exv10w1






Exhibit 10.1




SECOND AMENDMENT TO AMENDED AND

RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT




     This SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated
as of August 19, 2009 (this “Amendment”), is by and among (a) EMMIS COMMUNICATIONS
CORPORATION (the “Parent”), an Indiana corporation, (b) EMMIS OPERATING COMPANY (the
“Borrower”), an Indiana corporation, (c) certain Lenders (as defined below) and (d) BANK OF
AMERICA, N.A., as administrative agent (the “Administrative Agent”) for itself and the
other Lenders party to that certain Amended and Restated Revolving Credit and Term Loan Agreement,
dated November 2, 2006, as amended by that certain First Amendment and Consent to Amended and
Restated Revolving Credit And Term Loan Agreement, dated as of March 3, 2009 (as further amended,
supplemented, and restated or otherwise modified and in effect from time to time, the “Credit
Agreement”), by and among the Borrower, the Parent, the lending institutions party thereto (the
“Lenders”), the Administrative Agent, Deutsche Bank Trust Company Americas, as syndication
agent, General Electric Capital Corporation, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
“Rabobank Nederland”, New York Branch and SunTrust Bank, as co-documentation agents. Capitalized
terms used herein without definition shall have the meanings assigned to such terms in the Credit
Agreement as set forth on Annex I.



     WHEREAS, the Borrower, the Parent, the Required Lenders and the Administrative Agent have
agreed to modify certain terms and conditions of the Credit Agreement as specifically set forth in
this Amendment;



     NOW THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrower, the
Parent, the Lenders and the Administrative Agent hereby agree as follows:



     §1. Amendment to Credit Agreement. The Credit Agreement is hereby amended in its
entirety and replaced with the document attached hereto as Annex I.



     §2. Amendment to Exhibit B to Credit Agreement. Exhibit B to the Credit
Agreement is hereby amended in its entirety and replaced with the document attached hereto as
Exhibit B to Annex II.



     §3. Amendment to Exhibit E to Credit Agreement. Exhibit E to the Credit
Agreement is hereby amended in its entirety and replaced with the document attached hereto as
Exhibit E to Annex II.



     §4. Amendment to Add a New Exhibit J to Credit Agreement. A new Exhibit J to
the Credit Agreement is hereby added in its entirety in the form attached hereto as Exhibit
J to Annex II.



     §5. Amendment to Add a New Exhibit K to Credit Agreement. A new Exhibit K to
the Credit Agreement is hereby added in its entirety in the form attached hereto as Exhibit
K to Annex II.









 



 


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     §6. Amendment to Add a New Schedule 7.4 to Credit Agreement. A new Schedule
7.4 to the Credit Agreement is hereby added in its entirety in the form attached hereto as
Schedule 7.4 to Annex II.



     §7. Reduction of the Revolving Credit Commitment. Notwithstanding the time period
identified in §2.3 of the Credit Agreement which is hereby waived, the Borrower hereby gives notice
to the Administrative Agent and the Revolving Credit Lenders, and the Administrative Agent and the
Revolving Credit Lenders hereby acknowledge that, immediately following the effectiveness of this
Amendment, the Total Revolving Credit Commitment shall be reduced by an amount equal to $55,000,000
from $75,000,000 to $20,000,000, and the Revolving Credit Commitments of the Revolving Credit
Lenders shall be reduced pro rata in accordance with their respective Commitment
Percentages thereof.



     §8. Conditions to Effectiveness. This Amendment shall become effective as of the date
set forth above upon the receipt by the Administrative Agent of the following items:



     (a) there shall exist no Default or Event of Default immediately prior to and immediately
after giving effect to this Amendment; and



     (b) the Administrative Agent shall have received a counterpart signature page to this
Amendment, duly executed and delivered by the Borrower, the Parent, each Guarantor and the Required
Lenders; and



     (c) the Administrative Agent and the Lenders shall have received a legal opinion of Paul,
Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Borrower, the Parent and their respective
Subsidiaries, which shall be in form, scope and substance satisfactory to the Administrative Agent
and include, without limitation, an unqualified no conflicts opinion with respect to the Credit
Agreement and Loan Documents; and



     (d) the Administrative Agent shall have received a Compliance Certificate in the form of
Exhibit E to the amended Credit Agreement attached in Annex II hereto, which attaches a
schedule in form and detail reasonably satisfactory to the Administrative Agent of Consolidated Net
Income, Consolidated EBITDA, Liquidity and minimum Consolidated EBITDA, and other financial
covenant-related calculations, each calculated pursuant to the applicable definitions set forth in
the Credit Agreement attached as Annex I hereto and as of the date hereof (provided that
with respect to Consolidated EBITDA and Consolidated Net Income, such calculation shall be for the
Reference Period ending on the last day of the most recently completed fiscal quarter of the Parent
for which financial statements have been delivered) in each case demonstrating compliance with the
applicable financial covenants set forth in §11 of the Credit Agreement as set forth in Annex
I hereto (provided that with respect to compliance with (A) §11.3 of the Credit Agreement, the
calculations shall demonstrate that the Borrower has not less than $5,000,000 of Liquidity as of
the date of the Second Amendment and (B) §11.4 of the Credit Agreement, the calculations shall
demonstrate that Consolidated EBITDA shall be equal to or greater than $22,800,000), prepared by
the principal financial or accounting officer of the Borrower; and



     (e) the representations and warranties set forth in §10 of this Amendment shall be true and
correct as of the date of this Amendment; and









 



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     (f) the Administrative Agent shall have received, in form and substance acceptable to it, all
resolutions, incumbency certificates, certificates of no default, and such other certificates and
documents as reasonably requested by the Administrative Agent; and



     (g) the Administrative Agent shall have received, for the pro rata account of
the Lenders timely executing and delivering a signature page to this Amendment, an amendment fee
equal to fifty basis points (0.50%) of the Revolving Credit Commitment (as reduced hereby) of, and
outstanding principal amount of the Tranche B Term Loan held by, each such Lender; and



     (h) the Administrative Agent shall have received, for the pro rata account of
the Revolving Credit Lenders, any Commitment Fees then accrued on the amount of the Total Revolving
Credit Commitment to be reduced immediately following the effectiveness of this Amendment as
provided in §8 hereof in accordance with §2.3 of the Credit Agreement; and



     (i) the Administrative Agent shall have received satisfactory evidence of the compliance by
the Borrower with §12.10 of the Credit Agreement; and



     (j) the Administrative Agent shall have received all other fees and expenses due and owing in
connection with this Amendment; and



     (k) at the request of the Administrative Agent, (i) confirmations and affirmations of the
Borrower, the Parent and the Subsidiaries (and Excluded Subsidiaries, where applicable) with
respect to the Loan Documents, including, without limitation, the Security Documents and (ii)
updated schedules and annexes to the Security Documents; and



     (l) the Borrower shall have paid all reasonable unpaid fees and expenses of the Administrative
Agent’s counsel, Winstead PC, to the extent that copies of invoices for such fees and expenses have
been delivered to the Borrower.



     §9. Affirmation of Borrower and Parent. The Borrower and the Parent each hereby
affirms its Obligations under the Credit Agreement and under each of the other Loan Documents to
which each is a party and each hereby affirms its absolute and unconditional promise to pay to the
Lenders the Loans and all other amounts due under the Credit Agreement (as amended hereby) and the
other Loan Documents.



     §10. Representations and Warranties. The Parent and the Borrower each hereby
represents and warrants to the Administrative Agent and the Lenders as follows:



     (a) Representations and Warranties. Each of the representations and warranties
contained in §8 of the Credit Agreement were true and correct in all material respects (except to
the extent such representations and warranties are already qualified by materiality, in which case,
such representations and warranties were true and correct in all respects) when made, and, after
giving effect to this Amendment, are true and correct in all material respects on and as of the
date hereof (except to the extent such representations and warranties are already qualified by
materiality, in which case, such representations and warranties are true and correct in all
respects), except to the extent of changes resulting from transactions contemplated or permitted by
the Credit Agreement and the other Loan Documents and to the extent that such representations and
warranties relate specifically to a prior date.









 



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     (b) Enforceability. The execution and delivery by the Borrower and the Parent of this
Amendment, and the performance by the Borrower and the Parent of this Amendment and the Credit
Agreement, as amended hereby, are within the corporate authority of each of the Borrower and the
Parent and have been duly authorized by all necessary corporate proceedings. This Amendment and
the Credit Agreement, as amended hereby, constitute valid and legally binding obligations of each
of the Borrower and the Parent, enforceable against it in accordance with their terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
affecting the enforcement of creditors’ rights in general.



     (c) No Default or Event of Default. No Default or Event of Default has occurred and
is continuing, and after giving effect to this Amendment, no Default or Event of Default will
result from the execution, delivery and performance by the Parent and the Borrower of this
Amendment or from the consummation of the transactions contemplated herein.



     (d) Disclosure. None of the information provided to the Administrative Agent and the
Lenders on or prior to the date of the Second Amendment relating to this Amendment contained any
untrue statement of material fact or omitted to state any material fact (known to the Parent, the
Borrower or any of its Subsidiaries in the case of any document or information not furnished by it
or any of its Subsidiaries) necessary in order to make the statements herein or therein not
misleading. On the date hereof, neither the Borrower nor the Parent possess any material
information with respect to the operations, business, assets, properties, liabilities (actual or
contingent) or financial condition of the Parent, the Borrower and their respective Subsidiaries
taken as a whole as to which the Lenders do not have access.



     §11. No Other Amendments, etc. Except as expressly provided in this Amendment, (a)
all of the terms and conditions of the Credit Agreement and the other Loan Documents remain
unchanged, and (b) all of the terms and conditions of the Credit Agreement, as amended hereby, and
of the other Loan Documents are hereby ratified and confirmed and remain in full force and effect.
Nothing herein shall be construed to be an amendment, consent or a waiver of any requirements of
the Parent, the Borrower or of any other Person under the Credit Agreement or any of the other Loan
Documents except as expressly set forth herein. Nothing in this Amendment shall be construed to
imply any willingness on the part of the Administrative Agent or any Lender to grant any similar or
future amendment, consent or waiver of any of the terms and conditions of the Credit Agreement or
the other Loan Documents.



     §12. Release. In order to induce the Administrative Agent and the Lenders to enter
into this Amendment, the Borrower and the Parent each acknowledges and agrees that: (i) the
Borrower and the Parent do not have any claim or cause of action against the Administrative Agent
or any Lender (or any of their respective directors, officers, employees or agents); (ii) the
Borrower and the Parent do not have any offset right, counterclaim, right of recoupment or any
defense of any kind against the Borrower’s or the Parent’s obligations, indebtedness or liabilities
to the Administrative Agent or any Lender; and (iii) each of the Administrative Agent and the
Lenders has heretofore properly performed and satisfied in a timely manner all of its obligations
to the Borrower and the Parent. The Borrower and the Parent each wishes to eliminate any
possibility that any past conditions, acts, omissions, events, circumstances or matters would
impair or otherwise adversely affect any of the Administrative Agent’s and the Lenders’ rights,
interests, contracts, collateral security or remedies. Therefore, the Borrower and the Parent each
unconditionally releases, waives and forever discharges (A) any and all liabilities, obligations,









 



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duties, promises or indebtedness of any kind of the Administrative Agent or any Lender to the
Borrower, except the obligations to be performed by the Administrative Agent or any Lender on or
after the date hereof as expressly stated in this Amendment, the Credit Agreement and the other
Loan Documents, and (B) all claims, offsets, causes of action, right of recoupment, suits or
defenses of any kind whatsoever (if any), whether arising at law or in equity, whether known or
unknown, which the Borrower or the Parent might otherwise have against the Administrative Agent,
any Lender or any of their respective directors, officers, employees or agents, in either case (A)
or (B), on account of any past or presently existing condition, act, omission, event, contract,
liability, obligation, indebtedness, claim, cause of action, defense, circumstance or matter of any
kind.



     §13. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one instrument. In
proving this Amendment, it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.



     §14. Interpretation. This Amendment, the Credit Agreement and the other Loan
Documents are the result of negotiation among, and have been reviewed by counsel to, among others,
the Administrative Agent and the Borrower and are the product of discussions and negotiations among
all parties. Accordingly, this Amendment, Credit Agreement and the other Loan Documents are not
intended to be construed against the Administrative Agent or any of the Lenders merely on account
of the Administrative Agent’s or any Lender’s involvement in the preparation of such documents.



     §15. Loan Document. This Amendment is a Loan Document under the terms of the Credit
Agreement, and any breach of any provision of this Amendment shall be a Default or Event of Default
under the Credit Agreement (as applicable).



     §16. Miscellaneous. This Amendment shall for all purposes be construed in accordance
with and governed by the laws of the State of New York (excluding the laws applicable to conflicts
or choice of law) (other than Section 5-1401 and Section 5-1402 of the General Obligations Laws of
the State of New York). The captions in this Amendment are for convenience of reference only and
shall not define or limit the provisions hereof. The Borrower agrees to pay to the Administrative
Agent, on demand by the Administrative Agent, all reasonable costs and expenses incurred or
sustained by the Administrative Agent in connection with the preparation of this Amendment,
including reasonable legal fees in accordance with §18.2 of the Credit Agreement.



[Remainder of Page Intentionally Left Blank]










 





     IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as a sealed instrument
as of the date first set forth above.



	 	 	 	 	 
	 	The Borrower:



EMMIS OPERATING COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	J. Scott Enright 	 
	 	 	Title:  	Executive Vice President and
General Counsel 	 
	 
	 	The Parent:



EMMIS COMMUNICATIONS

CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	J. Scott Enright 	 
	 	 	Title:  	Executive Vice President and
General Counsel 	 
	 



[Signature Page to Second Amendment to Amended and Restated

Revolving Credit and Term Loan Agreement]










 



 



	 	 	 	 	 
	 	The Administrative Agent:



BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	The Lenders:



BANK OF AMERICA, N.A.,

as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




[Signature Page to Second Amendment to Amended and Restated

Revolving Credit and Term Loan Agreement]










 



 



	 	 	 	 	 
	 	The Lenders:



[Other Lenders], as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




[Signature Page to Second Amendment to Amended and Restated

Revolving Credit and Term Loan Agreement]










 



 




RATIFICATION OF GUARANTORS





     Each of the undersigned Guarantors hereby (a) acknowledges and consents to the foregoing
Amendment and the Borrower’s and the Parent’s execution thereof; (b) joins the foregoing Amendment
for the sole purpose of consenting to and being bound by the provisions of Sections 9, 11 and 12
thereof, (c) ratifies and confirms all of their respective obligations and liabilities under the
Loan Documents to which any of them is a party and ratifies and confirms that such obligations and
liabilities extend to and continue in effect with respect to, and continue to guarantee and secure,
as applicable, the Obligations of the Borrower under the Credit Agreement; (d) acknowledges and
confirms that the liens and security interests granted by such Guarantor pursuant to the Loan
Documents are and continue to be valid and perfected first priority liens and security interests
(subject only to Permitted Liens) that secure all of the Obligations on and after the date hereof;
(e) acknowledges and agrees that such Guarantor does not have any claim or cause of action against
the Administrative Agent or any Lender (or any of its respective directors, officers, employees or
agents); and (f) acknowledges, affirms and agrees that such Guarantor does not have any defense,
claim, cause of action, counterclaim, offset or right of recoupment of any kind or nature against
any of their respective obligations, indebtedness or liabilities to the Administrative Agent or any
Lender.



	 	 	 	 	 
	 	The Guarantors:



EMMIS COMMUNICATIONS
CORPORATION

EMMIS INDIANA BROADCASTING, L.P., by

Emmis Operating Company, its General Partner

EMMIS INTERNATIONAL BROADCASTING

CORPORATION

EMMIS LICENSE CORPORATION OF NEW

YORK

EMMIS MEADOWLANDS CORPORATION

EMMIS PUBLISHING CORPORATION

EMMIS PUBLISHING, L.P., by Emmis

Operating Company, its General Partner

EMMIS RADIO, LLC, by Emmis Operating

Company, its Manager

 	 
	 	By:  	 	 
	 	 	Name:  	J. Scott Enright 	 
	 	 	Title:  	Executive Vice President and
General Counsel 	 
	 



[Signature Page to Second Amendment to Amended and Restated

Revolving Credit and Term Loan Agreement]










 



-2-



	 	 	 	 	 
	 	The Guarantors (cont):



EMMIS RADIO LICENSE CORPORATION

OF NEW YORK

EMMIS RADIO LICENSE, LLC, by Emmis

Operating Company, its Manager

EMMIS TELEVISION LICENSE, LLC, by

Emmis Operating Company, its Manager

EMMIS TELEVISION BROADCASTING, L.P.,

by Emmis Operating Company, its General

Partner

LOS ANGELES MAGAZINE HOLDING

COMPANY, INC.

MEDIATEX COMMUNICATIONS

CORPORATION

ORANGE COAST KOMMUNICATIONS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	J. Scott Enright 	 
	 	 	Title:  	Executive Vice President and
General Counsel 	 
	 




[Signature Page to Second Amendment to Amended and Restated

Revolving Credit and Term Loan Agreement]










 










ANNEX I TO THE SECOND AMENDMENT




Published CUSIP Number: 29153EAA1




AMENDED AND RESTATED

REVOLVING CREDIT AND TERM LOAN AGREEMENT




Dated as of November 2, 2006




among




EMMIS OPERATING COMPANY,

as Borrower




EMMIS COMMUNICATIONS CORPORATION,

as Parent




THE LENDERS LISTED ON SCHEDULE 1 HERETO




BANK OF AMERICA, N.A.,

as Administrative Agent,




DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Syndication Agent




GENERAL ELECTRIC CAPITAL CORPORATION,

COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,

“RABOBANK NEDERLAND”, NEW YORK BRANCH and

SUNTRUST BANK,

as Co-Documentation Agents,




and




BANC OF AMERICA SECURITIES LLC,

DEUTSCHE BANK SECURITIES INC.,

as Joint Lead Arrangers and Joint Book Managers







 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	1.	 	DEFINITIONS AND RULES OF INTERPRETATION	 	 	1	 
	 	 	1.1.	 	Definitions	 	 	1	 
	 	 	1.2.	 	Rules of Interpretation	 	 	42	 
	 
	 	 	 	 	 	 	 	 	 	 
	2.	 	THE REVOLVING CREDIT FACILITY	 	 	43	 
	 	 	2.1.	 	Commitment to Lend	 	 	43	 
	 	 	2.2.	 	Commitment Fee	 	 	44	 
	 	 	2.3.	 	Reduction of Revolving Credit Commitment	 	 	44	 
	 	 	2.4.	 	Evidence of Revolving Credit Loans; Revolving Credit Notes	 	 	44	 
	 	 	2.5.	 	Interest on Revolving Credit Loans	 	 	45	 
	 	 	2.6.	 	Requests for Revolving Credit Loans	 	 	45	 
	 	 	2.7.	 	Conversion Options	 	 	46	 
	 
	 	 	 	2.7.1.	 	Conversion to Different Type of Revolving Credit Loan	 	 	46	 
	 
	 	 	 	2.7.2.	 	Continuation of Type of Revolving Credit Loan	 	 	46	 
	 
	 	 	 	2.7.3.	 	Eurodollar Rate Loans	 	 	46	 
	 	 	2.8.	 	Funds for Revolving Credit Loans	 	 	47	 
	 
	 	 	 	2.8.1.	 	Funding Procedures	 	 	47	 
	 
	 	 	 	2.8.2.	 	Advances by Administrative Agent	 	 	47	 
	 	 	2.9.	 	Settlements	 	 	48	 
	 
	 	 	 	2.9.1.	 	General	 	 	48	 
	 
	 	 	 	2.9.2.	 	Failure to Make Funds Available	 	 	49	 
	 
	 	 	 	2.9.3.	 	No Effect on Other Revolving Credit Lenders	 	 	49	 
	 	 	2.10.	 	Repayment Of The Revolving Credit Loans	 	 	50	 
	 
	 	 	 	2.10.1.	 	Maturity	 	 	50	 
	 
	 	 	 	2.10.2.	 	Mandatory Repayments of Revolving Credit Loans	 	 	50	 
	 
	 	 	 	2.10.3.	 	Optional Repayments of Revolving Credit Loans	 	 	50	 
	 
	 	 	 	 	 	 	 	 	 	 
	3.	 	THE TRANCHE B TERM LOAN	 	 	51	 
	 	 	3.1.	 	Commitment to Lend	 	 	51	 
	 	 	3.2.	 	Evidence of Tranche B Term Loan; Tranche B Term Notes	 	 	51	 
	 	 	3.3.	 	Mandatory Prepayment of Tranche B Term Loan; Scheduled Amortization	 	 	52	 
	 	 	3.4.	 	Optional Prepayment of Tranche B Term Loan	 	 	52	 






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(continued)





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	3.5.	 	Interest on Tranche B Term Loan	 	 	52	 
	 
	 	 	 	3.5.1.	 	Interest Rates	 	 	52	 
	 
	 	 	 	3.5.2.	 	Notification by Borrower	 	 	53	 
	 
	 	 	 	3.5.3.	 	Amounts, etc.	 	 	53	 
	 
	 	 	 	 	 	 	 	 	 	 
	4.	 	MANDATORY REPAYMENT OF THE LOANS	 	 	53	 
	 	 	4.1.	 	Excess Cash Flow Recapture	 	 	53	 
	 	 	4.2.	 	Proceeds of Asset Sales and Asset Swaps; Etc.	 	 	54	 
	 	 	4.3.	 	Proceeds of Equity Issuances	 	 	55	 
	 	 	4.4.	 	Proceeds of Issuances of Indebtedness	 	 	57	 
	 	 	4.5.	 	Proceeds of Extraordinary Receipts	 	 	58	 
	 	 	4.6.	 	Application of Payments	 	 	58	 
	 	 	4.7.	 	Delivery of Proceeds	 	 	59	 
	 
	 	 	 	 	 	 	 	 	 	 
	5.	 	LETTERS OF CREDIT	 	 	59	 
	 	 	5.1.	 	Letter of Credit Commitments	 	 	59	 
	 
	 	 	 	5.1.1.	 	Commitment to Issue Letters of Credit	 	 	59	 
	 
	 	 	 	5.1.2.	 	Letter of Credit Applications	 	 	61	 
	 
	 	 	 	5.1.3.	 	Terms of Letters of Credit	 	 	61	 
	 
	 	 	 	5.1.4.	 	Reimbursement Obligations of Revolving Credit Lenders	 	 	61	 
	 
	 	 	 	5.1.5.	 	Participations of Revolving Credit Lenders	 	 	61	 
	 	 	5.2.	 	Reimbursement Obligation of the Borrower	 	 	62	 
	 	 	5.3.	 	Letter of Credit Payments	 	 	62	 
	 	 	5.4.	 	Obligations Absolute	 	 	63	 
	 	 	5.5.	 	Reliance by Issuer	 	 	64	 
	 	 	5.6.	 	Letter of Credit Fee	 	 	64	 
	 	 	5.7.	 	Existing Letters of Credit	 	 	64	 
	 
	 	 	 	 	 	 	 	 	 	 
	6.	 	CERTAIN GENERAL PROVISIONS	 	 	64	 
	 	 	6.1.	 	Closing Fees	 	 	64	 
	 	 	6.2.	 	Administrative Agent’s Fee	 	 	65	 
	 	 	6.3.	 	Funds for Payments	 	 	65	 
	 
	 	 	 	6.3.1.	 	Payments to Administrative Agent	 	 	65	 






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(continued)





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	6.3.2.	 	No Offset, etc.	 	 	65	 
	 
	 	 	 	6.3.3.	 	Non-U.S. Lenders	 	 	66	 
	 	 	6.4.	 	Computations	 	 	67	 
	 	 	6.5.	 	Inability to Determine Eurodollar Rate	 	 	67	 
	 	 	6.6.	 	Illegality	 	 	67	 
	 	 	6.7.	 	Additional Costs, etc.	 	 	68	 
	 	 	6.8.	 	Capital Adequacy	 	 	69	 
	 	 	6.9.	 	Certificate	 	 	70	 
	 	 	6.10.	 	Indemnity	 	 	70	 
	 	 	6.11.	 	Interest After Default	 	 	70	 
	 	 	6.12.	 	Mitigation Obligations; Replacement of Lenders	 	 	70	 
	 
	 	 	 	 	 	 	 	 	 	 
	7.	 	COLLATERAL SECURITY AND GUARANTIES	 	 	71	 
	 	 	7.1.	 	Security of Borrower	 	 	71	 
	 	 	7.2.	 	Guaranties and Security of Parent and Subsidiaries	 	 	72	 
	 	 	7.3.	 	Release of Collateral and Guaranties	 	 	72	 
	 	 	7.4.	 	Post Second Amendment Effective Date Collateral Requirements	 	 	72	 
	 	 	7.5.	 	Issuance of Replacement Equity Instruments	 	 	74	 
	 	 	7.6.	 	Other Post-Second Amendment Effective Date Requirements	 	 	75	 
	 
	 	 	 	 	 	 	 	 	 	 
	8.	 	REPRESENTATIONS AND WARRANTIES	 	 	75	 
	 	 	8.1.	 	Corporate Authority	 	 	75	 
	 
	 	 	 	8.1.1.	 	Incorporation; Good Standing	 	 	75	 
	 
	 	 	 	8.1.2.	 	Authorization	 	 	76	 
	 
	 	 	 	8.1.3.	 	Enforceability	 	 	76	 
	 	 	8.2.	 	Governmental Approvals	 	 	76	 
	 	 	8.3.	 	Title to Properties	 	 	76	 
	 	 	8.4.	 	Financial Statements and Projections	 	 	77	 
	 
	 	 	 	8.4.1.	 	Fiscal Year	 	 	77	 
	 
	 	 	 	8.4.2.	 	Financial Statements	 	 	77	 
	 
	 	 	 	8.4.3.	 	Projections	 	 	77	 
	 	 	8.5.	 	No Material Adverse Changes, etc.	 	 	78	 






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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	8.6.	 	Franchises, Patents, Copyrights, etc.	 	 	78	 
	 	 	8.7.	 	Litigation	 	 	78	 
	 	 	8.8.	 	No Materially Adverse Contracts, etc.	 	 	78	 
	 	 	8.9.	 	Compliance with Other Instruments, Laws, Status as Senior Debt, etc.	 	 	78	 
	 	 	8.10.	 	Tax Status	 	 	78	 
	 	 	8.11.	 	No Event of Default	 	 	79	 
	 	 	8.12.	 	Investment Company Acts and Communications Act	 	 	79	 
	 	 	8.13.	 	Absence of Financing Statements, etc.	 	 	79	 
	 	 	8.14.	 	Perfection of Security Interest	 	 	79	 
	 	 	8.15.	 	Certain Transactions	 	 	80	 
	 	 	8.16.	 	Employee Benefit Plans	 	 	80	 
	 
	 	 	 	8.16.1.	 	In General	 	 	80	 
	 
	 	 	 	8.16.2.	 	Terminability of Welfare Plans	 	 	80	 
	 
	 	 	 	8.16.3.	 	Guaranteed Pension Plans	 	 	80	 
	 
	 	 	 	8.16.4.	 	Multiemployer Plans	 	 	81	 
	 	 	8.17.	 	Use of Proceeds	 	 	81	 
	 
	 	 	 	8.17.1.	 	General	 	 	81	 
	 
	 	 	 	8.17.2.	 	Regulation U	 	 	81	 
	 
	 	 	 	8.17.3.	 	Ineligible Securities	 	 	81	 
	 	 	8.18.	 	Environmental Compliance	 	 	81	 
	 	 	8.19.	 	Subsidiaries, etc.	 	 	83	 
	 	 	8.20.	 	Disclosure	 	 	83	 
	 	 	8.21.	 	Licenses and Approvals	 	 	84	 
	 	 	8.22.	 	Material Agreements	 	 	85	 
	 	 	8.23.	 	Solvency	 	 	86	 
	 	 	8.24.	 	Excluded Subsidiaries	 	 	86	 
	 
	 	 	 	 	 	 	 	 	 	 
	9.	 	AFFIRMATIVE COVENANTS	 	 	86	 
	 	 	9.1.	 	Punctual Payment	 	 	86	 
	 	 	9.2.	 	Maintenance of Office	 	 	86	 
	 	 	9.3.	 	Records and Accounts	 	 	86	 






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	 	 	9.4.	 	Financial Statements, Certificates and Information	 	 	87	 
	 	 	9.5.	 	Notices and Other Information	 	 	89	 
	 
	 	 	 	9.5.1.	 	Defaults	 	 	89	 
	 
	 	 	 	9.5.2.	 	Environmental Events	 	 	89	 
	 
	 	 	 	9.5.3.	 	Notification of Claim against Collateral	 	 	89	 
	 
	 	 	 	9.5.4.	 	Notice of Litigation and Judgments	 	 	89	 
	 
	 	 	 	9.5.5.	 	Notice of SEC Filings, etc.	 	 	90	 
	 
	 	 	 	9.5.6.	 	Distribution of Materials	 	 	90	 
	 
	 	 	 	9.5.7.	 	Foreign Subsidiaries	 	 	90	 
	 	 	9.6.	 	Legal Existence; Conduct of Business; Maintenance of Properties	 	 	91	 
	 	 	9.7.	 	Insurance	 	 	91	 
	 	 	9.8.	 	Taxes	 	 	92	 
	 	 	9.9.	 	Inspection of Properties and Books, etc.	 	 	92	 
	 
	 	 	 	9.9.1.	 	General	 	 	92	 
	 
	 	 	 	9.9.2.	 	Appraisals	 	 	92	 
	 
	 	 	 	9.9.3.	 	Communications with Accountants	 	 	92	 
	 	 	9.10.	 	Compliance with Laws, Contracts, Licenses, and Permits	 	 	93	 
	 	 	9.11.	 	Employee Benefit Plans	 	 	94	 
	 	 	9.12.	 	Use of Proceeds	 	 	94	 
	 	 	9.13.	 	Additional Collateral	 	 	94	 
	 	 	9.14.	 	Interest Rate Protection	 	 	95	 
	 	 	9.15.	 	Additional Subsidiaries	 	 	96	 
	 	 	9.16.	 	Further Assurances	 	 	97	 
	 	 	9.17.	 	Bridge to Sale Transactions Generally	 	 	97	 
	 
	 	 	 	 	 	 	 	 	 	 
	10.	 	CERTAIN NEGATIVE COVENANTS	 	 	100	 
	 	 	10.1.	 	Restrictions on Indebtedness	 	 	100	 
	 	 	10.2.	 	Restrictions on Liens	 	 	102	 
	 
	 	 	 	10.2.1.	 	Permitted Liens	 	 	102	 
	 
	 	 	 	10.2.2.	 	Restrictions on Negative Pledges and Upstream Limitations	 	 	104	 
	 	 	10.3.	 	Restrictions on Investments	 	 	105	 






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	 	 	10.4.	 	Restricted Payments	 	 	107	 
	 	 	10.5.	 	Merger, Consolidation, Acquisition and Disposition of Assets	 	 	109	 
	 
	 	 	 	10.5.1.	 	Mergers and Acquisitions	 	 	109	 
	 
	 	 	 	10.5.2.	 	Disposition of Assets	 	 	112	 
	 	 	10.6.	 	Sale and Leaseback; LMA Agreements	 	 	114	 
	 	 	10.7.	 	Compliance with Environmental Laws	 	 	116	 
	 	 	10.8.	 	Subordinated Debt; Permitted Parent Indebtedness	 	 	116	 
	 	 	10.9.	 	Employee Benefit Plans	 	 	117	 
	 	 	10.10.	 	Fiscal Year	 	 	117	 
	 	 	10.11.	 	Transactions with Affiliates	 	 	117	 
	 	 	10.12.	 	Certain Intercompany Matters	 	 	118	 
	 	 	10.13.	 	Activities and Indebtedness of the Parent	 	 	119	 
	 
	 	 	 	10.13.1.	 	Activities of Parent	 	 	119	 
	 
	 	 	 	10.13.2.	 	Permitted Parent Indebtedness, Interest Payments; Etc.	 	 	119	 
	 	 	10.14.	 	Restrictions on Equity Issuances	 	 	120	 
	 	 	10.15.	 	Bridge to Sale Transactions Generally	 	 	121	 
	 	 	10.16.	 	Debt Repurchases	 	 	122	 
	 	 	10.17.	 	Restrictions on Excluded Subsidiaries	 	 	126	 
	 
	 	 	 	 	 	 	 	 	 	 
	11.	 	FINANCIAL COVENANTS	 	 	126	 
	 	 	11.1.	 	Total Leverage Ratio	 	 	126	 
	 	 	11.2.	 	Fixed Charge Coverage Ratio	 	 	127	 
	 	 	11.3.	 	Minimum Liquidity	 	 	127	 
	 	 	11.4.	 	Minimum Consolidated EBITDA	 	 	127	 
	 
	 	 	 	 	 	 	 	 	 	 
	12.	 	CLOSING CONDITIONS	 	 	127	 
	 	 	12.1.	 	Loan Documents	 	 	127	 
	 	 	12.2.	 	Certified Copies of Governing Documents	 	 	128	 
	 	 	12.3.	 	Corporate or Other Action	 	 	128	 
	 	 	12.4.	 	Officer’s Certificates	 	 	128	 
	 	 	12.5.	 	Validity of Liens	 	 	128	 
	 	 	12.6.	 	Perfection Certificates and UCC Search Results	 	 	128	 






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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	12.7.	 	Date Down Endorsements to Title Insurance	 	 	129	 
	 	 	12.8.	 	Financial Statements	 	 	129	 
	 	 	12.9.	 	FCC Licenses; Third Party Consents	 	 	129	 
	 	 	12.10.	 	Certificates of Insurance	 	 	129	 
	 	 	12.11.	 	Opinions of Counsel	 	 	130	 
	 	 	12.12.	 	Compliance Certificate	 	 	130	 
	 	 	12.13.	 	[Intentionally Omitted]	 	 	130	 
	 	 	12.14.	 	Financial Condition	 	 	130	 
	 	 	12.15.	 	Payment of Fees; Administrative Agent Fee Letter	 	 	130	 
	 	 	12.16.	 	Disbursement Instructions	 	 	130	 
	 	 	12.17.	 	Sources and Uses of Cash	 	 	130	 
	 	 	12.18.	 	Accountant’s Letter	 	 	131	 
	 
	 	 	 	 	 	 	 	 	 	 
	13.	 	CONDITIONS TO ALL BORROWINGS	 	 	131	 
	 	 	13.1.	 	Representations True; No Event of Default	 	 	131	 
	 	 	13.2.	 	No Legal Impediment	 	 	131	 
	 	 	13.3.	 	Proceedings and Documents	 	 	131	 
	 	 	13.4.	 	Liquidity/Leverage Compliance	 	 	132	 
	 
	 	 	 	 	 	 	 	 	 	 
	14.	 	EVENTS OF DEFAULT; ACCELERATION; ETC.	 	 	132	 
	 	 	14.1.	 	Events of Default and Acceleration	 	 	132	 
	 	 	14.2.	 	Termination of Commitments	 	 	138	 
	 	 	14.3.	 	Remedies	 	 	138	 
	 	 	14.4.	 	Distribution of Collateral Proceeds	 	 	139	 
	 
	 	 	 	 	 	 	 	 	 	 
	15.	 	ADDITIONAL FINANCING	 	 	139	 
	 	 	15.1.	 	Commitment Amount	 	 	139	 
	 	 	15.2.	 	Evidence of Debt	 	 	141	 
	 	 	15.3.	 	Availability	 	 	142	 
	 
	 	 	 	 	 	 	 	 	 	 
	16.	 	THE ADMINISTRATIVE AGENT	 	 	142	 
	 	 	16.1.	 	Appointment and Authority	 	 	142	 
	 	 	16.2.	 	Rights as a Lender	 	 	142	 
	 	 	16.3.	 	Exculpatory Provisions	 	 	142	 






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	 	 	16.4.	 	Reliance by Administrative Agent	 	 	143	 
	 
	 	 	 	16.4.1.	 	General	 	 	143	 
	 
	 	 	 	16.4.2.	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	144	 
	 
	 	 	 	16.4.3.	 	Delegation of Duties	 	 	144	 
	 	 	16.5.	 	Payments	 	 	144	 
	 
	 	 	 	16.5.1.	 	Payments to Administrative Agent	 	 	144	 
	 
	 	 	 	16.5.2.	 	Distribution by Administrative Agent	 	 	144	 
	 
	 	 	 	16.5.3.	 	Delinquent Lenders	 	 	145	 
	 	 	16.6.	 	Reimbursement by Lenders	 	 	145	 
	 	 	16.7.	 	Resignation of Administrative Agent	 	 	146	 
	 	 	16.8.	 	Administrative Agent May File Proofs of Claim	 	 	147	 
	 	 	16.9.	 	No Other Duties, Etc.	 	 	148	 
	 
	 	 	 	 	 	 	 	 	 	 
	17.	 	ASSIGNMENT AND PARTICIPATION	 	 	148	 
	 	 	17.1.	 	Successors and Assigns; Conditions to Assignment	 	 	148	 
	 	 	17.2.	 	Register	 	 	151	 
	 	 	17.3.	 	Participations	 	 	151	 
	 	 	17.4.	 	Miscellaneous Assignment Provisions	 	 	152	 
	 	 	17.5.	 	Electronic Execution of Assignments	 	 	152	 
	 
	 	 	 	 	 	 	 	 	 	 
	18.	 	PROVISIONS OF GENERAL APPLICATIONS	 	 	152	 
	 	 	18.1.	 	Setoff	 	 	152	 
	 	 	18.2.	 	Expenses	 	 	153	 
	 	 	18.3.	 	Indemnification	 	 	154	 
	 	 	18.4.	 	Treatment of Certain Confidential Information	 	 	155	 
	 
	 	 	 	18.4.1.	 	Confidentiality	 	 	155	 
	 
	 	 	 	18.4.2.	 	Prior Notification	 	 	156	 
	 
	 	 	 	18.4.3.	 	Other	 	 	156	 
	 	 	18.5.	 	Survival of Covenants, Etc	 	 	156	 
	 	 	18.6.	 	Notices	 	 	157	 
	 	 	18.7.	 	Electronic Communications	 	 	158	 
	 	 	18.8.	 	Governing Law	 	 	159	 






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	 	 	18.9.	 	Headings	 	 	160	 
	 	 	18.10.	 	Counterparts	 	 	160	 
	 	 	18.11.	 	Entire Agreement, Etc.	 	 	160	 
	 	 	18.12.	 	WAIVER OF JURY TRIAL	 	 	160	 
	 	 	18.13.	 	Consents, Amendments, Waivers, Etc.	 	 	161	 
	 	 	18.14.	 	Severability	 	 	164	 
	 	 	18.15.	 	USA PATRIOT Act Notice	 	 	164	 
	 	 	18.16.	 	No Advisory or Fiduciary Responsibility	 	 	164	 
	 
	 	 	 	 	 	 	 	 	 	 
	19.	 	FCC APPROVAL	 	 	165	 
	 
	 	 	 	 	 	 	 	 	 	 
	20.	 	TRANSITION ARRANGEMENTS	 	 	165	 







ix









 








Exhibits




	 	 	 
	Exhibit A
	 	Form of Revolving Credit Note
	Exhibit B
	 	Form of Loan Request
	Exhibit C
	 	Form of Tranche B Term Note
	Exhibit D
	 	Projections
	Exhibit E
	 	Form of Compliance Certificate
	Exhibit F
	 	Form of Officer’s Certificate
	Exhibit G
	 	Form of Instrument of Accession
	Exhibit H
	 	Form of Assignment and Acceptance
	Exhibit I
	 	Form of U.S. Tax Compliance Certificate
	Exhibit J
	 	Dutch Auction Purchase Notice
	Exhibit K
	 	Dutch Auction Return Bid






Schedules




	 	 	 
	Schedule 1
	 	Lenders and Commitments
	Schedule 7.4
	 	Real Property Owned by the Borrower and its Subsidiaries
	Schedule 8.3(a)
	 	Title to Properties
	Schedule 8.3(b)
	 	Stations
	Schedule 8.5
	 	Restricted Payments
	Schedule 8.7
	 	Litigation
	Schedule 8.10
	 	Tax Status
	Schedule 8.18
	 	Environmental Compliance
	Schedule 8.19
	 	Subsidiaries Etc
	Schedule 8.21
	 	FCC Licenses
	Schedule 10.1
	 	Existing Indebtedness
	Schedule 10.2
	 	Existing Liens
	Schedule 10.3
	 	Existing Investments







 













 





AMENDED AND RESTATED

REVOLVING CREDIT AND TERM LOAN AGREEMENT




     This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “Credit
Agreement”) is made as of November 2, 2006 by and among (a) EMMIS OPERATING COMPANY (the
“Borrower”), an Indiana corporation having its principal place of business at One Emmis
Plaza, 40 Monument Circle, Suite 700, Indianapolis, Indiana 46204, (b) EMMIS COMMUNICATIONS
CORPORATION (the “Parent”), an Indiana corporation having its principal place of business
at One Emmis Plaza, 40 Monument Circle, Suite 700, Indianapolis, Indiana 46204, (c) the lending
institutions listed on Schedule 1 (together with any institution that becomes a
lender pursuant to §15 or §17, the “Lenders”), (d) BANK OF AMERICA, N.A. as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”), (e) DEUTSCHE BANK TRUST COMPANY
AMERICAS, as syndication agent for the Lenders (in such capacity, the “Syndication Agent”), and (f)
GENERAL ELECTRIC CAPITAL CORPORATION, COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
“RABOBANK NEDERLAND”, NEW YORK BRANCH and SUNTRUST BANK, as co-documentation agents for the Lenders
(in such capacity, each a “Co-Documentation Agent” and collectively, the “Co-Documentation
Agents”).



