries pursuant to this clause (v), shall not exceed $7,500,000 from the
Effective Date through and including the Termination Date;




     (vi) a Permitted Asset Exchange;




     (vii) the sale, transfer or other disposition, in the ordinary course, of
equipment no longer used or useful in the conduct of the business of the Borrower
and its Subsidiaries; and



61









 






     (viii) leases, subleases and licenses granted by the Borrower or any of its
Subsidiaries in the ordinary course of its business that do not materially interfere
with the conduct of the business of the grantor thereof;




provided that, in the case of sales of assets pursuant to clauses (v) and (vii) above, the
applicable Loan Party shall, on the date of receipt by such Loan Party or any of its
Subsidiaries of the Net Cash Proceeds from such sale, prepay the Advances pursuant to, and
in the amount and order of priority set forth in, Section 2.06(b)(ii), as specified therein.




     (f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person, except:




     (i) (A) equity Investments by the Parent and its Subsidiaries in their
Subsidiaries outstanding on the date hereof and (B) additional equity Investments in
Loan Parties;




     (ii) loans and advances to employees in the ordinary course of the business of
the Loan Parties and their Subsidiaries as presently conducted in compliance with
all applicable laws (including Sarbanes-Oxley) an aggregate principal amount not to
exceed $500,000 at any time outstanding;




     (iii) Investments by the Loan Parties and their Subsidiaries in Cash
Equivalents;




     (iv) Investments existing on the date hereof and described on Schedule
4.01(aa) hereto;




     (v) Investments by the Borrower in Hedge Agreements permitted under Section
5.02(b)(i)(A);




     (vi) Investments consisting of intercompany Debt permitted under Section
5.02(b);




     (vii) the purchase or other acquisition by the Borrower or any of its
Subsidiaries of all of the Equity Interests in, or all or substantially all of the
property and assets of, any Person that, upon the consummation thereof, will be
wholly owned directly by the Borrower or one or more of its wholly owned
Subsidiaries (including, without limitation, as a result of a merger or
consolidation) (such purchase or acquisition, a “Permitted Acquisition”); provided
that, with respect to each purchase or other acquisition made pursuant to this
clause (vii):




     (A) any such newly created or acquired Subsidiary shall be a Loan Party
and comply with the requirements of Section 5.01(i);




     (B) the lines of business of the Person to be (or the property and
assets of which are to be) so purchased or otherwise acquired shall be
substantially in the newspaper publishing business;




     (C) such purchase or other acquisition shall not include or result in
any contingent liabilities that could reasonably be expected to be material
to the business, financial condition, operations or prospects of the
Borrower and its



62









 






Subsidiaries, taken as a whole (as determined in good faith
by the board of directors (or the persons performing similar functions) of
the Borrower or such Subsidiary if the board of directors is otherwise
approving such transaction and, in each other case, by the chief executive
or financial officer of the Borrower), and the Borrower shall have given to
the Administrative Agent at least 10 Business Days’ prior written notice of
such purchase or other acquisition, which notice shall describe in
reasonable detail the principal terms and conditions of such purchase or
other acquisition and which notice shall be accompanied by the agreements
and other documentation (to the extent available) evidencing such purchase
or other acquisition;




     (D) (1) no cash consideration shall be paid to effect such purchase or
other acquisition and (2) the total noncash consideration (including,
without limitation, the fair market value of all Equity Interests issued or
transferred to the sellers thereof, all indemnities, earnouts and other
contingent payment obligations to, and the aggregate amounts paid or to be
paid under noncompete, consulting and other affiliated agreements with, the
sellers thereof, all write-downs of property and assets and reserves for
liabilities with respect thereto and all assumptions of debt, liabilities
and other obligations in connection therewith (other than ordinary course
liabilities and obligations)) paid by or on behalf of the Borrower and its
Subsidiaries for any such purchase or other acquisition, when added to the
total consideration paid by or on behalf of the Borrower and its
Subsidiaries after the Effective Date pursuant to this clause (vii), shall
not exceed $10,000,000;




     (E) (1) immediately before and immediately after giving pro forma
effect to any such purchase or other acquisition, no Default shall have
occurred and be continuing, (2) immediately after giving effect to such
purchase or other acquisition, the Parent and its Subsidiaries shall be in
pro forma compliance with the covenant set forth in Section 5.04, the
Administrative Agent shall have received reasonable projections
demonstrating pro forma compliance with such covenants through the
Termination Date, such compliance to be determined on the basis of the
financial statements most recently required to be delivered to the
Administrative Agent and the Lenders pursuant to Section 5.03(b) or (c), as
the case may be, as though such purchase or other acquisition had been
consummated as of the first day of the fiscal period covered thereby, and
(3) on a pro forma basis shall contribute positively to net income of the
Parent and its Subsidiaries (as adjusted for non-cash expenses) and shall
generate free cash flow; and




     (F) Such Loan Party shall have delivered to the Administrative Agent,
on behalf of the Lenders, at least five Business Days prior to the date on
which any such purchase or other acquisition is to be consummated, a
certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this clause (vii) have been satisfied or will be
satisfied on or prior to the consummation of such purchase or other
acquisition;




     (viii) Investments by the Borrower and its Subsidiaries not otherwise permitted
under this Section 5.02(f) in an aggregate amount not to exceed $3,000,000; provided
that, with respect to each Investment made pursuant to this clause (viii):



63









 






     (A) such Investment shall not include or result in any contingent
liabilities that could reasonably be expected to be material to the
business, financial condition, operations or prospects of the Parent and its
Subsidiaries, taken as a whole (as determined in good faith by the board of
directors (or persons performing similar functions) of the Parent or such
Subsidiary if the board of directors is otherwise approving such transaction
and, in each other case, by the chief executive or financial officer of the
Parent);




     (B) such Investment shall be in property and assets which are part of,
or in lines of business which are, substantially in the newspaper publishing
business;




     (C) any determination of the amount of such Investment shall include
all cash and noncash consideration (including, without limitation, the fair
market value of all Equity Interests issued or transferred to the sellers
thereof, all indemnities, earnouts and other contingent payment obligations
to, and the aggregate amounts paid or to be paid under noncompete,
consulting and other affiliated agreements with, the sellers thereof, all
write-downs of property and assets and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and other obligations in
connection therewith (other than ordinary course liabilities and
obligations)) paid by or on behalf of the Parent and its Subsidiaries in
connection with such Investment; and




     (D) (1) immediately before and immediately after giving pro forma
effect to any such purchase or other acquisition, no Default shall have
occurred and be continuing and (2) immediately after giving effect to such
purchase or other acquisition, the Parent and its Subsidiaries shall be in
pro forma compliance with the covenant set forth in Section 5.04, such
compliance to be determined on the basis of the financial statements most
recently required to be delivered to the Administrative Agent and the
Lenders pursuant to Section 5.03(b) or (c), as the case may be, as though
such Investment had been consummated as of the first day of the fiscal
period covered thereby; and




     (ix) a Permitted Asset Exchange.




     (g) Restricted Payments. Declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter
outstanding, return any capital to its stockholders, partners or members (or the equivalent
Persons thereof) as such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent Persons thereof) as
such, or permit any of its Subsidiaries to do any of the foregoing, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any Equity
Interests in the Parent or to issue or sell any Equity Interests therein, except that so
long as no Default shall have occurred and be continuing at the time of any action described
below or would result therefrom:




     (i) the Parent may:




     (A) declare and pay dividends and distributions payable only in common
stock or preferred stock of the Parent;



64









 






     (B) except to the extent the Net Cash Proceeds thereof are required to
be applied to the prepayment of the Advances pursuant to Section 2.06(b),
purchase, redeem, retire, defease or otherwise acquire shares of its capital
stock with the proceeds received contemporaneously from the issue of new shares of its capital stock with equal or inferior voting powers,
designations, preferences and rights;




     (C) accept capital contributions; and




     (D) declare and pay cash dividends in respect of its Equity Interests
to the extent permitted to be declared and paid to the Parent pursuant to
Section 5.02(g)(ii)(A);




     (ii) the Borrower may:




     (A) declare and pay cash dividends in respect of its Equity Interests
if after giving effect thereto the aggregate amount of such dividends would
be less than (1) for each of the calendar years ending December 31, 2006 and
December 31, 2007, $2,500,000 in the aggregate for each such calendar year
and (2) for each calendar year ending on or after December 31, 2008,
$5,000,000 in the aggregate for each such calendar year (it being understood
that no cash dividends in respect of the Equity Interests in the Borrower
may be declared or paid for the calendar year ending December 31, 2005);
provided that immediately before and immediately after giving pro forma
effect to any such cash dividends in respect of the Equity Interests in the
Borrower, (x) no Default shall have occurred and be continuing, (y) the
Parent and its Subsidiaries shall be in pro forma compliance with the
covenant set forth in Section 5.04, such compliance to be determined on the
basis of the financial statements most recently required to be delivered to
the Administrative Agent and the Lenders pursuant to Section 5.03(b) or (c),
as the case may be, as though such cash dividend had been declared and paid
as of the first day of the fiscal period covered thereby and (z) the
Leverage Ratio, determined based on the financial statements most recently
required to be delivered to the Administrative Agent and the Lenders
pursuant to Section 5.03(b) or (c), as the case may be, as though such cash
dividend had been declared and paid as of the first day of the fiscal period
covered thereby, shall be less than 4.50: 1.00; and




     (B) accept capital contributions from the Parent;




     (iii) any Subsidiary of the Borrower may (A) declare and pay cash dividends to
the Borrower, and (B) accept capital contributions from the Borrower; and




     (iv) each of the Parent and the Borrower may repurchase capital stock from
employees of the Parent or the Borrower in an amount not to exceed $500,000 in any
calendar year and $1,000,000 in the aggregate.




     (h) Amendments of Constitutive Documents, Etc. Amend, or permit any of its
Subsidiaries to amend, (i) its certificate of incorporation or bylaws or other constitutive
documents or (ii) any documents or instruments governing any Debt other than the Loan
Documents, other than amendments that could not be reasonably expected to have a Material
Adverse Effect or to adversely affect the interests of the Lenders.



65









 






     (i) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in (i) material accounting policies or reporting practices
(except as required by generally acceptable accounting principles) or (ii) its Fiscal Year
(except that the Parent and its Subsidiaries shall be entitled to change their Fiscal Year
to a Fiscal Year ended June 30).




     (j) Prepayments, Etc., of Debt. 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 Debt (including the First Lien Facilities),
except (i) subject to the Intercreditor Agreement, the prepayment of the Advances in accordance with the terms of
this Agreement and (ii) regularly scheduled or required repayments or redemptions of
Surviving Debt, or amend, modify or change in any manner any term or condition of any
Surviving Debt, or permit any of its Subsidiaries to do any of the foregoing other than to
prepay any Debt payable to the Borrower or any of its Subsidiaries that are Loan Parties.




     (k) Amendment, Etc., of Related Documents. Cancel or terminate any Related
Document or consent to or accept any cancellation or termination thereof, amend, modify or
change in any material respect any term or condition of any Related Document or give any
consent, waiver or approval thereunder, waive any default under or any breach of any term or
condition of any Related Document, agree in any manner to any other amendment, modification
or change of any term or condition of any Related Document or take any other action in
connection with any Related Document, in each case that would impair the value of the
interest or rights of any Loan Party thereunder or that would impair the rights or interests
of any Agent or any Lender, or permit any of its Subsidiaries to do any of the foregoing.




     (l) Negative Pledge. Enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement prohibiting or conditioning the
creation or assumption of any Lien upon any of its property or assets except (i) in favor of
the Secured Parties or (ii) in connection with (A) the First Lien Facilities, in effect on
the date hereof, (B) any purchase money Debt permitted by Section 5.02(b)(iii)(B) solely to
the extent that the agreement or instrument governing such Debt prohibits a Lien on the
property acquired with the proceeds of such Debt or (C) any Capitalized Lease permitted by
Section 5.02(b)(iii)(C) solely to the extent that such Capitalized Lease prohibits a Lien on
the property subject thereto.




     (m) Partnerships, Etc. Become a general partner in any general or limited
partnership or joint venture, or permit any of its Subsidiaries to do so, except that any
Subsidiary the sole asset of which consists of its interest in a partnership or joint
venture may become a general partner in any general or limited partnership or joint venture.




     (n) Speculative Transactions. Engage, or permit any of its Subsidiaries to
engage, in any transaction involving commodity options or futures contracts or any similar
speculative transactions.




     (o) Payment Restrictions Affecting Subsidiaries. Directly or indirectly, enter
into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist,
any agreement or arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its Equity Interests or repay or prepay
any Debt owed to, make loans or advances to, or otherwise transfer assets to or invest in,
the Parent or any Subsidiary of the Parent (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant or otherwise), except
(i) the Loan Documents, (ii) any agreement or instrument evidencing Surviving Debt or the
First Lien Facilities, in each case as in effect on the date hereof, and (iii) any agreement
in effect at the time a Person first became a Subsidiary of the Parent, so



66









 






long as such
agreement was not entered into solely in contemplation of such Person becoming a Subsidiary
of the Parent.




     (p) Amendment, Etc., of Material Contracts. Cancel or terminate any Material
Contract or consent to or accept any cancellation or termination thereof, amend or otherwise
modify in any material respect any Material Contract or give any consent, waiver or approval
thereunder, waive any default under or breach of any Material Contract, agree in any manner
to any other amendment, modification or change of any term or condition of any Material
Contract or take any other action in connection with any Material Contract, in each case that would impair
the value of the interest or rights of any Loan Party or any of its Subsidiaries thereunder
or that would impair the interest or rights of any Agent or any Lender, or permit any of its
Subsidiaries to do any of the foregoing; provided however notwithstanding the foregoing, the
Parent and its Subsidiaries shall be entitled to cancel or terminate any Material Contracts
related to the sports marketing business in the ordinary course so long as the effect of
such cancellation or termination shall be identified in the reports set forth in Section
5.03(e).




     (q) Management, Brokerage and Advisory Fees, Etc. Enter, or permit any of its
Subsidiaries to enter, into any arrangement for the payment of, or pay, brokers, management,
advisory or similar fees, other than any such fees incurred in the ordinary course of
business or in connection with a Permitted Acquisition, but in any case not to exceed
$500,000 for the term of this Agreement.




     (r) Transactions with Affiliates. Enter into any transaction of any kind with
any Affiliate of the Parent, whether or not in the ordinary course of business, other than
on fair and reasonable terms substantially as favorable to the Parent or such Subsidiary as
would be obtainable by the Parent or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate; provided that the foregoing
restriction shall not apply to (i) transactions between or among the Borrower and any
Subsidiary Guarantors or between or among any Subsidiary Guarantors, (ii) transactions,
arrangements, fees reimbursements and indemnities specifically and expressly permitted
between or among such parties under this Agreement, (iii) reasonable compensation and
indemnities to officers and directors (including any payments in respect of directors’ and
officers’ liability insurance) and (iv) the transactions with Affiliates of the Parent
described in the Section of the Registration Statement entitled “Interests of Certain
Persons in the Transactions”.



     SECTION 5.03. Reporting Requirements. So long as any Advance or any other Obligation of
any Loan Party under any Loan Document shall remain unpaid (other than any Unaccrued Indemnity
Claims) or any Lender shall have any Commitment hereunder, the Borrower will furnish to the Agents
and the Lenders:




     (a) Default Notice. As soon as possible and in any event within five days
after a Responsible Officer becomes aware of the occurrence of a Default or any event,
development or occurrence reasonably likely to have a Material Adverse Effect continuing on
the date of such statement, a statement of the Chief Financial Officer of the Borrower
setting forth details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto. Each notice pursuant to this Section 5.03(a) shall
describe with particularity any and all provisions of this Agreement and any other Loan
Documents that have been breached.




     (b) Annual Financials. As soon as available and in any event within 90 days
after the end of each Fiscal Year, a copy of the annual audit report for such year for the
Parent and its Subsidiaries, including therein a Consolidated balance sheet of the Parent
and its Subsidiaries as



67









 






of the end of such Fiscal Year and a Consolidated statement of
income and a Consolidated statement of cash flows of the Parent and its Subsidiaries for
such Fiscal Year, in each case accompanied by (i) an opinion acceptable to the Required
Lenders as to such audit report of PricewaterhouseCoopers LLP or other independent public
accountants of recognized standing reasonably acceptable to the Required Lenders and (ii) to
the extent required by applicable law, a report of such independent public accountants as to
the Parent’s internal controls required under Section 404 of Sarbanes-Oxley, in each case
certified in a manner reasonably acceptable to the Required Lenders, together with (x) a certificate of such accounting firm to the
Lenders stating that in the course of the regular audit of the business of the Parent and
its Subsidiaries, which audit was conducted by such accounting firm in accordance with
generally accepted auditing standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such accounting firm, a
Default has occurred and is continuing, a statement as to the nature thereof and (y) a
certificate of the Chief Financial Officer of the Borrower stating that no Default has
occurred and is continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that the Borrower has taken and proposes to take with
respect thereto.




     (c) Quarterly Financials. As soon as available and in any event within 45 days
after the end of each of the first three quarters of each Fiscal Year, a Consolidated
balance sheet of the Parent and its Subsidiaries as of the end of such quarter and
Consolidated statement of income and a Consolidated statement of cash flows of the Parent
and its Subsidiaries for the period commencing at the end of the previous fiscal quarter and
ending with the end of such fiscal quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Parent and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly
certified (subject to normal year-end audit adjustments and the absence of footnotes) by the
Chief Financial Officer of the Borrower as having been prepared in accordance with GAAP,
together with (i) a certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take with respect thereto
and (ii) a schedule in form reasonably satisfactory to the Administrative Agent of the
computations used by the Borrower in determining compliance with the covenant contained in
Section 5.04, provided that in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP; and as soon as available and in
any event within 45 days after the end of each of the first three quarters of each Fiscal
Year, an internal report of the operations of the Parent and its Subsidiaries for such
fiscal quarter, setting forth for each of the segments and properties of the Parent and its
Subsidiaries, operational figures in each case in comparative form to the budgets for such
fiscal quarter and to the corresponding figures for the corresponding date or period of the
preceding Fiscal Year, all in reasonable detail as requested by the Administrative Agent.