1. DEFINITIONS AND RULES OF INTERPRETATION.




     1.1. Definitions. The following terms shall have the meanings set forth in this §1.1
or elsewhere in the provisions of this Credit Agreement referred to below:



     2006 Dividend. The special cash dividend payable to the holders of Common Stock
authorized by the Parent on or about the Funding Date in an approximate aggregate amount of
$150,000,000 and anticipated to be paid by the end of November 2006.



     Acceptable Price. See §10.16.(c).



     Administrative Agent. Bank of America, N.A., acting as administrative agent for the
Lenders, or any other Person which has been appointed as the successor Administrative Agent in
accordance with §16.8.



     Administrative Agent Fee Letter. That certain amended and restated fee letter dated
of even date herewith between the Borrower and the Administrative Agent which supercedes that
certain fee letter, dated October 10, 2006, by and among the Borrower, the Administrative Agent and
Banc of America Securities LLC.



     Administrative Agent’s Fee. See §6.2.



     Administrative Agent’s Office. The Administrative Agent’s head office located at 901
Main Street, 14th Floor, Dallas, Texas 75202-3714, or at such other location as the
Administrative Agent may designate from time to time.



 









 





2




     Administrative Agent’s Special Counsel. Winstead PC or such other counsel as may be
approved by the Administrative Agent.



     Affiliate. With respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with
the Person specified. “Control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto. Without limiting the generality of the foregoing, a Person (for
purposes of this sentence, the “specified person”) shall be deemed to be Controlled by another
Person if such other Person possesses, directly or indirectly, power to vote ten percent (10%) or
more of the securities having ordinary voting power for the election of directors, managing general
partners or the equivalent of the specified person.



     Agents. Collectively, the Administrative Agent, the Syndication Agent and the
Co-Documentation Agents.



     Applicable Discount. See §10.16.(c).



     Applicable Margin. For each Base Rate Loan, a per annum rate equal to 3.00%, and for
each Eurodollar Rate Loan, a per annum rate equal to 4.00%. The foregoing shall in no way limit
the rights of the Administrative Agent or the Lenders to exercise their rights to impose interest
at the default rate as provided herein.



     Applicable Pension Legislation. At any time, any pension or retirement benefits
legislation (be it national, federal, provincial, territorial or otherwise) then applicable to the
Borrower or any of its Subsidiaries.



     Approved Bridge to Sale Transfer. A Bridge to Sale Transfer approved in writing by
the Administrative Agent in its sole discretion and subject to the terms and conditions of this
Credit Agreement.



     Approved Fund. 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.



     Asset Sale. Any one or a series of related transactions (other than an Asset Swap)
pursuant to which any of the Parent, the Borrower, any Subsidiary, the Austin Partnership or RAM,
conveys, sells, leases, licenses or otherwise transfers or disposes of, directly or indirectly
(including by means of a simultaneous exchange of Stations and any Bridge to Sale Transfer), any of
its properties, businesses or assets (other than to the Borrower or any wholly-owned Subsidiary of
the Borrower) (including the sale of the interest held by the Borrower or any of its Subsidiaries
in the Austin Partnership or in RAM and the sale or issuance of Capital Stock of any Subsidiary
other than to the Borrower or any wholly-owned Subsidiary of the Borrower) whether owned on the
date hereof or thereafter acquired.



 









 




3




     Asset Swap. Any transfer of assets of any of the Borrower, any Subsidiary, the Austin
Partnership or RAM to any Person other than the Parent, the Borrower or a wholly-owned Subsidiary
of the Parent or the Borrower in exchange for assets of such Person if such exchange would qualify,
whether in part or in full, as a like-kind exchange pursuant to §1031 of the Code. Nothing in this
definition shall require the Parent, the Borrower, any Subsidiary, the Austin Partnership or RAM to
elect that §1031 of the Code be applicable to any Asset Swap.



     Assignee Group. Two or more Eligible Assignees that are Affiliates of one another or
two or more Approved Funds managed by the same investment advisor.



     Assignment and Acceptance. See §17.1(b).



     Attributable Indebtedness. On any date, (a) in respect of any Capitalized Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any monetary obligation under
any Synthetic Lease, the capitalized amount of the remaining lease or similar payments under the
relevant lease or other applicable agreement or instrument that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.



     Austin Investment. The acquisition by the Borrower pursuant to the terms of the
Sinclair Definitive Agreement of a 50.1% combined economic and controlling interest in the Austin
Partnership and RAM, the sole general partner of the Austin Partnership.



     Austin Partnership. That certain Emmis Austin Radio Broadcasting Company, L.P.
(formerly known as LBJS Broadcasting Company, L.P.), a Texas limited partnership, and of which RAM
is the sole general partner, referred to in the Sinclair Definitive Agreement.



     Balance Sheet Date. February 28, 2006.



     Bank of America. Bank of America, N.A., a national banking association, in its
individual capacity.



     Base Rate. For any day a fluctuating rate per annum equal to the highest of (a) the
sum of 1/2 of 1% plus the Federal Funds Rate for such day, (b) the Prime Rate for such day and (c)
the sum of (i) 1.00% plus (ii) the Eurodollar Rate (for an Interest Period of one month, determined
in accordance with subsection (b) of the definition of Eurodollar Rate).



     Base Rate Loans. All or any portion of the Revolving Credit Loans and Tranche B Term
Loan bearing interest calculated by reference to the Base Rate.



     Borrower. Emmis Operating Company, an Indiana corporation.



 









 




4




     Borrower Materials. See §9.5.6.



     Bridge to Sale Excluded Subsidiary. A wholly-owned Excluded Subsidiary of the
Borrower or any wholly-owned Subsidiary of the Borrower organized under the laws of any state of
the United States or the District of Columbia and with respect to which the Borrower or such
Subsidiary has granted to the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, a first priority perfected security interest in the Capital Stock of such
Excluded Subsidiary and has taken all other actions relating thereto to the reasonable satisfaction
of the Administrative Agent.



     Bridge to Sale License Subsidiary. A wholly-owned subsidiary of a Bridge to Sale
Excluded Subsidiary organized under the laws of any state of the United States or the District of
Columbia and the sole asset of which subsidiary is the FCC License associated with the Station
owned by such Bridge to Sale Excluded Subsidiary.



     Bridge to Sale Third Party Transaction. The sale of a Station (and the FCC License
associated with such Station) by a Bridge to Sale Excluded Subsidiary and a Bridge to Sale License
Subsidiary, on the one hand, to a non-Affiliate third party, on the other hand.



     Bridge to Sale Transaction Conditions. The satisfaction of the following conditions:




     (i) the sale of the applicable Station (and the FCC License associated with such
Station) is consummated on an arm’s length basis to a non-Affiliate third party for fair
and reasonable consideration; and




     (ii) none of the Parent, the Borrower, any of their Subsidiaries, any Bridge to Sale
Excluded Subsidiary, any Bridge to Sale License Subsidiary or any Affiliate of any of the
foregoing has made at any time during the twelve consecutive month period ending
immediately prior to, or in connection with, the relevant Bridge to Sale Third Party
Transaction, or, after giving effect to the relevant Bridge to Sale Third Party
Transaction, will make, an Investment in such non-Affiliate third party purchaser or an
Affiliate of such third party which in the aggregate with all such Investments is in excess
of 25% of the total consideration received by the Borrower, any Subsidiary of the Borrower,
any Bridge to Sale Excluded Subsidiary, any Bridge to Sale License Subsidiary or Affiliate
of any of the foregoing in connection with such sale of the Station (and the FCC License
associated with such Station), and any such Investment otherwise permitted hereunder shall
be in the form of one or more promissory notes or any Capital Stock of such non-Affiliate
third party purchaser or Affiliate of such third party received by the applicable Bridge to
Sale Excluded Subsidiary and/or Bridge to Sale License Subsidiary as part of the
consideration for the relevant Bridge to Sale Third Party Transaction and subject to the
first priority security interest granted to the Administrative Agent pursuant to
§9.17(b)(i); and



 









 




5





     (iii) at least seventy-five percent (75%) of the consideration received by such Bridge
to Sale Excluded Subsidiary, Bridge to Sale License Subsidiary or any other Affiliate of
the Borrower (as applicable) is in the form of cash and is received upon the consummation
of the sale of such Station (and the FCC License associated with such Station); and




     (iv) the Administrative Agent shall have received or will receive subject to the
applicable grace periods permitted hereunder the collateral documents identified in
§9.17(b)(i), together with all necessary consents relating thereto, all in form, scope and
substance satisfactory to the Administrative Agent; and




     (v) such sale is consummated in accordance with the Bridge to Sale Transaction
Documents.



     Bridge to Sale Transaction Documents. Collectively, (i) an asset sale agreement,
put-call agreement or such other agreement (whether written or otherwise) pursuant to which, among
other things, a Bridge to Sale Excluded Subsidiary and a Bridge to Sale License Subsidiary agrees
to sell, transfer or otherwise dispose of the Station (and the FCC License associated with such
Station) owned by such Person to a non-Affiliate third party and/or (ii) any LMA Agreement relating
to such Station (including the FCC License associated with such Station), all in form, scope and
substance satisfactory to the Administrative Agent.



     Bridge to Sale Transfer. The transfer by the Borrower or any of its Subsidiaries of a
Station and the FCC License associated with such Station to one or more Excluded Subsidiaries,
whether or not such transfer occurs prior to the effective date of the First Amendment.



     Business Day. Any day on which banking institutions in Dallas, Texas and New York,
New York, are open for the transaction of banking business and, in the case of Eurodollar Rate
Loans, also a day which is a Eurodollar Business Day.



     Capital Assets. Fixed assets, both tangible (such as land, buildings, fixtures,
machinery and equipment) and intangible (such as patents, copyrights, trademarks, franchises and
good will) to the extent such intangible assets have not been acquired in connection with a
Permitted Acquisition; provided that Capital Assets shall not include any item customarily
charged directly to expense or depreciated over a useful life of twelve (12) months or less in
accordance with GAAP.



     Capital Expenditures. Amounts paid or Indebtedness incurred by the Borrower or any of
its Subsidiaries in connection with (i) the purchase or lease by the Borrower or any of its
Subsidiaries of Capital Assets that would be required to be capitalized and shown on the balance
sheet of such Person in accordance with GAAP or (ii) the lease of any assets by the Borrower or any
of its Subsidiaries as lessee under any Synthetic Lease to the extent that such assets would have
been Capital Assets had the Synthetic Lease been treated for accounting purposes as a Capitalized
Lease.



 









 




6




     Capital Stock. Any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership or equity
interests in a Person (other than a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.



     Capitalized Leases. Leases under which the Borrower or any of its Subsidiaries is the
lessee or obligor, the discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with GAAP.



     CERCLA. See §8.18(a).



     Change of Control. An event or series of events as a consequence of which (a) any
“person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)), excluding any Permitted Holder, shall become, or
obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial
owner” (as defined in Rule 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
35% or more of the Capital Stock of the Parent unless the Permitted Holders own Capital Stock
having a greater percentage of the general voting power of the outstanding voting Capital Stock
than that held by such person or group, (b) the board of directors of the Parent or the Borrower
shall cease to consist of a majority of Continuing Directors; (c) the Borrower shall at any time
(i) cease to own Capital Stock of any Subsidiary representing the same percentage of outstanding
Capital Stock of such Subsidiary as held by the Borrower on the date hereof or as of any later date
on which any new Subsidiary is created or acquired, unless the diminution of such percentage is
attributable to a disposition of Capital Stock which was permitted hereunder or (ii) cease to own
Capital Stock of any Subsidiary which enables it at all times to elect a majority of the board of
directors of such Subsidiary unless the disposition of such Capital Stock was permitted hereunder;
or (d) the Parent shall cease to directly own one hundred percent (100%) of the issued and
outstanding Capital Stock of the Borrower.



     Code. The Internal Revenue Code of 1986.



     Co-Documentation Agents. As defined in the preamble hereto.



     Collateral. All of the property, rights and interests (other than Excluded Assets) of
the Parent, the Borrower and its Subsidiaries that are or are intended to be subject to the Liens
created by the Security Documents.



     Collateral Assignments of Contracts. Collectively, each collateral assignment of
contracts entered into by the Borrower and/or certain of its Subsidiaries pursuant to §10.5.1.



     Commitment. With respect to each Lender, the amount set forth on Schedule
1 hereto as the amount of such Lender’s commitment to make Loans in respect of a particular
Tranche to, and to participate in the issuance, extension and renewal of Letters



 









 




7



of Credit for the account of, the Borrower, as the same may be reduced or increased from time
to time in accordance with the terms hereof; or if such commitment is terminated pursuant to the
provisions hereof, zero.




     Commitment Fee. See §2.2.



     Commitment Percentage. With respect to each Lender and each Tranche, the respective
percentages set forth on Schedule 1 hereto as such Lender’s percentage of such
Loans in respect of such Tranche made or to be made by such Lender as such percentage may be
adjusted pursuant to §15 or §17.



     Common Stock. The common stock of the Parent, par value $.01 per share.



     Communications Act. The Communications Act of 1934, as amended, and the rules and
regulations of the FCC thereunder as now or hereafter in effect.



     Compliance Certificate. See §9.4(c).



     Consolidated or consolidated. With reference to any term defined herein, shall mean
that term as applied to the accounts of the Borrower and its Subsidiaries, consolidated in
accordance with GAAP.



     Consolidated Current Assets. As of any date, all assets of the Borrower and its
Subsidiaries on a consolidated basis that, in accordance with GAAP, are properly classified as
current assets as of such date, but excluding cash or cash equivalents.



     Consolidated Current Liabilities. As of any date, all liabilities and other
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis as may be properly
classified as current liabilities in accordance with GAAP.



     Consolidated EBITDA. At any date of determination, an amount equal to Consolidated
Net Income of the Borrower and its Subsidiaries on a consolidated basis for the most recently
completed Measurement Period:



     Plus



     (a) the sum of the following (but in each case only to the extent deducted in calculating such
Consolidated Net Income), without duplication:




     (i) Consolidated Interest Charges for such period,




     (ii) the provision for Federal, state, local and foreign income taxes payable for such
Measurement Period,




     (iii) depreciation and amortization expense (including amortization of deferred debt
issuance costs) for such Measurement Period,




     (iv) other expenses reducing such Consolidated Net Income which do not represent a
cash item in such period or any future period (in each case of or by the Borrower and its
Subsidiaries for such Measurement Period),



 









 




8





     (v) cash severance expenses and personnel and service contract (including, without
limitation, leases) termination expenses incurred on or before the Second Amendment
Effective Date, provided that the aggregate amount of all such expenses added to
Consolidated EBITDA for all periods on or before the Second Amendment Effective Date may
not exceed $10,000,000 in the aggregate,




     (vi) cash severance expenses and personnel and service contract (including, without
limitation, leases) termination expenses incurred after the Second Amendment Effective
Date, provided that the aggregate amount of all such expenses added to Consolidated EBITDA
for all periods after the Second Amendment Effective Date may not exceed $5,000,000 in the
aggregate,




     (vii) (A) fees and expenses incurred in connection with the Second Amendment and paid
in cash in the second and third fiscal quarter of fiscal 2010, including fees and expenses
of advisors and legal counsel, and the costs incurred in connection with the requirements
under the Loan Documents with respect to the Collateral and (B) fees and expenses,
including fees and expenses of legal counsel incurred and paid in cash in connection with
the compliance by the Borrower and its Subsidiaries with any request by the Administrative
Agent under the Loan Documents with respect to the Collateral (including, without
limitation, requests under §§7.4, 9.13 and 9.15),




     (viii) transaction costs required to be expensed in connection with Permitted
Acquisitions for Measurement Periods commencing after the Revert Date, and




     (ix) losses actually incurred during any Measurement Period occurring after the Revert
Date by the Borrower and its Subsidiaries in connection with Development Properties
(subsequent to the date such Station or Magazine was designated a Development Property) in
an aggregate amount not to exceed $5,000,000 in any Measurement Period,


provided that, notwithstanding the foregoing, in no event shall any gain realized
by the Borrower or any Subsidiary as a result of the purchase, forgiveness or other cancellation of
Indebtedness of the Borrower or any Subsidiary for less than the face value of such Indebtedness be
included in Consolidated EBITDA;




     Plus



     (b) the Borrower’s and any Subsidiary’s equity in the EBITDA of any Person if such Person is
not a Subsidiary for such Measurement Period up to the aggregate amount of cash actually
distributed by such Person during such Measurement Period to the Borrower or a Subsidiary as a
dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary
(other than a Guarantor), such Subsidiary is not precluded from further distributing such amount to
the Borrower by operation of the terms of its Governing Documents or any agreement, instrument or
law applicable to such Subsidiary during such Measurement Period), provided that, notwithstanding
the foregoing, with respect to the Austin Partnership only, Consolidated EBITDA shall include the
Borrower’s equity in accumulated EBITDA of the Austin Partnership for prior periods that was not
previously distributed, but only to the extent of the cash actually



 









 




9



distributed by such Person during such Measurement Period to the Borrower or a
Subsidiary as a dividend or other distribution,




     Minus



     (c) the sum of the following (but in each case only to the extent included in calculating such
Consolidated Net Income), without duplication:




     (i) any benefit for Federal, state, local and foreign income taxes payable,




     (ii) to the extent paid or funded by the Borrower either directly or through
Distributions or Investments, HoldCo Corporate Overhead Expenses,




     (iii) expenses for officers’ and other employees’ or consultants’ fees, salaries and
bonuses (other than (i) bonuses paid by the Parent prior to the date of the First Amendment
and (ii) bonuses paid by the Parent from the TV Asset Sale Proceeds on or after the date of
the First Amendment but prior to the occurrence of the Initial Parent Tranche B Purchase)
paid by Parent for or in connection with services rendered in connection with the
operations of the Borrower and its Subsidiaries, which for clarity shall not include
officers’ and other employees’ fees, salaries and bonuses incurred by Parent which are
attributable directly to an Excluded Subsidiary,




     (iv) cash payments made with respect to non-cash charges added back in prior periods
and otherwise excluded, and




     (v) all non-cash items increasing Consolidated Net Income (in each case of or by the
Borrower and its Subsidiaries for such Measurement Period);


For purposes of calculating Consolidated EBITDA for any period (other than for purposes of
calculating Consolidated Excess Cash Flow), any Permitted Acquisition, Asset Sale or Asset Swap of
the Borrower or any of its Subsidiaries which occurred during such period shall be deemed to have
occurred on the first date of such period and the calculation of Consolidated EBITDA shall be
adjusted on a Pro Forma Basis in connection therewith.




     Consolidated Excess Cash Flow. For any fiscal year ending after the Revert Date, the
difference (if any) between:



     (a) the sum of




     (i) Consolidated EBITDA for such fiscal year, plus




     (ii) the change in Consolidated Working Capital between the first day of such fiscal
year and the last day of such fiscal year, if negative, plus




     (iii) the sum of amounts received by the Borrower and its Subsidiaries from Excluded
Subsidiaries (including, without limitation, Bridge to Sale Excluded Subsidiaries) and
other Investments for such fiscal year, but only to the extent such amounts (A) are not
included in Consolidated EBITDA for such fiscal year or (B) have not been used to prepay
the Obligations hereunder pursuant to a mandatory prepayment required by §4, plus



 









 





10





     (iv) all payments received by the Borrower and its Subsidiaries related to LMA
Agreements, except to the extent any such payments have been included in Consolidated
EBITDA for the same fiscal year.



     (b) minus the sum of (for such fiscal year) (without duplication herein):




     (i) Consolidated Interest Charges actually paid in cash by the Borrower and its
Subsidiaries for such fiscal year,




     (ii) scheduled, mandatory and voluntary principal repayments (other than refinancings
of Indebtedness referenced in (C) below), to the extent actually made, of (A) Revolving
Credit Loans but only to the extent the Revolving Credit Commitment was simultaneously and
permanently reduced by a like amount (not including any reduction of the Revolving Credit
Commitment on the Second Amendment Effective Date), (B) Tranche B Term Loans, in each case
during such fiscal year, and (C) Indebtedness permitted to be incurred under §10.1(f),




     (iii) all taxes actually paid in cash by the Borrower and its Subsidiaries for such
fiscal year or Distributions made for the purpose of payment by the Parent of taxes (except
to the extent financed by the issuance of equity or the incurrence of Indebtedness),




     (iv) the change in Consolidated Working Capital between the first day of such fiscal
year and the last day of such fiscal year, if positive,




     (v) all amounts included in Consolidated EBITDA related to Excluded Subsidiaries,
Investments and LMA Agreements,




     (vi) cash amounts paid in connection with Investments permitted pursuant to §10.3
during such period (in each case to the extent not financed by the issuance of equity or
the incurrence of Indebtedness),




     (vii) Capital Expenditures actually paid by the Borrower and its Subsidiaries during
such fiscal year (other than Capital Expenditures financed by the issuance of equity or the
incurrence of Indebtedness other than Revolving Credit Loans),




     (viii) (A) up to $1,300,000 of cash severance expenses and personnel and service
contract (including, without limitation, leases) termination expenses for the Fiscal
Quarter Period constituting the second fiscal quarter of fiscal 2010 of the Borrower, and
(B) cash severance expenses and personnel and service contract (including, without
limitation, leases) termination expenses for such fiscal year, provided that, such
severance expenses and personnel and service contract termination expenses incurred under
this subsection (B), may only be deducted to the extent that the sum of such amount, when
added together with all other amounts deducted under this subsection (viii)(B) for all
other fiscal years occurring after the Second Amendment Effective Date, does not exceed
$5,000,000,



 









 





11





     (ix) fees and expenses (including fees and expenses of advisors) incurred in
connection with the Second Amendment and paid in cash during the second or third fiscal
quarter of fiscal 2010,




     (x) fees and expenses (including the fees and expenses of legal counsel) incurred and
paid in cash (A) during the second or third fiscal quarter of fiscal 2010 in connection
with the requirements under the Loan Documents with respect to the Collateral and (B) from
time to time in connection with the compliance by the Borrower and its Subsidiaries with
the requests of the Administrative Agent under the Loan Documents with respect to the
Collateral, including, without limitation, requests under §§7.4, 9.13 and 9.15,




     (xi) the amount of (A) Net Cash Sale Proceeds of Asset Sales and Asset Swaps, (B) Net
Cash Equity Issuance Proceeds of Equity Issuances, (C) Net Cash Debt Issuance Proceeds of
all issuances of Indebtedness, and (D) Extraordinary Receipts, in each case only to the
extent such proceeds are (I) held by the Administrative Agent as collateral in accordance
with the terms of §4.7, (II) subject to the prepayment provisions of any one of §4.2, §4.3,
§4.4, or §4.5, and (III) otherwise included in the definition of Consolidated Excess Cash
Flow,




     (xii) the amount of Extraordinary Receipts, but only to the extent such Extraordinary
Receipts are (A) subject to the prepayment provisions of §4.5, (B) not included in
subsection (xi) above and (C) included in the calculation of Consolidated EBITDA,




     (xiii) the amount of Consolidated Excess Cash Flow included in any calculation of
Suspension Period Excess Cash for a Fiscal Quarter Period during such fiscal year prior to
the Revert Date and that was subject to a mandatory prepayment under §4.1, and




     (xiv) $5,000,000.



     Consolidated Interest Charges. For any Measurement Period, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses in connection with
borrowed money (including capitalized interest) or in connection with the deferred purchase price
of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest
paid or payable with respect to discontinued operations and (c) the portion of rent expense under
Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by the
Borrower and its Subsidiaries on a consolidated basis for the applicable Measurement Period
provided that, Consolidated Interest Charges shall not include amortization of debt discount or
issuance fees. For purposes of calculating Consolidated Interest Charges for any period, any
Permitted Acquisition, Asset Sale or Asset Swap of the Borrower or any of its Subsidiaries which
occurred during such period shall be deemed to have occurred on the first date of such period and
the calculation of Consolidated Interest Charges shall be adjusted on a Pro Forma Basis in
connection therewith.



 









 





12




     Consolidated Net Income. At any date of determination, the net income (or loss) of
the Borrower and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period; provided that



     (a) To the extent included in the calculation of the net income (or loss) of the Borrower and
its Subsidiaries on a consolidated basis, Consolidated Net Income shall exclude:




     (i) extraordinary and/or nonrecurring gains and losses for such Measurement Period
including, without limitation, any (A) gains (or losses) from any Asset Sale or (B) change
in fair value of any Interest Rate Agreement that fails to qualify as cash flow hedges in
accordance with GAAP,




     (ii) the net income of any Subsidiary (other than a Guarantor) during such Measurement
Period to the extent that the declaration or payment of dividends or similar distributions
by such Subsidiary of such income is not permitted by operation of the terms of its
Governing Documents or any agreement, instrument or law applicable to such Subsidiary
during such Measurement Period, except that the Borrower’s and any Subsidiary’s equity in
any net loss of any such Subsidiary for such Measurement Period shall be included in
determining Consolidated Net Income,




     (iii) non-cash dividends or non-cash distributions received from Investments,




     (iv) any income (or loss) for such Measurement Period of any Person if such Person is
not a Subsidiary,




     (v) income and expenses arising from or in connection with Trades and other non-cash
credits to Consolidated Net Income other than income attributable to cash payments received
in a prior period to the extent that such cash payments were not previously included in the
calculation of Consolidated Net Income in a prior period, and




     (vi) cash dividends or cash distributions received from Excluded Subsidiaries; and



     (b) interest income included in the calculation of Consolidated Net Income shall not exceed
$2,000,000 in the aggregate during any Measurement Period; and



     (c) the $14,000,000 prepayment under the LMA Agreement, dated as of April 3, 2009, among KMVN,
LLC, KMVN License, LLC, Grupo Radio Centro LA, LLC and Grupo Radio Centro S.A.B. de C.V., received
in April 2009 shall not be included in Consolidated Net Income for any period.



     Consolidated Total Funded Debt. As of any date of determination, for the Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under letters
of credit (including standby and



 









 





13



commercial), bankers’ acceptances, bank guaranties, surety bonds
and similar instruments, (d) all obligations in respect of the deferred purchase price of property
or services (other than trade accounts payable in the ordinary course of business), (e) all
Attributable Indebtedness, (f) without duplication, all Guarantees with respect to
outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons
other than the Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in
clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that
is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a
general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary.




     Consolidated Working Capital. The excess of Consolidated Current Assets over
Consolidated Current Liabilities, provided that, notwithstanding the foregoing, (a) changes in
accrued interest, (b) non-cash changes in tax receivables and payables, and (c) any other asset or
liability resulting from a non-cash gain or loss to the extent such non-cash gain or loss was
excluded from either Consolidated EBITDA or Consolidated Net Income, shall be excluded from the
calculation of Consolidated Working Capital.



     Continuing Directors. The directors of the Parent and the Borrower on the Funding
Date, and each other director of the Parent or the Borrower, if (a) in case of the Parent, such
other director’s nomination for election to the board of directors of the Parent is recommended by
at least 662/3% of the then Continuing Directors of the Parent in
his or her election by the shareholders of the Parent, and (b) in the case of the Borrower, such
other director’s nomination for election to the board of directors of the Borrower is recommended
by either 662/3% of the then Continuing Directors of the Borrower
or by the majority of the shareholders in his or her election by the shareholders of the Borrower.



     Conversion Request. A notice given by the Borrower to the Administrative Agent of the
Borrower’s election to convert or continue a Loan in accordance with §2.7 or §3.5.2.



     Copyright Mortgage. The Memorandum of Grant of Security Interest in Copyrights, dated
as of May 10, 2004, made by the Borrower and each of the Subsidiaries in favor of the
Administrative Agent, for the benefit of the Lenders and the Administrative Agent, in form and
substance satisfactory to the Administrative Agent.



     Credit Agreement. This Amended and Restated Revolving Credit and Term Loan Agreement,
including the Schedules and Exhibits hereto.



     Credit Extension. Any or each of the following: (a) the borrowing of a Loan and (b)
the issuance of a Letter of Credit.



     Current Note. See §15.2.



     Default. See §14.1.



     Delinquent Lender. See §16.5.3.



 









 





14




     Development Property. Any Station or Magazine (other than a Station or Magazine
located in the United States and owned by an Excluded Subsidiary) which the Borrower designates as
a Development Property in a written notice delivered to the
Administrative Agent and which either (a) is making or has made within the six (6) months
preceding such designation substantial changes in its format or (b) has been acquired within the
twelve (12) months preceding such designation; provided, that a Station or Magazine
which has been designated a Development Property shall remain a Development Property until the
earlier to occur of (i) the date the Borrower notifies the Administrative Agent in writing that
such Station or Magazine is no longer a Development Property, (ii) other than in respect of WRXP-FM
and WFNI- AM, the date which is twelve (12) consecutive months following the date of designation,
and (iii) solely with respect to WRXP-FM and WFNI-AM, February 28, 2010; and provided
further that no Station or Magazine may be re-designated as a Development Property unless
twelve (12) consecutive months have passed since such Station or Magazine ceased to be a
Development Property



     Distribution. The declaration or payment of any dividend on or in respect of any
shares of any class of Capital Stock of the Borrower or any of its Subsidiaries, other than
dividends payable solely in shares of common stock of the Borrower; the purchase, redemption,
defeasance, retirement or other acquisition of any shares of any class of Capital Stock of the
Borrower or any of its Subsidiaries, directly or indirectly through a Subsidiary or otherwise
(including the setting apart of assets for a sinking or other analogous fund to be used for such
purpose); the return of capital by the Borrower or its Subsidiaries to its shareholders as such; or
any other distribution on or in respect of any shares of any class of Capital Stock of the Borrower
or its Subsidiaries.



     Dollars or $. Dollars in lawful currency of the United States of America.



     Domestic Lending Office. Initially, the office of each Lender designated as such in
Schedule 1 hereto; thereafter, such other office of such Lender, if any, located
within the United States that will be making or maintaining Base Rate Loans.



     Drawdown Date. The date on which any Revolving Credit Loan or any Term Loan is made
or is to be made.



     Dutch Auction. One or more purchases by the Parent of a portion of the Tranche B Term
Loan; provided that each such purchase is made in accordance with the terms of §10.16.(c).



     EBITDA. At any date of determination, an amount equal to net income of any Excluded
Subsidiary or other Person that is not a Subsidiary determined in accordance with GAAP for the most
recently completed Measurement Period:



     (a) Plus the sum of the following (but in each case only to the extent deducted in calculating
such net income), without duplication:




     (i) interest charges for such period determined in accordance with GAAP,



 









 





15





     (ii) the provision for Federal, state, local and foreign income taxes payable for such
Measurement Period,




     (iii) depreciation and amortization expense (including amortization of deferred debt
issuance costs) for such Measurement Period,




     (iv) other expenses reducing such net income which do not represent a cash item in
such period or any future period (in each case of or by such Person for such Measurement
Period) for such Measurement Period,


provided that, notwithstanding the foregoing, in no event shall any gain realized
by such Person as a result of the purchase, forgiveness or other cancellation of Indebtedness of
such Person for less than the face value of such Indebtedness be included in EBITDA;




     (b) Minus the sum of the following (but in each case only to the extent included in
calculating such net income), without duplication:




     (i) any benefit for Federal, state, local and foreign income taxes payable,




     (ii) cash payments made with respect to non-cash charges added back in prior periods
and otherwise excluded, and




     (iii) all non-cash items increasing net income (in each case of or by such Person for
such Measurement Period).