     (d) Monthly Financials. As soon as available and in any event (i) within 45
days after the end of a calendar month which is also the last month of any Fiscal Year and
(ii) within 30 days after the end of each other calendar month (except for the end of a
month which is also the end of one of the first three quarters of any Fiscal Year), a
Consolidated statement of income of the Parent and its Subsidiaries for the period
commencing at the end of the previous month and ending with the end of such month and a
Consolidated statement of income of the Parent and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with



68









 






the end of such month, and
beginning with the first month ended in Fiscal Year 2007, setting forth in each case in
comparative form the corresponding figures for the comparable period of the previous Fiscal
Year, all in reasonable detail and duly certified by the Chief Financial Officer of the
Borrower.




     (e) Annual Forecasts. As soon as available and in any event no later than 60
days after the end of each Fiscal Year, forecasts prepared by management of the Borrower, in
form satisfactory to the Administrative Agent, of (i) balance sheets, income statements and
cash flow statements on a quarterly basis for the Fiscal Year following such Fiscal Year and
(ii) quarterly calculation of the financial covenant set forth in Section 5.04 for the
Fiscal Year following such Fiscal Year.




     (f) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any Governmental Authority
affecting any Loan Party or any of its Subsidiaries of the type described in Section
4.01(f).




     (g) Securities Reports. Promptly after the sending or filing thereof, copies
of all proxy statements, financial statements and reports that any Loan Party or any of its
Subsidiaries sends to its stockholders, and copies of all regular, periodic and special
reports, and all registration statements, that any Loan Party or any of its Subsidiaries
files with the SEC or any governmental authority that may be substituted therefor, or with
any national securities exchange.




     (h) Creditor Reports. 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 any other
clause of this Section 5.03.




     (i) Agreement Notices. Promptly upon receipt thereof, copies of all notices,
requests and other documents received by any Loan Party or any of its Subsidiaries under or
pursuant to any Related Document or Material Contract or instrument, indenture, loan or
credit or similar agreement regarding or related to any material breach or default by any
party thereto or any other event that could materially impair the value of the interests or
the rights of such Loan Party or otherwise have a Material Adverse Effect and copies of any
amendment, modification or waiver of any provision of any Related Document or Material
Contract or instrument, indenture, loan or credit or similar agreement and, from time to
time upon the reasonable request by the Administrative Agent, such information and reports
regarding the Related Documents, the Material Contracts and such instruments, indentures and
loan and credit and similar agreements as the Administrative Agent may reasonably request.




     (j) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in
any event within 10 days after any Loan Party or any ERISA Affiliate knows or has reason to
know that any ERISA Event has occurred, a statement of the Chief Financial Officer of the
Borrower describing such ERISA Event and the action, if any, that such Loan Party or such
ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date any
records, documents or other information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information.




     (ii) Plan Terminations. Promptly and in any event within five Business Days
after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from
the PBGC stating its intention to terminate any Plan or to have a trustee appointed to
administer any Plan.



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     (iii) Plan Annual Reports. Promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each Plan.




     (iv) Multiemployer Plan Notice. Promptly and in any event within five Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, copies of each notice concerning (A) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the amount of liability
incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in connection
with any event described in clause (A) or (B).




     (k) Environmental Conditions. Promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any noncompliance by any Loan
Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that
could (i) be reasonably likely to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.




     (l) Real Property If requested by the Administrative Agent, within 30 days
after such request, a report supplementing Schedules 4.01(y), 4.01(z)(1),
4.01(z)(2) and 5.01(q) hereto, including an identification of all owned and
leased real property disposed of by such Loan Party or any of its Subsidiaries during such
Fiscal Year, a list and description (including the street address, county or other relevant
jurisdiction, state, record owner, book value thereof and, in the case of leases of
property, lessor, lessee, expiration date and annual rental cost thereof) of all real
property acquired or leased during such Fiscal Year and a description of such other changes
in the information included in such Schedules as may be necessary for such Schedules to be
accurate and complete.




     (m) Insurance. If requested by the Administrative Agent, within 30 days after
such request, a report summarizing the insurance coverage (specifying type, amount and
carrier) in effect for each Loan Party and its Subsidiaries and containing such additional
information as any Agent, or any Lender through the Administrative Agent, may reasonably
specify.




     (n) FCC Matters. Promptly and in any event within ten days of receipt thereof,
copies of all written notices and communications received from the FCC or any other
Governmental Authority which (i) relates to any forfeiture, non-renewal, cancellation,
revocation, suspension, impairment or termination of, or any other adverse development with
respect to, any FCC License or (to the extent that it is material to the business of the
Parent or any of its Subsidiaries) any other Approval or (ii) has, or could be reasonably
likely to have a Material Adverse Effect; provided however, that the provisions of this
subsection (n) shall not apply to license cancellations, transmitter deletions or
relocations, or other license modifications that the Parent and its Subsidiaries, in the
exercise of their discretion, reasonably determine to be necessary to the operation of the
Telecommunications Business of the Parent and its Subsidiaries.




     (o) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or prospects of any
Loan Party or any of its Subsidiaries as any Agent, or any Lender through the Administrative
Agent, may from time to time reasonably request.



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     (p) Borrower Materials. The Parent and the Borrower hereby acknowledge that
(a) the Administrative Agent and/or the Arrangers will make available to the Lenders
materials and/or information provided by or on behalf of the Parent or the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the
Platform and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do
not wish to receive material non-public information with respect to the Parent, the Borrower
or their securities) (each, a “Public Lender”). Each of the Parent and the Borrower hereby
agrees that it will use commercially reasonable efforts to identify that portion of the
Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”,
the Parent and the Borrower shall be deemed to have authorized the Administrative Agent, the
Arrangers and the Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and proprietary) with
respect to the Parent, the Borrower or their securities for purposes of United States
Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform designated “Public Investor”; and (z)
the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform
not designated “Public Investor”.



     SECTION 5.04. Leverage Ratio. So long as any Advance or any other Obligation of any Loan
Party under any Loan Document shall remain unpaid (other than any Unaccrued Indemnity Claims) or
any Lender shall have any Commitment hereunder, the Parent will not permit the Leverage Ratio as of
the last day of any fiscal quarter set forth below to be greater than the ratio set forth below for
such quarter:



	 	 	 	 	 	 	 	 	 
	Fiscal Quarter	 	March 31	 	June 30	 	September 30	 	December 31
	2006

	 	7.00 : 1.00
	 	7.00 : 1.00
	 	6.75: 1.00
	 	6.25 : 1.00
	2007

	 	6.25 : 1.00
	 	5.75 : 1.00
	 	5.75 : 1.00
	 	5.25 : 1.00
	2008

	 	5.25 : 1.00
	 	4.75 : 1.00
	 	4.75 : 1.00
	 	4.25 : 1.00
	2009

	 	4.25 : 1.00
	 	3.75 : 1.00
	 	3.75 : 1.00
	 	3.75 : 1.00
	2010

	 	3.75 : 1.00
	 	3.75 : 1.00
	 	3.75 : 1.00
	 	3.75 : 1:00






          For purposes of calculating the Leverage Ratio, the components of the Leverage Ratio
shall be adjusted on a pro forma Consolidated basis, in a manner reasonably acceptable to the
Administrative Agent, to include, as of the first day of any applicable period, any permitted
acquisition under Section 5.02(f)(vii) or any Permitted Assets Exchange consummated during such
period.




ARTICLE VI




EVENTS OF DEFAULT




     SECTION 6.01. Events of Default. If any of the following events (“Events of Default”)
shall occur and be continuing:




     (a) (i) the Borrower shall fail to pay any principal of any Advance when the same shall
become due and payable or (ii) the Borrower shall fail to pay any interest on any Advance,
or any



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Loan Party shall fail to make any other payment under any Loan Document, in each case
under this clause (ii) within 3 Business Days after the same shall become due and payable;
or




     (b) any representation or warranty made by any Loan Party (or any of its officers)
under or in connection with any Loan Document shall prove to have been incorrect in any
material respect when made; or




     (c) any Loan Party shall fail to perform or observe any term, covenant or agreement
contained in Section 2.14, 5.01(e), (f), (i), (m), (o) or (q), 5.02, 5.03(a), (b), (c), (d),
(e), (f) or (i) or 5.04; or




     (d) any Loan Party shall fail to perform or observe any other term, covenant or
agreement contained in any Loan Document on its part to be performed or observed if such
failure shall remain unremedied for 30 days after the earlier of the date on which (i) a
Responsible Officer becomes aware of such failure or (ii) written notice thereof shall have
been given to the Borrower by any Agent or any Lender; or




     (e) (i) any Loan Party or any of its Subsidiaries shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of the First Lien Facilities
when due (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise); or (ii) any other “Event of Default” (as defined under the First Lien
Facilities) shall have occurred and be continuing and such default shall have continued
unremedied or uncured for 45 days; or (iii) the First Lien Facilities shall be declared to
be due and payable (or automatically shall have become due and payable) prior to the stated
maturity of the First Lien Facilities as a result of an “Event of Default” (as defined in
the First Lien Facilities); or (iv) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount payable in respect of any
other Debt of such Loan Party or such Subsidiary (as the case may be) that is outstanding in
a principal amount (or, in the case of any Hedge Agreement, an Agreement Value) of at least
$2,000,000 either individually or in the aggregate for all such Loan Parties and
Subsidiaries (but excluding the First Lien Obligations or Debt outstanding hereunder), when
the same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit
the holder thereof to cause, such Debt to mature; or any such Debt shall be declared to be
due and payable or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior to the stated
maturity thereof; or (v) any Loan Party or any of its Subsidiaries shall default in the
observance or performance of any other agreement or condition under the First Lien
Facilities giving rise to an Event of Default thereunder and the “Administrative Agent”
under the First Lien Facilities, on behalf of the holders of the First Lien Obligations,
exercises any of the remedies pursuant to Section 6.01 of the First Lien Facilities; or




     (f) any Loan Party or any of its Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or



72









 






composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or other similar official for it
or for any substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it) that is being diligently contested by it in
good faith, either such proceeding shall remain undismissed or unstayed for a period of 75
days or any of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver, trustee, custodian
or other similar official for, it or any substantial part of its property) shall occur; or any Loan
Party or any of its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or




     (g) any judgments or orders, either individually or in the aggregate, for the payment
of money in excess of $2,000,000 or otherwise material to the Parent and its Subsidiaries,
taken as a whole, shall be rendered against any Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 40 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; provided, however, that any such judgment or order shall not give
rise to an Event of Default under this Section 6.01(g) if and for so long as (A) the amount
of such judgment or order is covered by a valid and binding policy of insurance in favor of
such Loan Party or Subsidiary from an insurer that is rated at least “A” by A.M. Best
Company, which policy covers full payment thereof (less any deductible) and (B) such insurer
has been notified, and has not disputed the claim made for payment, of the amount of such
judgment or order; or




     (h) any non-monetary judgment or order shall be rendered against any Loan Party or any
of its Subsidiaries that could be reasonably likely to have a Material Adverse Effect, and
there shall be any period of 40 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or




     (i) any provision of any Loan Document after delivery thereof pursuant to Section 3.01
or 5.01(i) shall for any reason cease to be valid and binding on or enforceable against any
Loan Party party to it, or any such Loan Party shall so state in writing; or




     (j) any Collateral Document or financing statement after delivery thereof pursuant to
Section 3.01 or 5.01(i) shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby (or any Loan Party shall so assert or shall take
any action to discontinue or to assert the invalidity or unenforceability thereof); or




     (k) a Change of Control shall occur; or




     (l) any ERISA Event shall have occurred with respect to a Plan and the sum (determined
as of the date of occurrence of such ERISA Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) exceeds $2,000,000; or




     (m) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in
an amount that, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of
the date



73









 






of such notification), exceeds $2,000,000 or requires payments exceeding $500,000
per annum; or




     (n) any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and the ERISA Affiliates
to all Multiemployer Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan years of
such Multiemployer Plans immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $2,000,000; or




     (o) the Obligations of the Loan Parties under the Loan Documents shall fail to
constitute “Senior Debt” (or any comparable term) or shall fail to constitute the sole
“Designated Senior Debt” (or any comparable term) under the provisions of any Subordinated
Debt; or




     (p) (i) any material Approval necessary for the ownership or operations of the Parent
or any Subsidiary or for the execution or delivery by the Parent or any Subsidiary of any
Loan Document from time to time, the performance by the Parent or any Subsidiary of its
obligations under the Loan Documents, the grant and perfection of the Liens and security
interests contemplated thereby or for the exercise by the Secured Parties of their rights
and remedies under the Loan Documents shall expire, and on or prior to such expiration, the
same shall not have been renewed or replaced by another Approval authorizing substantially
the same operations by such Person; (ii) any material Approval necessary for the ownership
or operations of the Parent or any Subsidiary or for the execution or delivery by the Parent
or any Subsidiary of any Loan Document from time to time, the performance by the Parent or
any Subsidiary of its obligations under the Loan Documents, the grant and perfection of the
Liens and security interests contemplated thereby or for the exercise by the Secured Parties
of their rights and remedies under the Loan Documents shall be canceled, revoked,
terminated, rescinded, annulled, suspended, or modified in a materially adverse respect, or
shall no longer be in full force and effect, or the grant or the effectiveness thereof shall
have been stayed, vacated, reversed, or set aside; (iii) the Parent or any Subsidiary is
required by any Governmental Authority to halt construction or operations under any material
Approval and such action shall continue uncorrected for 90 days after the applicable entity
has received notice thereof; or (iv) any Governmental Authority shall make any other adverse
determination which, in each case has, or could be reasonably likely to have, a Material
Adverse Effect;


then, and in any such event, subject to the terms of the Intercreditor Agreement, the
Administrative Agent shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare all or any portion of the Advances, all interest thereon and all
other amounts payable under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon all or such portion, as applicable, of the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code or the commencement of any case or proceeding under the
Federal Bankruptcy Code with respect to the Borrower, the Advances, all such interest and all such
amounts shall automatically become and be due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by the Borrower to the extent
permitted by applicable law.





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ARTICLE VII




THE AGENTS




     SECTION 7.01. Authorization and Action. (a) Each Lender hereby appoints and authorizes
each Agent to take such action as agent on its behalf and to exercise such powers and discretion
under this Agreement and the other Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion
as are reasonably incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the Obligations of the Loan
Parties), no Agent shall be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such instructions shall be binding
upon all Lenders and all holders of Notes; provided, however, that no Agent shall be required to
take any action that exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law. Each Agent agrees to give to each Lender prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement.



          (b) In furtherance of the foregoing, each Lender (in its capacity as a Lender) hereby appoints
and authorizes the Collateral Agent to act as the agent of such Lender 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 Secured Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Collateral Agent (and any Supplemental Collateral
Agents appointed by the Collateral Agent pursuant to Section 7.01(c) 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 or remedies thereunder at the direction of the Collateral
Agent) shall be entitled to the benefits of this Article VII (including, without limitation,
Section 7.05) as though the Collateral Agent (and any such Supplemental Collateral Agents) were an
“Agent” under the Loan Documents, as if set forth in full herein with respect thereto.




          (c) Any Agent may execute any of its duties under this Agreement or any other Loan Document
(including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents or of exercising any rights and remedies thereunder at the
direction of the Collateral Agent) by or through agents, employees or attorneys-in-fact and shall
be entitled to advice of counsel and other consultants or experts concerning all matters pertaining
to such duties. The Collateral Agent may also from time to time, when the Collateral Agent
reasonably deems it to be necessary or desirable, appoint one or more trustees, co-trustees,
collateral co-agents, collateral subagents or attorneys-in-fact (each, a “Supplemental Collateral
Agent”) with respect to all or any part of the Collateral; provided, however, that no such
Supplemental Collateral Agent shall be authorized to take any action with respect to any Collateral
unless and except to the extent expressly authorized in writing by the Collateral Agent. Should
any instrument in writing from the Borrower or any other Loan Party be required by any Supplemental
Collateral Agent so appointed by the Collateral Agent to more fully or certainly vest in and
confirm to such Supplemental Collateral Agent such rights, powers, privileges and duties, the
Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by the Collateral Agent. If any Supplemental Collateral
Agent, or successor thereto, shall die, become incapable of acting, resign or be removed, all
rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent
permitted by law, shall automatically vest in and be exercised by the Collateral Agent until the
appointment of a new Supplemental Collateral Agent. No Agent shall be responsible for the
negligence or misconduct of any agent, attorney-in-fact or Supplemental Collateral Agent that it
selects in accordance with the foregoing provisions of this Section 7.01(c) in the absence of such
Agent’s gross negligence or willful misconduct.




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     SECTION 7.02. Agents’ Reliance, Etc. Neither any Agent nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with the Loan Documents, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of the foregoing,
each Agent: (a) may treat the payee of any Note as the holder thereof until, in the case of the
Administrative Agent, the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an Eligible Assignee,
as assignee, or, in the case of any other Agent, such Agent has received notice from the
Administrative Agent that it has received and accepted such Assignment and Acceptance, in each case
as provided in Section 9.07; (b) may consult with legal counsel (including counsel for any Loan
Party), independent public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any Lender and shall
not be responsible to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with the Loan Documents; (d) shall not have any duty to ascertain
or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or the existence at any time of any
Default under the Loan Documents or to inspect the property (including the books and records) of
any Loan Party; (e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of
any lien or security interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto; and (f) shall incur
no liability under or in respect of any Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram, telecopy or electronic
communication) believed by it to be genuine and signed or sent by the proper party or parties.