     Eligible Assignee. Means (a) any Lender; provided that, assignments involving
all or any portion of a Revolving Credit Commitment and/or Revolving Credit Loans to a Tranche B
Lender that is not also a Revolving Credit Lender shall be subject to the approvals specified in
clause (d) below; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person
(other than a natural person, the Borrower, any Affiliate of the Borrower or any Subsidiaries of
the Borrower) 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).



     Employee Benefit Plan. Any employee benefit plan within the meaning of §3(3) of ERISA
maintained or contributed to by the Borrower or any ERISA Affiliate, other than a Guaranteed
Pension Plan or a Multiemployer Plan.



     Environmental Laws. See §8.18(a).



     EPA. See §8.18(b).



     Equity Issuance. The sale or issuance (whether by public or private offering) by the
Parent, the Borrower or any Subsidiary of any of its Capital Stock or any Equity-Like Instrument,
other than sales or issuances to the Parent, the Borrower or any Subsidiary.



     Equity-Like Instrument. Any instrument that is equity-like in nature (including
without limitation, preferred stock and any instrument issued pursuant to the conversion of
convertible Indebtedness into Capital Stock), whether or not such instrument is considered Capital
Stock, which evidences a residual interest in the issuer or its assets



 









 





16



after the payment of all
indebtedness and other liabilities paid prior to equity in accordance with GAAP, and has no put or
similar provisions (except for put or similar
provisions applicable in the event of an asset sale or change of control), no fixed maturity
date and no mandatory redemption date, unless such maturity date or such mandatory redemption date
is more than six (6) months after the Final Maturity Date. For the avoidance of doubt, nothing
contained herein permitting the existence in any Equity-Like Instrument of put or similar
provisions applicable in the event of an asset sale or change of control shall be deemed a consent
to the making of any payment resulting from the exercise of such provisions.




     ERISA. The Employee Retirement Income Security Act of 1974.



     ERISA Affiliate. Any Person which is treated as a single employer with the Borrower
under §414 of the Code.



     ERISA Reportable Event. A reportable event with respect to a Guaranteed Pension Plan
within the meaning of §4043 of ERISA and the regulations promulgated thereunder.



     Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate Loan, the
maximum rate (expressed as a decimal) at which any bank subject thereto would be required to
maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or
any successor or similar regulations relating to such reserve requirements) against
“Eurocurrency Liabilities” (as that term is used in Regulation D), if such
liabilities were outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in the Eurocurrency Reserve Rate.



     Eurodollar Business Day. Any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.



     Eurodollar Lending Office. Initially, the office of each Lender designated as such in
Schedule 1 hereto; thereafter, such other office of such Lender, if any, that shall
be making or maintaining Eurodollar Rate Loans.



     Eurodollar Rate.



     (a) For any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal
to (i) the British Bankers Association LIBOR Rate as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the Administrative Agent from
time to time) (“BBA LIBOR”), at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period or (ii) if such published rate
is not available at such time for any reason, the rate determined by the Administrative Agent to be
the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Rate Loan being



 









 





17



made, continued or converted
by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in
the London interbank Eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period; provided
that, for an Interest Period of less than three months, if the Eurodollar Rate would, but
for the application of this proviso, be less than the Eurodollar Rate for an Interest Period of
three months, the Eurodollar Rate shall be the Eurodollar Rate for an Interest Period of three
months.




     (b) For any interest rate calculation with respect to a Base Rate Loan, the rate per annum
equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time on the date of determination
(provided that if such day is not a London Business Day, the next preceding London Business Day)
for Dollar deposits being delivered in the London interbank market for a term of one month
commencing that day or (ii) if such published rate is not available at such time for any reason,
the rate determined by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the date of determination in same day funds in the approximate amount of the Base Rate
Loan being made, continued or converted by Bank of America and with a term equal to one month would
be offered by Bank of America’s London Branch to major banks in the London interbank Eurodollar
market at their request at the date and time of determination.



     Eurodollar Rate Loans. Revolving Credit Loans and all or any portion of the Tranche B
Term Loan bearing interest calculated by reference to the Eurodollar Rate.



     Event of Default. See §14.1.



     Excluded Assets. (a) Real Estate other than owned Real Estate and (b) property
subject to Capitalized Leases and purchase money liens permitted hereunder if such Capitalized
Lease or purchase money agreement prohibits assignment or liens in favor of the Administrative
Agent and the Lenders to secure the Obligations on the assets subject thereto (but solely to the
extent that any such restriction shall be enforceable under applicable law) without the consent of
the lessor thereof or other applicable party thereto.



     Excluded Subsidiaries. Collectively, (a) Emmis Ventures, Inc., an Indiana
corporation, but only if Emmis Ventures, Inc. is dissolved prior to October 31, 2009, (b) each
subsidiary of Emmis International Broadcasting Corporation which is not organized under the laws of
the United States or any state or political subdivision of the United States unless included at the
election of the Borrower upon prior written notice to the Administrative Agent, (c) Ciudad, LLC, an
Indiana limited liability company and (d) the Austin Partnership and RAM, in each case, until such
subsidiary becomes wholly-owned by the Borrower and upon prior written notice to the Administrative
Agent. Notwithstanding the foregoing, no Person may be an Excluded Subsidiary hereunder if (i) it
is a “Guarantor” under any indenture or other document or instrument governing Subordinated Debt or
has otherwise guaranteed or given assurances of payment or performance under or in respect of any
Indebtedness (including Subordinated Debt) of



 









 





18



the Parent, the Borrower or any of the Subsidiaries
or (ii) it is a License Subsidiary formed or organized, as applicable, under the laws of the United
States.




     Excluded Taxes. See §6.3.2.



     Existing Credit Agreement. That certain Revolving Credit and Term Loan Agreement,
dated as of May 10, 2004, as amended and in effect on the Funding Date, by and among the Borrower,
the lending institutions party thereto, Bank of America, N.A., as administrative agent, Wachovia
Bank, N.A., Deutsche Bank Securities Inc. and Credit Suisse First Boston, acting through its Cayman
Island Branch, as co-documentation agents, and Goldman Sachs Credit Partners, L.P. as syndication
agent.



     Existing Lenders. Those financial institutions party to the Existing Credit
Agreement.



     Existing Letters of Credit. Those Letters of Credit issued under the Existing Credit
Agreement and outstanding as of the Funding Date.



     Extraordinary Receipt. Any cash received by or paid to or for the account (without
duplication) of the Parent, the Borrower, any Subsidiary, the Austin Partnership or RAM, not in the
ordinary course of business, including tax refunds, pension plan reversions, proceeds of insurance
(including business interruption insurance), condemnation awards (and payments in lieu thereof),
indemnity payments and any purchase price adjustments. Notwithstanding the foregoing, with respect
to Extraordinary Receipts with respect to the assets of the Austin Partnership and RAM,
Extraordinary Receipts shall include only the Borrower’s and its Subsidiaries’ aggregate equity
percentage in the Austin Partnership or RAM of such Extraordinary Receipts.



     FCC. The Federal Communications Commission (or any successor agency, commission,
bureau, department or other political subdivision of the United States of America).



     FCC License. Any license, permit, certificate of compliance, antenna structure
registration, franchise, approval or authorization granted or issued by the FCC.



     Federal Funds Rate. For any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative Agent.



 









 





19




     Fees. Collectively, the Commitment Fee, the Letter of Credit Fees, the Administrative
Agent’s Fee and any other fees that the Borrower may, after the date
hereof, agree in writing to pay to the Lenders or the Agents in connection with this Credit
Agreement.



     Final Maturity Date. The date which is the latest of (a) the Revolving Credit
Maturity Date, (b) the Tranche B Maturity Date and (c) the maturity date of any new Tranches
established pursuant to §15.1



     Financial Affiliate. A Subsidiary of the bank holding company controlling any Lender
that is engaging in any of the activities permitted by §4(e) of the Bank Holding Company Act of
1956 (12 U.S.C. §1843).



     First Amendment. First Amendment and Consent to Amended and Restated Revolving Credit
and Term Loan Agreement, dated as of March 3, 2009, among the Borrower, the Parent, the Lenders and
the Administrative Agent.



     Fiscal Quarter Period. As of any date of determination, the period of one fiscal
quarter of the Borrower and its Subsidiaries ending on such date, or if such date is not a fiscal
quarter end date, the period of one fiscal quarter most recently ended for which financial
statements have been required to be delivered pursuant to §9.4.



     Fixed Charge Coverage Ratio. At any date of determination in each case for the most
recently completed Reference Period, the ratio of (a) (i) Consolidated EBITDA, less (ii) the
aggregate amount of all Capital Expenditures to (b) the sum of (i) Consolidated Interest Charges,
(ii) the aggregate principal amount of all regularly scheduled principal payments of Consolidated
Total Funded Debt, (iii) the aggregate amount of all Restricted Payments (except Restricted
Payments for taxes that are included in subsection (iv) below and Restricted Payments for HoldCo
Corporate Overhead Expenses), (iv) the aggregate amount of Federal, state, local and foreign income
taxes paid in cash, in each case, of or by the Borrower and its Subsidiaries for the most recently
completed Reference Period (plus, without duplication, Distributions made for the payment by the
Parent of such taxes), but excluding (1) cash taxes payable in respect of the cancellation of
indebtedness income arising as a result of any purchase of Consolidated Total Funded Debt and (2)
cash taxes paid in connection with any Asset Sale and paid from the gross proceeds of such Asset
Sale, plus (v) without duplication, the aggregate amount of all Distributions that the Borrower
paid with respect to its Capital Stock, and which the Borrower paid to the Parent to enable the
Parent to make Distributions in respect of the Parent Preferred Stock. For purposes of calculating
the Fixed Charge Coverage Ratio, with respect to any Permitted Acquisition, Asset Sale or Asset
Swap occurring during the Reference Period applicable to such determination of the Fixed Charge
Coverage Ratio, the components listed above shall be calculated as if such Permitted Acquisition,
Asset Sale or Asset Swap occurred on the first day of such Reference Period.



     Fund. Any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



 









 





20




     Funding Date. The first date on which the conditions set forth in §12 have been
satisfied and any Revolving Credit Loans and the Term Loans are to be made or any Letter of Credit
is to be issued hereunder.



     GAAP. (a) When used in §11, whether directly or indirectly through reference to a
capitalized term used therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its predecessors, in effect
for the fiscal year ended on the Balance Sheet Date, and (ii) to the extent consistent with such
principles, the accounting practice of the Borrower reflected in its financial statements for the
year ended on the Balance Sheet Date, and (b) when used in general, other than as provided above,
means principles that are (i) consistent with the principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors, as in effect from time to time, and (ii)
consistently applied with past financial statements of the Borrower adopting the same principles,
provided that in each case referred to in this definition of “GAAP” a certified public accountant
would, insofar as the use of such accounting principles is pertinent, be in a position to deliver
an unqualified opinion (other than a qualification regarding changes in GAAP) as to financial
statements in which such principles have been properly applied. Notwithstanding the foregoing, if
at any time any change in GAAP would affect the computation of any financial ratio or requirement
set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request,
the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders); provided that, until so amended,
(a) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (b) the Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Credit Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.



     Governing Documents. With respect to any Person, its certificate or articles of
incorporation, membership agreement, partnership agreement or similar charter document, any by-laws
and all shareholder agreements, voting trusts and similar arrangements applicable to any of its
Capital Stock.



     Governmental Authority. Any foreign, federal, state, regional, local, municipal or
other government, or any department, commission, board, bureau, agency, public authority or
instrumentality thereof, or any court or arbitrator, including, without limitation, the FCC.



     Guarantee. As to any Person, (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or



 









 





21



payment of) such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of such Indebtedness or
other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by the guaranteeing Person in good faith. The term
“Guarantee” as a verb has a corresponding meaning.




     Guarantor. Solely for purposes of this Credit Agreement, any Subsidiary of the
Borrower that is subject to the Guaranty (or a subsequent Guarantee of the Obligations acceptable
to the Administrative Agent), in its capacity as a “Guarantor” under the Guaranty or such
subsequent Guarantee of the Obligations.



     Granting Lender. See §17.1.



     Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of
§3(2) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate the benefits of
which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA,
other than a Multiemployer Plan.



     Guaranty. The Guaranty, dated May 10, 2004, made by the Parent and each of the
Subsidiaries in favor of the Lenders and the Administrative Agent pursuant to which the Parent and
each such Subsidiary guaranties to the Lenders and the Administrative Agent the payment and
performance of the Obligations in form and substance satisfactory to the Administrative Agent.



     Hazardous Substances. See §8.18(b).



     HoldCo Corporate Overhead Expenses. Means (i) accounting and audit costs and expenses
incurred by the Parent in the ordinary course of its business in connection with preparing
consolidated and consolidating financial reports and tax filings, (ii) SEC filing fees and expenses
incurred by the Parent, (iii) legal fees relating to the corporate maintenance of the Parent, (iv)
outside director fees incurred by the Parent, (v) costs and expenses payable by the Parent for
director and officer insurance, (vi) transfer agent fees payable in connection with Capital Stock
of the Parent, (vii) proxy solicitation costs incurred by the Parent, (viii) franchise taxes and
other fees payable to the jurisdictions of incorporation or qualification of the Parent and (ix)
other similar costs and expenses of



 









 





22



the Parent incurred in the ordinary course of conducting its business; provided, that in no
event shall HoldCo Corporate Overhead Expenses include (A) officers’ and other employees’ fees,
salaries, bonuses, debt service and dividends and other distributions in respect of the Capital
Stock of the Parent or (B) costs and expenses incurred by the Parent in connection with any actual
or proposed issuance of indebtedness or equity by the Parent which is permitted hereunder.




     Indebtedness. As to any Person and whether recourse is secured by or is otherwise
available against all or only a portion of the assets of such Person and whether or not contingent,
but without duplication:



     (a) every obligation of such Person for money borrowed,



     (b) every obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition of property, assets
or businesses,



     (c) every reimbursement obligation of such Person with respect to letters of credit, bankers’
acceptances or similar facilities issued for the account of such Person,



     (d) every obligation of such Person issued or assumed as the deferred purchase price of
property or services (including securities repurchase agreements but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business which are not overdue or
which are being contested in good faith),



     (e) every obligation of such Person under any Capitalized Lease,



     (f) every obligation of such Person under any Synthetic Lease,



     (g) all sales by such Person of (i) accounts or general intangibles for money due or to become
due, (ii) chattel paper, instruments or documents creating or evidencing a right to payment of
money or (iii) other receivables (collectively “receivables”), whether pursuant to a
purchase facility or otherwise, other than in connection with the disposition of the business
operations of such Person relating thereto or a disposition of defaulted receivables for collection
and not as a financing arrangement, and together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection
therewith,



     (h) every obligation of such Person (an “equity related purchase
obligation”) to purchase, redeem, retire or otherwise acquire for value any shares of
Capital Stock issued by such Person or any rights measured by the value of such Capital Stock,



     (i) every net obligation of such Person under any forward contract, futures contract, swap,
option or other financing agreement or arrangement (including, without limitation, caps, floors,
collars and similar agreements), the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices (a “derivative contract”),



 









 





23




     (j) every obligation in respect of Indebtedness of any other entity (including any partnership
in which such Person is a general partner) to the extent that such Person is liable therefor as a
result of such Person’s ownership interest in or other relationship with such entity, except to the
extent that the terms of such Indebtedness provide that such Person is not liable therefor and such
terms are enforceable under applicable law,



     (k) every obligation, contingent or otherwise, of such Person guaranteeing, or having the
economic effect of guarantying or otherwise acting as surety for, any obligation of a type
described in any of clauses (a) through (j) (the “primary obligation”) of another
Person (the “primary obligor”), in any manner, whether directly or indirectly, and
including, without limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase of) any security for the payment of such primary obligation, (ii) to
purchase property, securities or services for the purpose of assuring the payment of such primary
obligation, or (iii) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
primary obligation.



     The “amount” or “principal amount” of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a price that is less than the
principal amount at maturity thereof, shall be the amount of the liability in respect thereof
determined in accordance with GAAP, (v) any Capitalized Lease shall be the principal component of
the aggregate of the rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (w) any sale of receivables shall be the amount
of unrecovered capital or principal investment of the purchaser (other than the Borrower or any of
its wholly-owned Subsidiaries) thereof, excluding amounts representative of interest earned on such
investment, (x) any Synthetic Lease shall be the stipulated loss value, termination value or other
equivalent amount, (y) any derivative contract shall be the maximum amount of any termination or
loss payment required to be paid by such Person if such derivative contract were, at the time of
determination, to be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has in fact occurred
and (z) any equity related purchase obligation shall be the maximum fixed redemption or purchase
price thereof inclusive of any accrued and unpaid dividends to be comprised in such redemption or
purchase price.



     Indemnified Liabilities. See §18.3.



     Indemnified Person. See §18.3.



     Ineligible Securities. Securities which may not be underwritten or dealt in by member
banks of the Federal Reserve System under Section 16 of the Banking Act of 1933 (12 U.S.C. §24,
Seventh), as amended.



     Initial Parent Tranche B Purchase. The point in time at which the aggregate purchase
price of all Parent Tranche B Purchases reaches an amount equal to the difference between
$20,000,000 and the aggregate amount of bonuses paid on or after



 









 





24



February 1, 2009 by the Parent to officers and other employees of the Parent, the Borrower or
any of their Subsidiaries.




     Instrument of Accession. See §15.1.



     Interest Payment Date. (a) As to any Base Rate Loan, the last day of the calendar
quarter with respect to interest accrued during such calendar quarter, including, without
limitation, the calendar quarter which includes the Drawdown Date of such Base Rate Loan; and (b)
as to any Eurodollar Rate Loan in respect of which the Interest Period is (i) three months or less,
the last day of such Interest Period and (ii) more than three (3) months, the respective dates that
fall every three months after the beginning of such Interest Period.



     Interest Period. With respect to each Revolving Credit Loan or all or any relevant
portion of the Tranche B Term Loan that is a Eurodollar Rate Loan, (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of a period consisting of
one (1), two (2), three (3) or six (6) months, and if acceptable to all Lenders within the relevant
Tranche, nine (9) or twelve (12) months, as selected by the Borrower in a Loan Request or as
otherwise required by the terms of this Credit Agreement, and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to such Revolving
Credit Loan or all or such portion of the Tranche B Term Loan and ending on the last day of one of
the periods set forth above, as selected by the Borrower in a Conversion Request; provided
that all of the foregoing provisions relating to Interest Periods are subject to the following:




     (A) if any Interest Period with respect to a Eurodollar Rate Loan would otherwise end
on a day that is not a Eurodollar Business Day, that Interest Period shall be extended to
the next succeeding Eurodollar Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Eurodollar Business Day;




     (B) if the Borrower shall fail to give notice as provided in §2.7 or §3.5.2, the
Borrower shall be deemed to have requested a conversion of the affected Eurodollar Rate
Loan to a Base Rate Loan and the continuance of all Base Rate Loans as Base Rate Loans on
the last day of the then current Interest Period with respect thereto;




     (C) any Interest Period relating to any Eurodollar Rate Loan that begins on the last
Eurodollar Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on
the last Eurodollar Business Day of a calendar month; and




     (D) any Interest Period that would otherwise extend beyond the Revolving Credit
Maturity Date (if comprising a Revolving Credit Loan) or the Tranche B Maturity Date (if
comprising the Tranche B Term Loan or a portion



 









 





25





thereof) shall end on the Revolving Credit Maturity Date or the Tranche B Maturity
Date, as the case may be.



     Interest Rate Agreement. Any interest rate swap agreement (whether from fixed to
floating or from floating to fixed), interest rate cap agreement, interest rate collar agreement,
interest rate futures contract, interest rate option agreement or other similar agreement or
arrangement to which the Borrower and any Lender or Affiliate of any Lender is a party, designed to
manage interest rates or interest rate risk in connection with this Credit Agreement or any other
Indebtedness for borrowed money evidenced by bonds, debentures or other similar instruments owed by
the Borrower or any of its Subsidiaries.



     Investments.




     (a) During the Suspension Period, all expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of Capital Stock or
Indebtedness of, or in respect of any guaranties (or other commitments as described
under the definition of Indebtedness) of the obligations or Indebtedness of, or
obligations of, or loans, advances, capital contributions or transfers of property
to, any Person, but excluding accrued interest or earnings thereon. In determining
the aggregate amount of Investments outstanding at any particular time: (i) the
amount of any Investment represented by a guaranty shall be taken at not less than
the principal amount of the obligations guaranteed and still outstanding; (ii)
there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise, (iii)
there shall not be deducted from the aggregate amount of Investments any decrease
in the value thereof, and (iv) there shall be deducted in respect of the total
amount of Investments (A) the amount of Net Cash Equity Issuance Proceeds of any
Equity Issuance by the Borrower or the Parent, (B) the amount of Net Cash Debt
Issuance Proceeds of any issuance of Permitted Parent Indebtedness, but in each of
(A) and (B) above, only to the extent that such proceeds (1) are not subject to a
mandatory prepayment under §4.4, (2) are not used or intended for use by the Parent
in connection with any redemption, purchase or other acquisition or extinguishment
of any Parent Preferred Stock or Common Stock of the Parent, (3) are not used or
intended for use in connection with any redemption, purchase or other acquisition
or extinguishment of any Indebtedness of the Borrower, the Parent or any Subsidiary
(except a voluntary prepayment of the Revolving Credit Loans at par that does not
reduce the Revolving Credit Commitment), (4) are not used or intended for use in
connection with a Dutch Auction, and (5) of the Parent are concurrently with such
transaction contributed to the Borrower in cash as equity, and (C) any deferred
purchase price of Asset Sales (excluding the sale of KMVN), but only to the extent
(1) such deferred purchase price was an Investment included in the calculation of
outstanding Investments



 









 





26





at the time of such Asset Sale and at all times prior to such date of
determination, and (2) such amounts are applied to prepay the Loans at par in
accordance with the terms of this Credit Agreement. Notwithstanding the foregoing,
in no event shall an amount in excess of $25,000,000 be deducted from the
determination of the aggregate amount of Investments outstanding over the
Suspension Period.




     (b) After the Revert Date, all expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of Capital Stock or Indebtedness of, or in
respect of any guaranties (or other commitments as described under the definition of
Indebtedness) of the obligations or Indebtedness of, or obligations of, or loans, advances,
capital contributions or transfers of property to, any Person, but excluding accrued
interest or earnings thereon. In determining the aggregate amount of Investments
outstanding at any particular time: (i) the amount of any Investment represented by a
guaranty shall be taken at not less than the principal amount of the obligations guaranteed
and still outstanding; (ii) there shall be deducted in respect of each such Investment any
amount received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (iii) there shall not be
deducted in respect of any Investment any amounts received as earnings on such Investment,
whether as dividends, interest or otherwise, and (iv) there shall not be deducted from the
aggregate amount of Investments any decrease in the value thereof.



     Lead Arrangers. Collectively, Banc of America Securities LLC and Deutsche Bank
Securities Inc. acting as joint lead arrangers and joint book managers.



     Lender Affiliate. (a) With respect to any Lender, (i) an Affiliate of such Lender or
(ii) an Approved Fund and (b) with respect to an Approved Fund, any other entity (whether a
corporation, partnership, limited liability company, trust or other legal entity) that is a fund
that invests in bank loans and similar extensions of credit and is managed by the same investment
advisor as such Approved Fund or by an Affiliate of such investment advisor.



     Lenders. Collectively, the Revolving Credit Lenders and the Tranche B Lenders and any
institution that becomes a Lender pursuant to §15 or §17.



     Letter of Credit. See §5.1.1.



     Letter of Credit Application. See §5.1.1.



     Letter of Credit Fee. See §5.6.



     Letter of Credit Participation. See §5.1.4.



     License Subsidiaries. Collectively, (a) Emmis License Corporation of New York, Emmis
Radio License Corporation, Emmis Radio License Corporation of New York,



 









 





27



Emmis Radio License, LLC, Emmis Television License, LLC and (b) any new Subsidiaries that hold
licenses to broadcast or transmit radio or television signals formed or acquired in connection with
any Permitted Acquisition, or any internal reorganization permitted pursuant to §10.5.1(a).




     Lien. Any mortgage, deed of trust, security interest, pledge, hypothecation,
assignment, attachment, deposit arrangement, encumbrance, lien (statutory, judgment or otherwise),
or other security agreement or preferential arrangement of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, any Capitalized Lease, any Synthetic
Lease, any financing lease involving substantially the same economic effect as any of the foregoing
and the filing of any financing statement under the UCC or comparable law of any jurisdiction and
with respect to stock, a Person’s right to acquire such stock).



     Liquidity. On any date of determination, the difference between the sum of (a)(i) the
aggregate dollar amount of all unencumbered cash and unencumbered cash equivalents of the Borrower
and its Subsidiaries that are Guarantors (except, in each case, Liens securing the Obligations) on
such date plus (ii) the Total Revolving Credit Commitment on such date, minus (b) the sum of (i)
the outstanding aggregate amount of the Revolving Credit Loans on such date, (ii) the aggregate
Maximum Drawing Amount of all Letters of Credit on such date and (iii) the aggregate amount of
Reimbursement Obligations for all Letters of Credit on such date.



     LMA Agreement. Any time brokerage agreement, local marketing agreement or related or
similar agreements pursuant to which a Person acquires the right to program substantially all of
the time and to sell all of the advertising spots of a Station owned by another non-affiliated
person or to otherwise operate a Station in exchange for cash payment, entered into, directly or
indirectly, either between (i) the Borrower or any of its Subsidiaries, on the one hand, and any
Person other than the Parent, the Borrower or any of its Subsidiaries or their respective
Affiliates, on the other hand or (ii) a Bridge to Sale Excluded Subsidiary, on the one hand, and
any Person other than the Parent, the Borrower or any of its Subsidiaries or their respective
Affiliates, on the other hand.



     Loan Documents. Collectively, this Credit Agreement, the Notes (if any), the Letter
of Credit Applications, the Security Documents, the First Amendment, the agreements executed by the
Parent, the Borrower and the Subsidiaries in connection with the First Amendment, the Second
Amendment, the agreements executed by the Parent, the Borrower and the Subsidiaries in connection
with the Second Amendment, and any other documents, agreements or instruments contemplated hereby
or thereby or executed by the Parent, the Borrower, a Subsidiary (or an Excluded Subsidiary, to the
extent required by the terms of this Credit Agreement and the other Loan Documents) from time to
time in connection herewith or therewith.



     Loan Request. See §2.6.



 









 





28




     Loans. Collectively, the Revolving Credit Loans and the Tranche B Term Loan and for
purposes of §15 only, any new loan provided to the Borrower in accordance with the terms and
conditions set forth in such §15.



     Magazine. All of the properties, assets and operating rights (including but not
limited to any ancillary publications) constituting a system for publishing a magazine, including,
without limitation, on-line publications of such magazine.



     Material Adverse Effect. With respect to any event or occurrence of whatever nature
(including any adverse determination in any litigation, arbitration or governmental investigation
or proceeding):




     (a) a material adverse effect on the business, properties, condition (financial
or otherwise), assets, operations or income of the Parent and its Subsidiaries, taken
as a whole;




     (b) a material adverse effect on the ability of the Parent or the Borrower
individually or the Parent and its Subsidiaries, taken as a whole, to perform any of
their respective Obligations under any of the Loan Documents to which it is a party;
or




     (c) any impairment of the validity, binding effect or enforceability of this
Credit Agreement or any of the other Loan Documents, any material impairment of the
rights, remedies or benefits available to the Administrative Agent or any Lender
under any Loan Document or any impairment of the attachment, perfection or priority
of any Lien of the Administrative Agent under the Security Documents.



     Maximum Drawing Amount. The maximum aggregate amount that the beneficiaries may at
any time draw under outstanding Letters of Credit, as such aggregate amount may be reduced from
time to time pursuant to the terms of the Letters of Credit.



     Measurement Period. Either a Reference Period or a Fiscal Quarter Period, as
applicable, in each case for which financial statements have been required to be delivered pursuant
to §9.4.



     Moody’s. Moody’s Investors Services, Inc.



     Mortgaged Property. Any Real Estate which is subject to any Mortgage.



     Mortgages. The mortgages and deeds of trust from the Borrower and/or its Subsidiaries
to the Administrative Agent with respect to the fee and leasehold interests of the Borrower and its
Subsidiaries in certain Real Estate and in form and substance satisfactory to the Administrative
Agent.



     Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA
maintained or contributed to by the Borrower or any ERISA Affiliate.



 









 





29




     Necessary Authorization. Any license, permit, consent, franchise, order, approval or
authorization from, or any filing, recording or registration with, any Governmental Authority
(including without limitation the FCC) necessary to the conduct of any business of the Borrower or
any of its Subsidiaries or for the ownership, maintenance and operation by such Person of its
Stations and other properties or to the performance by such Person of its obligations under any LMA
Agreement.



     Net Cash Debt Issuance Proceeds. With respect to any issuance of Indebtedness of (a)
the Borrower and its Subsidiaries in accordance with the terms of §§10.1.(e) and (k), and (b) the
Parent in accordance with the terms of §10.13., the excess of the gross cash proceeds received by
the issuer for such issuance of Indebtedness after deduction of all reasonable and customary
transaction expenses (including, without limitation, underwriting discounts and commissions)
actually incurred in connection with such issuance.



     Net Cash Equity Issuance Proceeds. With respect to any Equity Issuance, the excess of
the gross cash proceeds received by the issuer for such Equity Issuance after deduction of all
reasonable and customary transaction expenses (including, without limitation, underwriting
discounts and commissions) actually incurred in connection with such issuance.



     Net Cash Sale Proceeds. In respect of any Asset Sale or Asset Swap, the gross cash
proceeds (without duplication) received by the Parent, the Borrower, its Subsidiaries, the Austin
Partnership or RAM, as applicable, minus, the sum of (a) all reasonable out-of-pocket fees,
commissions and other reasonable and customary direct expenses actually incurred in connection with
such Asset Sale or Asset Swap, including any income taxes payable as a result of such Asset Sale
and the amount of any transfer or documentary taxes required to be paid by such Person or Persons
in connection with such Asset Sale or Asset Swap, plus (b) the aggregate amount of cash so
received by such Person or Persons which is required to be used to retire (in whole or in part) any
Indebtedness (other than under the Loan Documents) of such Person or Persons permitted by this
Credit Agreement that was secured by a lien or security interest permitted by this Credit Agreement
having priority over the liens and security interests (if any) of the Administrative Agent (for the
benefit of the Administrative Agent and the Lenders) with respect to such assets transferred and
which is required to be repaid in whole or in part (which repayment, in the case of any other
revolving credit arrangement or multiple advance arrangement, reduces any commitment thereunder) in
connection with such Asset Sale or Asset Swap, plus (c) any cash reserve in an amount
reasonably determined by the Borrower to be necessary in connection with indemnification
obligations or potential post-closing purchase price adjustments relating to such Asset Sale or
Asset Swap so long as (i) the Administrative Agent holds such cash reserve amount as cash
collateral pursuant to §4.7 hereof, (ii) the Borrower provides to the Administrative Agent an
accounting of such proceeds reasonably satisfactory to the Administrative Agent and (iii) the
Borrower prepays the Obligations hereunder with the remainder of such funds promptly upon
settlement or extinguishment of such obligations or adjustments. If any of the Parent, the
Borrower, any Subsidiary, the Austin Partnership or RAM receives any



 









 





30



promissory notes or other instruments as part of the consideration for such Asset Sale or
Asset Swap or if payment in cash of any portion of the consideration for such Asset Sale or Asset
Swap is otherwise deferred or if the amount previously held as a cash reserve for indemnification
obligations or purchase price adjustments is reduced, Net Cash Sale Proceeds shall be deemed to
include any cash payments in respect of such notes or instruments or otherwise deferred portion of
such consideration when and to the extent received by such Person. Notwithstanding the foregoing,
with respect to Asset Sales and Asset Swaps of the assets of the Austin Partnership and RAM, Net
Cash Sale Proceeds shall be calculated only to the extent of the Borrower’s and its Subsidiaries’
aggregate equity percentage in the Austin Partnership or RAM, as applicable.




     Non-Excluded Taxes. See §6.3.2.



     Notes. Collectively, the Revolving Credit Notes, the Tranche B Term Notes and any
promissory notes of the Borrower evidencing a new Loan to the Borrower advanced in accordance with
the terms and conditions set forth in §15.



     Obligations. All indebtedness, obligations and liabilities of any of the Parent, the
Borrower and its Subsidiaries to any of the Lenders or any of the Agents, individually or
collectively, existing on the date of this Credit Agreement or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or
incurred under or in connection with this Credit Agreement or any of the other Loan Documents or
any of the Loans made or Reimbursement Obligations incurred or any of the Notes, Letter of Credit
Applications, Letters of Credit or other instruments at any time evidencing any thereof or any
Interest Rate Agreement (a) required to be maintained pursuant to the terms of this Credit
Agreement (or otherwise maintained in respect of Loans made hereunder) or (b) in respect of any
other Indebtedness for borrowed money evidenced by bonds, debentures or other similar instruments
owed by the Borrower or any of its Subsidiaries. This term includes, without limitation, all
interest that accrues after the commencement of any case or proceeding by or against any credit
party in bankruptcy whether or not allowed in such case or proceeding.



     Offer Price. See §10.16.(c).



     Omnibus Amendment and Reaffirmation Agreement. The Omnibus Amendment and
Reaffirmation Agreement, dated on or about the date hereof, among the Borrower, Parent and each
Subsidiary.



     Operating Subsidiaries. Collectively, (a) Emmis Radio Corporation, Emmis Meadowlands
Corporation, Emmis Publishing Corporation, Mediatex Communications Corporation, Los Angeles
Magazine Holding Company, Inc., and Emmis Enterprises, Inc., each an Indiana corporation; (b) Emmis
Radio, LLC, an Indiana limited liability company; (c) Emmis International Broadcasting Corporation,
a California corporation; (d) the Partnership Subsidiaries and their successors; and (e) any new
Subsidiaries acquired in connection with any Permitted Acquisition or any internal reorganization



 









 





31



permitted pursuant to §10.5.1(a) used to hold assets (other than broadcast licenses) used in
connection with, and to conduct operations of, any Station.




     outstanding. With respect to the Loans, the aggregate unpaid principal thereof as of
any date of determination.



     Parent. Emmis Communications Corporation, an Indiana corporation.



     Parent Preferred Stock. The preferred stock of the Parent at any time.



     Parent Tranche B Purchase. Any purchase by the Parent of a portion of the Tranche B
Term Loan for an aggregate purchase price for all such purchases not to exceed the Tranche B
Adjusted Purchase Price (as defined in the First Amendment), subject to the terms and conditions
set forth in the First Amendment.



     Partnership Subsidiaries. Collectively, Emmis Indiana Broadcasting, L.P., Emmis
Publishing, L.P. and Emmis Television Broadcasting, L.P., each an Indiana limited partnership.



     PBGC. The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any
successor entity or entities having similar responsibilities.



     Perfection Certificates. The Perfection Certificates as defined in the Security
Agreements.



     Permitted Acquisition. Any acquisition permitted under §10.5.1.



     Permitted Holders. Jeffrey Smulyan, his spouse, his children, his grandchildren, his
estate and trusts created for the benefit of any of the foregoing.



     Permitted Liens. Liens permitted by §10.2.



     Permitted Parent Indebtedness. Indebtedness incurred by the Parent (and refinancings
thereof), in each case to the extent that the following conditions have been satisfied prior to the
incurrence or refinancing thereof by the Parent:




     (a) the lender of such Permitted Parent Indebtedness shall not be the Borrower, any
Subsidiary of the Borrower, or any Excluded Subsidiary, and such Indebtedness is incurred
on an arm’s length basis;




     (b) no Default or Event of Default has occurred and is continuing or would result from
the incurrence of such Indebtedness or exist immediately after the incurrence thereof;




     (c) such Indebtedness is unsecured and fully contractually subordinated to the
Obligations in all rights of payment, performance and remedies (on terms, and pursuant to
documentation, reasonably acceptable to the Administrative Agent) and issued not for less
than 90% cash of accreted value,



 









 





32





unless the transaction is in connection with a concurrent exchange (or a transaction
accomplishing the same result) and excluded from the mandatory prepayment provision due to
the redemption or purchase of Parent Preferred Stock or Common Stock with the proceeds, in
which case there shall be no minimum cash percentage;




     (d) the definitive loan documentation for such Indebtedness (i) does not require any
cash interest payments, scheduled amortization payments, any mandatory prepayments or
redemptions, or any scheduled payment of fees (including, without limitation, any
redemption, defeasance, setting aside of funds, or other provision for, or assurance of,
payment other than a permitted refinancing) prior to the final payment and performance in
full in cash of all Obligations hereunder, including the cancellation or cash
collateralization of any Letters of Credit, and the termination of the Commitments
hereunder; and (ii) does not permit any voluntary prepayments (including, without
limitation, any redemption, defeasance, setting aside of funds, or other provision for, or
assurance of, payment) until after the Obligations have been paid in full (or the
Reimbursement Obligations have been cash collateralized on terms reasonably acceptable to
the Administrative Agent) and the Total Commitment has been reduced to zero and terminated;




     (e) the final maturity date of such Indebtedness shall occur after the Final Maturity
Date; and




     (f) after the Revert Date, prior to the incurrence of such Indebtedness by the Parent,
the Total Leverage Ratio (calculated on a pro forma basis after giving effect to such
Indebtedness and any previously capitalized interest thereon, and as though such
Indebtedness were incurred directly by the Borrower) shall be less than 8.50:1.00, provided
that Permitted Parent Indebtedness incurred during the Suspension Period in accordance with
the provisions of this Credit Agreement (including accretion thereon) will be permitted
hereunder after the Revert Date.