     SECTION 7.03. Wachovia and Affiliates. With respect to its Commitments, the Advances made
by it and the Notes issued to it, if any, Wachovia shall have the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as though it were not an Agent; and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Wachovia in its
individual capacity. Wachovia and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and generally engage in any
kind of business with, any Loan Party, any of its Subsidiaries and any Person that may do business
with or own securities of any Loan Party or any such Subsidiary, all as if Wachovia was not an
Agent and without any duty to account therefor to the Lenders. No Agent shall have any duty to
disclose any information obtained or received by it or any of its Affiliates relating to any Loan
Party or any of its Subsidiaries to the extent such information was obtained or received in any
capacity other than as such Agent.



     SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon any Agent or any other Lender and based on the financial statements
referred to in Section 4.01 and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or any other Lender
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this Agreement.



     SECTION 7.05. Indemnification. (a) Each Lender severally agrees to indemnify each Agent
(to the extent not promptly reimbursed by the Borrower) from and against such Lender’s ratable
share (determined as provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Agent in any way relating
to or arising out of the Loan Documents or any action taken or omitted by such Agent under the Loan
Documents (collectively, the “Indemnified Costs”); provided, however, that no Lender shall be
liable for any portion of such liabilities,



76









 




obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross
negligence or willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender agrees to reimburse each
Agent promptly upon demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section 9.04, to the extent
that such Agent is not promptly reimbursed for such costs and expenses by the Borrower. In the
case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this
Section 7.05 applies whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person.




          (b) For purposes of this Section 7.05, the Lenders’ respective ratable shares of any amount
shall be determined, at any time, according to the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lenders. The failure of any Lender to
reimburse any Agent promptly upon demand for its ratable share of any amount required to be paid by
the Lenders to such Agent as provided herein shall not relieve any other Lender of its obligation
hereunder to reimburse such Agent for its ratable share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse such Agent for such other Lender’s
ratable share of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.05 shall
survive the payment in full of principal, interest and all other amounts payable hereunder and
under the other Loan Documents.




     SECTION 7.06. Successor Agents. Any Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring
Agent’s giving of notice of resignation, then the retiring Agent may, in consultation with the
Borrower, on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having a combined capital
and surplus of at least $250,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent and, in the case of a successor Collateral Agent, upon the execution and filing
or recording of such financing statements, or amendments thereto, and such amendments or
supplements to such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Agent shall succeed to and become vested
with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the Loan Documents. If
within 45 days after written notice is given of the retiring Agent’s resignation under this Section
7.06 no successor Agent shall have been appointed and shall have accepted such appointment, then on
such 45th day (a) the retiring Agent’s resignation shall become effective, (b) the
retiring Agent shall thereupon be discharged from its duties and obligations under the Loan
Documents and (c) the Required Lenders shall thereafter perform all duties of the retiring Agent
under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent
as provided above. After any retiring Agent’s resignation hereunder as Agent shall have become
effective, the provisions of this Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.



     SECTION 7.07. Administrative Agent May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Advance 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:



77









 






     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Advances 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 and the Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Agents and their respective
agents and counsel and all other amounts due the Lenders and the Agents under Sections 2.07,
2.08 and 9.04) 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 to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, 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 2.08 and
9.04.




          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 any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.




     SECTION 7.08. Collateral and Guaranty Matters. The Lenders 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 Collateral Agent
(and/or the Lenders) under any Loan Document, (i) upon termination of the Commitments and
payment in full of all Secured Obligations (other than contingent indemnification
obligations not yet accrued and payable), (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 (unless the
transferee would be required to grant a Lien thereon under the Loan Documents), (iii)
subject to Section 9.01, if approved, authorized or ratified in writing by the Required
Lenders or (iv) if authorized pursuant to the Intercreditor Agreement; and




     (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.


Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s 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 7.08.




     SECTION 7.09. Other Agents; Arrangers and Managers. None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a “syndication
agent,” “documentation agent”, “book manager”, “bookrunner”, “lead arranger”, “co-arranger” or “arranger” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than to the extent expressly set forth herein
and, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not



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relied, and will
not rely, on any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.




     SECTION 7.10. Intercreditor Agreement. Each of the Lenders hereby acknowledges that it has
received and reviewed the Intercreditor Agreement and agrees to be bound by the terms thereof.
Each Lender (and each Person that becomes a Lender hereunder pursuant to Section 9.07) hereby (a)
acknowledges that Wachovia is acting under the Intercreditor Agreement in multiple capacities as
the Administrative Agent and the Collateral Agent, as well as the administrative agent and the
collateral agent under the First Lien Facilities and (b) waives any conflict of interest, now
contemplated or arising hereafter, in connection therewith and agrees not to assert against
Wachovia any claims, causes of action, damages or liabilities of whatever kind or nature relating
thereto. Each Lender (and each Person that becomes a Lender hereunder pursuant to Section 9.07)
hereby authorizes and directs Wachovia to enter into the Intercreditor Agreement on behalf of such
Lender and agrees that Wachovia, in its various capacities thereunder, may take such actions on its
behalf as is contemplated by the terms of the Intercreditor Agreement.



ARTICLE VIII




GUARANTY




     SECTION 8.01. Guaranty; Limitation of Liability. (a) Each Guarantor, jointly and
severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by acceleration,
demand or otherwise, of all Obligations of each other Loan Party now or hereafter existing under or
in respect of the Loan Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct
or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest
(including Post Petition Interest), premiums, fees, indemnities, contract causes of action, costs,
expenses or otherwise (such Obligations being the “Guaranteed Obligations”), and agrees to pay any
and all expenses (including, without limitation, reasonable fees and expenses of counsel) incurred
by the Administrative Agent or any other Secured Party in enforcing any rights under this Guaranty
or any other Loan Document. Without limiting the generality of the foregoing, each Guarantor’s
liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would
be owed by any other Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.



          (b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Secured Party, hereby confirms that it is the intention of all such Persons that this
Guaranty and the Obligations of each Subsidiary Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent
applicable to this Guaranty and the Obligations of each Subsidiary Guarantor hereunder. To
effectuate the foregoing intention, the Administrative Agent, the other Secured Parties and the
Guarantors hereby irrevocably agree that the Obligations of each Subsidiary Guarantor under this
Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this Guaranty
not constituting a fraudulent transfer or conveyance (after taking into account the provisions of
paragraph (c) below).




          (c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Secured Party under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other





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Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.




     SECTION 8.02. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations
will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of any Secured Party with respect thereto. The Obligations of each Guarantor under or
in respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations
of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions
may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or whether the Borrower
or any other Loan Party is joined in any such action or actions. The liability of each Guarantor
under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each
Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way
relating to, any or all of the following:




     (a) any lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;




     (b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other Obligations of any other Loan Party under
or in respect of the Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;




     (c) any taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to departure from,
any other guaranty, for all or any of the Guaranteed Obligations;




     (d) any manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral or any other collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan Documents or any other
assets of any Loan Party or any of its Subsidiaries;




     (e) any change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;




     (f) any failure of any Secured Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party now or hereafter known to such Secured Party
(each Guarantor waiving any duty on the part of the Secured Parties to disclose such
information);




     (g) the failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement or any other guaranty or agreement or the release or reduction of liability of
any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or




     (h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Secured Party that might
otherwise constitute a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.



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This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any
Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been made.




     SECTION 8.03. Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally and
irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or dishonor and any other
notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that
any Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any Loan Party or any other Person or any Collateral.



          (b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.




          (c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by any Secured Party that in any
manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person
or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in
respect of the Obligations of such Guarantor hereunder.




          (d) Each Guarantor acknowledges that the Collateral Agent may, without notice to or demand
upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to
the recovery by the Collateral Agent and the other Secured Parties against such Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be afforded by
applicable law.




          (e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any
Secured Party to disclose to such Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or prospects of any other
Loan Party or any of its Subsidiaries now or hereafter known by such Secured Party.




          (f) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 8.02 and this Section 8.03 are knowingly made in contemplation of such benefits.




     SECTION 8.04. Payments Free and Clear of Taxes, Etc. Any and all payments made by any
Guarantor under or in respect of this Guaranty or any other Loan Document shall be made, in
accordance with Section 2.12, free and clear of and without deduction for any and all present or
future Taxes and subject to the limitations set forth herein.



     SECTION 8.05. Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty and
shall (a) remain in full force and effect until the latest of (i) the cash payment in full of the
Guaranteed Obligations and all other amounts payable under this Guaranty and (ii) the Termination
Date, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit
of and be enforceable by the Lenders, the Administrative Agent and their successors, and permitted
transferees and assigns. Without limiting the generality of the foregoing clause (c), any Lender
may assign or otherwise transfer all or any portion of its rights and obligations hereunder
(including, without limitation, all or any portion



81









 




of its Commitment, the Advances owing to it and
the Note or Notes held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender herein or otherwise, in each
case as provided in Section 9.07. No Guarantor shall have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Administrative Agent.