     Person. Any individual, corporation, limited liability company, partnership, limited
liability partnership, trust, other unincorporated association, business, or other legal entity,
and any Governmental Authority.



     Platform. See §9.5.6.



     Pledge Agreement. Collectively, the Pledge Agreement, dated as of May 10, 2004, by
and among the Parent, the Borrower and each of the Subsidiaries and the Administrative Agent, in
form and substance satisfactory to the Administrative Agent and any other pledge agreement entered
into by the Parent or any of its Subsidiaries and the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent.



     Prime Rate. The rate of interest in effect for such day as publicly announced from
time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by



 









 





33



Bank of America based upon various factors including Bank of America’s costs and desired
return, general economic conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate. Any change in such rate
announced by Bank of America shall take effect at the opening of business on the day specified in
the public announcement of such change.




     Pro Forma Basis. In connection with any proposed Permitted Acquisition, (including
acquisitions contemplated in connection with an LMA Agreement), Asset Sale or Asset Swap, the
calculation of compliance with the financial covenants set forth in §11 by the Borrower and its
Subsidiaries after including the business, business division or Person to be acquired in connection
with any Permitted Acquisition or Asset Swap as if such business, business division or Person were
a Subsidiary and after excluding any business, business division or Person to be sold or otherwise
disposed of in connection with any Asset Sale or Asset Swap. The calculation of such compliance
shall be determined as of the most recently ended Reference Period by reference to the financial
results of the Borrower and its Subsidiaries for such Reference Period after adjusting the same to
(i) exclude the financial results attributable to any business, business division or Person to be
sold or otherwise disposed of as if such transaction occurred on the first day of such Reference
Period and (ii) include the audited financial results of any business, business division or Person
to be acquired, if available for such Reference Period, or if such audited financial results are
not available for such Reference Period, any unaudited financial results or any management reports
as are approved by the Administrative Agent in respect of such business, business division or
Person, as if such Permitted Acquisition or Asset Swap had occurred on the first day of such
Reference Period and including the adjustments described in clauses (a), (b), (c), (d), (e) and (f)
below. Following a Permitted Acquisition, Asset Sale or Asset Swap, the calculation of compliance
with the covenants set forth in §11 for any Reference Period which contains the fiscal quarter in
which such Permitted Acquisition, Asset Sale or Asset Swap occurred shall be calculated in the
manner set forth above for any portion of the then applicable Reference Period which occurred prior
to the date of such transaction including the adjustments described in clauses (a), (b), (c), (d),
(e) and (f) below:




     (a) all Indebtedness (whether under this Credit Agreement or otherwise) and any
other balance sheet adjustments incurred, made or assumed in connection with a
Permitted Acquisition or Asset Swap shall be deemed to have been incurred, made or
assumed on the first day of the Reference Period, and all Indebtedness of the Person
acquired or to be acquired in such Permitted Acquisition or Asset Swap or which is
attributable to the business or business division acquired or to be acquired which
was or will have been repaid in connection with the consummation of the Permitted
Acquisition or Asset Swap shall be deemed to have been repaid on the first day of the
Reference Period;




     (b) all Indebtedness assumed to have been incurred pursuant to the preceding
clause (a) in connection with a Permitted Acquisition or Asset Swap shall be deemed
to have borne interest at (i) the arithmetic mean of



 









 





34





(A) the Eurodollar Rate for Eurodollar Rate Loans having an Interest Period of
one (1) month in effect on the first day of the Reference Period and (B) the
Eurodollar Rate for Eurodollar Rate Loans having an Interest Period of one (1) month
in effect on the last day of the Reference Period plus (ii) the Applicable
Margin with respect to Revolving Credit Loans which are Eurodollar Rate Loans then in
effect (after giving effect to the Permitted Acquisition or Asset Swap on a pro forma
basis);




     (c) any interest paid in connection with Indebtedness which was or will have
been repaid or prepaid in connection with a Permitted Acquisition, Asset Sale or
Asset Swap shall be excluded in the pro forma calculation of the financial covenants
set forth in §11 (i.e., treated as though such interest expense had not been
incurred);




     (d) all Indebtedness which is to be or has been repaid or prepaid in connection
with an Asset Sale (and as to any prior Asset Sales which occurred during such
Reference Period) shall be deemed to have been repaid on the first day of the
Reference Period;




     (e) for purposes of calculating Consolidated EBITDA for the Reference Period,
other reasonable cost savings, expenses and other income statement, or operating
statement adjustments as may be approved by the Administrative Agent in writing which
are attributable to the change in ownership and/or management resulting from such
Permitted Acquisition or Asset Swap (including the amount of any pre-acquisition
management fees paid during such period in connection with the operation of any
Station subject to such Permitted Acquisition or Asset Swap to the extent such fees
are not payable after such transaction) shall be deemed to have been realized on the
first day of the Reference Period, provided that the Administrative Agent
shall be under no obligation to approve such cost savings, expenses or other
adjustments; and




     (f) for purposes of calculating Consolidated EBITDA for the Reference Period,
with respect to any Permitted Acquisition or Asset Swap, Consolidated Net Income
shall be increased by (i) the amount of any bad debt reserve adjustment associated
with any accounts receivable on the books of such acquired Station on the date of
acquisition thereof to the extent that such accounts receivable are not acquired by
the Borrower or any of such Subsidiaries, and (ii) the amount of any bad debt reserve
adjustment associated with any accounts receivable on the books of such acquired
Station on the date of acquisition thereof and which are acquired by the Borrower or
any of such Subsidiaries to the extent such bad debt reserve adjustment exceeds the
amount the Borrower would have reserved with respect to such accounts receivable in
accordance with its customary reserve practices.



 









 





35




     Projections. See §8.4.3.



     Public Lender. See §9.5.6.



     Purchase Amount. See §10.16.(c).



     Purchase Notice. See §10.16.(c).



     Qualifying Lenders. See §10.16.(c).



     Qualifying Loans. See §10.16.(c).



     RAM. Radio Austin Management, L.L.C., the sole general partner of the Austin
Partnership, which is and shall remain a single purpose entity whose sole material asset is the
general partnership interest in the Austin Partnership.



     Real Estate. All real property at any time owned or leased (as lessee or sublessee)
by the Borrower or any of its Subsidiaries.



     Reference Period. As of any date of determination, the period of four (4) consecutive
fiscal quarters of the Borrower and its Subsidiaries ending on such date, or if such date is not a
fiscal quarter end date, the period of four (4) consecutive fiscal quarters most recently ended (in
each case treated as a single accounting period).



     Register. See §17.2.



     Reimbursement Obligation. The Borrower’s obligation to reimburse the Administrative
Agent and the Revolving Credit Lenders on account of any drawing under any Letter of Credit as
provided in §5.2.



     Related Parties. With respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



     Reply Amount. See §10.16.(c).



     Required Lenders. As of any date, the Lenders (other than Delinquent Lenders) holding
greater than fifty percent (50%) of the sum of (i) the aggregate outstanding principal amount of
the Tranche B Term Loans on such date, and (ii) the Total Revolving Credit Commitment on such date,
or, in the event that the Total Revolving Credit Commitment has been terminated or otherwise
reduced to zero, the outstanding principal amount of Revolving Credit Loans on such date, and (iii)
the aggregate outstanding principal amount on such date of any new Tranche structured as a term
tranche pursuant to §15.1.



     Required Provisions. Those provisions required by §10.13 and the definition of
Permitted Parent Indebtedness for the incurrence by the Parent of Permitted Parent Indebtedness.




 











 





36




     Required Revolver Lenders. As of any date, the Revolving Credit Lenders (other than
Delinquent Lenders) holding greater than fifty percent (50%) of the Total Revolving Credit
Commitment on such date, or, in the event that the Total Revolving Credit Commitment has been
terminated or otherwise reduced to zero, the outstanding principal amount of Revolving Credit Loans
on such date.



     Required Term Lenders. As of any date, the Tranche B Lenders and (as applicable) the
Lenders of any new Tranche structured as a term tranche pursuant to §15.1 (other than, in each case
Delinquent Lenders) holding greater than fifty percent (50%) of the sum of (i) the aggregate
outstanding principal amount of the Tranche B Term Loans on such date, and (ii) the aggregate
outstanding principal amount on such date of any new Tranche structured as a term tranche pursuant
to §15.1.



     Restricted Payment. In relation to the Borrower and its Subsidiaries, any (a)
Distribution, (b) payment in respect of Subordinated Debt, (c) payment of management, consulting or
similar fees to Affiliates of the Borrower or such Subsidiary, or (d) derivatives or other
transactions with any financial institution, commodities or stock exchange or clearinghouse (a
“Derivatives Counterparty”) obligating the Borrower or such Subsidiary to make
payments to such Derivatives Counterparty as a result of any change in market value of any Capital
Stock of the Borrower or such Subsidiary.



     Return Bid. See §10.16.(c).



     Revert Date. September 1, 2011, provided that the Borrower may, at its election after
not less than three (3) Business Days’ prior written notice to the Administrative Agent,
irrevocably designate any Business Day prior to September 1, 2011 as the “Revert Date” so long as
(1) there exists no Default or Event of Default before and immediately after giving effect to any
such election and (2) the Total Leverage Ratio is less than 5.00 to 1.00 on such designated date
(using Consolidated EBITDA as of the most recently completed fiscal quarter of the Borrower for
which financial statements have been required to be delivered pursuant to §9.4, but Consolidated
Total Funded Debt as of such designated date, after giving effect to any borrowing or other
incurrence of Indebtedness on such date).



     Revolving Credit Commitment. With respect to each Revolving Credit Lender, the amount
set forth on Schedule 1 hereto (as adjusted from time to time pursuant to §§15
and/or 17) as the amount of such Revolving Credit Lender’s commitment to make Revolving Credit
Loans to, and to participate in the issuance, extension and renewal of Letters of Credit for the
account of, the Borrower, as the same may be reduced or increased from time to time pursuant to §15
or §17 hereof; or if such commitment is terminated pursuant to the provisions hereof, zero.



     Revolving Credit Lenders. Each Lender which has a Revolving Credit Commitment set
forth opposite its name on Schedule 1 hereto and any other Person who becomes an assignee of any
rights and obligations of a Revolving Credit Lender pursuant to §17 or who agrees to advance
additional Revolving Credit Loans pursuant to §15.









 



37


     Revolving Credit Loans. Revolving credit loans made or to be made by the Revolving
Credit Lenders to the Borrower pursuant to §2.



     Revolving Credit Maturity Date. November 2, 2012.



     Revolving Credit Notes. See §2.4.



     Second Amendment. That certain Second Amendment to Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of August 19, 2009, among the Borrower, the Parent, the
Administrative Agent, and the Lenders party thereto.



     Second Amendment Effective Date. August 19, 2009.



     Security Agreement. Collectively, (i) the Security Agreement, dated as of May 10,
2004, between the Borrower and each of the Subsidiaries and the Administrative Agent, in form and
substance satisfactory to the Administrative Agent; and (ii) any other security agreement entered
into thereafter by any Bridge to Sale Excluded Subsidiary and/or Bridge to Sale License Subsidiary
and the Administrative Agent, in form and substance satisfactory to the Administrative Agent.



     Security Documents. The Omnibus Amendment and Reaffirmation Agreement, the Guaranty,
the Security Agreement, the Mortgages, the Trademark Agreement, the Copyright Mortgage, the Pledge
Agreement, the Collateral Assignments of Contracts, any other security agreement, Guarantee,
mortgage, deed of trust, assignment, pledge, affirmation, or other document or instrument entered
into from time to time to grant a Lien to secure the Obligations or to Guarantee the Obligations,
or entered into from time to time pursuant to §9.17, and all other instruments and documents,
including without limitation UCC financing statements, required to be executed or delivered from
time to time pursuant to any Security Document.



     Settlement. The making or receiving of payments, in immediately available funds, by
the Revolving Credit Lenders, to the extent necessary to cause each Revolving Credit Lender’s
actual share of the outstanding amount of Revolving Credit Loans (after giving effect to any Loan
Request) to be equal to such Revolving Credit Lender’s Commitment Percentage of the outstanding
amount of such Revolving Credit Loans (after giving effect to any Loan Request), in any case where,
prior to such event or action, the actual share is not so equal.



     Settlement Amount. See §2.9.1.



     Settlement Date. (a) The Drawdown Date relating to any Loan Request, (b) Friday of
each week, or if a Friday is not a Business Day, the Business Day immediately following such
Friday, (c) at the option of the Administrative Agent, on any Business Day following a day on which
the account officers of the Administrative Agent active upon the Borrower’s account become aware of
the existence of an Event of Default, (d) any Business Day on which the amount of Revolving Credit
Loans outstanding from Bank of America plus Bank of America’s Commitment Percentage of the
sum of the Maximum Drawing Amount and any Unpaid Reimbursement Obligations is equal to or









 



38



greater than Bank of America’s Commitment Percentage of the Total Revolving Credit Commitment,
(e) the Business Day immediately following any Business Day on which the amount of Revolving Credit
Loans outstanding increases or decreases by more than $2,000,000 as compared to the previous
Settlement Date, (f) any day on which any conversion of a Base Rate Loan to a Eurodollar Rate Loan
occurs, or (g) any Business Day on which the amount of outstanding Revolving Credit Loans
decreases.



     Settling Lender. See §2.9.1.



     Sinclair Definitive Agreement. That certain Agreement for Purchase of Limited Partner
and Member Interests, dated as of March 3, 2003, between Sinclair Telecable, Inc. and the Borrower,
together with all other agreements and documents entered into or delivered pursuant to or in
connection therewith, relating to the Austin Investment and the governance of, or operation of the
business of, the Austin Partnership thereafter.



     Solvent. With respect to any Person as of any date of determination, (a) the fair
value of the property of such Person (both at fair valuation and at present fair saleable value) is
greater than the total amount of liabilities, including contingent liabilities, of such Person, (b)
the present fair saleable value of the assets of such Person is not less than the amount that will
be required to pay the probable liabilities of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the normal course of
business, (d) such Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e) 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 unreasonably small capital after
giving due consideration to current and anticipated future capital requirements and current and
anticipated future business conduct and the prevailing practice in the industry in which such
Person is engaged. In computing the amount of contingent liabilities at any time, such liabilities
shall be computed in an amount which, in light of the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual or matured
liability.



     S&P. Standard & Poor’s Ratings Group.



     SPC. See §17.1.



     Station. The properties, assets and operating rights constituting a system for
transmitting radio or television signals from a transmitter licensed by the FCC or, solely for
purposes of the definition of “Consolidated Net Income”, any Foreign Governmental Authority with
licensing authority over such Station, together with any subsystem which is ancillary to such
system and including all the Stations set forth on Schedule 8.3(b) hereto.



     Subordinated Debt. Collectively, any unsecured Indebtedness (including guaranties by
Subsidiaries of such unsecured Indebtedness) issued by the Borrower or









 



39



any Subsidiary after the Funding Date that is expressly subordinated and made junior to the
payment and performance in full in cash of the Obligations, and evidenced as such by a written
instrument containing subordination provisions in form and substance reasonably satisfactory to the
Administrative Agent and approved by the Administrative Agent in
writing; provided that the
material terms and conditions of such Subordinated Debt are less restrictive than the terms and
conditions set forth in this Credit Agreement with respect to the Obligations and otherwise
reasonably acceptable as reasonably determined by the Administrative Agent and provided,
further that the Administrative Agent shall have received from the Borrower a
certificate from the principal financial or accounting office of the Borrower or the Parent, as
applicable, certifying that the Obligations of the Borrower and its Subsidiaries arising under this
Credit Agreement and the other Loan Documents constitute “Senior Debt” under and as defined in the
definitive documentation governing such Indebtedness, and the incurrence of the Obligations is
permitted under the definitive documentation governing such Indebtedness and will not cause a
“Default” or “Event of Default” under and as defined in such definitive documentation.



     Subsidiary. Any corporation, association, trust, partnership, limited liability
company or other business entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority of the shares of Capital Stock
or other interests having ordinary voting power for the election of directors or other governing
body (other than securities or interests having such power only by reason of the happening of a
contingency). For purposes of this Credit Agreement, with respect to the Parent, the Borrower or
any of their respective Subsidiaries, “Subsidiary” shall include all Subsidiaries of the Parent and
the Borrower other than Excluded Subsidiaries, except as otherwise expressly provided.



     Suspension Period. The period commencing on the Second Amendment Effective Date
through and including the Revert Date.



     Suspension Period Excess Cash. On the last day of each Fiscal Quarter Period of the
Borrower ending after the Second Amendment Effective Date and prior to the Revert Date, an amount
equal to the difference between (a) the aggregate dollar amount of all cash and cash equivalents of
the Borrower and its Subsidiaries on such date, minus (b) the sum of (i) the outstanding aggregate
amount of Revolving Credit Loans on such date plus (ii) $5,000,000.



     Syndication Agent. As defined in the preamble hereto.



     Synthetic Debt. With respect to any Person as of any date of determination thereof,
all obligations of such Person in respect of transactions entered into by such Person that are
intended to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP.









 



40


     Synthetic Lease. Any lease of goods or other property, whether real or personal,
which is treated as an operating lease under GAAP and as a loan or financing for U.S. income tax
purposes.



     Title Insurance Company. With respect to each Mortgaged Property, as applicable,
Chicago Title Insurance Company and/or any other title insurance company reasonably acceptable to
the Administrative Agent, and collectively if the context requires, all such companies.



     Title Policy. In relation to each Mortgaged Property, an ALTA standard form title
insurance policy issued by the Title Insurance Company (with such reinsurance or co-insurance as
the Administrative Agent may require, any such reinsurance to be with direct access endorsements)
in such amount as may be reasonably determined by the Administrative Agent insuring the priority of
the Mortgage of such Mortgaged Property and that the Borrower or one of its Subsidiaries holds
marketable fee simple or leasehold title (as applicable) to such Mortgaged Property, subject only
to the encumbrances permitted by such Mortgage and which shall not contain exceptions for mechanics
liens, persons in occupancy or matters which would be shown by a survey (except as may be permitted
by such Mortgage), shall not insure over any matter except to the extent that any such affirmative
insurance is acceptable to the Administrative Agent in its sole discretion, and shall contain such
endorsements and affirmative insurance as the Administrative Agent in its discretion may require,
including but not limited to (a) comprehensive endorsement, (b) variable rate of interest
endorsement, (c) usury endorsement, (d) revolving credit endorsement, (e) tie-in endorsement, (f)
doing business endorsement and (g) ALTA form 3.1 zoning endorsement.



     Total Commitment. The sum of (a) the Total Revolving Credit Commitment, plus (b) the
sum of the Tranche B Commitments of the Tranche B Lenders plus (c) to the extent not
otherwise included in the preceding clauses, the sum of the commitments in respect of any new
Tranche structured as a term tranche pursuant to §15.1.



     Total Leverage Ratio. As at any date of determination, the ratio of (a) Consolidated
Total Funded Debt outstanding on such date to (b) Consolidated EBITDA for the most recently
completed Reference Period.



     Total Percentage. With respect to each Lender without duplication, the sum of (a) the
Tranche B Term Loan held by such Lender plus (b) the Revolving Credit Commitment of such
Lender (or, if such Revolving Credit Commitment has been terminated, the Revolving Credit Loans,
Letter of Credit Participations in Unpaid Reimbursement Obligations, and participating interests in
the risk relating to outstanding Letters of Credit held by such Lender) plus (c) to the
extent not otherwise included in the foregoing, such Lender’s interest in any new Tranche
structured as a term tranche pursuant to §15.1 as a percentage of the sum of (x) the outstanding
principal amount of the Tranche B Term Loan plus (y) the greater of (i) the Total Revolving
Credit Commitment and (ii) the outstanding principal amount of the Revolving Credit Loans, Unpaid
Reimbursement Obligations and the Maximum Drawing Amount of Letters of









 



41



Credit plus (z) the outstanding principal amount of any new Tranche structured as a
term tranche pursuant to §15.1.



     Total Revolving Credit Commitment. The sum of the Revolving Credit Commitments of the
Revolving Credit Lenders, as in effect from time to time, which as of the Funding Date shall be
equal to the aggregate principal amount of $145,000,000, as such amount may be decreased from time
to time pursuant to the terms hereof or increased thereafter pursuant to the terms and conditions
set forth in §15.



     Trademark Agreement. The Trademark Collateral Security and Pledge Agreement, dated as
of May 10, 2004, by and among the Borrower and each of the Subsidiaries and the Administrative
Agent, in form and substance satisfactory to the Administrative Agent.



     Trades. Those assets and liabilities of the Borrower and any of its Subsidiaries
which do not represent the right to receive payment in cash or the obligation to make payment in
cash and which arise pursuant to so-called trade or barter transactions.



     Tranche. Collectively, or individually as the context indicates, the Revolving Credit Loans
if any are outstanding and/or the Tranche B Term Loan, and for purposes of §15 only, any new Loan
provided to the Borrower in accordance with the terms and conditions set forth in such §15.



     Tranche B Commitment. With respect to each Tranche B Lender, the agreement of such
Person to make a Tranche B Term Loan on the Funding Date in the amount set forth on
Schedule 1 or any additional commitment to make a Tranche B Term Loan as provided
in §15 or as such amount may be adjusted pursuant to §17 hereof.



     Tranche B Lenders. Each Lender which has a Tranche B Commitment set forth opposite
its name on Schedule 1 and any other Person who becomes an assignee of any rights and obligations
of a Tranche B Lender pursuant to §17 or who agrees to advance additional Tranche B Term Loans
pursuant to §15.



     Tranche B Maturity Date. November 1, 2013.



     Tranche B Purchase Price. See §10.16.(c)(i).



     Tranche B Term Loan. The term loan made or to be made by the Tranche B Lenders to the
Borrower on the Funding Date in the aggregate principal amount of $455,000,000 pursuant to §3.1, as
such amount may be increased thereafter pursuant to the terms and conditions set forth in §15.



     Tranche B Term Notes. See §3.2.



     TV Assets. Television assets or businesses including, without limitation, the
television Stations and assets associated therewith listed on Schedule 8.3(b) of the Credit
Agreement and the television licenses listed on Schedule 8.21 of the Credit Agreement.









 



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     TV Asset Sale. Any one or series of transactions pursuant to which the Borrower or
any Subsidiary conveys, sells, leases, licenses or otherwise disposes of, directly or indirectly,
TV Assets.



     TV Asset Sale Proceeds. $19,400,000, which constitutes certain proceeds received in
connection with any TV Asset Sale as of the date of the First Amendment.



     Type. As to any Revolving Credit Loan or all or any portion of the Tranche B Term
Loan or all or any portion of any additional term loan structured as a term tranche pursuant to
§15.1, its nature as a Base Rate Loan or a Eurodollar Rate Loan.



     UCC. The Uniform Commercial Code as in effect in the State of New York.



     Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which the Borrower
does not reimburse the Administrative Agent and the Revolving Credit Lenders on the date specified
in, and in accordance with, §5.2.



     1.2. Rules of Interpretation.




     (a) A reference to any document or agreement shall include such document or
agreement as amended, modified or supplemented from time to time in accordance with
its terms and the terms of this Credit Agreement.




     (b) The singular includes the plural and the plural includes the singular.




     (c) A reference to any law includes any amendment or modification to such law.




     (d) A reference to any Person includes its permitted successors and permitted
assigns.




     (e) Accounting terms not otherwise defined herein have the meanings assigned to
them by GAAP applied on a consistent basis by the accounting entity to which they
refer.




     (f) The words “include”, “includes” and “including” are not limiting.




     (g) All terms not specifically defined herein or by GAAP, which terms are
defined in the UCC have the meanings assigned to them therein, with the term
“instrument” being that defined under Article 9 of the UCC.




     (h) Reference to a particular “§” refers to that section of this Credit
Agreement unless otherwise indicated.









 



43



     (i) The words “herein”, “hereof”, “hereunder” and words of like import shall
refer to this Credit Agreement as a whole and not to any particular section or
subdivision of this Credit Agreement.




     (j) Unless otherwise expressly indicated, in the computation of periods of time
from a specified date to a later specified date, the word “from” means “from and
including,” the words “to” and “until” each mean “to but excluding,” and the word
“through” means “to and including.”




     (k) This Credit Agreement and the other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All such
limitations, tests and measurements are, however, cumulative and are to be performed
in accordance with the terms thereof.




     (l) This Credit Agreement and the other Loan Documents are the result of
negotiation among, and have been reviewed by counsel to, among others, the
Administrative Agent and the Borrower and are the product of discussions and
negotiations among all parties. Accordingly, this Credit Agreement and the other
Loan Documents are not intended to be construed against the Administrative Agent or
any of the Lenders merely on account of the Administrative Agent’s or any Lender’s
involvement in the preparation of such documents.



2. THE REVOLVING CREDIT FACILITY.




     2.1. Commitment to Lend. Subject to the terms and conditions set forth in this Credit
Agreement, each of the Revolving Credit Lenders severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time from the Funding Date up to but not
including the Revolving Credit Maturity Date upon notice by the Borrower to the Administrative
Agent given in accordance with §2.6, such sums as are requested by the Borrower up to a maximum
aggregate amount outstanding (after giving effect to all amounts requested) at any one time equal
to such Revolving Credit Lender’s Revolving Credit Commitment minus such Revolving Credit Lender’s
Commitment Percentage of the sum of the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations, provided that the sum of the outstanding aggregate amount of all Revolving Credit
Loans (after giving effect to all amounts requested) plus the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not at any time exceed the Total Revolving Credit Commitment at
such time. The Revolving Credit Loans shall be made pro rata in accordance with each Revolving
Credit Lender’s Commitment Percentage of the Total Revolving Credit Commitment. Each request for a
Revolving Credit Loan hereunder shall constitute a representation and warranty by the Borrower that
the conditions set forth in §12 and §13, in the case of the initial Revolving Credit Loans to be
made on the Funding Date, and §13, in the case of all other Revolving Credit Loans, have been
satisfied on the date of such request.









 



44


     2.2. Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the
accounts of the Revolving Credit Lenders in accordance with their respective Commitment Percentages
of the Total Revolving Credit Commitment (which shall be calculated without giving effect to any
temporary reductions of the Total Revolving Credit Commitment by virtue of the operation of §4.7) a
commitment fee (the “Commitment Fee”) calculated at the rate of 0.500% per annum,
on the actual daily amount during each calendar quarter or portion thereof from the Funding Date to
the Revolving Credit Maturity Date by which the Total Revolving Credit Commitment minus the
sum of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the outstanding
amount of Revolving Credit Loans during such calendar quarter. The Commitment Fee shall be payable
quarterly in arrears on each Interest Payment Date with respect to Base Rate Loans, with a final
payment on the Revolving Credit Maturity Date or any earlier date on which the Revolving Credit
Commitments shall terminate.



     2.3. Reduction of Revolving Credit Commitment. The Borrower shall have the right at
any time and from time to time upon five (5) Business Days’ prior written notice to the
Administrative Agent to reduce by $2,000,000 or an integral multiple thereof or to terminate
entirely the Total Revolving Credit Commitment, whereupon the Revolving Credit Commitments of the
Revolving Credit Lenders shall be reduced pro rata in accordance with their
respective Commitment Percentages of the Total Revolving Credit Commitment of the amount specified
in such notice or, as the case may be, terminated. Promptly after receiving any notice of the
Borrower delivered pursuant to this §2.3, the Administrative Agent will notify the Revolving Credit
Lenders of the substance thereof. Upon the effective date of any such reduction or termination,
the Borrower shall pay to the Administrative Agent for the respective accounts of the Revolving
Credit Lenders the full amount of any Commitment Fee then accrued on the amount of the reduction.
No reduction or termination of the Revolving Credit Commitments may be reinstated. In addition,
the Total Revolving Credit Commitment shall be reduced in accordance with §4.



     2.4. Evidence of Revolving Credit Loans; Revolving Credit Notes. The Revolving Credit
Loans made by each Revolving Credit Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each Revolving Credit Lender shall
be conclusive absent manifest error of the amount of the Revolving Credit Loans made by the
Revolving Credit Lenders to the Borrower and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Revolving Credit Lender and the
accounts and records of the Administrative Agent in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest error. In addition to
such accounts or records, upon request of any Revolving Credit Lender, its Revolving Credit Loans
shall be evidenced by a separate promissory note of the Borrower in substantially the form of
Exhibit A hereto or such other substantially similar form with appropriate
adjustments deemed necessary by the









 



45



Administrative Agent from time to time (each a “Revolving Credit
Note”), and completed with appropriate insertions. Any such Revolving Credit Note shall be
payable to the order of such Revolving Credit Lender in a principal amount equal to such Revolving
Credit Lender’s Revolving Credit Commitment or, if less, the outstanding amount of all Revolving
Credit Loans made by such Revolving Credit Lender, plus interest accrued thereon, as set forth
below. Each Revolving Credit Lender may attach schedules to its Revolving Credit Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Revolving Credit Loans and
payments with respect thereto.



     2.5. Interest on Revolving Credit Loans. Except as otherwise provided in §6.11,




     (a) Each Revolving Credit Loan which is a Base Rate Loan shall bear interest for
each day on which such Base Rate Loan is outstanding at the rate per annum equal to
the Base Rate plus the Applicable Margin in effect from time to time with respect to
Revolving Credit Loans which are Base Rate Loans.




     (b) Each Revolving Credit Loan which is a Eurodollar Rate Loan shall bear
interest for each Interest Period applicable thereto at the rate per annum equal to
the Eurodollar Rate determined for each Interest Period plus the Applicable
Margin in effect from time to time with respect to Revolving Credit Loans which are
Eurodollar Rate Loans.


The Borrower promises to pay interest on each Revolving Credit Loan in arrears on each Interest
Payment Date with respect thereto.




     2.6. Requests for Revolving Credit Loans. The Borrower shall give to the
Administrative Agent written notice in the form of Exhibit B hereto (or telephonic
notice confirmed in a writing in the form of Exhibit B hereto) of each Revolving
Credit Loan requested hereunder (a “Loan Request”) no later than (a) 11:00 a.m. (Dallas, Texas
time) on the day that is one (1) Business Day prior to the proposed Drawdown Date of any Base Rate
Loan and (b) 11:00 a.m. (Dallas, Texas time) on the day that is three (3) Eurodollar Business Days
prior to the proposed Drawdown Date of any Eurodollar Rate Loan. Each such notice shall specify
(i) the principal amount of the Revolving Credit Loan requested, (ii) the proposed Drawdown Date of
such Revolving Credit Loan, (iii) the Type of such Revolving Credit Loan and (iv) in the case of a
Eurodollar Rate Loan, the Interest Period for such Revolving Credit Loan. Promptly upon receipt of
any such notice, the Administrative Agent shall notify each of the Revolving Credit Lenders
thereof. Each Loan Request shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept the Revolving Credit Loan requested from the Revolving Credit Lenders on the
proposed Drawdown Date. Each Loan Request shall be in a minimum aggregate amount of (a) in the
case of Base Rate Loans, $500,000 or in integral multiples of $100,000 in excess thereof and (b) in
the case of Eurodollar Rate Loans, $1,000,000 or in integral multiples of $100,000 in excess
thereof; provided, that no more









 



46



than twelve (12) Eurodollar Rate Loans having different Interest Periods may be outstanding at
any time.



     2.7. Conversion Options.




     2.7.1. Conversion to Different Type of Revolving Credit Loan. The Borrower
may elect from time to time to convert any outstanding Revolving Credit Loan to a Revolving
Credit Loan of another Type, provided that with respect to any such conversion of a
Base Rate Loan to a Eurodollar Rate Loan, the Borrower shall give the Administrative Agent
prior written notice of such election no later than 11:00 a.m. (Dallas, Texas time) on the
third (3rd) Eurodollar Business Day prior to the date of such conversion; and no
Revolving Credit Loan may be converted into a Eurodollar Rate Loan when any Event of
Default has occurred and is continuing. On the date on which such conversion is being
made, each Revolving Credit Lender shall take such action as is necessary to transfer its
Commitment Percentage of such Revolving Credit Loans to its Domestic Lending Office or its
Eurodollar Lending Office, as the case may be. All or any part of outstanding Revolving
Credit Loans of any Type may be converted into a Revolving Credit Loan of another Type as
provided herein; provided that if a Eurodollar Rate Loan is converted to a Base
Rate Loan on a day which is not the last day of the Interest Period relating thereto, the
Borrower shall indemnify the Lenders for any additional costs relating thereto pursuant to
§6.10. Each Conversion Request relating to the conversion of a Revolving Credit Loan to a
Eurodollar Rate Loan shall be irrevocable by the Borrower.




     2.7.2. Continuation of Type of Revolving Credit Loan. Any Revolving Credit
Loan of any Type may be continued as a Revolving Credit Loan of the same Type upon the
expiration of an Interest Period with respect thereto by compliance by the Borrower with
the notice provisions contained in §2.7.1; provided that no Eurodollar Rate Loan
may be continued as such when any Event of Default has occurred and is continuing, but
shall be automatically converted to a Base Rate Loan on the last day of the first Interest
Period relating thereto ending during the continuance of any Event of Default of which
officers of the Administrative Agent active upon the Borrower’s account have actual
knowledge. In the event that the Borrower fails to provide any such notice with respect to
the continuation of any Eurodollar Rate Loan as such, then such Eurodollar Rate Loan shall
be automatically converted to a Base Rate Loan on the last day of the Interest Period
relating thereto. The Administrative Agent shall notify the Revolving Credit Lenders
promptly when any such automatic conversion contemplated by this §2.7.2 is scheduled to
occur.




     2.7.3. Eurodollar Rate Loans. Any conversion to or from Eurodollar Rate
Loans shall be in such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of all Eurodollar Rate Loans having the same
Interest Period shall not be less than $1,000,000 or an integral multiple of $100,000 in
excess thereof. No more than twelve (12)









 



47



Eurodollar Rate Loans having different Interest Periods may be outstanding at any
time.



     2.8. Funds for Revolving Credit Loans.




     2.8.1. Funding Procedures. Not later than 12:00 noon (Dallas, Texas time)
on the proposed Drawdown Date of any Revolving Credit Loans, each of the Revolving Credit
Lenders will make available to the Administrative Agent, at the Administrative Agent’s
Office, in immediately available funds, the amount of such Revolving Credit Lender’s
Commitment Percentage of the amount of the requested Revolving Credit Loans. Upon receipt
from each Revolving Credit Lender of such amount, and upon receipt of the documents
required by §§12 and 13 and the satisfaction of the other conditions set forth therein, to
the extent applicable, the Administrative Agent will make available to the Borrower the
aggregate amount of such Revolving Credit Loans made available to the Administrative Agent
by the Revolving Credit Lenders. The failure or refusal of any Revolving Credit Lender to
make available to the Administrative Agent at the aforesaid time and place on any Drawdown
Date the amount of its Commitment Percentage of the requested Revolving Credit Loans shall
not relieve any other Revolving Credit Lender from its several obligation hereunder to make
available to the Administrative Agent the amount of such other Revolving Credit Lender’s
Commitment Percentage of any requested Revolving Credit Loans.




     2.8.2. Advances by Administrative Agent.




     (a) The Administrative Agent may, unless notified to the contrary by any
Revolving Credit Lender prior to a Drawdown Date, assume that such Revolving Credit
Lender has made available to the Administrative Agent on such Drawdown Date the
amount of such Revolving Credit Lender’s Commitment Percentage of the Revolving
Credit Loans to be made on such Drawdown Date, and the Administrative Agent may (but
it shall not be required to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If any Revolving Credit Lender makes available to
the Administrative Agent such amount on a date after such Drawdown Date, such
Revolving Credit Lender shall pay to the Administrative Agent on demand an amount
equal to the product of (i) the average computed for the period referred to in clause
(iii) below, of the weighted average interest rate paid by the Administrative Agent
for federal funds acquired by the Administrative Agent during each day included in
such period, times (ii) the amount of such Revolving Credit Lender’s
Commitment Percentage of such Revolving Credit Loans, times (iii) a fraction,
the numerator of which is the number of days that elapse from and including such
Drawdown Date to the date on which the amount of such Revolving Credit Lender’s
Commitment Percentage of such Revolving Credit Loans shall become immediately
available to the Administrative Agent, and the denominator of which is 360. A
statement of the









 



48



Administrative Agent submitted to such Revolving Credit Lender with respect to
any amounts owing under this paragraph shall be prima facie evidence
of the amount due and owing to the Administrative Agent by such Revolving Credit
Lender. If the amount of such Revolving Credit Lender’s Commitment Percentage of
such Revolving Credit Loans is not made available to the Administrative Agent by such
Revolving Credit Lender within three (3) Business Days following such Drawdown Date,
the Administrative Agent shall be entitled to recover such amount from the Borrower
on demand, with interest thereon at the rate per annum applicable to the Revolving
Credit Loans made on such Drawdown Date.




     (b) Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for the
account of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender, in immediately
available funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.



     2.9. Settlements.




     2.9.1. General. On each Settlement Date, the Administrative Agent shall
promptly give notice (a) to the Revolving Credit Lenders and the Borrower of the respective
outstanding amount of Revolving Credit Loans made by the Administrative Agent on behalf of
the Revolving Credit Lenders from the immediately preceding Settlement Date through the
close of business on the prior day and the amount of any Eurodollar Rate Loans to be made
(following the giving of notice pursuant to §2.6) on such date pursuant to a Loan Request
and (b) to the Revolving Credit Lenders of the amount (a “Settlement
Amount”) that each Revolving Credit Lender (a “Settling Lender”)
shall pay to effect a Settlement of any Revolving Credit Loan. A statement of the
Administrative Agent submitted to the Revolving Credit Lenders and the Borrower or to the
Revolving Credit Lenders with respect to any amounts owing under this §2.9 shall be
prima facie evidence of the amount due and owing. Each Settling Lender
shall, not later than 1:00 p.m. (Dallas, Texas time) on such Settlement Date, effect a wire
transfer of immediately available funds to the Administrative Agent in the amount of the
Settlement Amount for such Settling Lender. All funds advanced by any Revolving Credit
Lender as a Settling Lender pursuant to this §2.9 shall for all









 



49



purposes be treated as a Revolving Credit Loan made by such Settling Lender to the
Borrower and all funds received by any Revolving Credit Lender pursuant to this §2.9 shall
for all purposes be treated as repayment of amounts owed with respect to Revolving Credit
Loans made by such Revolving Credit Lender. In the event that any bankruptcy,
reorganization, liquidation, receivership or similar cases or proceedings in which the
Borrower is a debtor prevent a Settling Lender from making any Revolving Credit Loan to
effect a Settlement as contemplated hereby, such Settling Lender will make such
dispositions and arrangements with the other Revolving Credit Lenders with respect to such
Revolving Credit Loans, either by way of purchase of participations, distribution,
pro tanto assignment of claims, subrogation or otherwise as shall result in
each Revolving Credit Lender’s share of the outstanding Revolving Credit Loans being equal,
as nearly as may be, to such Revolving Credit Lender’s Commitment Percentage of the
outstanding amount of the Revolving Credit Loans.




     2.9.2. Failure to Make Funds Available. The Administrative Agent may,
unless notified to the contrary by any Settling Lender prior to a Settlement Date, assume
that such Settling Lender has made or will make available to the Administrative Agent on
such Settlement Date the amount of such Settling Lender’s Settlement Amount, and the
Administrative Agent may (but it shall not be required to), in reliance upon such
assumption, make available to the Borrower a corresponding amount. If any Settling Lender
makes available to the Administrative Agent such amount on a date after such Settlement
Date, such Settling Lender shall pay to the Administrative Agent on demand an amount equal
to the product of (a) the average computed for the period referred to in clause (c) below,
of the weighted average interest rate paid by the Administrative Agent for federal funds
acquired by the Administrative Agent during each day included in such period, times
(b) the amount of such Settlement Amount, times (c) a fraction, the numerator of
which is the number of days that elapse from and including such Settlement Date to the date
on which the amount of such Settlement Amount shall become immediately available to the
Administrative Agent, and the denominator of which is 360. A statement of the
Administrative Agent submitted to such Settling Lender with respect to any amounts owing
under this §2.9.2 shall be prima facie evidence of the amount due and owing to the
Administrative Agent by such Settling Lender. If such Settling Lender’s Settlement Amount
is not made available to the Administrative Agent by such Settling Lender within three (3)
Business Days following such Settlement Date, the Administrative Agent shall be entitled to
recover such amount from the Borrower on demand, with interest thereon at the rate per
annum applicable to the Revolving Credit Loans as of such Settlement Date.




     2.9.3. No Effect on Other Revolving Credit Lenders. The failure or refusal
of any Settling Lender to make available to the Administrative Agent at the aforesaid time
and place on any Settlement Date the amount of such Settling Lender’s Settlement Amount
shall not (a) relieve any other Settling Lender from its several obligations hereunder to
make available to the Administrative Agent









 



50



the amount of such other Settling Lender’s Settlement Amount or (b) impose upon any
Revolving Credit Lender, other than the Settling Lender so failing or refusing, any
liability with respect to such failure or refusal or otherwise increase the Revolving
Credit Commitment of such other Revolving Credit Lender.



     2.10. Repayment Of The Revolving Credit Loans.




     2.10.1. Maturity. The Borrower promises to pay on the Revolving Credit
Maturity Date, and there shall become absolutely due and payable on the Revolving Credit
Maturity Date, all of the Revolving Credit Loans outstanding on such date, together with
any and all accrued and unpaid interest thereon.




     2.10.2. Mandatory Repayments of Revolving Credit Loans. If at any time the
sum of the outstanding amount of the Revolving Credit Loans, the Maximum Drawing Amount and
all Unpaid Reimbursement Obligations exceeds the Total Revolving Credit Commitment at such
time, then the Borrower shall immediately pay the amount of such excess to the
Administrative Agent for the respective accounts of the Revolving Credit Lenders for
application: first, to any Unpaid Reimbursement Obligations; second, to the Revolving
Credit Loans; and third, to provide to the Administrative Agent cash collateral for
Reimbursement Obligations as contemplated by §5.2(b) and §5.2(c). Each payment of any
Unpaid Reimbursement Obligations or prepayment of Revolving Credit Loans shall be allocated
among the Revolving Credit Lenders, in proportion, as nearly as practicable, to each
Reimbursement Obligation or (as the case may be) the respective unpaid principal amount of
each Revolving Credit Lender’s Revolving Credit Note, with adjustments to the extent
practicable to equalize any prior payments or repayments not exactly in proportion. In
addition, the Borrower shall repay the Revolving Credit Loans in accordance with §4.




     2.10.3. Optional Repayments of Revolving Credit Loans. The Borrower shall
have the right, at its election, to repay the outstanding amount of the Revolving Credit
Loans, in whole or in part, at any time without penalty or premium, provided that
no Eurodollar Rate Loans may be prepaid pursuant to this §2.10.3 except on the last day of
the Interest Period relating thereto unless breakage costs incurred by the Revolving Credit
Lenders in connection therewith are paid by the Borrower in accordance with §6.10. The
Borrower shall give the Administrative Agent written notice by no later than 11:00 a.m.
(Dallas, Texas time) at least one (1) Business Day prior to the proposed date of any
prepayment pursuant to this §2.10.3 of Base Rate Loans, and at least three (3) Eurodollar
Business Days’ prior to the proposed date of any prepayment pursuant to this §2.10.3 of
Eurodollar Rate Loans, in each case, specifying the proposed date of prepayment of
Revolving Credit Loans, the principal amount to be prepaid and, in the case of any
prepayment Eurodollar Rate Loans, the Interest Period of such Eurodollar Rate Loans. Each
such partial prepayment of the Revolving Credit Loans shall be in an integral multiple of
$2,000,000, shall be accompanied by the payment of accrued interest on the principal
prepaid to the date of prepayment









 



51



and, as applicable, any breakage costs incurred by the Revolving Credit Lenders in
connection therewith in accordance with §6.10 and shall be applied, in the absence of
instruction by the Borrower, first to the principal of Base Rate Loans and then to the
principal of Eurodollar Rate Loans. Each partial prepayment shall be allocated among the
Revolving Credit Lenders, in proportion, as nearly as practicable, to the respective unpaid
principal amount of each Revolving Credit Lender’s Revolving Credit Note, with adjustments
to the extent practicable to equalize any prior repayments not exactly in proportion.



3. THE TRANCHE B TERM LOAN.




     3.1. Commitment to Lend. Subject to the terms and conditions set forth in this Credit
Agreement, (i) the “Tranche B Term Loan” outstanding immediately prior to the effectiveness of this
Credit Agreement under the Existing Credit Agreement that has been advanced by the Tranche B
Lenders shall be continued as and converted into the Tranche B Term Loan under this Credit
Agreement, and (ii) each Tranche B Lender severally agrees to lend to the Borrower on the Funding
Date the amount of its Commitment Percentage of the Tranche B Term Loan (less the amount of Tranche
B Term Loan continued and converted by such Tranche B Lender pursuant to clause (i) above).



     3.2. Evidence of Tranche B Term Loan; Tranche B Term Notes. The Tranche B Term Loans
made by each Tranche B Lender shall be evidenced by one or more accounts or records maintained by
such Tranche B Lender and by the Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each Tranche B Lender shall be
conclusive absent manifest error of the amount of the Tranche B Term Loan made by the Tranche B
Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Tranche B Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. In addition to such accounts or records,
upon request of any Tranche B Lender, the Tranche B Term Loan shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit C hereto or
such other substantially similar form with appropriate adjustments deemed necessary by the
Administrative Agent from time to time (each a “Tranche
B Term Note”), and completed with
appropriate insertions. Any such Tranche B Term Note shall be payable to the order of such Tranche
B Lender in a principal amount equal to such Tranche B Lender’s Commitment Percentage of the
Tranche B Term Loan and representing the obligation of the Borrower to pay to such Tranche B Lender
such principal amount or, if less, the outstanding amount of such Tranche B Lender’s Commitment
Percentage of the Tranche B Term Loan, plus interest accrued thereon, as set forth below. Each
Tranche B Lender may attach schedules to its Tranche B Term Note and endorse thereon the date, Type
(if applicable), amount and maturity of its Tranche B Term Loans and payments with respect thereto.









 



52


     3.3. Mandatory Prepayment of Tranche B Term Loan; Scheduled Amortization. On the last
day of each fiscal quarter of the Borrower commencing with the fiscal quarter ending August 31,
2007, and ending on the fiscal quarter ending August 31, 2013, the Borrower promises to pay to the
Administrative Agent for the pro rata account of the Tranche B Lenders an amount equal to 0.25% of
the aggregate principal amount of the Tranche B Term Loan outstanding on such date, with the entire
remaining unpaid principal balance (plus interest and other amounts payable in respect thereof) of
the Tranche B Term Loan due and payable on the Tranche B Maturity Date. In addition, the Borrower
shall repay the Tranche B Term Loan in accordance with §4. No amount repaid with respect to the
Tranche B Term Loan may be reborrowed.



     3.4. Optional Prepayment of Tranche B Term Loan. The Borrower shall have the right at
any time to prepay the Tranche B Term Notes on or before the Tranche B Maturity Date, in whole, or
in part, upon three (3) business days’ prior written notice to the Administrative Agent given on or
before 11:00 a.m. (Dallas, Texas time) prior to the date of such prepayment, without premium or
penalty, provided that (a) each partial prepayment shall be in the principal amount of
$2,000,000 or an integral multiple thereof, (b) no portion of the Tranche B Term Loan bearing
interest at the Eurodollar Rate may be prepaid pursuant to this §3.4 except on the last day of the
Interest Period relating thereto unless breakage costs incurred by the Tranche B Lenders in
connection therewith are paid by the Borrower in accordance with §6.10, and (c) each partial
prepayment shall be allocated among the Tranche B Lenders, in proportion, as nearly as practicable,
to the respective outstanding amount of each Tranche B Lender’s Tranche B Term Note, with
adjustments to the extent practicable to equalize any prior prepayments not exactly in proportion.
Any prepayment of principal of the Tranche B Term Loan shall include all interest accrued to the
date of prepayment and, as applicable, any breakage costs incurred by the Tranche B Lenders in
connection therewith in accordance with §6.10 and shall be applied to reduce remaining scheduled
installments of principal due on the Tranche B Term Loan ratably. No amount prepaid with respect
to the Tranche B Term Loan may be reborrowed.



     3.5. Interest on Tranche B Term Loan.




     3.5.1. Interest Rates. Except as otherwise provided in §6.11, the Tranche
B Term Loan shall bear interest at the following rates:




     (a) To the extent that all or any portion of the Tranche B Term Loan bears
interest at the Base Rate, the Tranche B Term Loan or such portion shall bear
interest at the rate per annum equal to the Base Rate plus the Applicable
Margin in effect with respect to that portion of the Tranche B Term Loan comprised of
Base Rate Loans.




     (b) To the extent that all or any portion of the Tranche B Term Loan bears
interest during any Interest Period at the Eurodollar Rate, the Tranche B Term Loan
or such portion shall bear interest during such Interest Period at the rate per annum
equal to the Eurodollar Rate









 



53



determined for such Interest Period plus the Applicable Margin in effect
with respect to that portion of the Tranche B Term Loans comprised of Eurodollar Rate
Loans.




The Borrower promises to pay interest on the Tranche B Term Loan or any portion thereof
outstanding in arrears on each Interest Payment Date.




     3.5.2. Notification by Borrower. The Borrower shall notify the
Administrative Agent, such notice to be irrevocable, by 11:00 a.m. on the date that is
three (3) Eurodollar Business Days prior to the Drawdown Date of the Tranche B Term Loan if
all or any portion of the Tranche B Term Loan is to bear interest at the Eurodollar Rate.
After the Tranche B Term Loan has been made, the provisions of §2.7 shall apply
mutatis mutandis with respect to all or any portion of the Tranche B Term
Loan so that the Borrower may have the same interest rate options with respect to all or
any portion of the Tranche B Term Loan as it would be entitled to with respect to the
Revolving Credit Loans.




     3.5.3. Amounts, etc. Any portion of the Tranche B Term Loan bearing
interest at the Eurodollar Rate relating to any Interest Period shall be in the amount of
$1,000,000 or in integral multiples of $100,000 in excess thereof. The number of
Eurodollar Rate Loans having different Interest Periods outstanding at any time shall not
exceed ten (10). No Interest Period relating to the Tranche B Term Loan or any portion
thereof bearing interest at the Eurodollar Rate shall extend beyond the date on which a
regularly scheduled installment payment of the principal of the Tranche B Term Loan is to
be made unless a portion of the Tranche B Term Loan at least equal to such installment
payment has an Interest Period ending on such date or is then bearing interest at the Base
Rate.



4. MANDATORY REPAYMENT OF THE LOANS.




     In addition to payments in respect of Revolving Credit Loans pursuant to §2.10 and scheduled
amortization payments in respect of the Tranche B Term Loan pursuant to §3.3, the Loans shall be
repaid as follows:



     4.1. Excess Cash Flow Recapture.




     (a) Commencing with the first Fiscal Quarter Period to end after the Second
Amendment Effective Date and continuing until and through the Revert Date, the
Borrower shall pay to the Administrative Agent, for the respective accounts of the
Lenders as provided in §4.6, an amount equal to one hundred percent (100%) of
Suspension Period Excess Cash, such prepayment to be due five (5) days after receipt
of the quarterly financial statements delivered pursuant to §9.4(b)(i) but in any
event no later than sixty (60) days after the end of each applicable Fiscal Quarter
Period, and to be applied to prepay the Loans in the manner set forth in §4.6.









 



54



     (b) Commencing with the first fiscal year ending after the Revert Date and
continuing thereafter, the Borrower shall pay to the Administrative Agent, for the
respective accounts of the Lenders as provided in §4.6, an amount equal to fifty
percent (50%) of the Consolidated Excess Cash Flow for each such fiscal year. Each
such prepayment of Consolidated Excess Cash Flow is due five (5) days after receipt
of the audited financial statements delivered pursuant to §9.4(a) but in any event no
later than one hundred (100) days after the end of each applicable fiscal year and
shall be applied to prepay the Loans in the manner set forth in §4.6.



     4.2. Proceeds of Asset Sales and Asset Swaps; Etc.




     (a) (i) During the Suspension Period, the Borrower shall concurrently pay to the
Administrative Agent, for the respective accounts of the Lenders as provided in §4.6,
an amount equal to one hundred percent (100%) of the Net Cash Sale Proceeds from all
Asset Sales (other than transactions permitted pursuant to §10.6 which are addressed
in clause (b) of this §4.2) or Asset Swaps (whether through a single transaction or a
series of related transactions), provided, however, that with respect
to Asset Sales and Asset Swaps with Net Cash Sale Proceeds of less than $2,500,000,
such prepayment shall be deferred until such time that such Net Cash Sale Proceeds,
when aggregated together with all other Net Cash Sale Proceeds for less than
$2,500,000 and not yet used to prepay the Obligations pursuant to this §4.2(a)(i),
equal $5,000,000 or more, at which such time all such Net Cash Sale Proceeds shall
become immediately due and payable directly to the Administrative Agent for the
respective accounts of the Lenders as provided in §4.6. The Borrower shall not be
entitled to reinvest any Net Cash Sale Proceeds from Asset Sales and Asset Swaps.
Deferred Net Cash Sale Proceeds shall in any event comply with §4.7; and




     (ii) After the Revert Date, the Borrower shall pay to the Administrative
Agent, for the respective accounts of the Lenders as provided in §4.6, an amount
equal to one hundred percent (100%) of the Net Cash Sale Proceeds from all Asset
Sales (other than transactions permitted pursuant to §10.6 which are addressed in
clause (b) of this §4.2) or Asset Swaps involving a Station or any publishing asset
(whether through a single transaction or a series of related transactions) in
excess of $15,000,000 in the aggregate for all Asset Sales and Asset Swaps;
provided, however, that if no Event of Default has occurred and is continuing on
any such date, (x) within three hundred sixty-five (365) days of receipt of such
Net Cash Sale Proceeds, the Borrower identifies to the Administrative Agent in
writing an investment or acquisition otherwise permitted under §10.3(j) or §10.5.1,
respectively, and (y) within five hundred forty-five (545) days of receipt of such
Net Cash Sale Proceeds (or seven hundred thirty (730) days, in the case of an Asset









 



55



Swap), the Borrower consummates such Permitted Acquisition or investments
permitted under §10.3 with all or a portion of such Net Cash Sale Proceeds, the
Borrower shall not be required to prepay the Loans under this §4.2(a)(ii) with that
portion of the Net Cash Sale Proceeds applied to finance such Permitted Acquisition
or permitted investments but shall in any event comply with the terms of §4.7.




     (b) The Borrower shall pay to the Administrative Agent, for the respective
accounts of the Lenders as provided in §4.6, an amount equal to one hundred percent
(100%) of the Net Cash Sale Proceeds from Asset Sales described under §10.6 (whether
through a single transaction or a series of related transactions). Such payment
shall be made promptly but in no event more than two (2) Business Days following
receipt of such Net Cash Sale Proceeds by the Borrower or any Affiliate of the
Borrower.




     (c) The Borrower shall pay to the Administrative Agent, for the respective
accounts of the Lenders as provided in §4.6, an amount equal to one hundred percent
(100%) of the gross cash proceeds received by any Bridge to Sale Excluded Subsidiary,
any Bridge to Sale License Subsidiary or any Affiliate of the Borrower from the sale
by such Person of the Station subject to a Bridge to Sale Third Party Transaction
(including the FCC License associated with the Station subject of such Bridge to Sale
Third Party Transaction), minus all reasonable out-of-pocket fees,
commissions and other reasonable and customary direct expenses actually incurred in
connection with such sale, including any income taxes payable as a result of such
sale and the amount of any transfer or documentary taxes required to be paid by such
Person in connection with such sale. Such payment shall be made promptly but in no
event more than two (2) Business Days following receipt of such cash proceeds by a
Bridge to Sale Excluded Subsidiary, a Bridge to Sale License Subsidiary or other
Affiliate of the Borrower.



     4.3. Proceeds of Equity Issuances.




     (a) The Borrower and its Subsidiaries.




     (i) During the Suspension Period, if the Borrower or any Subsidiary receives
Net Cash Equity Issuance Proceeds from any Equity Issuance (other than Equity
Issuances (A) in accordance with the terms of §10.14.(a) and (B) received in cash
by the Borrower and which such funds constitute the proceeds of an Equity Issuance
by the Parent for which the Parent has complied with §4.3(b)(i)), the Borrower
shall pay to the Administrative Agent, for the respective accounts of the Lenders
as provided in §4.6, an amount equal to fifty percent (50%) of such Net Cash Equity
Issuance Proceeds, such amount to be applied to prepay the Loans in the manner set
forth in §4.6.









 



56



     (ii) After the Revert Date, if the Borrower or any Subsidiary receives Net
Cash Equity Issuance Proceeds from any Equity Issuance and as of the last day of
the fiscal quarter ended immediately prior to the date of such Equity Issuance, the
Total Leverage Ratio is equal to or greater than 6:00:1:00, the Borrower shall pay
to the Administrative Agent for the respective accounts of the Lenders as provided
in §4.6 an amount equal to the lesser of (a) fifty percent (50%) of such Net Cash
Equity Issuance Proceeds or (b) that amount necessary to reduce the Total Leverage
Ratio to 6.00:1.00 after giving effect to such prepayment, such amount to be
applied to prepay the Loans in the manner set forth in §4.6; provided, however,
that the Borrower shall not be required to prepay the Loans under this §4.3(a)(ii)
with Net Cash Equity Issuance Proceeds from an Equity Issuance permitted by
§10.14(a) or §10.14(b)(i); and provided, further, that the Borrower may apply all
or any portion of Net Cash Equity Issuance Proceeds which the Borrower or any
Subsidiary may receive from Equity Issuances to finance Permitted Acquisitions, so
long as (i) within ninety (90) days of receipt by such Person of such Net Cash
Equity Issuance Proceeds, the Borrower identifies to the Administrative Agent in
writing an acquisition permitted under §10.5.1 which will be financed with such
proceeds, and (ii) within three hundred sixty-five (365) days of receipt of such
Net Cash Equity Issuance Proceeds, the Borrower consummates such Permitted
Acquisition with all or a portion of such Net Cash Equity Issuance Proceeds. The
Borrower shall in any event comply with the terms of §4.7.




     (b) The Parent.




     (i) During the Suspension Period, if the Parent receives Net Cash Equity
Issuance Proceeds from any Equity Issuance (other than Equity Issuances in
accordance with the terms of §10.14.(b)(i)), the Borrower shall pay to the
Administrative Agent, for the respective accounts of the Lenders as provided in
§4.6, an amount equal to fifty percent (50%) of such Net Cash Equity Issuance
Proceeds, such amount to be applied to prepay the Loans in the manner set forth in
§4.6; provided however, so long as (A) no Event of Default has
occurred and is continuing and the Parent is in good faith pursuing the redemption
or purchase of either (I) Parent Preferred Stock, or (II) Common Stock, and (B)
such purchase or redemption of the Parent Preferred Stock or Common Stock is
consummated within 180 days after any such Equity Issuance, the Parent may use the
Net Cash Equity Issuance Proceeds to redeem or purchase the Parent Preferred Stock
or Common Stock within 180 days after such Equity Issuance (and such portion so
timely used will not be required to be prepaid hereunder), so long as in each case,
if the Parent uses less than 100% of any such Net Cash Equity Issuance Proceeds for
the purchase or redemption of its Common Stock or Parent Preferred Stock, the
Parent must cause the Borrower to immediately









 



57



prepay the Loans by an amount equal to 50% of that portion that is not used to
redeem or repurchase the Parent Preferred Stock or Common Stock. The Borrower and
the Parent shall in any event comply with the terms of §4.7.




     (ii) After the Revert Date, if the Parent receives Net Cash Equity Issuance
Proceeds from any Equity Issuance and as of the last day of the fiscal quarter
ended immediately prior to the date of such Equity Issuance, the Total Leverage
Ratio is equal to or greater than 6:00:1:00, the Borrower shall pay to the
Administrative Agent for the respective accounts of the Lenders as provided in §4.6
an amount equal to the lesser of (a) fifty percent (50%) of such Net Cash Equity
Issuance Proceeds or (b) that amount necessary to reduce the Total Leverage Ratio
to 6.00:1.00 after giving effect to such prepayment, such amount to be applied to
prepay the Loans in the manner set forth in §4.5; provided, however, that the
Borrower shall not be required to prepay the Loans under this §4.3(b)(ii) with Net
Cash Equity Issuance Proceeds from an Equity Issuance permitted by §10.14(b)(i);
and provided, further, that the Borrower may apply all or any portion of Net Cash
Equity Issuance Proceeds which the Parent, the Borrower or any Subsidiary may
receive from Equity Issuances to finance Permitted Acquisitions, so long as (i)
within ninety (90) days of receipt by such Person of such Net Cash Equity Issuance
Proceeds, the Borrower identifies to the Administrative Agent in writing an
acquisition permitted under §10.5.1 which will be financed with such proceeds, and
(ii) within three hundred sixty-five (365) days of receipt of such Net Cash Equity
Issuance Proceeds, the Borrower consummates such Permitted Acquisition with all or
a portion of such Net Cash Equity Issuance Proceeds. The Parent and the Borrower
shall in any event comply with the terms of §4.7.



     4.4. Proceeds of Issuances of Indebtedness.




     (a) During the Suspension Period, the Borrower shall concurrently pay to the
Administrative Agent, for the respective accounts of the Lenders as provided in §4.6,
an amount equal to (i) one hundred percent (100%) of the Net Cash Debt Issuance
Proceeds from each issuance by the Borrower or any Subsidiary in accordance with the
terms of §§10.1.(e) and (k), and (ii) fifty percent (50%) of the Net Cash Debt
Issuance Proceeds from each issuance by the Parent in accordance with the terms of
§10.13, provided however, so long as (A) no Event of Default has
occurred and is continuing and the Parent is in good faith pursuing the redemption or
purchase of either (I) Parent Preferred Stock, or (II) its Common Stock and (B) such
purchase or redemption is consummated within 180 days after the issuance of any such
Indebtedness, the Parent may use all of the Net Cash Debt Issuance Proceeds from the
issuance of its Indebtedness to redeem or purchase the Parent Preferred Stock or its
Common Stock. The Parent and









 



58



the Borrower shall in any event comply with the terms of §4.7. After the Revert
Date, prepayment under this §4.4(a) shall only be required if an Event of Default has
occurred and is continuing.




     (b) After the Revert Date, if the Borrower or any Subsidiary receives Net Cash
Debt Issuance Proceeds from any issuance of Subordinated Debt, the Borrower shall pay
to the Administrative Agent for the respective accounts of the Lenders in the manner
set forth in §4.6 an amount equal to one hundred percent (100%) of such Net Cash Debt
Issuance Proceeds; provided, that the Borrower shall not be obligated to make any
mandatory prepayment under this §4.4 to the extent that such Net Cash Debt Issuance
Proceeds from any issuance of Subordinated Debt is incurred in connection with any
Permitted Acquisition and so long as the Total Leverage Ratio as of the end of the
fiscal quarter ended immediately prior to the date of the issuance of such
Subordinated Debt in connection with a Permitted Acquisition (calculated on a pro
forma basis after giving effect to the incurrence of such Subordinated Debt) is less
than 6.50:100.



     4.5. Proceeds of Extraordinary Receipts. During the Suspension Period, upon any
Extraordinary Receipt received by or paid to or for the account of the Parent, the Borrower, the
Subsidiaries, the Austin Partnership or RAM, and not otherwise included in §§4.1., 4.2., 4.3., or
4.4., the Borrower shall pay to the Administrative Agent for the respective accounts of the Lenders
as provided in §4.6, an amount equal to one hundred percent 100% of all such Extraordinary Receipts
immediately upon receipt thereof by such Person; provided, however, that with
respect to any proceeds of casualty insurance, at the election of the Borrower (as notified by the
Borrower to the Administrative Agent on or prior to the date of receipt of such insurance
proceeds), the Borrower, the Parent, the Subsidiaries, the Austin Partnership or RAM may use such
proceeds to replace, rebuild or repair the equipment, fixed assets or real property in respect of
which such cash proceeds were received, so long such Person commences such action within 180 days
after the receipt of such Extraordinary Receipts. The Parent and the Borrower shall in any event
comply with the terms of §4.7. After the Revert Date, so long as no Event of Default has occurred
and is continuing, no such prepayment from Extraordinary Receipts will be required.



     4.6. Application of Payments. All payments made pursuant to §§4.1 through 4.5 shall
be accompanied by the payment of accrued interest on the principal repaid and, as applicable, any
breakage costs incurred by the Lenders in connection therewith in accordance with §6.10 and shall
be applied: first, to repay the Tranche B Term Loan with payments applied ratably against
the remaining scheduled installments thereon; and second, if there are no outstanding
amounts owing in respect of the Tranche B Term Loan, then to reduce the outstanding amount of the
Revolving Credit Loans and to permanently reduce the Total Revolving Credit Commitment by a like
amount. Such mandatory prepayments shall be allocated among the Lenders in proportion, as nearly
as practicable, to the respective outstanding amounts of each Lender’s Tranche B Term Note or
Revolving Credit Note, as applicable, with adjustments to the extent practicable









 



59



to equalize any prior prepayments not exactly in proportion. No amounts repaid with respect
to the Loans pursuant to this §4.6 may be reborrowed.



     4.7. Delivery of Proceeds. The Parent, the Borrower, the Subsidiaries, the Austin
Partnership and RAM, as applicable and required in §§4.2, 4.3, 4.4 and 4.5 above, shall deliver to
the Administrative Agent, promptly upon receipt thereof, all Net Cash Sale Proceeds, Net Cash Debt
Issuance Proceeds, Net Cash Equity Issuance Proceeds and Extraordinary Receipts that may have to be
applied to prepay the Loans if not reinvested (or used to replace, rebuild or repair, in the case
of Extraordinary Receipts constituting casualty insurance), in each case as permitted in §§4.2,
4.3, 4.4 and 4.5 (as applicable at such time), and any cash reserves in connection with an Asset
Swap or Asset Sale that were deducted from Net Cash Sale Proceeds, to be held as Collateral (in an
interest bearing account) pending reinvestment in accordance with such §§4.2, 4.3, 4.4 and 4.5 or,
in the case of such reserves, pending an application or conversion into Net Cash Sale Proceeds.
Upon the Borrower’s request, any cash amounts delivered to the Administrative Agent to be held as
Collateral under this §4.7 may be applied to repay Revolving Credit Loans, provided that an
amount of the Total Revolving Credit Commitment equal to the amount so repaid may not be reborrowed
until after or simultaneously with the final application of such amounts so delivered to the
Administrative Agent.



5. LETTERS OF CREDIT.




     5.1. Letter of Credit Commitments.




     5.1.1. Commitment to Issue Letters of Credit.




     (a) Subject to the terms and conditions hereof and the execution and delivery by
the Borrower of a letter of credit application on the Administrative Agent’s
customary form (a “Letter of Credit Application”),
the Administrative Agent on behalf of the Revolving Credit Lenders and in reliance
upon the agreement of the Revolving Credit Lenders set forth in §5.1.4 and upon the
representations and warranties of the Borrower contained herein, agrees, in its
individual capacity, to issue, extend and renew for the account of the Borrower one
or more standby letters of credit (individually, a “Letter of
Credit”), in such form as may be requested from time to time by the Borrower
and agreed to by the Administrative Agent; provided, however, that,
after giving effect to such request, (i) the sum of the aggregate Maximum Drawing
Amount and all Unpaid Reimbursement Obligations shall not exceed $20,000,000 at any
one time and (ii) the sum of (1) the Maximum Drawing Amount on all Letters of Credit,
(2) all Unpaid Reimbursement Obligations, and (3) the amount of all Revolving Credit
Loans outstanding shall not exceed the Total Revolving Credit Commitment at such
time.









 



60



     (b) Notwithstanding the foregoing, the Administrative Agent shall have no
obligation to issue any Letter of Credit:




     (i) to support or secure any Indebtedness of an Excluded Subsidiary;




     (ii) to support or secure any Indebtedness of the Borrower or any Subsidiary
of the Borrower to the extent that such Indebtedness was incurred prior to the
proposed issuance date of such Letter of Credit;




     (iii) if any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the Administrative
Agent from issuing such Letter of Credit, or any Law applicable to the
Administrative Agent or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over the Administrative
Agent shall prohibit, or request that the Administrative Agent refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular or
shall impose upon the Administrative Agent with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the Administrative Agent
is not otherwise compensated hereunder) not in effect on the Funding Date, or shall
impose upon the Administrative Agent any unreimbursed loss, cost or expense which
was not applicable on the Funding Date and which the Administrative Agent in good
faith deems material to it;




     (iv) if the issuance of such Letter of Credit would violate one or more
policies of the Administrative Agent applicable to letters of credit generally;




     (v) except as otherwise agreed by the Administrative Agent, if such Letter of
Credit is in an initial stated amount less than $100,000, in the case of a
commercial Letter of Credit, or $500,000, in the case of a standby Letter of
Credit;




     (vi) if such Letter of Credit is to be denominated in a currency other than
Dollars;




     (vii) if such Letter of Credit contains any provision for automatic
reinstatement of the stated amount after any drawing thereunder; or




     (viii) if a default of any Lender’s obligations to fund under §5.1.4 exists or
any Lender is at such time a Delinquent Lender hereunder, unless the Administrative
Agent has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the Administrative Agent’s risk with respect to such Lender.









 



61



     5.1.2. Letter of Credit Applications. Each Letter of Credit Application
shall be completed to the satisfaction of the Administrative Agent. In the event that any
provision of any Letter of Credit Application shall be inconsistent with any provision of
this Credit Agreement, then the provisions of this Credit Agreement shall, to the extent of
any such inconsistency, govern.




     5.1.3. Terms of Letters of Credit. Each Letter of Credit issued, extended
or renewed hereunder shall, among other things, (a) provide for the payment of sight drafts
for honor thereunder when presented in accordance with the terms thereof and when
accompanied by the documents described therein, and (b) provide for a term of no more than
one (1) year subject to automatic renewals, but in no event have an expiry date later than
the date which is fourteen (14) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons, forty-five (45) days)
prior to the Revolving Credit Maturity Date. Each Letter of Credit so issued, extended or
renewed shall be subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500 or any successor version
thereto adopted by the Administrative Agent in the ordinary course of its business as a
letter of credit issuer and in effect at the time of issuance of such Letter of Credit (the
“Uniform Customs”) or, in the case of a standby Letter of Credit, either
the Uniform Customs or the International Standby Practices (ISP98), International Chamber
of Commerce Publication No. 590, or any successor code of standby letter of credit
practices among banks adopted by the Administrative Agent in the ordinary course of its
business as a standby letter of credit issuer and in effect at the time of issuance of such
Letter of Credit.




     5.1.4. Reimbursement Obligations of Revolving Credit Lenders. Each
Revolving Credit Lender severally agrees that it shall be absolutely liable, without regard
to the occurrence of any Default or Event of Default or any other condition precedent
whatsoever, to the extent of such Revolving Credit Lender’s Commitment Percentage of the
Total Revolving Credit Commitment, to reimburse the Administrative Agent on demand for the
amount of each draft paid by the Administrative Agent under each Letter of Credit to the
extent that such amount is not reimbursed by the Borrower pursuant to §5.2 (such agreement
for a Revolving Credit Lender being called herein the “Letter of
Credit Participation” of such Revolving Credit Lender).




     5.1.5. Participations of Revolving Credit Lenders. Each such payment made
by a Revolving Credit Lender shall be treated as the purchase by such Revolving Credit
Lender of a participating interest in the Borrower’s Reimbursement Obligation under §5.2 in
an amount equal to such payment. Each Revolving Credit Lender shall share in accordance
with its participating interest in any interest which accrues pursuant to §5.2.