     SECTION 8.06. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees
not to exercise any rights that it may now have or hereafter acquire against the Borrower, any
other Loan Party or any other insider guarantor that arise from the existence, payment, performance
or enforcement of such Guarantor’s Obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or remedy of any Secured
Party against the Borrower, any other Loan Party or any other insider guarantor or any Collateral,
whether or not such claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from the Borrower, any other Loan
Party or any other insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim, remedy or right,
unless and until all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Commitments shall have expired or been
terminated. If any amount shall be paid to any Guarantor in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and (b) the Termination Date, such
amount shall be received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered
to the Administrative Agent in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable
under this Guaranty thereafter arising. If (i) any Guarantor shall make payment to any Secured
Party of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in cash and (iii) the
Termination Date shall have occurred, the Secured Parties will, at such Guarantor’s request and
expense, execute and deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of
an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.



     SECTION 8.07. Guaranty Supplements. Upon the execution and delivery by any Person of a guaranty supplement in substantially the form
of Exhibit L hereto (each, a “Guaranty Supplement”), (a) such Person shall be referred to as an
“Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference in this
Guaranty to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and each
reference in any other Loan Document to a “Subsidiary Guarantor” shall also mean and be a reference
to such Additional Guarantor, and (b) each reference herein to “ this Guaranty”, “hereunder”,
“hereof” or words of like import referring to this Guaranty, and each reference in any other Loan
Document to the “Guaranty”, “thereunder”, “thereof” or words of like import referring to this
Guaranty, shall mean and be a reference to this Guaranty as supplemented by such Guaranty
Supplement.



     SECTION 8.08. Subordination. Each Guarantor hereby subordinates any and all debts,
liabilities and other Obligations owed to such Guarantor by each other Loan Party (the
“Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner
hereinafter set forth in this Section 8.08:



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     (a) Prohibited Payments, Etc. Except during the continuance of an Event of
Default (including the commencement and continuation of any proceeding under any Bankruptcy
Law relating to any other Loan Party), each Guarantor may receive regularly scheduled
payments from any other Loan Party on account of the Subordinated Obligations. After the
occurrence and during the continuance of any Event of Default (including the commencement
and continuation of any proceeding under any Bankruptcy Law relating to any other Loan
Party), however, unless the Required Lenders otherwise agree, no Guarantor shall demand,
accept or take any action to collect any payment on account of the Subordinated Obligations.




     (b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that the Secured
Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations
(including all interest and expenses accruing after the commencement of a proceeding under
any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post
Petition Interest”)) before such Guarantor receives payment of any Subordinated Obligations.




     (c) Turn-Over. After the occurrence and during the continuance of any Event of
Default (including the commencement and continuation of any proceeding under any Bankruptcy
Law relating to any other Loan Party), each Guarantor shall, if the Administrative Agent so
requests, collect, enforce and receive payments on account of the Subordinated Obligations
as trustee for the Secured Parties and deliver such payments to the Administrative Agent on
account of the Guaranteed Obligations (including all Post Petition Interest), together with
any necessary endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the other provisions of this
Guaranty.




     (d) Administrative Agent Authorization. After the occurrence and during the
continuance of any Event of Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), the Administrative
Agent is authorized and empowered (but without any obligation to so do), in its discretion,
(i) in the name of each Guarantor, to collect and enforce, and to submit claims in respect
of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to require each
Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the Administrative
Agent for application to the Guaranteed Obligations (including any and all Post Petition
Interest).



ARTICLE IX




MISCELLANEOUS




     SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement
or the Notes or any other Loan Document, nor consent to any departure by the Borrower or any other
Loan Party therefrom, shall in any event be effective unless the same shall be in writing and
signed by the Required Lenders (or by the Administrative Agent on their behalf upon its receipt of
the consent thereof) and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and then 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) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Article VI) without the written consent of such Lender or extend or



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increase the amount of the aggregate Commitments under any Facility without the written
consent of such Lender;




     (b) postpone any date scheduled for any payment of principal or interest or premiums
under Section 2.04, 2.06(c) or 2.07, or any date fixed by the Administrative Agent for the
payment of fees or other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Lender directly affected thereby;




     (c) reduce the principal of, or the rate of interest or premiums specified herein on,
any Advance, or (subject to clause (iii) of the second proviso to this Section 9.01) any
fees or other amounts payable hereunder or under any other Loan Document; provided, however,
that only the consent of the Required Lenders shall be necessary (i) to amend the definition
of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default
Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of interest on any Advance
or to reduce any fee payable hereunder;




     (d) change any provision of this Section 9.01 without the written consent of each
Lender, or change (i) the definition of “Required Lenders” without the written consent of
each Lender or (ii) 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, without the written consent of each Lender;




     (e) release all or substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender; or




     (f) except in connection with a disposition permitted under Section 5.02(e), release
all or a material portion of the value of the Guaranty, without the written consent of each
Lender;


and provided further that (i) 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, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any
other Loan Document; (ii) Section 9.07(j) may not be amended, waived or otherwise modified without
the consent of each Granting Lender all or any part of whose Advances are being funded by an SPC at
the time of such amendment, waiver or other modification; and (iii) 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.




     SECTION 9.02. Notices, Etc. (a) All notices and other communications provided for
hereunder shall be either (i) in writing (including telegraphic, telecopy or electronic
communication) and mailed, telegraphed, telecopied or delivered or (ii) as and to the extent set
forth in Section 9.02(b) and in the proviso to this Section 9.02(a), in an electronic medium and
delivered as set forth in Section 9.02(b), if to any Loan Party, to the Borrower at its address at
546 East Main Street, Attention: Frederick Erickson, Fax: (859) 226-4308, E-mail Address:
fred.erickson@hostcommunications.com; with a copy to (which shall not constitute notice): Proskauer
Rose LLP, 1585 Broadway, New York, New York 10036, Attention: Janice K. Smith, Fax: (212) 969-2900,
E-mail Address: JKSmith@proskauer.com; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it became a Lender; and if to
the Administrative Agent or the Collateral Agent, at its address at 201



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South College Street,
Charlotte, NC 28288, Attention: Colleen Murphy – Agency Services, Facsimile: 704-383-3612, E-mail:
colleen.murphy@wachovia.com, with a copy to 301 South College Street, Charlotte, NC 28288,
Attention: Jennifer Loew/Joe Mynatt – Portfolio Management, Facsimile: 704-383-1625, E-mail:
jennifer.loew@wachovia.com / joe.mynatt@wachovia.com; provided, however, that materials and
information described in Section 9.02(b) shall be delivered to the Administrative Agent in
accordance with the provisions thereof or as otherwise specified to the Borrower by the
Administrative Agent. All such notices and other communications shall, when mailed, telegraphed,
telecopied, or e-mailed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or sent by electronic communication, respectively, except that
notices and communications to any Agent pursuant to Article II, III or VII shall not be effective
until received by such Agent. Delivery by telecopier of an executed counterpart of a signature
page to any amendment or waiver of any provision of this Agreement or the Notes shall be effective
as delivery of an original executed counterpart thereof.




          (b) The Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the Administrative
Agent pursuant to the Loan Documents, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other information materials,
but excluding any such communication that (i) relates to a request for a new, or a Conversion of an
existing, Borrowing or other Extension of Credit (including any election of an interest rate or
interest period relating thereto), (ii) relates to the payment of any principal or other amount due
under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or
Event of Default under this Agreement or (iv) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any Borrowing or other Extension of Credit
thereunder (all such non-excluded communications being referred to herein collectively as
“Communications”), by transmitting the Communications in an electronic/soft medium in a format
acceptable to the Administrative Agent to an electronic mail address specified by the
Administrative Agent to the Borrower. In addition, the Borrower agrees to continue to provide the
Communications to the Administrative Agent in the manner specified in the Loan Documents but only
to the extent requested by the Administrative Agent. Subject to the provisions of Section 5.03(p),
the Borrower further agrees that the Administrative Agent may make the Communications available to
the Lenders by posting the Communications on SyndTrack or a substantially similar electronic
transmission system (the “Platform”).




          (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, 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 THE AGENT PARTIES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, THE PARENT, ANY
LENDER PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY
AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO





85









 







HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.




          (d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender
agrees that notice to it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent
in writing (including by electronic communication) from time to time of such Lender’s e-mail
address to which the foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of
the Administrative Agent or any Lender to give any notice or other communication pursuant to any
Loan Document in any other manner specified in such Loan Document.




     SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender or any Agent to
exercise, and no delay in exercising, any right hereunder or under any Note or any other Loan
Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies provided by law.



     SECTION 9.04. Costs and Expenses. (a) The Loan Parties agree to pay from time to time on
demand (i) all costs and expenses of each Agent and Arranger in connection with the preparation,
execution, delivery, administration, modification and amendment of, or any consent or waiver under
(in each case whether or not effective), the Loan Documents (including, without limitation, (A) all
due diligence, collateral review, syndication, transportation, computer, duplication, appraisal,
audit, insurance, consultant, search, filing and recording fees and expenses and (B) the reasonable
fees and expenses of counsel for each Agent with respect thereto, with respect to advising such
Agent or Arranger as to its rights and responsibilities, or the perfection, protection, interpretation or preservation of rights or interests, under the Loan
Documents, with respect to negotiations with any Loan Party or with other creditors of any Loan
Party or any of its Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding involving creditors’ rights
generally and any proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and
Arranger and each Lender in connection with the enforcement of the Loan Documents, whether in any
action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting
creditors’ rights generally (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent and each Lender with respect thereto).