 



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     5.2. Reimbursement Obligation of the Borrower. In order to induce the Administrative
Agent to issue, extend and renew each Letter of Credit and the Revolving Credit Lenders to
participate therein, the Borrower hereby agrees to reimburse or pay to the Administrative Agent,
for the account of the Administrative Agent or (as the case may be) the Revolving Credit Lenders,
with respect to each Letter of Credit issued, extended or renewed by the Administrative Agent
hereunder,




     (a) except as otherwise expressly provided in clauses (b) and (c), on each date
that any draft presented under such Letter of Credit is honored by the Administrative
Agent, or the Administrative Agent otherwise makes a payment with respect thereto,
(i) the amount paid by the Administrative Agent under or with respect to such Letter
of Credit and (ii) the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Administrative Agent or any Revolving Credit Lender in
connection with any payment made by the Administrative Agent or any Revolving Credit
Lender under, or with respect to, such Letter of Credit,




     (b) upon the reduction (but not termination) of the Total Revolving Credit
Commitment to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Administrative Agent for the benefit of
the Revolving Credit Lenders and the Administrative Agent as cash collateral for all
Reimbursement Obligations, and




     (c) upon the termination of the Total Revolving Credit Commitment, or the
acceleration of the Reimbursement Obligations with respect to all Letters of Credit
in accordance with §14, an amount equal to the then Maximum Drawing Amount on all
Letters of Credit, which amount shall be held by the Administrative Agent for the
benefit of the Revolving Credit Lenders and the Administrative Agent as cash
collateral for all Reimbursement Obligations.


Each such payment shall be made to the Administrative Agent at the Administrative Agent’s Office in
immediately available funds. Interest on any and all amounts remaining unpaid by the Borrower
under this §5.2 at any time from the date such amounts become due and payable (whether as stated in
this §5.2, by acceleration or otherwise) until payment in full (whether before or after judgment)
shall be payable to the Administrative Agent on demand at the rate calculated in accordance with
§6.11 for Revolving Credit Loans.




     5.3. Letter of Credit Payments. If any draft shall be presented or other demand for
payment shall be made under any Letter of Credit, the Administrative Agent shall notify the
Borrower of the date and amount of the draft presented or demand for payment and of the date and
time when it expects to pay such draft or honor such demand for payment. If the Borrower fails to
reimburse the Administrative Agent as provided in









 



63

§5.2 on or before the date that such draft is paid or other payment is made by the
Administrative Agent, the Administrative Agent may at any time thereafter notify the Revolving
Credit Lenders of the amount of any such Unpaid Reimbursement Obligation. No later than 1:00 p.m.
(Dallas, Texas time) on the Business Day next following the receipt of such notice, each Revolving
Credit Lender shall make available to the Administrative Agent, at the Administrative Agent’s
Office, in immediately available funds, such Revolving Credit Lender’s Commitment Percentage (in
respect of the Total Revolving Credit Commitment) of such Unpaid Reimbursement Obligation, together
with an amount equal to the product of (a) the average, computed for the period referred to in
clause (c) below, of the weighted average interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day included in such period,
times (b) the amount equal to such Revolving Credit Lender’s Commitment Percentage (in
respect of the Total Revolving Credit Commitment) of such Unpaid Reimbursement Obligation,
times (c) a fraction, the numerator of which is the number of days that elapse from and
including the date the Administrative Agent paid the draft presented for honor or otherwise made
payment to the date on which such Revolving Credit Lender’s Commitment Percentage (in respect of
the Total Revolving Credit Commitment) of such Unpaid Reimbursement Obligation shall become
immediately available to the Administrative Agent, and the denominator of which is 360. The
responsibility of the Administrative Agent to the Borrower and the Revolving Credit Lenders shall
be only to determine that the documents (including each draft) delivered under each Letter of
Credit in connection with such presentment shall be in conformity in all material respects with
such Letter of Credit.




     5.4. Obligations Absolute. The Borrower’s obligations under this §5 shall be absolute
and unconditional under any and all circumstances and irrespective of the occurrence of any Default
or Event of Default or any condition precedent whatsoever or any setoff, counterclaim or defense to
payment which the Borrower may have or have had against the Administrative Agent, any Lender or any
beneficiary of a Letter of Credit. The Borrower further agrees with the Administrative Agent and
the Lenders that the Administrative Agent and the Revolving Credit Lenders shall not be responsible
for, and the Borrower’s Reimbursement Obligations under §5.2 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any
dispute between or among the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or any claims or
defenses whatsoever of the Borrower against the beneficiary of any Letter of Credit or any such
transferee. The Administrative Agent and the Revolving Credit Lenders shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. The Borrower agrees that any
action taken or omitted by the Administrative Agent or any Revolving Credit Lender under or in
connection with each Letter of Credit and the related drafts and documents, if done in good faith,
shall be binding upon the Borrower and shall not result in any liability on the part of the
Administrative Agent or any Revolving Credit Lender to the Borrower.









 



64


     5.5. Reliance by Issuer. To the extent not inconsistent with §5.4, the Administrative
Agent shall be entitled to rely, and shall be fully protected in relying upon, any Letter of
Credit, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other document believed by it to
be genuine and correct and to have been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel, independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Credit Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as the Administrative Agent reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Revolving Credit Lenders against
any and all liability and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Credit Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding
upon the Revolving Credit Lenders and all future holders of the Revolving Credit Notes or of a
Letter of Credit Participation.



     5.6. Letter of Credit Fee. The Borrower shall, on each Interest Payment Date for Base
Rate Loans pay a fee (in each case, a “Letter of Credit Fee”) to
the Administrative Agent in respect of each Letter of Credit in an amount equal to the sum of (a)
the Applicable Margin for Revolving Credit Loans outstanding during the quarter ending on such date
which bear interest based on the Eurodollar Rate of the Maximum Drawing Amount of such standby
Letter of Credit plus (b) one-eighth of one percent (0.125%) per annum of the face amount
of such standby Letter of Credit. The portion of the Letter of Credit Fee referred to in clause
(b) above shall be for the account of the Administrative Agent, as a fronting fee, and the balance
of such Letter of Credit Fee shall be for the accounts of the Revolving Credit Lenders in
accordance with their respective Commitment Percentages in respect of the Total Revolving Credit
Commitment. In respect of each Letter of Credit, the Borrower shall also pay to the Administrative
Agent for the Administrative Agent’s own account, at such other time or times as such charges are
customarily made by the Administrative Agent, the Administrative Agent’s customary issuance,
amendment, negotiation or document examination and other administrative fees as in effect from time
to time.



     5.7. Existing Letters of Credit. All Existing Letters of Credit shall be deemed to
have been issued pursuant hereto, and from and after the Funding Date shall be subject to and
governed by the terms and conditions hereof.



6. CERTAIN GENERAL PROVISIONS.




     6.1. Closing Fees. The Borrower agrees to pay all fees on the Funding Date that have
been expressly agreed to in writing between the Borrower and certain of the Lenders to be paid on
the Funding Date.









 



65


     6.2. Administrative Agent’s Fee. The Borrower shall pay to the Administrative Agent
annually in advance, for the Administrative Agent’s own account, on the Funding Date and on each
anniversary of the Funding Date, an Administrative Agent’s fee
(the “Administrative Agent’s
Fee”) as set forth in the Administrative Agent Fee Letter.



     6.3. Funds for Payments.




     6.3.1. Payments to Administrative Agent. All payments of principal,
interest, Reimbursement Obligations, Fees and any other amounts due hereunder or under any
of the other Loan Documents shall be made on the due date thereof to the Administrative
Agent in Dollars, for the respective accounts of the applicable Lenders and the
Administrative Agent, at the Administrative Agent’s Office or at such other place that the
Administrative Agent may from time to time designate, in each case no later than 2:00 p.m.
(Dallas, Texas time) and in immediately available funds.




     6.3.2. No Offset, etc. All payments by the Borrower hereunder and under
any of the other Loan Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed
or levied by any jurisdiction or any political subdivision thereof or taxing or other
authority therein excluding (A) income and franchise taxes imposed on (or measured by) the
net income or profits of any Lender or the Administrative Agent by the jurisdictions under
the laws of which the Administrative Agent or any Lender is organized or any political
subdivision thereof, or by the jurisdictions in which the Administrative Agent or such
Lender is located or any political subdivision thereof, or by the jurisdictions in which
the Administrative Agent or such Lender is doing business or any political subdivision
thereof and (B) any branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction described in clause (A) above unless, in each
case, the Borrower is compelled by law to make such deduction or withholding (such
non-excluded items referred to as “Non-Excluded
Taxes”). If any such Non-Excluded
Taxes are imposed upon the Borrower with respect to any amount payable by it hereunder or
under any of the other Loan Documents, the Borrower will pay to the Administrative Agent,
for the account of the Lenders or (as the case may be) the Administrative Agent, on the
date on which such amount is due and payable hereunder or under such other Loan Document,
such additional amount in Dollars as shall be necessary to enable the Lenders or the
Administrative Agent to receive the same net amount which the Lenders or the Administrative
Agent would have received on such due date had no such obligation been imposed upon the
Borrower; provided however that the Borrower shall not be required to
increase any such amounts payable to any Lender or the Administrative Agent with respect to
any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or
Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes
imposed









 



66



on the amounts payable to such Administrative Agent or such Lender at the time such
Administrative Agent or Lender becomes a party to this Credit Agreement, except to the
extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such obligation pursuant to
this §6.3.2; provided, further, that the foregoing shall not relieve the
Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any
change in any applicable law, treaty or governmental rule, regulation or order, or any
change in interpretation, administration or application thereof, a Non-U.S. Lender that was
previously entitled to receive all payments under this Credit Agreement and any Note
without deduction or withholding of any United States federal income taxes is no longer
properly entitled by law to deliver forms, certificates or other evidence at a subsequent
date establishing the fact that such Lender is not subject to withholding. The Borrower
will deliver promptly to the Administrative Agent certificates or other valid vouchers for
all taxes or other charges deducted from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document.




     6.3.3. Non-U.S. Lenders. Each Lender and the Administrative Agent
(including any assignee) that is not a U.S. Person as defined in Section 7701(a)(30) of the
Code for federal income tax purposes (a “Non-U.S. Lender”) hereby agrees
that, if and to the extent it is legally able to do so, it shall, prior to the date of the
first payment by the Borrower hereunder to be made to such Lender or the Administrative
Agent or for such Lender’s or the Administrative Agent’s account, deliver to the Borrower
and the Administrative Agent, as applicable, such certificates, documents or other
evidence, as and when required by the Code or Treasury Regulations issued pursuant thereto,
including (a) in the case of a Non-U.S. Lender that is a “bank” for purposes of Section
881(c)(3)(A) of the Code, two (2) duly completed copies of Internal Revenue Service Form
W-8BEN or Form W-8ECI and any other certificate or statement of exemption required by
Treasury Regulations, or any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Lender or the Administrative Agent establishing that
with respect to payments of principal, interest or fees hereunder it is (i) not subject to
United States federal withholding tax under the Code because such payment is effectively
connected with the conduct by such Lender or Administrative Agent of a trade or business in
the United States or (ii) totally exempt or partially exempt from United States federal
withholding tax under a provision of an applicable tax treaty and (b) in the case of a
Non-U.S. Lender that is not a “bank” for purposes of Section 881(c)(3)(A) of the Code, a
certificate substantially in the form of Exhibit I hereto, together with a properly
completed and executed Internal Revenue Service Form W-8 or W-9, as applicable (or
successor forms). Each Lender or the Administrative Agent agrees that it shall, promptly
upon a change of its lending office or the selection of any additional lending office, to
the extent the forms previously delivered by it pursuant to this section are no longer
effective, and promptly upon the Borrower’s or the Administrative Agent’s reasonable
request after the occurrence of any other event (including the passage of time) requiring
the delivery of a Form W-8BEN,









 



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Form W-8ECI, Form W-8 or W-9 in addition to or in replacement of the forms previously
delivered, deliver to the Borrower and the Administrative Agent, as applicable, if and to
the extent it is properly entitled to do so, two (2) properly completed and executed copies
of Form W-8BEN, Form W-8ECI, Form W-8 or W-9, as applicable (or any successor forms
thereto). Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose).



     6.4. Computations. All computations of interest on the Eurodollar Rate Loans and of
Fees shall be based on a 360-day year and paid for the actual number of days elapsed. All
computations of interest on Base Rate Loans shall be based on a 365-day or 366-day year, as the
case may be, for the actual number of days elapsed. Except as otherwise provided in the definition
of the term “Interest Period” with respect to Eurodollar Rate Loans, whenever a
payment hereunder or under any of the other Loan Documents becomes due on a day that is not a
Business Day, the due date for such payment shall be extended to the next succeeding Business Day,
and interest shall accrue during such extension. The outstanding amount of the Loans as reflected
from time to time in the accounts or records maintained by the Lenders and by the Administrative
Agent in accordance with the provisions of this Credit Agreement shall be considered correct and
binding on the Borrower unless within five (5) Business Days after receipt of any notice by the
Administrative Agent or any of the Lenders of such outstanding amount, the Administrative Agent or
such Lender shall notify the Borrower to the contrary.



     6.5. Inability to Determine Eurodollar Rate. In the event, prior to the commencement
of any Interest Period relating to any Eurodollar Rate Loan, the Administrative Agent shall
determine or be notified by the Required Lenders that adequate and reasonable methods do not exist
for ascertaining the Eurodollar Rate that would otherwise determine the rate of interest to be
applicable to any Eurodollar Rate Loan during any Interest Period, the Administrative Agent shall
forthwith give notice of such determination (which shall be conclusive and binding on the Borrower
and the Lenders) to the Borrower and the Lenders. In such event (a) any Loan Request or Conversion
Request with respect to Eurodollar Rate Loans shall be automatically withdrawn and shall be deemed
a request for Base Rate Loans, (b) each Eurodollar Rate Loan will automatically, on the last day of
the then current Interest Period relating thereto, become a Base Rate Loan, and (c) the obligations
of the Lenders to make Eurodollar Rate Loans shall be suspended until the Administrative Agent or
the Required Lenders determine that the circumstances giving rise to such suspension no longer
exist, whereupon the Administrative Agent or, as the case may be, the Administrative Agent upon the
instruction of the Required Lenders, shall so notify the Borrower and the Lenders.



     6.6. Illegality. Notwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or in the interpretation or application thereof









 



68



shall make it unlawful for any Lender to make or maintain Eurodollar Rate Loans, such Lender
shall forthwith give notice of such circumstances to the Borrower and the other Lenders and
thereupon (a) the commitment of such Lender to make Eurodollar Rate Loans or convert Base Rate
Loans to Eurodollar Rate Loans shall forthwith be suspended and (b) such Lender’s Loans then
outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans
on the last day of each Interest Period applicable to such Eurodollar Rate Loans or within such
earlier period as may be required by law. The Borrower hereby agrees promptly to pay the
Administrative Agent for the account of such Lender, upon demand by such Lender, any additional
amounts necessary to compensate such Lender for any costs incurred by such Lender in making any
conversion in accordance with this §6.6, including any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its Eurodollar Rate Loans hereunder.



     6.7. Additional Costs, etc. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder and interpretations
thereof by any competent court or by any governmental or other regulatory body or official charged
with the administration or the interpretation thereof and requests, directives, instructions and
notices at any time or from time to time hereafter made upon or otherwise issued to any Lender or
the Administrative Agent by any central bank or other fiscal, monetary or other authority (whether
or not having the force of law), shall:




     (a) subject any Lender or the Administrative Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to this Credit
Agreement, the other Loan Documents, any Letters of Credit, such Lender’s Commitment
or the Loans (other than taxes based upon or measured by the income or profits of
such Lender or the Administrative Agent), or




     (b) materially change the basis of taxation (except for changes in taxes on
income or profits) of payments to any Lender of the principal of or the interest on
any Loans or any other amounts payable to any Lender or the Administrative Agent
under this Credit Agreement or any of the other Loan Documents, or




     (c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or deposits in or
for the account of, or loans by, or letters of credit issued by, or commitments of an
office of any Lender, or




     (d) impose on any Lender or the Administrative Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan Documents, any
Letters of Credit, the Loans, such Lender’s









 



69



Commitment, or any class of loans, letters of credit or commitments of which any
of the Loans or such Lender’s Commitment forms a part;




and the result of any of the foregoing is:




     (i) to increase the cost to any Lender of making, funding, issuing, renewing,
extending or maintaining any of the Eurodollar Rate Loans or such Lender’s
Commitment or any Letter of Credit, or




     (ii) to reduce the amount of principal, interest, Reimbursement Obligation or
other amount payable to such Lender or the Administrative Agent hereunder on
account of such Lender’s Commitment, any Letter of Credit or any of the Loans, or




     (iii) to require such Lender or the Administrative Agent to make any payment
or to forego any interest or Reimbursement Obligation or other sum payable
hereunder, the amount of which payment or foregone interest or Reimbursement
Obligation or other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender or the Administrative Agent from the
Borrower hereunder,


then, and in each such case, the Borrower will, upon demand made by such Lender or (as the case may
be) the Administrative Agent and as often as the occasion therefor may arise and upon presentation
by such Lender or the Administrative Agent of a certificate pursuant to §6.9, pay to such Lender or
the Administrative Agent such additional amounts as will be sufficient to compensate such Lender or
the Administrative Agent on an after-tax basis for such additional cost, reduction, payment or
foregone interest or Reimbursement Obligation or other sum.




     6.8. Capital Adequacy. If after the date hereof any Lender determines that (a) the
adoption of or change in any law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) regarding capital requirements for Lenders or bank holding
companies or any change in the interpretation or application thereof by a Governmental Authority
with appropriate jurisdiction, or (b) compliance by such Lender or any corporation controlling such
Lender with any law, governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the effect of reducing
the return on such Lender’s commitment with respect to any Loans to a level below that which such
Lender could have achieved but for such adoption, change or compliance (taking into consideration
such Lender’s then existing policies with respect to capital adequacy and assuming full utilization
of such entity’s capital) by any amount deemed by such Lender to be material, then such Lender may
notify the Borrower and the Administrative Agent of such fact. To the extent that the amount of
such reduction in the return on capital is not reflected in the Base Rate, the Borrower agrees to
pay such Lender for the amount of such reduction in the return on capital as and when such
reduction is determined upon









 



70



presentation by such Lender of a certificate in accordance with §6.9. Each Lender shall
allocate such cost increases among its customers in good faith and on an equitable basis.



     6.9. Certificate. A certificate setting forth any additional amounts payable pursuant
to §6.7 or §6.8 and a brief explanation of such amounts which are due, submitted by any Lender to
the Borrower and the Administrative Agent, shall be conclusive, absent manifest error, that such
amounts are due and owing, which certificate shall be delivered no later than one hundred and
eighty (180) days after the date the Administrative Agent and such Lender shall have determined
that any such additional amount is due.



     6.10. Indemnity. The Borrower agrees to indemnify each Lender and to hold each Lender
harmless from and against any loss (excluding any loss of anticipated profits), cost or expense
that such Lender may sustain or incur as a consequence of (a) default by the Borrower in payment of
the principal amount of or any interest on any Eurodollar Rate Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by such Lender to banks
for funds obtained by it in order to maintain its Eurodollar Rate Loans, (b) default by the
Borrower in making a borrowing or conversion after the Borrower has given (or is deemed to have
given) a Loan Request notice (in the case of all or any portion of the Tranche B Term Loan pursuant
to §3.5.2) or a Conversion Request relating thereto in accordance with §2.6, §2.7 or §3.5.2, as the
case may be, (c) the making of any payment of a Eurodollar Rate Loan or the making of any
conversion of any such Loan to a Base Rate Loan on a day that is not the last day of the applicable
Interest Period with respect thereto, including interest or fees payable by such Lender to lenders
of funds obtained by it in order to maintain any such Loans.



     6.11. Interest After Default. During the continuance of any Event of Default of the
type described in clauses (a) or (b) of §14.1, the Loans and all other amounts payable hereunder or
under any of the other Loan Documents shall automatically bear interest, after as well as before
judgment, compounded monthly and payable on demand at a rate per annum equal to two percent (2%)
above the rate of interest then applicable thereto (or, if no rate of interest is then applicable
thereto, the Base Rate).



     6.12. Mitigation Obligations; Replacement of Lenders.




     (a) If any Lender requests compensation under §6.7 or §6.8, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to §6.3.2, or any Lender is subject to §6.6,
then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches, or Affiliates, if, in the reasonable
judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to §6.7 or §6.8 or §6.3.2 or eliminate the effect of §6.6,
as the case may be, in the future and (ii) would









 



71



not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




     (b) If any Lender requests compensation under §6.7 or §6.8, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to §6.3.2, or if any Lender is subject to
§6.6, or if any Lender does not agree to any amendment hereunder requiring the
consent of all Lenders and consented to by the Required Lenders, or if any Lender is
a Delinquent Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in §17, including, without limitation, as a condition precedent to such
assignment, (i) the Administrative Agent’s consent to the assignee unless not
otherwise required by §17 and (ii) payment of the registration fee set forth in
§17.1(b)), all its interests, rights and obligations under this Credit Agreement to
an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) such Lender shall
have received irrevocable payment in full in cash of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, and accrued fees and
all other Obligations and other amounts payable to it hereunder from the assignee or
the Borrower, (ii) such assignment will result in a reduction in such compensation or
payments or removal of such illegality or such amendment being approved and (iii)
such assignment does not conflict with applicable laws. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of
a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



7. COLLATERAL SECURITY AND GUARANTIES.




     7.1. Security of Borrower. The Obligations shall be secured by a perfected first
priority security interest (subject only to Permitted Liens entitled to priority under applicable
law) in all of the assets of the Borrower (other than the Excluded Assets, the Capital Stock of any
Excluded Subsidiary that is not directly owned by the Borrower or a Subsidiary and, in respect of
any foreign subsidiary directly owned by the Borrower, shall be limited to a pledge of 66 2/3% of
the issued and outstanding Capital Stock of such direct foreign subsidiary owned by the Borrower)
requested by the Administrative Agent or the Required Lenders, whether now owned or hereafter
acquired, including, without limitation, an assignment of all of the Borrower’s rights and
interests in, to and under each contract and agreement entered into by the Borrower in connection
with the transactions contemplated by §10.5.1, pursuant to the terms of the Security Documents to
which the Borrower is a party.
















 





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     7.2. Guaranties and Security of Parent and Subsidiaries. The Obligations shall also
be guaranteed pursuant to the terms of the Guaranty. The obligations of the Parent under the
Guaranty shall be secured by a perfected first priority security interest in (i) all of the issued
and outstanding Capital Stock of (x) the Borrower and (y) each domestic Subsidiary of the Parent
now existing, or hereafter created or acquired and (ii) 66 2/3% of the issued and outstanding
Capital Stock of each direct foreign subsidiary of the Parent whether now existing or hereafter
created or acquired, in each case, pursuant to the terms of the Pledge Agreement. The obligations
of the Borrower’s Subsidiaries under the Guaranty shall be secured by a perfected first priority
security interest (subject only to Permitted Liens entitled to priority under applicable law) in
all of the assets of each such Person (other than (A) Excluded Assets and (B) the Capital Stock of
any Excluded Subsidiary that is not directly owned by the Borrower or a Subsidiary) and in respect
of each direct foreign subsidiary of any of the Borrower’s Subsidiaries (including, for the
avoidance of doubt, Emmis International Broadcasting Corporation), limited to not less than a
pledge of 66 2/3% of the issued and outstanding Capital Stock of such direct foreign subsidiary,
whether now owned or hereafter acquired, including without limitation an assignment of each such
Person’s rights and interests in, to and under each contract and agreement entered into by each
such Person in connection with the transactions contemplated by §10.5.1, pursuant to the terms of
the Security Documents to which such Person is a party.



     7.3. Release of Collateral and Guaranties. The parties hereto acknowledge and agree
that, in accordance with §18.13 as soon as practicable following a sale or disposition of assets
permitted in accordance with the terms of this Credit Agreement, including without limitation,
§10.5.2, the Administrative Agent shall release its Liens on the Collateral subject to such sale or
disposition and/or any Subsidiary of the Borrower which is the subject of such sale or disposition
from its obligations under the Guaranty.



     7.4. Post Second Amendment Effective Date Collateral Requirements.




     (a) Mortgages on Owned Property. As to each of the real properties
owned in fee by the Borrower or any of its Subsidiaries as of the Second Amendment
Effective Date and listed on Schedule 7.4, within 45 days after the Second
Amendment Effective Date (provided that, if the Borrower has been diligently
exercising commercially reasonable efforts and submits a request in writing to the
Administrative Agent, the Administrative Agent may in its sole discretion grant up to
an aggregate of two 30-day extension periods), the Borrower shall cause to be
delivered to the Administrative Agent each of the following:




     (i) evidence that counterparts of the Mortgages for such properties have been
duly executed, acknowledged and delivered and are in form suitable for filing or
recording in all appropriate filing or recording offices in order to create a valid
first and subsisting mortgage Lien on the property described therein in favor of
the Administrative Agent to secure the Obligations and that all filing,
documentary, stamp, intangible and









 



73



recording taxes and fees have been paid in full or an amount sufficient to pay
any such taxes and fees in full has been deposited with the Administrative Agent or
title company;




     (ii) fully paid American Land Title Association Lender’s Extended Coverage
title insurance policies (the “Mortgage Policies”) with customary endorsements and
in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and
reinsured by title insurers reasonably acceptable to the Administrative Agent,
insuring the Mortgages to be valid first and subsisting mortgage Liens on the
property described therein, free and clear of all defects (including, but not
limited to, filed mechanics’ and materialmen’s Liens) and encumbrances, excepting
only Permitted Liens, and providing for such other customary affirmative insurance
and such coinsurance and direct access reinsurance as the Administrative Agent may
deem reasonably necessary or desirable;




     (iii) American Land Title Association/American Congress on Surveying and
Mapping form surveys, for which all necessary fees (where applicable) have been
paid, certified to the Administrative Agent and the issuer of the applicable
Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent
by a land surveyor duly registered and licensed in each State in which the property
described in such surveys is located and reasonably acceptable to the
Administrative Agent, showing all buildings and other improvements, any off-site
improvements, the location of any recorded easements, parking spaces, recorded
rights of way, building set-back lines and other dimensional regulations and the
existence of any encroachments, either by such improvements or on to such property,
and other matters that would be disclosed by an accurate survey complying with the
Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, jointly
established and adopted by ALTA and the National Society of Professional Surveyors
in 2005, provided that none of the Borrower or any of its Subsidiaries shall be
required to remedy any encroachment or other issue noted on such survey;




     (iv) engineering, soils and other reports, and environmental assessment
reports, each in scope, form and substance satisfactory to the Administrative
Agent, provided that none of the Borrower or any of its Subsidiaries shall be
required to take any action or address any condition identified in such reports;




     (v) a flood insurance policy in an amount equal to the lesser of the maximum
amount secured by the applicable Mortgage or the maximum amount of flood insurance
available under the Flood Disaster Protection Act of 1973, as amended, and
otherwise in compliance with the requirements of the Loan Documents, or evidence
satisfactory to the









 



74



Administrative Agent that none of the improvements located on such land is
located in a flood hazard area;




     (vi) evidence reasonably satisfactory to the Administrative Agent of the
insurance required by the terms of the applicable Mortgage and the Credit
Agreement, in each case reflecting the Administrative Agent on behalf of the
Lenders as additional insured or loss payee, as applicable;




     (vii) at the request of the Administrative Agent, an appraisal of each or any
of the properties described in the Mortgages complying with the requirements of the
Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, which
appraisals shall be from a Person reasonably acceptable to the Administrative
Agent;




     (viii) to the extent not included in the mortgage title policies, evidence
reasonably satisfactory to the Administrative Agent (i) of the identity of all
taxing authorities and utility districts (or similar authorities) having
jurisdiction over such property or any portion thereof, and (ii) that all taxes,
standby fees and any other similar charges have been paid, including copies of
receipts or statements marked “paid” by the appropriate authority, or an amount
sufficient to pay any such taxes and fees in full has been deposited with the
Administrative Agent or title company;




     (ix) local counsel opinions from counsel in each State addressed to the
Administrative Agent, the Lenders and the other secured parties regarding the
enforceability of the Mortgages (except to the extent that Rhode Island statutory
law prohibits an enforceability opinion) and such other customary matters as
reasonably requested by the Administrative Agent and its counsel; and




     (b) evidence that all other action that the Administrative Agent may reasonably
deem necessary or desirable in order to create valid first and subsisting mortgage
Liens (subject to Permitted Liens) on the properties described in the Mortgages has
been taken.




The Borrower hereby represents and warrants to the Administrative Agent and the Lenders
that, as of the Second Amendment Effective Date, Schedule 7.4 is a true, complete
and correct list all of the real property owned in fee by the Parent, the Borrower and the
Subsidiaries.



     7.5. Issuance of Replacement Equity Instruments. Within 45 days after the Second
Amendment Effective Date, all equity interests in the Subsidiaries of the Borrower except those
evidencing Emmis Radio License Corp. of New York, and Emmis License Corp. of New York must have
been re-issued with no restrictive legend on any such certificates except the following:









 



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This security has not been registered under the United States Securities Act of
1933, as amended (the “Securities Act”), and accordingly, may not be offered or
sold except as set forth in the following sentence. By its acquisition hereof, the
holder agrees that it will not resell or otherwise transfer the security evidenced
hereby, except (a) to the Company; (b) under a registration statement that has been
declared effective under the Securities Act; or (c) under any available exemption
from the registration requirements of the Securities Act.




The Borrower and the Parent shall take all action in connection with each such re-issuance
to preserve and maintain the Administrative Agent’s and the Lenders’ first and prior Lien
on such equity interests securing the Obligations.



     7.6. Other Post-Second Amendment Effective Date Requirements. Within 45 days after
the Second Amendment Effective Date:




     (a) the Borrower shall cause the Administrative Agent to have a first and prior
pledge of 66% of the Capital Stock of Emmis International Holding BV under New York
law pursuant to documentation substantially similar to the Pledge Agreement and
otherwise in form and substance reasonably satisfactory to the Administrative Agent,
and a UCC-1 in form reasonably required by the Administrative Agent;




     (b) the Borrower shall deliver to the Administrative Agent satisfactory evidence
(i) of the cancellation and termination of the loan between Emmis Ventures, Inc. and
the Parent, (ii) of the merger of Emmis Ventures, Inc. with and into the Borrower and
(iii) that the cash of Emmis Ventures, Inc. in an amount not less than $4,000,000 is
in the possession of the Borrower to be used for general corporate purposes; and




     (c) subject to the Borrower’s determination that there exists no adverse tax
consequences related thereto, the Borrower shall deliver to the Administrative Agent
satisfactory evidence of the cancellation and termination of all Permitted Parent
Indebtedness in existence prior to the Second Amendment Effective Date.



8. REPRESENTATIONS AND WARRANTIES.




     The Parent and the Borrower represent and warrant to the Lenders and the Administrative Agent
as follows:




8.1. Corporate Authority.




     8.1.1. Incorporation; Good Standing. Each of the Parent, the Borrower and
the Subsidiaries (a) is a corporation, partnership or limited liability company (or similar
business entity) duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or formation, (b) has all









 



76



requisite corporate, partnership or limited liability company (or the equivalent
company) power to own its property and conduct its business as now conducted and as
presently contemplated, and (c) is in good standing as a foreign corporation, partnership
or limited liability company (or similar business entity) and is duly authorized to do
business in each jurisdiction where such qualification is necessary except where a failure
to be so qualified would not have a Material Adverse Effect.




     8.1.2. Authorization. The execution, delivery and performance of this
Credit Agreement and the other Loan Documents to which the Parent, the Borrower or any
Subsidiary is or is to become a party and the transactions contemplated hereby and thereby
(a) are within the corporate, partnership or limited liability company (or the equivalent
company) authority of such Person, (b) have been duly authorized by all necessary
corporate, partnership or limited liability company (or the equivalent company)
proceedings, (c) do not and will not conflict with or result in any breach or contravention
of any provision of law, statute, rule or regulation to which such Person is subject or any
judgment, order, writ, injunction, license or permit applicable to such Person and (d) do
not conflict with any provision of the Governing Documents of, or any agreement or other
instrument binding upon, such Person.




     8.1.3. Enforceability. The execution and delivery of this Credit Agreement
and the other Loan Documents to which the Parent, the Borrower or any Subsidiary is or is
to become a party will result in valid and legally binding obligations of such Person
enforceable against it in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of creditors’
rights and except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any proceeding
therefor may be brought.



     8.2. Governmental Approvals. The execution, delivery and performance by the Parent,
the Borrower or any Subsidiary of this Credit Agreement and the other Loan Documents to which such
Person is or is to become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any Governmental Authority other than those
already obtained.



     8.3. Title to Properties.




     (a) Except as indicated on Schedule 8.3(a) hereto, the Parent,
the Borrower and the Subsidiaries own all of the assets reflected in the consolidated
balance sheet of the Parent and its subsidiaries as at the Balance Sheet Date or
acquired since that date (except (i) property and assets which are not integral to
the operations of the Stations or publishing operations owned by the Borrower or its
Subsidiaries as such Stations or









 



77



publishing operations are operated immediately prior to the Balance Sheet Date,
(ii) property and assets which do not consist of a Station or publishing asset which
have been sold or otherwise disposed of in the ordinary course of business since that
date, (iii) property and assets which have been replaced since that date or (iv)
property and assets which have been sold or otherwise disposed of after the Funding
Date as permitted hereunder), subject to no rights of others, including any
mortgages, leases, conditional sales agreements, title retention agreements, liens or
other encumbrances except Permitted Liens.




     (b) Schedule 8.3(b) hereto, as updated from time to time in accordance with
§10.5 sets forth all of the Stations of the Borrower and its Subsidiaries at the time
of reference thereto.



     8.4. Financial Statements and Projections.




     8.4.1. Fiscal Year. The Parent, the Borrower and each of the Subsidiaries
has a fiscal year which is the twelve (12) months ending on February 28, or in the case of
a leap year, February 29, of each calendar year.




     8.4.2. Financial Statements. There has been furnished to the Lenders the
consolidated balance sheet of the Parent, the Borrower and its subsidiaries, as at the
Balance Sheet Date, and the related, similarly adjusted, consolidated statements of income
and cash flow for the fiscal year then ended, each certified by an authorized officer of
the Borrower. Such balance sheet and statement of income and cash flow have been prepared
in accordance with GAAP and fairly present in all material respects the financial condition
of the Parent, the Borrower and its subsidiaries, as at the close of business on the date
thereof and the results of operations for the fiscal year then ended. There are no
contingent liabilities of the Parent, the Borrower or any of its subsidiaries, as of the
Funding Date involving material amounts, known to any officer of the Parent, the Borrower
or of any of the Subsidiaries not disclosed in the balance sheet dated the Balance Sheet
Date and the related notes thereto other than contingent liabilities disclosed to the
Lenders in writing.




     8.4.3. Projections. There has been furnished to the Lenders the
projections of the Borrower and its subsidiaries, which include a projection of revenue,
earnings before interest, taxes, depreciation and amortization, sources and uses of cash, a
funding analysis and capitalization for the fiscal years ended February 28, 2006 through
the fiscal year ended February 28, 2014, copies of which are
attached hereto as Exhibit D
(the “Projections”), which disclose all assumptions made with respect to general economic,
financial and market conditions used in formulating the Projections. To the knowledge of
the Parent, the Borrower or any of the Subsidiaries as of the Funding Date, no facts exist
that (individually or in the aggregate) would result in any material change in any of the
Projections. The Projections are based upon reasonable estimates and









 



78



assumptions at the time made, have been prepared on the basis of the assumptions
stated therein and reflect the reasonable estimates of the Parent, the Borrower and the
Subsidiaries, of the results of operations and other information projected therein.



     8.5. No Material Adverse Changes, etc. Since the Balance Sheet Date there has been no
event or occurrence which has had a Material Adverse Effect. Since the Balance Sheet Date, neither
the Borrower nor any Subsidiary has made any Restricted Payment
except as set forth on Schedule 8.5
hereto or after the Funding Date as permitted by §10.4.



     8.6. Franchises, Patents, Copyrights, etc. The Borrower and each of its Subsidiaries
possesses all material franchises, patents, copyrights, trademarks, trade names, licenses and
permits, and rights in respect of the foregoing, necessary for the conduct of its business
substantially as now conducted without known material conflict with any rights of others.



     8.7. Litigation. Except as set forth in Schedule 8.7 hereto, there
are no actions, suits, proceedings or investigations of any kind pending or threatened against the
Parent or any of its Subsidiaries before any Governmental Authority, (a) that, could reasonably be
expected to, in each case or in the aggregate, (i) have a Material Adverse Effect or (ii)
materially impair the right of the Parent and its Subsidiaries, considered as a whole, to carry on
business substantially as now conducted by them, or result in any substantial liability not
adequately covered by insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet of the Parent and its subsidiaries, or (b) which question the validity
of this Credit Agreement or any of the other Loan Documents, or any action taken or to be taken
pursuant hereto or thereto.