          (b) The Loan Parties agree to indemnify, defend and save and hold harmless each Agent, each
Arranger, each Lender and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an “Indemnified Party”) from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facility, the actual or proposed use of
the proceeds of the Advances, the Transaction Documents or any of the transactions contemplated
thereby, including, without limitation, any acquisition or proposed acquisition (including, without
limitation, the Transaction) of all or any portion of the Equity Interests in or Debt securities or
substantially all of the assets of the Borrower, the Gray Businesses or Bull Run and its
Subsidiaries or (ii) the actual or alleged presence of Hazardous Materials on any property of any
Loan






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Party or any of its Subsidiaries or any Environmental Action relating in any way to any Loan
Party or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s bad faith, gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity in this Section
9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or creditors or an Indemnified
Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the Transaction is consummated. Each Loan Party also agrees that, without the prior
written consent of the Administrative Agent (not to be unreasonably withheld, delayed or
conditioned), neither it nor any of its Affiliates will settle, compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding in respect of which
indemnification has been or could be sought under the indemnification provisions hereof (whether or
not any Indemnified Party is an actual or potential party to such claim, action or proceeding),
unless such settlement, compromise or consent (a) includes a full and unconditional written release
of each Indemnified Party from all liability arising out of such claim, action or proceeding and
(b) does not include any statement as to or an admission of fault, culpability or failure to act by
or on behalf of any Indemnified Party.




          In the event that an Indemnified Party is requested or required to appear as a witness in any
action brought by or on behalf of or against any Loan Party or any of its Subsidiaries or
Affiliates in which such Indemnified Party is not named as a defendant, such Loan Party agrees to
reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such
Indemnified Party’s appearing and preparing to appear as such a witness, including, without
limitation, the reasonable fees and expenses of its legal counsel. Each Loan Party also agrees not
to assert any claim against any Agent, any Lender or any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise relating to the
Facility, the actual or proposed use of the proceeds of the Advances, the Transaction Documents or
any of the transactions contemplated by the Transaction Documents.




          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by
the Borrower to or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other
reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period
for such Advance upon an assignment of rights and obligations under this Agreement pursuant to
Section 9.07 as a result of a demand by the Borrower pursuant to Section 9.07(a), or if the
Borrower fails to make any payment or prepayment of an Advance for which a notice of prepayment has
been given or that is otherwise required to be made, whether pursuant to Section 2.04, 2.06 or 6.01
or otherwise, the Borrower shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion or such failure to pay or prepay, as the
case may be, including, without limitation, any loss (including loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.




          (d) If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it
under any Loan Document, including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Loan Party by the Administrative Agent or
any Lender, in its sole discretion.




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          (e) Without prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Loan Parties contained in
Sections 2.10 and 2.12 and this Section 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under any of the other Loan Documents.




     SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during the continuance of any
Event of Default and (b) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Administrative Agent to declare the Advances due and payable pursuant
to the provisions of Section 6.01 or otherwise with the consent of the Required Lenders, each Agent
and each Lender and each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Agent, such Lender or such Affiliate to or for the credit or
the account of the Borrower against any and all of the Obligations of the Borrower now or hereafter
existing under the Loan Documents, irrespective of whether such Agent or such Lender shall have
made any demand under this Agreement and although such Obligations may be unmatured. Each Agent
and each Lender agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Agent and each Lender and their respective Affiliates
under this Section are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Agent, such Lender and their respective Affiliates may have.



     SECTION 9.06. Binding Effect. This Agreement shall become effective when it shall have
been executed by each Loan Party and each Agent and the Administrative Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be
binding upon and inure to the benefit of each Loan Party, each Agent and each Lender and their
respective successors and assigns, except that the Loan Parties shall not have the right to assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.



     SECTION 9.07. Assignments and Participations. (a) Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes held by it); provided, however, that
(i) except in the case of an assignment to a Person that immediately prior to such assignment was a
Lender, an Affiliate of a Lender or an Approved Fund of any Lender, each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under and in respect of
the Facility (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), (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an
Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this
Agreement, the aggregate amount of the Commitments being assigned to such Eligible Assignee
pursuant to such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 (or such lesser amount as
shall be approved by the Administrative Agent) under the Facility, (iii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of
any Lender or an Approved Fund of any Lender, such assignment shall be approved by the
Administrative Agent, (iv) each such assignment shall be to an Eligible Assignee, (v) no Lender
shall be obligated to make any such assignment as a result of a demand by the Loan Parties pursuant
to this Section 9.07(a) unless and until such Lender shall have received one or more payments from
either one or more Loan Parties or one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together
with accrued interest thereon to the date of payment of such principal amount and all other amounts
payable to such



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Lender under this Agreement, (vi) except in the case of any such assignment by a
Lender to a Lender, or an Affiliate or Approved Fund of such Lender, no such assignments shall be
permitted without the consent of the Administrative Agent until the Administrative Agent shall have
notified the Lenders that syndication of the Commitments hereunder has been completed and (vii) the
parties to each such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or
Notes subject to such assignment and (except in the case of any such assignment by a Lender to an
Affiliate or Approved Fund of such Lender) a processing and recordation fee of $3,500; provided,
however, that for each such assignment made as a result of a demand by the Loan Parties pursuant to
this Section 9.07(a), the Loan Parties shall pay to the Administrative Agent the applicable
processing and recordation fee. Notwithstanding anything contained to the contrary in this Section
9.07(a), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of
such Lender or an Approved Fund of such Lender without delivering an Assignment and Acceptance to
Administrative Agent (a “Related Party Assignment”); provided, that, (1) Borrower,
Guarantors and Agents may continue to deal solely and directly with such assigning Lender until an
Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the
Register, (2) the failure of such assigning Lender to deliver an Assignment and Acceptance to the
Administrative Agent shall not affect the legality, validity, or binding effect of such assignment,
and (3) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender
or an Approved Fund of such Lender shall be effective as of the date specified in such Assignment
and Acceptance.




          (b) Upon such execution, delivery, acceptance, if required, and recording, from and after the
effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii)
the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its
rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder relates to an event
arising prior to such assignment) and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party
hereto).




          (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder
and each assignee thereunder confirm to and agree with each other and the other parties thereto and
hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, any Loan Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to
take such action as agent on its behalf and to exercise such powers and discretion under the Loan




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Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.




     (d) The Administrative Agent, acting for this purpose (but only for this purpose) as agent of
the Borrower, shall maintain at its address referred to in Section 9.02 a copy of each Assignment
and Acceptance delivered to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment under each Facility of, and principal amount of the
Advances (the “Registered Loans”) owing under each Facility to, each Lender from time to time (the
“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Loan Parties, the Agents and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register
and the Related Party Register (as defined below) shall be available for inspection by the Loan
Parties or any Agent or any Lender at any reasonable time and from time to time upon reasonable
prior notice. In the case of a Related Party Assignment, the Lender making such Related Party
Assignment shall, acting solely for this purpose as the non-fiduciary agent of the Borrower,
maintain a comparable register (the “Related Party Register”).



     (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee, together with any Note or Notes (if any) subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form
of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each
other Agent. In the case of any assignment by a Lender, within five Business Days after its
receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes (if any) a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such
arrangement has retained a Commitment hereunder under such Facility, a new Note to the order of
such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note
or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A hereto.



     (f) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under
this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Loan Parties, the Agents and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement and (v) no participant under any such participation shall have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release all or substantially all of the
Collateral. The Borrower agrees that each participant shall be entitled to the benefits of
Sections 2.10, 2.11, 2.12, 8.04 and 9.04(b) to the same extent as if it were a Lender and had
acquired its interest by



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assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each participant also shall be entitled to the benefits of Section 9.05 as though
it were a Lender, provided such participant agrees to be subject to Section 2.13 as though it were
a Lender. A participant shall not be entitled to receive any greater payment under Sections 2.10
and 2.12 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 Borrower’s prior written consent.




          (g) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed
assignee or participant any information relating to the Loan Parties furnished to such Lender by or
on behalf of the Loan Parties; provided, however, that, prior to any such disclosure, the assignee
or participant or proposed assignee or participant shall agree to preserve the confidentiality of
any Confidential Information received by it from such Lender.




          (h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement and the
other Loan Documents (including, without limitation, the Advances owing to it and the Note or Notes
(if any) held by it) in favor of any other lender or group of lenders that provide financing to
such lender or any Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.




          (i) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may
create a security interest in all or any portion of the Advances owing to it and any Note or Notes
held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities, provided that, unless and until such trustee actually becomes a
Lender in compliance with the other provisions of this Section 9.07, (i) no such pledge shall
release the pledging Lender from any of its obligations under the Loan Documents and (ii) such
trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents
even though such trustee may have acquired ownership rights with respect to the pledged interest
through foreclosure or otherwise.