     8.8. No Materially Adverse Contracts, etc. None of the Parent, the Borrower or any of
the Subsidiaries is subject to any Governing Document or other legal restriction, or any judgment,
decree, order, law, statute, rule or regulation that has or is expected in the future to have a
Material Adverse Effect. None of the Parent, the Borrower or any of the Subsidiaries is a party to
any contract or agreement that has or is expected, in the reasonable judgment of the Borrower’s
officers, to have any Material Adverse Effect.



     8.9. Compliance with Other Instruments, Laws, Status as Senior Debt, etc. None of the
Parent, the Borrower or any of the Subsidiaries is in violation of any provision of its Governing
Documents, or any agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule or regulation, in
any of the foregoing cases in a manner that could reasonably be expected to have a Material Adverse
Effect.



     8.10. Tax Status. The Parent and the Subsidiaries (a) have made or filed all federal,
state and foreign income and all other tax returns, reports and declarations required by any
jurisdiction to which any of them is subject, except where failure to have









 



79



done so could not reasonably be expected to result in a Material Adverse Effect and (b) have
paid all taxes and other governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith and by appropriate
proceedings and with respect to which adequate reserves in conformity with GAAP have been provided
on the books of the Parent or its Subsidiaries, as the case may be, and except where failure to do
so could not reasonably be expected to result in a Material Adverse Effect. Except as set forth on
Schedule 8.10, there are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction (except those being contested in good faith by appropriate
proceedings subject to the Borrower or the applicable Subsidiary having established adequate
reserves in conformity with GAAP for the payment of such disputed taxes and except where the
failure to pay such disputed taxes could not reasonably be expected to result in a Material Adverse
Effect), and none of the officers of the Borrower know of any reasonable basis for any such claim.



     8.11. No Event of Default. No Default or Event of Default has occurred and is
continuing.



     8.12. Investment Company Acts and Communications Act. None of the Parent, the
Borrower, any Person Controlling the Parent, or any Subsidiary (i) is a “public-utility
company”, “holding company,” or a “subsidiary company” of a “holding
company,” or an “affiliate” of a “holding company”, as such terms are defined
in the Public Utility Holding Company Act of 2005, and neither Parent or any of its Subsidiaries is
subject to regulation as a “public utility” under the Federal Power Act, as amended, or (ii) is or
is required to be registered as an “investment company” under the Investment Company Act of 1940,
as amended. The Borrower and each of its Subsidiaries is in compliance with the Communications Act
with regard to alien control or ownership.



     8.13. Absence of Financing Statements, etc. Except with respect to Permitted Liens,
there is no financing statement, security agreement, chattel mortgage, real estate mortgage or
other document filed or recorded with any filing records, registry or other public office, that
purports to cover, affect or give notice of any present or possible future Lien on any assets or
property of the Parent, the Borrower or any of the Subsidiaries or any rights relating thereto.



     8.14. Perfection of Security Interest. All filings, assignments, pledges and deposits
of documents or instruments have been made and all other actions have been taken that are necessary
or advisable, under applicable law, to establish and perfect the Administrative Agent’s security
interest in the Collateral. The Collateral and the Administrative Agent’s rights with respect to
the Collateral are not subject to any setoff, claims, withholdings or other defenses. The Borrower
or (as the case may be) a Subsidiary party to the Security Agreement is the owner of the Collateral
free from any Lien, except for Permitted Liens.









 



80


     8.15. Certain Transactions. Except for arm’s length transactions pursuant to which
the Borrower or any of its Subsidiaries makes payments in the ordinary course of business upon
terms no less favorable than the Borrower or such Subsidiary could obtain from third parties, none
of the officers, directors, or employees of the Borrower or any of its Subsidiaries is presently a
party to any transaction with the Borrower or any of its Subsidiaries (other than for services as
employees, officers and directors and independent contractors in the ordinary course of business),
including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Borrower,
any corporation, partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or partner.



     8.16. Employee Benefit Plans.




     8.16.1. In General. Each Employee Benefit Plan and each Guaranteed Pension
Plan has been maintained and operated in compliance in all material respects with the
provisions of ERISA and all Applicable Pension Legislation and, to the extent applicable,
the Code, including but not limited to the provisions thereunder respecting prohibited
transactions and the bonding of fiduciaries and other persons handling plan funds as
required by §412 of ERISA. The Borrower has heretofore delivered to the Administrative
Agent the most recently completed annual report, Form 5500, with all required attachments,
and actuarial statement required to be submitted under §103(d) of ERISA, with respect to
each Guaranteed Pension Plan.




     8.16.2. Terminability of Welfare Plans. No Employee Benefit Plan, which is
an employee welfare benefit plan within the meaning of §3(1) or §3(2)(B) of ERISA, provides
benefit coverage subsequent to termination of employment, except as required by Title I,
Part 6 of ERISA or the applicable state insurance laws. The Borrower may terminate each
employee welfare benefit plan at any time (or at any time subsequent to the expiration of
any applicable bargaining agreement) in the discretion of the Borrower without liability to
any Person other than for claims arising prior to termination.




     8.16.3. Guaranteed Pension Plans. Each contribution required to be made to
a Guaranteed Pension Plan, whether required to be made to avoid the incurrence of an
accumulated funding deficiency, the notice or lien provisions of §302(f) of ERISA, or
otherwise, has been timely made. No waiver of an accumulated funding deficiency or
extension of amortization periods has been received with respect to any Guaranteed Pension
Plan, and neither the Borrower nor any ERISA Affiliate is obligated to or has posted
security in connection with an amendment to a Guaranteed Pension Plan pursuant to §307 of
ERISA or §401(a)(29) of the Code. No liability to the PBGC (other than required insurance
premiums, all of which have been paid) has been incurred by the Borrower or any ERISA
Affiliate with respect to any Guaranteed Pension Plan and there has not









 



81



been any ERISA Reportable Event (other than an ERISA Reportable Event as to which the
requirement of 30 days notice has been waived), or any other event or condition which
presents a material risk of termination of any Guaranteed Pension Plan by the PBGC. Based
on the latest valuation of each Guaranteed Pension Plan (which in each case occurred within
twelve months of the date of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of §4001 of ERISA did not exceed the aggregate
value of the assets of all such Guaranteed Pension Plans, disregarding for this purpose the
benefit liabilities and assets of any Guaranteed Pension Plan with assets in excess of
benefit liabilities.




     8.16.4. Multiemployer Plans. Neither the Borrower nor any ERISA Affiliate
has incurred any material liability (including secondary liability) to any Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer Plan under
§4201 of ERISA or as a result of a sale of assets described in §4204 of ERISA. Neither the
Borrower nor any ERISA Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of §4241 or §4245 of ERISA or is
at risk of entering reorganization or becoming insolvent, or that any Multiemployer Plan
intends to terminate or has been terminated under §4041A of ERISA.



     8.17. Use of Proceeds.




     8.17.1. General. The proceeds of the Loans shall be used for the following
purposes: (a) to fund working capital and general corporate purposes, (b) to fund Permitted
Acquisitions, and (f) to fund Capital Expenditures permitted hereunder. The Borrower will
obtain Letters of Credit solely for general corporate purposes.




     8.17.2. Regulation U. No portion of any Loan is to be used, and no portion
of any Letter of Credit is to be obtained, for the purpose of purchasing or carrying any
“margin security” or “margin stock” as such terms are used
in Regulation U of the Board of Governors of the Federal Reserve System, 12 C.F.R. Part
221.




     8.17.3. Ineligible Securities. No portion of the proceeds of any Loan is
to be used, and no portion of any Letter of Credit is to be obtained, for the purpose of
knowingly purchasing, or providing credit support for the purchase of, during the
underwriting or placement period or within thirty (30) days thereafter, any Ineligible
Securities underwritten or privately placed by a Financial Affiliate.



     8.18. Environmental Compliance. The Borrower has taken all necessary steps to
investigate the past and present condition and usage of the Real Estate and the operations
conducted thereon and, based upon such diligent investigation, has determined that:









 



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     (a) none of the Borrower, its Subsidiaries or any operator of the Real Estate or
any operations thereon is in violation, or alleged violation, of any judgment,
decree, order, law, license, rule or regulation pertaining to environmental matters,
including without limitation, those arising under the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 as amended (“CERCLA”), the Superfund Amendments and Reauthorization Act
of 1986, the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances
Control Act, or any state, local or foreign law, statute, regulation, ordinance,
order or decree relating to health, safety or the environment (hereinafter
“Environmental Laws”), which violation could reasonably be expected to have a
material adverse effect on the environment or a Material Adverse Effect;




     (b) neither the Borrower nor any of its Subsidiaries has received notice from
any third party including, without limitation, any Governmental Authority, (i) that
any one of them has been identified by the United States Environmental Protection
Agency (“EPA”) as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B; (ii) that any
hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substances as
defined by 42 U.S.C. §9601(14), any pollutant or contaminant as defined by 42 U.S.C.
§9601(33) and any toxic substances, oil or hazardous materials or other chemicals or
substances regulated by any Environmental Laws (“Hazardous Substances”) which any one
of them has generated, transported or disposed of has been found at any site at which
a Governmental Authority has conducted or has ordered that any Borrower or any of its
Subsidiaries conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it is or shall be a named party to
any claim, action, cause of action, complaint, or legal or administrative proceeding
(in each case, contingent or otherwise) arising out of any third party’s incurrence
of costs, expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Substances except where any of the foregoing could not
reasonably be expected to have a Material Adverse Effect;




     (c) except as set forth on Schedule 8.18 attached hereto: (i) no portion of the
Real Estate has been used for the handling, processing, storage or disposal of
Hazardous Substances except in accordance with applicable Environmental Laws; and no
underground tank or other underground storage receptacle for Hazardous Substances is
located on any portion of the Real Estate; (ii) in the course of any activities
conducted by the Borrower, its Subsidiaries or operators of its properties, no
Hazardous Substances have been generated or are being used on the Real Estate except
in accordance with applicable Environmental Laws, except where any failure to comply
could not reasonably be expected to result in a Material









 



83



Adverse Effect, (iii) there have been no releases (i.e. any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, disposing or dumping) or threatened releases of Hazardous
Substances on, upon, into or from the properties of the Borrower or its Subsidiaries,
which releases would have a material adverse effect on the value of any of the Real
Estate or adjacent properties or the environment; (iv) to the best of the Borrower’s
knowledge, there have been no releases on, upon, from or into any real property in
the vicinity of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on, and which would have a material
adverse effect on the value of, the Real Estate; and (v) in addition, any Hazardous
Substances that have been generated on any of the Real Estate have been transported
offsite only by carriers having an identification number issued by the EPA (or the
equivalent thereof in any foreign jurisdiction), treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under
applicable Environmental Laws, which transporters and facilities have been and are,
to the best of the Borrower’s knowledge, operating in compliance with such permits
and applicable Environmental Laws; and




     (d) none of the Borrower and its Subsidiaries, any Mortgaged Property or any of
the other Real Estate is subject to any applicable Environmental Law requiring the
performance of Hazardous Substances site assessments, or the removal or remediation
of Hazardous Substances, or the giving of notice to any Governmental Authority or the
recording or delivery to other Persons of an environmental disclosure document or
statement by virtue of the transactions set forth herein and contemplated hereby, or
as a condition to the recording of any Mortgage or to the effectiveness of any other
transactions contemplated hereby.



     8.19.
Subsidiaries, etc.
Schedule 8.19 hereto, as updated from time to time in
accordance with §9.15, sets forth all of the Subsidiaries of the Parent. Except as set forth on
Schedule 8.19, neither the Parent nor any Subsidiary is engaged in any joint
venture or partnership with any other Person. The jurisdiction of incorporation/formation and
principal place of business of each Subsidiary is listed on
Schedule 8.19 hereto.



     8.20. Disclosure. Neither this Credit Agreement nor any of the other Loan Documents
contains any untrue statement of a material fact or omits to state a material fact (known to the
Parent or any of its Subsidiaries in the case of any document or information not furnished by it or
any of its Subsidiaries) necessary in order to make the statements herein or therein not
misleading. There is no fact known to the Parent or any of its Subsidiaries which has had a
Material Adverse Effect, or which is reasonably likely in the future to have a Material Adverse
Effect, exclusive of effects resulting from changes in general economic conditions, legal standards
or regulatory conditions or changes affecting the broadcasting or publishing industries generally
resulting from new technologies.









 



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     8.21. Licenses and Approvals.




     (a) Each of the Borrower and its Subsidiaries has all requisite power and
authority and Necessary Authorizations to hold the FCC Licenses and to own and
operate its Stations and to carry on its businesses as now conducted.




     (b) Set forth in Schedule 8.21 hereto, as updated from time to time in
accordance with §10.5, is a complete description of all FCC Licenses of the Borrower
and/or its Subsidiaries and the dates on which such FCC Licenses expire. Complete
and correct copies of all such FCC licenses have been delivered to the Administrative
Agent. Except as set forth on Schedule 8.21, each such FCC License
which is necessary to the operation of the business of the Borrower or any of its
Subsidiaries is validly issued and in full force and effect and, in respect of each
such license that has expired by its terms, a timely renewal application has been
filed and the Borrower and/or its Subsidiaries has authority to continue operating
the applicable Station pending action on such application and, except as set forth on
Schedule 8.7 the Borrower and its Subsidiaries do not know of any
matters that could reasonably be expected to result in the non-renewal of any
material license; and except as set forth on Schedule 8.7 and
Schedule 8.21, the Borrower and each of its Subsidiaries has
fulfilled and performed in all material respects all of its obligations with respect
to each such FCC License; in each case, provided that such exceptions could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect and
provided further that the Borrower or such Subsidiary is taking all reasonable and
appropriate steps to contest or mitigate its potential liabilities in respect of such
exceptions and has set aside on its books adequate reserves in conformity with GAAP
with respect thereto. Except as set forth on Schedule 8.7 and
Schedule 8.21, no event has occurred which: (i) has resulted in, or
after notice or lapse of time or both would result in, revocation or termination of
any FCC License, or (ii) materially and adversely affects or in the future could
reasonably be expected to materially adversely affect any of the rights of the
Borrower or any of its Subsidiaries under any FCC License, except for such events
(including such events set forth on Schedule 8.7 and Schedule
8.21) which could not reasonably be expected to cause an Event of Default
pursuant to §14.1(t) and so long as the Borrower or the applicable Subsidiary shall
have complied with §9.10(b)(iv). No material license or franchise, other than the
FCC Licenses described in Schedule 8.21 which have been obtained, is
necessary for the operation of the business (including the Stations) of the Borrower
or any of its Subsidiaries as now conducted.




     (c)
Except as set forth on Schedule 8.7 and
Schedule 8.21, as
such Schedule 8.21 may be updated from time to time pursuant to
§10.5, none of the Borrower or any of its Subsidiaries is a party to or has









 



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knowledge of any investigation, notice of violation, order or complaint issued
by or before any Governmental Authority, including the FCC, or of any other
proceedings (other than proceedings relating to the radio or television broadcasting
industry generally) which could in any manner threaten or adversely affect the
validity or continued effectiveness of the FCC Licenses of the Borrower and its
Subsidiaries taken as a whole or the business of the Borrower and its Subsidiaries
taken as a whole, provided that any such investigations, violations, orders
or complaints issued by or before any Governmental Authority or proceedings could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect and
provided further that the Borrower or such Subsidiary is taking all reasonable and
appropriate steps to contest or mitigate its potential liabilities in respect of such
investigations, violations, orders or complaints or proceedings and has set aside on
its books adequate reserves in conformity with GAAP with respect thereto. Except as
set forth on Schedule 8.7, none of the Borrower or any of its
Subsidiaries has reason to believe that any of the FCC Licenses described in
Schedule 8.21, as updated from time to time pursuant to §10.5, will
not be renewed, except for those the failure to be in full force and effect after the
Funding Date could not reasonably be expected to have a Material Adverse Effect.
Each of the Borrower and its Subsidiaries has filed all material reports,
applications, documents, instruments and information required to be filed by it
pursuant to applicable rules and regulations or requests of every regulatory body
having jurisdiction over any of its FCC Licenses or the activities or business of
such Person with respect thereto and has timely paid all FCC annual regulatory fees
assessed with respect to its FCC Licenses.




     (d) All FCC Licenses and other licenses, permits and approvals relating to the
Stations are held by a License Subsidiary. No License Subsidiary (A) owns or holds
any assets (including the ownership of stock or any other interest in any Person)
other than FCC Licenses and other licenses, permits and approvals relating to the
Stations, (B) is engaged in any business other than the holding, acquisition and
maintenance of FCC Licenses and other licenses, permits and approvals relating to the
Stations, (C) has any Investments in any Person other than the Borrower or (D) owes
any Indebtedness (other than (x) Indebtedness to the Administrative Agent and the
Lenders pursuant to the Guaranty and (y) contingent obligations pursuant to
Subordinated Debt consisting of guaranties of Subordinated Debt to any Person other
than the Borrower).



     8.22. Material Agreements. All material radio or television network affiliation,
programming, engineering, consulting, management, employment and related agreements, if any, of the
Borrower and its Subsidiaries which are presently in effect in connection with, and are material
and necessary to, the conduct of the business of the Borrower or any of its Subsidiaries, including
without limitation the operation of any Station by the Borrower or any of its Subsidiaries, are
valid, subsisting and in full force









 



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and effect and none of the Borrower, any of its Subsidiaries or, to the Borrower’s best
knowledge, any other Person are in material default thereunder.



     8.23. Solvency. As of the date on which this representation and warranty is made or
deemed made, each of the Parent, the Borrower and the Subsidiaries is Solvent, both before and
after giving effect to the transactions contemplated hereby consummated on such date and to the
incurrence of all Indebtedness and other obligations incurred on such date in connection herewith
and therewith.



     8.24. Excluded Subsidiaries. The entities set forth in clause (b) of the definition
of “Excluded Subsidiaries” do not own or operate any Station, broadcasting business or publishing
business within the United States and either own no assets or own only stock of Persons whose
primary businesses are owning or operating broadcasting businesses outside the United States. The
primary business of Ciudad, LLC is the magazine publishing business. The Austin Partnership is a
Texas limited partnership, 49.69443% of which is owned by the Borrower. RAM is a Texas limited
liability company, 50.1% of which is owned by the Borrower.



9. AFFIRMATIVE COVENANTS.




     The Borrower covenants and agrees that, so long as any Loan, Unpaid Reimbursement Obligation,
Letter of Credit, Note or other Obligation is outstanding or any Lender has any obligation to make
any Loans or the Administrative Agent has any obligation to issue, extend or renew any Letters of
Credit:



     9.1. Punctual Payment. The Borrower will duly and punctually pay or cause to be paid
the principal and interest on the Loans, all Reimbursement Obligations, the Letter of Credit Fees,
the Commitment Fees and all other fees and amounts provided for in this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries is a party, all in accordance
with the terms of this Credit Agreement and such other Loan Documents.



     9.2. Maintenance of Office. The Borrower will, and will cause Parent to, maintain its
chief executive office in the location set forth in the Perfection Certificates or, in each case,
at such other place in the United States of America as the Borrower shall designate upon written
notice to the Administrative Agent, where notices, presentations and demands to or upon the
Borrower in respect of the Loan Documents to which the Borrower is a party may be given or made.



     9.3. Records and Accounts. The Borrower will (a) keep, and cause each of its
Subsidiaries to keep, true and accurate records and books of account in which full, true and
correct entries will be made in accordance with GAAP, (b) maintain adequate accounts and reserves
for all taxes (including income taxes), depreciation, depletion, obsolescence and amortization of
its properties and the properties of its Subsidiaries, contingencies, and other reserves, and (c)
at all times engage Ernst & Young LLP or other independent certified public accountants reasonably
satisfactory to the Administrative Agent as the independent certified public accountants of the
Borrower









 



87



and its Subsidiaries and will not permit more than thirty (30) days to elapse between the
cessation of such firm’s (or any successor firm’s) engagement as the independent certified public
accountants of the Borrower and its Subsidiaries and the appointment in such capacity of a
successor firm as shall be satisfactory to the Administrative Agent.



     9.4. Financial Statements, Certificates and Information. The Borrower will deliver to
each of the Lenders:



     (a) as soon as practicable, but in any event not later than eighty (80) days
after the end of each fiscal year of the Parent, the audited consolidated balance
sheet of the Parent and its subsidiaries, as at the end of such year, and the related
audited consolidated statements of income and audited consolidated statements of cash
flow, each setting forth in comparative form the figures for the previous fiscal year
and all such consolidated statements (i) to be in reasonable detail, prepared in
accordance with GAAP and the requirements of the Securities and Exchange Commission
(the “SEC”) and (ii) to be certified without qualification and without an
expression of uncertainty as to the ability of the Parent, the Borrower or any of the
Subsidiaries to continue as going concerns, by Ernst & Young LLP or by other
independent certified public accountants reasonably satisfactory to the
Administrative Agent, together with a written statement from such accountants to the
effect that, in making the examination necessary to said certification, they have
obtained no knowledge of any Default or Event of Default related to or arising from
accounting matters, or, if such accountants shall have obtained knowledge of any then
existing Default or Event of Default they shall disclose in such statement any such
Default or Event of Default; provided that such accountants shall not be
liable to the Lenders for failure to obtain knowledge of any Default or Event of
Default;



     (b) (i) as soon as practicable, but in any event not later than fifty (50) days
after the end of each of the fiscal quarters of the Parent, copies of the unaudited
consolidated balance sheets of the Parent and its subsidiaries as at the end of such
quarter, and the related consolidated statements of income and cash flows for the
fiscal quarter then ended, all in reasonable detail and prepared in accordance with
GAAP and SEC requirements, together with a certification by the principal financial
or accounting officer of the Borrower that the information contained in such
financial statements fairly presents the financial position of the Parent, the
Borrower and their respective subsidiaries on the date thereof (subject to year-end
adjustments);




     (ii) during the Suspension Period, as soon as practicable, but in any event
not later than thirty (30) days after the end of each month, copies of the
unaudited consolidated balance sheets of the Parent and its subsidiaries as at the
end of such month, and the related consolidated









 



88



statements of income for the fiscal month then ended, all in reasonable
detail and prepared in accordance with GAAP, together with a certification by the
principal financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial position of
the Parent, the Borrower and their respective subsidiaries on the date thereof
(subject to year-end and quarter-end adjustments);




     (c) simultaneously with the delivery of the financial statements referred to in
subsections (a) and (b)(i) above, (i) a statement certified by the principal
financial or accounting officer of the Borrower in substantially the form of
Exhibit E hereto or any other form acceptable to the Administrative
Agent (a “Compliance Certificate”) and certifying that no Default or
Event of Default is then continuing or describing the nature and duration of any then
continuing Default or Event of Default and setting forth in reasonable detail
computations evidencing compliance with the covenants contained in §11 and (if
applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date,
(ii) a schedule in form and detail reasonably satisfactory to the Administrative
Agent of computations of (x) Consolidated Net Income (along with a schedule that
reconciles the net income (or loss) of the Parent and its subsidiaries on a
consolidated basis to the net income (or loss) of the Borrower and its Subsidiaries
on a consolidated basis) and (y) Consolidated EBITDA and other financial
covenant-related calculations detailing the adjustments made to exclude Excluded
Subsidiaries from such computations, in each case, prepared by the principal
financial or accounting officer of the Borrower, (iii) during the Suspension Period,
a schedule in form and detail reasonably satisfactory to the Administrative Agent of
the amount of cash and cash equivalents as of the end of such fiscal quarter in each
of the Parent’s, the Borrower’s and each of the Subsidiary’s deposit accounts and
securities accounts, (iv) during the Suspension Period, a schedule in form and detail
reasonably satisfactory to the Administrative Agent tracking and detailing the
existing Investments made pursuant to the terms of §10.3(j) and the replenishment in
accordance with the terms of the definition of Investment and (v) during the
Suspension Period, a schedule in form and detail reasonably satisfactory to the
Administrative Agent tracking and detailing the Distributions of the Borrower made to
the Parent and the reasons therefor;




     (d) promptly upon completion thereof and in any event no later than eighty (80)
days after the beginning of each fiscal year of the Borrower, the Borrower’s annual
operating budget in the form of consolidated financial projections for such fiscal
year and prepared on a quarterly basis and setting forth projected operating results
for each quarter in such fiscal year and for the fiscal year as a whole, including
projections of operating cash flow together with a quarterly itemization of estimated









 



89



taxes and Capital Expenditures for such fiscal year, which are prepared on the
basis of reasonable assumptions; and




     (e) from time to time such other financial data and information (including,
without limitation, accountants’ management letters) with respect to the condition or
operations, financial or otherwise, of the Parent, the Borrower and the subsidiaries
(including Excluded Subsidiaries) as the Administrative Agent or any Lender may
reasonably request.



     9.5. Notices and Other Information.




     9.5.1. Defaults. The Borrower will promptly notify the Administrative
Agent and each of the Lenders in writing of the occurrence of any Default or Event of
Default, together with a reasonably detailed description thereof, and the actions the
Borrower proposes to take with respect thereto. If any Person shall give any notice or
take any other action in respect of a claimed default (whether or not constituting an Event
of Default) under this Credit Agreement or any other note, evidence of indebtedness,
indenture or other obligation in an amount equal to or greater than $5,000,000 to which or
with respect to which the Parent, the Borrower or any of the Subsidiaries is a party or
obligor, whether as principal, guarantor, surety or otherwise, the Borrower shall forthwith
give written notice thereof to the Administrative Agent and each of the Lenders, describing
the notice or action and the nature of the claimed default.




     9.5.2. Environmental Events. The Borrower will promptly give notice to the
Administrative Agent and each of the Lenders (a) of any violation of any Environmental Law
that the Borrower or any of its Subsidiaries reports in writing or is reportable by such
Person in writing (or for which any written report supplemental to any oral report is made)
to any Governmental Authority and (b) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a notice from any agency of potential
environmental liability, of any Governmental Authority that could have a Material Adverse
Effect.




     9.5.3. Notification of Claim against Collateral. The Borrower will,
immediately upon becoming aware thereof, notify the Administrative Agent and each of the
Lenders in writing of any setoff, claims (including, with respect to the Real Estate,
environmental claims), withholdings or other defenses to which any of the Collateral, or
the Administrative Agent’s rights with respect to the Collateral, are subject.




     9.5.4. Notice of Litigation and Judgments. The Borrower will, and will
cause each of its Subsidiaries to, give notice to the Administrative Agent and each of the
Lenders in writing within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and proceedings affecting the
Parent, the Borrower or any of the Subsidiaries or to which any such Person is or becomes a
party involving an uninsured claim against









 



90



any such Person that could reasonably be expected to have a Material Adverse Effect
and stating the nature and status of such litigation or proceedings. The Borrower will,
and will cause each of its Subsidiaries to, give notice to the Administrative Agent and
each of the Lenders, in writing, in form and detail reasonably satisfactory to the
Administrative Agent, within ten (10) days of any judgment not covered by insurance, final
or otherwise, against the Parent, the Borrower or any of the Subsidiaries in an amount in
excess of $5,000,000.




     9.5.5. Notice of SEC Filings, etc. The Borrower will, and will cause each
of its Subsidiaries to, contemporaneously with the filing or mailing thereof, give notice
to the Administrative Agent, of such filing or mailing of (i) all material of a financial
nature filed with the SEC (including any registration statements) or sent to the
stockholders of the Parent or the Borrower, as applicable, and (ii) any periodic or special
reports of a material nature filed with the FCC and relating to any Station owned or
operated by the Borrower or any of the Subsidiaries.




     9.5.6. Distribution of Materials. The Parent and the Borrower each hereby
acknowledges that (a) the Administrative Agent and/or the Lead Arrangers will make
available to the Lenders materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) 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 Borrower or its
securities) (each, a “Public Lender”). 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 Borrower shall be deemed to have authorized the Administrative
Agent, the Lead Arrangers and the Lenders to treat such Borrower Materials as not
containing any material non-public information (although it may be sensitive and
proprietary) with respect to the Parent, the Borrower or its 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 Lead 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.”




     9.5.7. Foreign Subsidiaries. The Borrower will, and will cause each of its
Subsidiaries to, promptly give notice to the Administrative Agent in writing of the
acquisition or creation of any new direct subsidiary that is not organized under the laws
of the United States or any state or political subdivision of the United States in
accordance with §9.15(b).









 



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     9.6. Legal Existence; Conduct of Business; Maintenance of Properties. Except as
otherwise permitted under §10.5.1(a), the Borrower will do or cause to be done all things necessary
to preserve and keep in full force and effect its legal existence, rights and franchises and those
of its Subsidiaries and will not, and will not cause or permit any of its Subsidiaries to, convert
to a limited liability company or a limited liability partnership without providing at least thirty
(30) days’ prior written notice to the Administrative Agent. Except as otherwise permitted under
§10.5, the Borrower (i) will cause all of its properties and those of its Subsidiaries used or
useful in the conduct of its business or the business of its Subsidiaries to be maintained and kept
in good condition, repair and working order and supplied with all necessary equipment, (ii) will
cause to be made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times, (iii) will, and
will cause each of its Subsidiaries (other than the License Subsidiaries) to, continue to engage
primarily in the radio and television broadcasting and/or magazine publishing businesses now
conducted by each of them and in related businesses, (iv) will cause each of the License
Subsidiaries to engage solely in the business of holding the FCC Licenses necessary for the
Operating Subsidiaries to operate the Stations operated by each of them, (v) will, and will cause
each of its Subsidiaries to, obtain, maintain, preserve, renew, extend and keep in full force and
effect all permits, rights, licenses, franchises, authorizations, patents, trademarks, copyrights
and privileges to the extent necessary for the proper conduct of its business, including FCC
Licenses and (vi) will, and will cause each of its Subsidiaries to, continue to engage primarily in
the businesses now conducted by them and in related businesses; provided that nothing in
this §9.6 shall prevent the Borrower from discontinuing the operation and maintenance of any of its
properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of the
Borrower, desirable in the conduct of its or their business and that do not in the aggregate have a
Material Adverse Effect.



     9.7. Insurance. The Borrower will, and will cause each of its Subsidiaries to,
maintain with financially sound and reputable insurers insurance with respect to its properties and
business against such casualties and contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in similar geographic areas and in amounts,
containing such terms, in such forms and for such periods as may be reasonable and prudent and in
accordance with the terms of the Security Agreement. In the event of any failure by the Borrower
or any of its Subsidiaries to provide and maintain insurance as required herein or in the Security
Agreement, the Administrative Agent may after notice to the Borrower to such effect, provide such
insurance and charge the amount thereof to the Borrower and the Borrower hereby promises to pay to
the Administrative Agent on demand the amount of any disbursements made by the Administrative Agent
for such purpose. Within ninety (90) days of the end of each fiscal year of the Borrower, the
Borrower shall furnish to the Administrative Agent certificates or other evidence satisfactory to
the Administrative Agent of compliance with the foregoing provisions.









 



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     9.8. Taxes. The Borrower will, and will cause each of its Subsidiaries to, duly pay
and discharge, or cause to be paid and discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges (other than taxes, assessments and other governmental
charges imposed by foreign jurisdictions that in the aggregate are not material to the business or
assets of the Borrower on an individual basis or of the Borrower and its Subsidiaries on a
consolidated basis) imposed upon it and its Real Estate, sales and activities, or any part thereof,
or upon the income or profits therefrom, as well as all claims for labor, materials, or supplies
that if unpaid might by law become a Lien or charge upon any of its property unless failure to pay
could not reasonably be expected to cause a Material Adverse Effect; provided that any such
tax, assessment, charge, levy or claim need not be paid if the validity or amount thereof is then
being contested in good faith by appropriate proceedings and if the Borrower or such Subsidiary
shall have set aside on its books adequate reserves in conformity with GAAP with respect thereto;
and provided further that the Borrower and each Subsidiary of the Borrower will pay
all such taxes, assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any Lien that may have attached as security therefor.



     9.9. Inspection of Properties and Books, etc.




     9.9.1. General. The Borrower shall permit the Administrative Agent, the
Lenders or any of the Administrative Agent’s or Lenders’ other designated representatives
to visit and inspect any of the properties of the Borrower or any of its Subsidiaries, to
examine the books of account of the Borrower and its Subsidiaries (and to make copies
thereof and extracts therefrom), and to discuss the affairs, finances and accounts of the
Borrower and its Subsidiaries with, and to be advised as to the same by, its and their
officers, all upon reasonable advance notice to the Borrower and at such reasonable times
and intervals as the Administrative Agent or any Lender may reasonably request.




     9.9.2. Appraisals. If an Event of Default shall have occurred and be
continuing, upon the request of the Administrative Agent, the Borrower will obtain and
deliver to the Administrative Agent appraisal reports in form and substance and from
appraisers satisfactory to the Administrative Agent, stating (a) the then current fair
market, orderly liquidation and forced liquidation values of one or more of the Stations
owned by the Borrower or its Subsidiaries, business units that hold the publishing assets
and/or the Mortgaged Properties and (b) the then current business value of each of the
Borrower and its Subsidiaries. All such appraisals shall be conducted and made at the
expense of the Borrower.




     9.9.3. Communications with Accountants. Each of the Parent and the Borrower
authorizes the Administrative Agent and, if accompanied by the Administrative Agent, the
Lenders to communicate directly with such Person’s independent certified public accountants
and authorizes such accountants to disclose to the Administrative Agent and the Lenders any
and all financial statements and other supporting financial documents and schedules
including









 



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copies of any management letter with respect to the business, financial condition and
other affairs of the Parent, the Borrower or any of the Subsidiaries. At the request of
the Administrative Agent, the Parent and the Borrower shall deliver a letter addressed to
such accountants instructing them to comply with the provisions of this §9.9.3.



     9.10. Compliance with Laws, Contracts, Licenses, and Permits.




     (a) The Borrower will, and will cause each of its Subsidiaries to, comply with
(i) the applicable laws and regulations wherever its business is conducted, including
all Environmental Laws and the Communications Act, (ii) the provisions of its
Governing Documents, (iii) all agreements and instruments by which it or any of its
properties may be bound and (iv) all applicable decrees, orders, and judgments,
unless failure to comply could not reasonably be expected to cause a Material Adverse
Effect. If any authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or required in
order that the Borrower or any of its Subsidiaries may fulfill any of its obligations
hereunder or any of the other Loan Documents to which the Borrower or such Subsidiary
is a party, the Borrower will, or (as the case may be) will cause such Subsidiary to,
immediately take or cause to be taken all reasonable steps within the power of the
Borrower or such Subsidiary to obtain such authorization, consent, approval, permit
or license and furnish the Administrative Agent and the Lenders with evidence
thereof.




     (b) The Borrower will, and will cause each of its Subsidiaries to, (i) operate
its Stations, unless failure to comply could not reasonably be expected to cause a
Material Adverse Effect, in accordance with and in compliance with the Communications
Act, (ii) file in a timely manner all necessary applications for renewal of all FCC
Licenses that are material to the operations of its Stations, (iii) use its
reasonable best efforts to defend any proceedings which could result in the
termination, forfeiture or non-renewal of any FCC License, and (iv) promptly furnish
or cause to be furnished to the Administrative Agent: (A) a copy of any order or
notice of the FCC which designates any of the Borrower’s or any of its Subsidiaries’
FCC Licenses for a hearing or which refuses renewal or extension thereof, or reverses
or suspends its or any of its Subsidiaries’ authority to operate a Station, (B) a
copy of any competing application filed with respect to any of its franchises,
licenses (including FCC Licenses), rights, permits, consents or other authorizations
pursuant to which the Borrower or any of the Borrower’s Subsidiaries operates any
Station, (C) a copy of any citation, notice of violation or order to show cause
issued by the FCC in relation to any of the Borrower’s or any of its Subsidiaries’
Stations and (D) a copy of any notice or application by the Borrower or any of its
Subsidiaries









 



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requesting authority to cease broadcasting on any Station or to cease operating
any Station for any period in excess of five (5) days.



     9.11. Employee Benefit Plans. The Borrower will (a) promptly upon filing the same
with the Department of Labor or Internal Revenue Service, upon request of the Administrative Agent,
furnish to the Administrative Agent a copy of the most recent actuarial statement required to be
submitted under §103(d) of ERISA and Annual Report, Form 5500, with all required attachments, in
respect of each Guaranteed Pension Plan, (b) promptly upon receipt or dispatch, furnish to the
Administrative Agent any notice, report or demand sent or received in respect of a Guaranteed
Pension Plan under §§302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a
Multiemployer Plan, under §§4041A, 4202, 4219, 4242, or 4245 of ERISA and (c) promptly upon request
of the Administrative Agent, furnish to the Administrative Agent a copy of all actuarial statements
required to be submitted under all Applicable Pension Legislation.