          (j) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Loan Parties (an “SPC”) the option
to provide all or any part of any Advance that such Granting Lender would otherwise be obligated to
make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by
any SPC to fund any Advance, and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize
the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC
shall be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased costs
protection provision) and (iii) the Granting Lender shall for all purposes, including, without
limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain
the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial paper or other senior
Debt of any SPC, it will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under
the laws of the United States or any State thereof. Notwithstanding anything to the contrary
contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, the Loan
Parties and the Administrative Agent and without paying any processing fee therefor, assign all or






91









 







any portion of its interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of Advances to any rating
agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity
enhancement to such SPC. This subsection (k) may not be amended without the prior written consent
of each Granting Lender, all or any part of whose Advances are being funded by the SPC at the time
of such amendment.




          (k) In the event that any Lender sells participations in a Registered Loan, such Lender shall
maintain a register, acting solely for this purpose as a non-fiduciary agent of the Borrower, on
which it enters the name of all participants in the Registered Loans held by it (the “Participant
Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be
participated in whole or in part only by registration of such participation on the Participant
Register (and each registered note shall expressly so provide). Any participation of such
Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the
registration of such participation on the Participant Register. The Participant Register shall be
available for inspection by the Loan Parties at any reasonable time and from time to time upon
reasonable prior notice.




          (l) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned
or sold in whole or in part only by registration of such assignment or sale on the Register or the
Related Party Register (and each registered note shall expressly so provide). Any assignment or
sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same)
may be effected only by registration of such assignment or sale on the Register or the Related
Party Register, together with the surrender of the registered note, if any, evidencing the same
duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by)
the holder of such registered note, whereupon, at the request of the designated assignee(s) or
transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s). Prior to the registration of the assignment or sale of any Registered Loan (and the
registered note, if any, evidencing the same), the Agents shall treat the Person in whose name such
Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner
thereof for the purpose of receiving all payments thereon and for all other purposes,
notwithstanding notice to the contrary.




          (m) Each assignment made as a result of a demand by the Loan Parties pursuant to Section 9.07
shall be arranged by the Loan Parties after consultation with the Administrative Agent and shall be
either an assignment of all of the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement.




          (n) Each Lender will, so long as no Event of Default shall have occurred and be continuing, if
demanded by the Loan Parties in accordance with Section 2.10(e) upon at least five Business Days’
notice to such Lender and the Administrative Agent, assign all or a portion of its rights and
obligations under this Agreement and the other Loan Documents (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it) in compliance with this Section 9.07.




     SECTION 9.08. Execution in Counterparts; Intercreditor Agreement. This Agreement may be
executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery by telecopier of an executed counterpart of
a signature page to this Agreement shall be effective as delivery of an original executed
counterpart of this Agreement. This Agreement is subject in its entirety to the terms and
provisions of the Intercreditor Agreement.



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     SECTION 9.09. [Intentionally Omitted].



     SECTION 9.10. Confidentiality. Neither any Agent nor any Lender shall disclose any
Confidential Information to any Person without the consent of the Borrower, other than (a) to such
Agent’s or such Lender’s Affiliates and their officers, directors, employees, agents and advisors
and to actual or prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c) as requested or
required by any state, Federal or foreign authority or examiner (including the National Association
of Insurance Commissioners or any similar organization or quasi-regulatory authority) regulating
such Lender, (d) to any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential
Information relating to the Loan Parties received by it from such Lender, (e) in connection with
any litigation or proceeding to which such Agent or such Lender or any of its Affiliates may be a
party or (f) in connection with the exercise of any right or remedy under this Agreement or any
other Loan Document.



     SECTION 9.11. Release of Collateral. Upon the sale, lease, transfer or other disposition of any item of Collateral of any Loan Party
(including, without limitation, as a result of the sale, in accordance with the terms of the Loan
Documents, of the Loan Party that owns such Collateral) in accordance with the terms of the Loan
Documents, the Collateral Agent will, at the Borrower’s expense, execute and deliver to such 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 in
accordance with the terms of the Loan Documents.



     SECTION 9.12. Patriot Act Notice. Each Lender and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of
the Patriot Act, it is required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of such Loan Party and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party
in accordance with the Patriot Act. The Parent and the Borrower shall, and shall cause each of
their Subsidiaries to, provide, to the extent commercially reasonable, such information and take
such actions as are reasonably requested by the Administrative Agent or any Lenders in order to
assist the Administrative Agent and the Lenders in maintaining compliance with the Patriot Act.



     SECTION 9.13. FCC Compliance. Notwithstanding anything to the contrary in this Agreement
and the other Loan Documents, no party hereto or thereto shall, without first obtaining the
approval of the FCC, take any action under this Agreement or the other Loan Documents that would
constitute or result in an assignment of any FCC License, or a change of control over the holder of
any FCC License, to the extent that such assignment or change of control would require, under any
laws applicable at the time, such prior approval of the FCC. Further, no party may take a security
interest in any of the FCC Licenses, except that (i) if at any time and to the extent such grant of
a security interest in any FCC License shall be permitted by the Communications Laws, then the
applicable Loan Party, in accordance with Section 1 of the Security Agreement, shall at such time
be deemed to have granted a security interest in such FCC License in accordance therewith and (ii)
in any case, the rights to receive, and any interest in, all proceeds of, or monies or other
consideration received or receivable from or attributable to the sale, transfer, assignment or
other disposition of , any FCC License (to the extent a direct security interest in such FCC
License shall not have been granted by virtue of the Loan Documents) shall be subject to the
security interest granted pursuant to Section 1 of the Security Agreement.



     SECTION 9.14. JURISDICTION, ETC. (a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE COURT OR FEDERAL



93









 




COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY 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 SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS IN THE COURTS OF
ANY JURISDICTION.




          (b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




     SECTION 9.15. GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     SECTION 9.16. Market Flex. The Loan Parties and the Lenders hereby agree that they will
execute any amendments to the Loan Documents deemed advisable by the Arrangers, after consultation
with the Parent, to change all or any of the terms of the Loan Documents that the Arrangers
determine are advisable in order to ensure a successful syndication of the Commitments or Advances
under this Agreement, subject to the limitations contained in the Fee Letter.



     SECTION 9.17. WAIVER OF JURY TRIAL. EACH OF THE LOAN PARTIES, THE AGENTS AND THE LENDER
PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE ADVANCES, THE LETTERS OF CREDIT OR THE ACTIONS OF ANY AGENT OR ANY LENDER PARTY IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.



94









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 	 	 	 
	 	 	TRIPLE CROWN MEDIA, INC.,
	 	 	 	 	as the Parent and a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Chief Financial Officer and Secretary






	 	 	 	 	 	 	 	 	 	 
	 	 	TRIPLE CROWN MEDIA, LLC,
	 	 	 	 	as the Borrower
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	TRIPLE CROWN MEDIA, INC., its sole member
	 
	 	 	 	 	 	 	 	 
	 	 	By  
/s/ Frederick J. Erickson
	 	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Chief Financial Officer and Secretary






	 	 	 	 	 	 	 	 
	 	 	BR ACQUISITION CORP.,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	BR HOLDING, INC.,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Vice President — Finance






 









 






	 	 	 	 	 	 	 	 
	 	 	DATASOUTH COMPUTER CORPORATION,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Vice President – Finance & Administration
	 
	 	 	 	 	 	 
	 	 	GRAYLINK LLC,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Vice President, Secretary and Treasurer
	 
	 	 	 	 	 	 
	 	 	GRAY PUBLISHING, LLC,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Vice President, Secretary and Treasurer
	 
	 	 	 	 	 	 
	 	 	HOST COMMUNICATIONS, INC.,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Vice President
	 
	 	 	 	 	 	 
	 	 	PORTA-PHONE PAGING LICENSEE CORP.,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Vice President, Secretary and Treasurer






 









 







	 	 	 	 	 	 	 	 
	 	 	HOOP-IT-UP INTERNATIONAL, INC.,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Vice President, Secretary and Treasurer
	 
	 	 	 	 	 	 
	 	 	CAPITAL SPORTS PROPERTIES, INC.,
	 	 	 	 	as a Guarantor
	 
	 	 	 	 	 	 
	 	 	By  /s/ Frederick J. Erickson
	 	 	 

	 

	 	 	 	Name: Frederick J. Erickson
	 

	 	 	 	Title:   Vice President, Secretary and Treasurer






 









 






	 	 	 	 	 	 	 	 
	 	 	Agents and Initial Lenders:
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,
	 	 	 	 	as Administrative Agent, Collateral Agent,
	 	 	 	 	Initial Issuing Bank and Initial Lender
	 
	 	 	 	 	 	 
	 	 	By  /s/ Arthur Burns
	 	 	 

	 

	 	 	 	Name: Arthur Burns
	 

	 	 	 	Title:   Vice President






 









 






	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,
	 	 	 	 	as Syndication Agent and Initial Lender
	 
	 	 	 	 	 	 
	 	 	By  /s/ Christopher G. Mathon
	 	 	 

	 

	 	 	 	Name: Christopher G. Mathon
	 

	 	 	 	Title:   Managing Director