     9.12. Use of Proceeds. The Borrower will use the proceeds of the Loans and obtain
Letters of Credit solely for the purposes set forth in §8.17.1.



     9.13. Additional Collateral.




     (a) The Borrower will, and will cause each of its Subsidiaries to, from time to time
at its own cost and expense, promptly secure or cause to be secured the Obligations by
creating or causing to be created in favor of the Administrative Agent for the benefit of
the Lenders and the Administrative Agent perfected security interests (subject only to
Permitted Liens) in all assets of the Borrower and its Subsidiaries, whether now owned or
hereafter acquired, except in each case (i) the Excluded Assets, (ii) the Capital Stock of
any Excluded Subsidiary that is not directly owned by a Subsidiary, and (iii) in respect
of each direct foreign subsidiary of any of the Borrower’s Subsidiaries (including, for
the avoidance of doubt, Emmis International Broadcasting Corporation), limited to not less
than a pledge of 66 2/3% of the issued and outstanding Capital Stock of such direct
foreign subsidiary, including, without limitation, all of the Borrower’s and the
Subsidiaries’ inventory, cash, securities, receivables, equipment, accounts, copyrights,
patents, trademarks, licenses, other general intangibles, Real Estate owned in fee, equity
interests in the Subsidiaries and other assets of the Borrower and the Subsidiaries (other
than Excluded Assets), in each case to the extent the Administrative Agent shall so
request. All such security interests will be created under security agreements,
mortgages, control agreements, pledge agreements, and other instruments and documents in
form and substance reasonably satisfactory to the Administrative Agent as reasonably
deemed necessary by the Administrative Agent, and the Borrower shall deliver to the
Administrative Agent all such instruments and documents (including, without limitation,
legal opinions, title insurance policies and lien searches) as the Administrative Agent
shall reasonably request to evidence the satisfaction of the obligations created by this
§9.13, in each case at the expense









 



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of the Borrower. All such documentation and instruments related thereto shall be
duly recorded or filed in such manner and in such places as are required by law to
establish, perfect, preserve and protect the Liens in favor of the Administrative Agent
and the Lenders, and all taxes, fees and other charges payable in connection therewith
shall be paid in full or otherwise provided for to the reasonable satisfaction of the
Administrative Agent. The Borrower agrees to provide such evidence as the Administrative
Agent shall reasonably request as to the perfection and priority of such security
interests (subject only to Permitted Liens).




     (b) The Borrower will, and will cause each of the Subsidiaries to, at the expense of
the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the
Administrative Agent from time to time such vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, real property surveys, reports and other assurances or instruments and take
such further steps relating to the collateral covered by any of the Security Documents or
as requested by the Administrative Agent in accordance with subsection (a) above, as the
Administrative Agent may reasonably require and as are reasonably satisfactory to the
Borrower. Furthermore, the Borrower shall cause to be delivered to the Administrative
Agent such opinions of counsel, title insurance, surveys, appraisals, environmental
assessments, local counsel opinions, engineering reports, flood certifications and
insurance, and other related documents as may be reasonably requested by the
Administrative Agent to assure itself that this §9.13 has been complied with.




     (c) The Borrower shall promptly notify the Administrative Agent in the event the
Borrower or any Subsidiary acquires any assets or properties not otherwise subject to (i)
the first priority perfected security interest of the Administrative Agent pursuant to
existing Security Documents or (ii) an exception or an exclusion expressly permitted
hereunder.




     (d) Notwithstanding the foregoing, to the extent that any of the foregoing provisions
of this §9.13 will require any consent, affirmation or other action of an independent
third party Person (not the Borrower, a Subsidiary, Excluded Subsidiary or an Affiliate
under the control of the Borrower or the Parent), the Borrower shall only be required to
use its commercially reasonable efforts to procure such consent, affirmation or other
action of such independent third party Person.



     9.14. Interest Rate Protection. No later than one hundred eighty (180) days from the
date hereof, the Borrower will purchase or enter into an interest cap or swap or other interest
rate protection agreements having a term of not less than three (3) years as shall be necessary to
cap or fix the interest cost to the Borrower with respect to not less than thirty percent (30%) of
Consolidated Total Funded Debt outstanding at such time at rates and on terms and conditions
reasonably satisfactory to the Administrative Agent.









 



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     9.15. Additional Subsidiaries.




     (a) In the event that, after the date hereof, the Parent, the Borrower or any
Subsidiary creates any new Subsidiary or acquires a new Subsidiary in accordance with
§10.5.1 or otherwise or in the event that the Borrower exercises its option to
purchase the remaining Capital Stock of RAM and the Austin Partnership pursuant to
the Sinclair Definitive Agreement, (a) such new Subsidiary or (as the case may be)
RAM and the Austin Partnership shall, concurrently with such event or as soon as
practicable thereafter, execute and deliver to the Administrative Agent an instrument
of joinder and accession, in form and substance reasonably satisfactory to the
Administrative Agent, pursuant to which such Person shall join the applicable
Security Documents as if such Person was an original signatory thereto, and (b) the
Parent, the Borrower, the applicable Subsidiary and/or such new Subsidiary or (as the
case may be) RAM and the Austin Partnership shall deliver such other instruments and
documents, including without limitation Perfection Certificates, UCC financing
statements and stock certificates representing all of the issued and outstanding
Capital Stock of such new Subsidiary or (as the case may be) RAM and the Austin
Partnership with accompanying stock powers duly executed in blank, in each case
required to be executed or delivered pursuant to such Security Documents in order to
grant to or maintain the Administrative Agent’s first priority perfected security
interest in and to the assets of and the Capital Stock issued by such Person.
Further, contemporaneously with the formation or acquisition of such new Subsidiary
or the exercise of the option to purchase the remaining Capital Stock of RAM and the
Austin Partnership, the Parent, the Borrower, the applicable Subsidiary and/or such
new Subsidiary or (as the case may be) RAM and the Austin Partnership shall execute
and/or deliver to the Administrative Agent such other documentation as the
Administrative Agent may reasonably request in furtherance of the intent of this
§9.15, including without limitation an updated Schedule 8.19 hereto and documentation
of the type required to be supplied by the Parent, the Borrower and the Subsidiaries
as a condition precedent to the initial Loans made hereunder pursuant to §12, as
applicable to such new Subsidiary or Permitted Acquisition or (as the case may be)
RAM and the Austin Partnership.




     (b) In the event that, after the date hereof, the Parent, the Borrower or any
domestic Subsidiary creates any new direct subsidiary or acquires a new direct
subsidiary, in each case, which is not organized under the laws of the United States
or any state or political subdivision of the United States, the Parent, the Borrower,
the applicable Subsidiary and/or such new subsidiary shall promptly notify the
Administrative Agent thereof and, upon the request of the Administrative Agent,
deliver a Pledge Agreement and such other instruments, documents and certificates
with









 



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accompanying transfer powers duly executed in blank, in each case, as required
or necessary to be executed or delivered in order to grant to or maintain the
Administrative Agent’s first priority perfected security interest in and to 66 2/3%
of the issued and outstanding Capital Stock of such Person.



     9.16. Further Assurances. The Borrower will, and will cause each of its Subsidiaries
to, cooperate with the Lenders and the Administrative Agent and execute such further instruments
and documents as the Lenders or the Administrative Agent shall reasonably request to carry out to
their satisfaction the transactions contemplated by this Credit Agreement and the other Loan
Documents.



     9.17. Bridge to Sale Transactions Generally.




     (a) (i) Bridge to Sale Transfers Generally. The Borrower agrees that
the Borrower will not, and will not permit any Subsidiary to, consummate a Bridge to
Sale Transfer unless the following conditions have been satisfied to the satisfaction
of the Administrative Agent:




(A) such Bridge to Sale Transfer is to a Bridge to Sale Excluded Subsidiary and a
Bridge to Sale License Subsidiary; and




(B) the Investment constituting the Bridge to Sale Transfer satisfies the
conditions set forth in §10.3(j); and




(C) the Asset Sale constituting the Bridge to Sale Transfer satisfies the
conditions set forth in §10.5.2(g)(i), (g)(ii)(y), (g)(vi) and (g)(vii); and




(D) the terms of paragraph (b) of this §9.17 shall have been satisfied as provided
therein or will be satisfied as provided therein subject to the applicable grace
periods permitted hereunder; and




(E) except in respect of any Bridge to Sale Transfer occurring prior to the
effective date of the First Amendment, such Bridge to Sale Transfer shall occur
contemporaneously with the execution and delivery of a LMA Agreement that is a
Bridge to Sale Transaction Document by the applicable Bridge to Sale Excluded
Subsidiary and, if applicable, the applicable Bridge to Sale License Subsidiary, on
the one hand, and a non-Affiliate third party, on the other hand.




     (ii) Interests of Bridge to Sale Excluded Subsidiary and Bridge to Sale
License Subsidiary. The Borrower agrees that, at all times, (i) the Borrower
or one of its Subsidiaries shall hold 100% of the issued and outstanding Capital
Stock of each Bridge to Sale Excluded Subsidiary and (ii) the applicable Bridge to
Sale Excluded Subsidiary shall hold 100% of the issued and outstanding Capital
Stock of any Bridge to Sale License









 



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Subsidiary that holds the FCC License associated with any Station held by such
Bridge to Sale Excluded Subsidiary.




     (b) Collateral Matters Generally.




     (i) Prior to or contemporaneously with the entry of any Bridge to Sale
Transaction Documents relating to the assets subject to a Bridge to Sale Transfer,
the Borrower shall, and shall cause the applicable Bridge to Sale Excluded
Subsidiary, the applicable Bridge to Sale License Subsidiary or such other
Affiliate of the Borrower (as applicable) to, take all actions necessary to provide
to the Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, (A) a collateral assignment of the Bridge to Sale Transaction Documents,
together with all consents necessary for the pledge of cash payments and other
proceeds received under the Bridge to Sale Transaction Documents and all rights
(but not any of the obligations) of the applicable Bridge to Sale Excluded
Subsidiary, the applicable Bridge to Sale License Subsidiary or such other
Affiliate of the Borrower (as applicable) thereunder, and (B) a first priority
perfected security interest in the cash payments and other proceeds payable to the
applicable Bridge to Sale Excluded Subsidiary, the applicable Bridge to Sale
License Subsidiary or such other Affiliate of the Borrower (as applicable) under
the Bridge to Sale Transaction Documents, which includes, for the avoidance of
doubt, any promissory notes and/or Capital Stock received as part of the
consideration for any Bridge to Sale Third Party Transaction; in each case,
pursuant to Security Documents in form and substance satisfactory to the
Administrative Agent.




     (ii) Each of the parties hereto hereby acknowledges and agrees, for itself and
on behalf of its Affiliates (including any Bridge to Sale Excluded Subsidiary and
any Bridge to Sale License Subsidiary) that, notwithstanding anything in the Loan
Documents to the contrary, the Administrative Agent shall have no obligation to
release any of its Liens on the assets subject to a Bridge to Sale Transfer, unless
(A) the Borrower shall have satisfied the conditions set forth in §9.17(a) and
§9.17(b)(i) to the satisfaction of the Administrative Agent and (B) substantially
contemporaneously with such release, the applicable Bridge to Sale Excluded
Subsidiary, the applicable Bridge to Sale License Subsidiary and the LMA Agreement
counterparty shall have entered into a LMA Agreement relating to such Station.




     (iii) In the event that any LMA Agreement relating to the assets subject to a
Bridge to Sale Transfer is terminated or otherwise not in effect for any reason
whatsoever at any time after March 1, 2010, the applicable Bridge to Sale Excluded
Subsidiary and Bridge to Sale License Subsidiary shall become without any need for
any further action or acknowledgment by any Person and shall automatically and
immediately be deemed a









 



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“Subsidiary” under this Credit Agreement for all purposes, including, without
limitation, the calculation of Consolidated EBITDA, determination of the covenants
set forth in §11 and determination of the occurrence of Events of Default under
§14.1, and the Borrower shall, and shall cause the applicable Affiliate to, cause
such Bridge to Sale Excluded Subsidiary and such Bridge to Sale License Subsidiary
to take all actions required under §9.13 and §9.15 as though such Bridge to Sale
Excluded Subsidiary and such Bridge to Sale License Subsidiary were new
Subsidiaries. For purposes of §10.3(j), the conversion of such Bridge to Sale
Excluded Subsidiary and such Bridge to Sale License Subsidiary to a “Subsidiary”
and the satisfaction of the requirements under §9.13 and §9.15 as hereinabove
provided shall constitute a return of capital received in respect of such Bridge to
Sale Transfer Investment in the original amount of such Bridge to Sale Transfer
Investment without giving effect to any changes in value thereafter.




     (c) Distributions. Upon receipt by a Bridge to Sale Excluded
Subsidiary, a Bridge to Sale License Subsidiary or other Affiliate of the Borrower of
any cash payments under a Bridge to Sale Transaction Document, the Borrower shall
cause such Person to promptly, but in no event more than (i) two (2) Business Days
thereafter for any proceeds of any Bridge to Sale Third Party Transaction and (ii)
five (5) Business Days thereafter for any cash payments made under any LMA Agreement,
make a cash distribution to the Borrower equal to 100% of such cash payments and
other proceeds received by such Person, provided that such Bridge to Sale
Excluded Subsidiary, such Bridge to Sale License Subsidiary or other Affiliate of the
Borrower may retain and shall not be required to make a cash distribution as
otherwise required (x) with respect to that portion of any cash payments received
pursuant to any LMA Agreement that are used to pay reasonable out-of-pocket expenses
incurred by such Bridge to Sale Excluded Subsidiary in connection with the operation
of the relevant Station during the period for which such cash payments relate, (y)
with respect to that portion of any cash payments received pursuant to any LMA
Agreement approved by the Agent in writing (such approval not to be unreasonably
withheld) that are reserved to pay reasonable out-of-pocket expenses anticipated to
be incurred by such Bridge to Sale Excluded Subsidiary in connection with the
operation of the relevant Station during the relevant period for which such cash
payments relate and (z) with respect to that portion of proceeds received from a
Bridge to Sale Third Party Transaction that are applied to pay reasonable
out-of-pocket fees, commissions and other reasonable and customary direct expenses
actually incurred in connection with such sale, including any income taxes payable as
a result of such sale and the amount of any transfer or documentary taxes required to
be paid by such Person in connection with such sale. Such cash distributions shall
not constitute cash returns of capital for purposes of §10.3(j).









 



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     (d) Bridge to Sale Third Party Transactions Generally.




     (i) Not less than three Business Days prior to the entry by the Borrower, any
Bridge to Sale Excluded Subsidiary, any Bridge to Sale License Subsidiary or any
other Affiliate thereof into any Bridge to Sale Transaction Documents, the Borrower
shall deliver to the Administrative Agent current drafts of all such Bridge to Sale
Transaction Documents. Further, concurrently with the execution and delivery of
such Bridge to Sale Transaction Documents by the Borrower, any Bridge to Sale
Excluded Subsidiary, any Bridge to Sale License Subsidiary or any other Affiliate
thereof, the Borrower shall deliver to the Administrative Agent certified true,
correct and complete copies of all such Bridge to Sale Transaction Documents.




     (ii) The Borrower shall not permit any Bridge to Sale Excluded Subsidiary or
any Bridge to Sale Licensed Subsidiary to consummate a Bridge to Sale Third Party
Transaction unless the Bridge to Sale Transaction Conditions have been satisfied
or, solely in respect of §9.17(b)(i) will have been satisfied within the applicable
grace periods permitted hereunder.



10. CERTAIN NEGATIVE COVENANTS.




     The Parent and the Borrower covenant and agree that, so long as any Loan, Unpaid Reimbursement
Obligation, Letter of Credit, Note or other Obligation is outstanding or any Lender has any
obligation to make any Loans or the Administrative Agent has any obligations to issue, extend or
renew any Letters of Credit:



     10.1. Restrictions on Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or
otherwise, with respect to any Indebtedness other than:




     (a) Indebtedness owing to the Lenders and the Agents arising under any of the
Loan Documents;




     (b) current liabilities of the Borrower or such Subsidiary (including under any
operating leases and studio and tower leases) incurred in the ordinary course of
business not incurred through (i) the borrowing of money, or (ii) the obtaining of
credit except for credit on an open account basis customarily extended and in fact
extended in connection with normal purchases of goods and services;




     (c) endorsements for collection, deposit or negotiation and warranties of
products or services, in each case incurred in the ordinary course of business;









 



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     (d) Indebtedness in respect of (i) judgments or awards that have been in force
for less than the applicable period for taking an appeal so long as execution is not
levied thereunder or in respect of which the Borrower or such Subsidiary (as the case
may be) shall at the time in good faith be prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been obtained pending
such appeal or review, (ii) final judgments against the Borrower or any of its
Subsidiaries that in the aggregate at any time do not exceed $5,000,000 and (iii)
claims which are currently being contested in good faith by appropriate proceedings
if adequate reserves shall have been set aside with respect thereto;




     (e) upon not less than five (5) Business Days’ prior written notice to the
Administrative Agent, Subordinated Debt, provided that, (i) the Net Cash Debt
Issuance Proceeds of any such Subordinated Debt shall be applied in accordance with
§4.4 (as applicable at the time), (ii) any such Subordinated Debt must not be issued
for a cash amount that is less than 90% of the accreted value of such Subordinated
Debt at issuance, and (iii) no Default or Event of Default has occurred and is
continuing at the time of the incurrence of such Subordinated Debt or would result
after giving effect thereto;




     (f) Indebtedness (i) incurred in connection with, and within 180 days of, the
acquisition after the date hereof of any real or personal property by the Borrower or
such Subsidiary or under any Capitalized Lease or (ii) assumed by the Borrower or any
of its Subsidiaries in connection with a Permitted Acquisition, and with respect to
clauses (i) and (ii) immediately preceding, any refinancings thereof provided that
(x) the aggregate principal amount of such Indebtedness (including any refinancings
thereof) of the Borrower and its Subsidiaries shall not exceed the aggregate amount
of (1) so long as no Event of Default has occurred and is continuing at the time of
its incurrence or refinancing, $10,000,000, during the Suspension Period (and $00
(zero) if an Event of Default has occurred and is continuing at the time of
incurrence) and (2) $35,000,000 after the Revert Date, in each case at any one time;
(y) the amount of such Indebtedness does not exceed the fair market value of the
property so acquired; and (z) with respect to clause (ii) above, the assets securing
such Indebtedness are limited to the assets so acquired or which secured the
Indebtedness at the time it was assumed so long as such liens were not granted or
created in anticipation of such assumption;




     (g) upon prior written notice to the Administrative Agent, Indebtedness in
respect of interest rate agreements (whether from fixed to floating or from floating
to fixed), swaps or similar arrangements entered into pursuant to §9.14 or designed
to manage interest rates or interest rate risk in connection with this Credit
Agreement or any other Indebtedness for









 



102



borrowed money evidenced by bonds, debentures or other similar instruments owed
by the Borrower or any of its Subsidiaries;




     (h) Indebtedness existing on the date hereof and listed and described on
Schedule 10.1 hereto;




     (i) Indebtedness of a Subsidiary of the Borrower owing to the Borrower or of the
Borrower or any Subsidiary to any wholly-owned Subsidiary of the Borrower that is a
Guarantor;




     (j) Indebtedness in respect of taxes, assessments, governmental charges or
levies and claims for labor, materials and supplies to the extent that payment
therefor shall not at the time be required to be made in accordance with the
provisions of §9.8; and




     (k) upon not less than five (5) Business Days’ prior written notice to the
Administrative Agent, other unsecured Indebtedness in an aggregate amount outstanding
at any one time not to exceed $100,000,000, provided that (i) no Default or Event of
Default has occurred and is continuing at the time of the incurrence of such
unsecured Indebtedness or would result after giving effect thereto, (ii) the maturity
date of such unsecured Indebtedness shall occur after the Final Maturity Date, (iii)
any such Indebtedness must not be issued for a cash amount that is less than 90% of
the accreted value of such Indebtedness at issuance, (iv) during the Suspension
Period, 100% of all Net Cash Debt Issuance Proceeds shall prepay the Loans in
accordance with §4.4 and (v) neither the Borrower nor any Subsidiary of the Borrower
shall have the right or any obligation to make any principal payment in respect of
such unsecured Indebtedness prior to the final payment and performance in full in
cash of the Obligations, the termination or cancellation of any Letters of Credit and
the termination of Commitments hereunder.


Concurrent with the consummation of each such Issuance of Indebtedness permitted under clauses (e)
and (k) above, the Borrower shall provide a detailed good faith estimate of the calculation of the
Net Cash Debt Issuance Proceeds, together with the usage and anticipated usage of such Net Cash
Debt Issuance Proceeds.




     10.2. Restrictions on Liens.




     10.2.1. Permitted Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, (a) create or incur or suffer to be created or incurred or to exist
any Lien upon any of its property or assets of any character whether now owned or hereafter
acquired, or upon the income or profits therefrom; (b) transfer any of such property or
assets or the income or profits therefrom outside the ordinary course of business for the
purpose of subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) acquire, or agree or have
an option to acquire, any









 



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property or assets upon conditional sale or other title retention or purchase money
security agreement, device or arrangement; (d) suffer to exist for a period of more than
thirty (30) days after the same shall have been incurred any Indebtedness or claim against
it that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be given any
priority whatsoever over its general creditors (other than in respect of de minimus
amounts); or (e) sell, assign, pledge or otherwise transfer any “receivables” as
defined in clause (g) of the definition of the term “Indebtedness,” with or without
recourse (other than in connection with the disposition of the business operations of such
Person relating thereto or a disposition of defaulted receivables for collection and not as
a financing arrangement); provided that the Borrower or any of its Subsidiaries may
create or incur or suffer to be created or incurred or to exist:




     (i) Liens in favor of the Borrower on all or part of the assets of
Subsidiaries of the Borrower securing Indebtedness owing by Subsidiaries of the
Borrower to the Borrower;




     (ii) Liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or that are being diligently contested in good
faith and in respect of which appropriate reserves have been set aside or Liens on
properties to secure claims for labor, material or supplies in respect of
obligations not overdue or that are being diligently contested in good faith and in
respect of which appropriate reserves have been set aside;




     (iii) deposits or pledges made in connection with, or to secure payment of,
workmen’s compensation, unemployment insurance, old age pensions or other social
security obligations or other obligations incurred in the ordinary course of
business or consistent with past practices or security or good faith deposits made
in connection with a Permitted Acquisition which are not overdue;




     (iv) Liens on properties in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long as execution
is not levied thereunder or in respect of which the Borrower or such Subsidiary (as
the case may be) shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall have been
obtained pending such appeal or review, the Indebtedness with respect to which is
permitted by §10.1(d);




     (v) Liens of carriers, warehousemen, mechanics and materialmen, and other like
Liens on properties, in existence less than one hundred twenty (120) days from the
date of creation thereof in respect of obligations not overdue;









 



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     (vi) encumbrances on Real Estate consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord’s or lessor’s liens and other minor
Liens, provided that none of such Liens (A) interferes materially with the use of
the property affected in the ordinary conduct of the business of the Borrower and
its Subsidiaries, and (B) individually or in the aggregate has a Material Adverse
Effect;




     (vii) Liens existing on the date hereof and listed on Schedule 10.2 hereto;




     (viii) purchase money security interests in or purchase money mortgages on
real or personal property, other than Mortgaged Properties acquired after the date
hereof, to secure Capitalized Leases or purchase money Indebtedness, in each case
of the type and amount permitted by §10.1(f), which security interests or mortgages
cover only the real or personal property so acquired or leased;




     (ix) Liens on each Mortgaged Property as and to the extent permitted by the
Mortgage applicable thereto; and




     (x) Liens in favor of the Administrative Agent for the benefit of the Lenders
and the Administrative Agent under the Loan Documents and any Interest Rate
Agreements with a Lender;




     (xi) Liens on leasehold interests created by the Borrower or any of its
Subsidiaries, as lessee, in favor of any mortgagee of the leased premises to the
extent not prohibited by the terms of the lease;




     (xii) Liens securing Indebtedness permitted by §10.1(f)(ii) which security
interests or mortgages cover only the real or personal property so acquired;




     (xiii) Liens constituting leasehold or license interests held by a lessee or
licensee in respect of leases or licenses made by the Borrower or any of its
Subsidiaries as lessor or licensor with respect to intellectual property, space or
broadcast towers or sub-channel or broadcast spectrum or similar leases or licenses
in each case entered into by the Borrower or such Subsidiary in the ordinary course
of its business consistent with past practices; and




     (xiv) Liens constituting options of Persons other than the Borrower or any
Subsidiary to purchase Capital Stock of any non-wholly owned Subsidiary.




     10.2.2. Restrictions on Negative Pledges and Upstream Limitations. The
Borrower will not, nor will it permit any of its Subsidiaries to, (a) enter into









 



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or permit to exist any arrangement or agreement (other than the Credit Agreement and
the other Loan Documents) which directly or indirectly prohibits the Borrower or any of its
Subsidiaries from creating, assuming or incurring any Lien upon its properties, revenues or
assets or those of any of its Subsidiaries whether now owned or hereafter acquired to
secure the Obligations (other than restrictions on specific assets, which assets are the
subject of purchase money security interests to the extent permitted under §10.2.1(viii)),
or (b) enter into any agreement, contract or arrangement (other than the Credit Agreement
and the other Loan Documents) restricting the ability of any Subsidiary of the Borrower to
pay or make dividends or distributions in cash or kind to the Borrower, to make loans,
advances or other payments of any nature to the Borrower, or to make transfers or
distributions of all or any part of its assets to the Borrower; in each case other than (i)
restrictions on specific assets which assets are the subject of purchase money security
interests to the extent permitted under §10.2.1(viii), (ii) customary anti-assignment
provisions contained in leases and licensing agreements entered into by the Borrower or
such Subsidiary in the ordinary course of its business and (iii) property subject to a
pending Asset Sale which would be permitted under §10.5.2 if and from which an executed
purchase agreement has been delivered to the Administrative Agent.



     10.3. Restrictions on Investments. The Borrower will not, and will not permit any of
its Subsidiaries to, make or permit to exist or to remain outstanding any Investment, except
Investments in:




     (a) marketable direct or guaranteed obligations of the United States of America
that mature within one (1) year from the date of purchase by the Borrower;




     (b) demand deposits, certificates of deposit, bank acceptances and time deposits
of United States banks having total assets in excess of $1,000,000,000;




     (c) securities commonly known as “commercial paper” issued by a corporation
organized and existing under the laws of the United States of America or any state
thereof that at the time of purchase have been rated and the ratings for which are
not less than “P 1” if rated by Moody’s, and not less than “A 1” if rated by S&P;




     (d) Investments existing on the date hereof and listed on Schedule 10.3 hereto;




     (e) Investments in the Borrower and in any Subsidiary that is a Guarantor,
either in the form of equity Investments or Indebtedness permitted by §10.1(i) so
long as such entity remains the Borrower, or a Subsidiary Guarantor, as applicable;









 



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     (f) upon five (5) Business Days’ prior written notice to the Administrative
Agent, Investments consisting of the Guaranty and subordinated guaranties
constituting Subordinated Debt made in accordance with the definition of
“Subordinated Debt”, provided that such subordinated guarantees otherwise constitute
Indebtedness permitted by §10.1(e);




     (g) Investments consisting of promissory notes or other deferred payment
arrangements received as proceeds of, or entered into in connection with, asset
dispositions permitted by §10.5.2;




     (h) Investments consisting of loans and advances to employees for moving,
entertainment, travel and other similar expenses in the ordinary course of business
not to exceed $1,000,000 in the aggregate at any time outstanding;




     (i) After the Revert Date, Investments by the Borrower or a Subsidiary of the
Borrower in Subsidiaries formed for the purpose of consummating Permitted
Acquisitions or acquired in connection with Permitted Acquisitions; and




     (j) other Investments; provided that (i) at the time such Investment is made,
the aggregate amount of all Investments (including, without limitation, any
Investments constituting Bridge to Sale Transfers) made by the Borrower or any of its
Subsidiaries under this clause (j) after the date hereof and after taking into
account any Loans advanced to finance such Investment shall not exceed an amount
equal to (x)(1) $25,000,000, for all such Investments made during the Suspension
Period (including all Bridge to Sale Transfers referenced below) and (2)
$150,000,000, for all such Investments made at any time after the Funding Date; (ii)
with respect to Investments constituting Bridge to Sale Transfers, at the time any
such Investment is made, the aggregate value of all Investments that constitute
Bridge to Sale Transfers (which value for each such Bridge to Sale Transfer shall be
calculated based upon an appraisal of the assets subject to such Bridge to Sale
Transfer, which appraisal shall be current at the time of the transfer of such assets
pursuant to a Bridge to Sale Transfer, shall be conducted by a recognized appraiser
of broadcasting assets and shall otherwise be in form and substance reasonably
satisfactory to the Administrative Agent) shall (I) be included in the $25,000,000
maximum amount referenced in clause (ii)(1) preceding during the Suspension Period,
and (II) shall not exceed $100,000,000 at any time outstanding at any time after the
Funding Date, and in each case shall not include more than one Approved Bridge to
Sale Transfer, provided that the aggregate amount of all Bridge to Sale
Transfers that are not Approved Bridge to Sale Transfers shall not exceed $25,000,000
(calculated as the aggregate of the values of each such Investment at the time each
such Investment was made without giving effect to any changes in value thereafter);
(iii) no Default or Event of









 



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Default has occurred and is continuing at the time such Investment is made or
would result on a Pro Forma Basis therefrom after taking into account any Loans
advanced to finance such Investment; and (iv) the Borrower delivers to the
Administrative Agent a duly executed certificate substantially in the form of Exhibit
F hereto in connection with such Investment;


provided, however, that, with the exception of (i) Investments referred to in
§10.3(a), (b) and (c), (ii) loans and advances referred to in §10.3(h), (iii) Excluded Assets and
(iv) Investments in any Bridge to Sale License Subsidiary, such Investments will be considered
Investments permitted by this §10.3 only if all actions have been taken to the reasonable
satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of
the Lenders and the Administrative Agent, a first priority perfected security interest in all of
such Investments free of all Liens other than Permitted Liens; and



provided, further, that notwithstanding anything to the contrary contained in this
Credit Agreement, in no event shall the Borrower or any Subsidiary of the Borrower make any
Investment in a non-Affiliate third party or an Affiliate of such Person (which for purposes of
this §10.3 shall include fundings pursuant to prior commitments to fund Investments) at any time in
connection with, or during the twelve consecutive month period ending immediately prior to or at
any time following, (A) the entry into any Bridge to Sale Transaction Document with such
non-Affiliate third party or the performance of any obligation thereunder or (B) the consummation
of a Bridge to Sale Third Party Transaction with such non-Affiliate third party, provided
that the Borrower or any Subsidiary of the Borrower may make an Investment in such a non-Affiliate
third party or Affiliate of such third party to the extent permitted under clause (ii) of the
definition of “Bridge to Sale Transaction Conditions” in connection with the consummation of a
Bridge to Sale Third Party Transaction.




     10.4. Restricted Payments. The Borrower will not, and will not permit any of its
Subsidiaries to, make any Restricted Payments; provided, however, that:




     (a) wholly-owned direct or indirect Subsidiaries of the Borrower may make
Restricted Payments to the Borrower or any wholly-owned Subsidiary of the Borrower
that is a Guarantor, and Subsidiaries which are not wholly-owned Subsidiaries of the
Borrower may make Distributions in respect of their Capital Stock so long as the
Borrower and/or any of its Subsidiaries (as applicable) receives at least its or
their pro rata share of such Distribution in accordance with its or their
proportional interests in such Subsidiaries’ Capital Stock;




     (b) so long as the payment is required by the terms thereof, and so long as no
Default or Event of Default shall have occurred and be continuing or would result
from such payment, the Borrower may make scheduled payments of interest on
Subordinated Debt permitted by §10.1(e)









 



108



and §10.1(k), and the Borrower delivers to the Administrative Agent a duly
executed certificate substantially in the form of Exhibit F hereto;




     (c) Intentionally Deleted;




     (d) the Borrower may (i) make cash payments to its employees pursuant to one or
more of its 401(k), profit sharing, equity incentive or other benefit plans
(including payments in respect of terminated employees (as a result of death or
otherwise) whose economic interest in such plan does not exceed $5,000), (ii)
repurchase fractional shares of common stock issued to or for the benefit of the
employees of the Borrower or any of its Subsidiaries, and (iii) make cash payments to
the applicable taxing authorities for the benefit of its employees to the extent of
the Borrower’s withholding tax liability resulting from the issuances of common stock
to its employees in connection with any bona fide employee stock option, stock
purchase or similar plan of the Borrower;




     (e) the Borrower may make cash Distributions to the Parent for (i) actual taxes
paid by the Parent as a result of the operations of the Borrower and its Subsidiaries
and (ii) HoldCo Corporate Overhead Expenses incurred by the Parent in the ordinary
course of business for any fiscal quarter of the Parent; and




     (f) after the Revert Date and so long as (1) no Default or Event of Default has
occurred and is continuing or would result from such payments and (2) the Borrower
delivers to the Administrative Agent a duly executed certificate substantially in the
form of Exhibit F hereto, the Borrower may make: (i) cash Distributions to the Parent
derived from the Net Cash Sale Proceeds of TV Asset Sales to the extent not otherwise
applied as set forth in §10.3(j)(i)(y), (ii) cash Distributions to the Parent to fund
the 2006 Dividend, (iii) cash Distributions to the Parent to enable it to pay
scheduled dividends on the Parent Preferred Sock, provided that in the case of
preferred stock issued after the date hereof, contemporaneously with the issuance of
such preferred stock (other than preferred stock issued to refinance, replace or
redeem outstanding preferred stock), the Borrower received the Net Cash Equity
Issuance Proceeds from such Equity Issuance, (iv) cash Distributions to the Parent to
enable it to pay dividends on Common Stock, (v) cash Distributions to the Parent to
enable it to repurchase its Common Stock or Parent Preferred Stock, and (vi) cash
Distributions to the Parent to enable Parent to make cash interest payments and
voluntary prepayments on any Permitted Parent Indebtedness (other than on any
Permitted Parent Indebtedness incurred by the Parent for the purpose of financing a
Parent Tranche B Purchase); provided that, in the case of clauses (iv), (v) and (vi)
herein, (A) such cash Distributions shall not be permitted if the Total Leverage
Ratio as of the last day of the fiscal quarter most recently ended prior to the
proposed date of such payment or









 



109



repurchase (calculated on a pro forma basis after giving effect to such cash
Distribution) is greater than or equal to 7.00:1.00, and (B) such cash Distribution
shall not exceed $200,000,000 in the aggregate if the Total Leverage Ratio as of the
last day of the fiscal quarter most recently ended prior to the proposed date of such
payment or repurchase (calculated on a pro forma basis after giving effect to such
cash Distribution) is greater than or equal to 5.00:1.00 but less than 7.00:1.00,
provided further that such cash Distributions shall not exceed $100,000,000 if such
Total Leverage Ratio is greater than or equal to 6.00:1.00 but less than 7.00:1.00.



     10.5. Merger, Consolidation, Acquisition and Disposition of Assets.




     10.5.1. Mergers and Acquisitions. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger, amalgamation or
consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter
into any LMA Agreement, except:




     (a) upon prior written notice to the Administrative Agent, the merger or
consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with
and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned
(A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in
each case the surviving Subsidiary is a Guarantor;




     (b) after the Revert Date upon prior written notice to the Administrative Agent,
the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other
securities of, or any assets of, any Person, in each case to the extent such
acquisition would involve all or substantially all of a radio broadcasting,
television broadcasting or publishing business or business unit thereof, provided
that:




     (i) no Default or Event of Default has occurred and is continuing or would
result from such acquisition;




     (ii) not less than five (5) Business Days prior to the consummation of such
proposed acquisition, the Borrower shall have delivered to the Administrative Agent
a duly executed certificate substantially in the form of Exhibit F hereto, and upon
the Administrative Agent’s request, such financial projections as shall be
necessary, in the reasonable judgment of the Administrative Agent, to demonstrate
that, after giving effect to such acquisition, all covenants contained herein will
be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its
payment obligations hereunder and under the other Loan Documents will not be
impaired in any way;




     (iii) all actions have been taken to the reasonable satisfaction of the
Administrative Agent to provide to the Administrative Agent, for the









 



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benefit of the Lenders and the Administrative Agent, a first priority
perfected security interest in all of the assets so acquired (excluding any
Excluded Assets) pursuant to the Security Documents, free of all Liens other than
Permitted Liens;




     (iv) in the event of a stock acquisition, the acquired Person shall become a
wholly-owned Subsidiary of the Borrower and shall comply with the terms and
conditions set forth in §9.15;




     (v) the board of directors and (if required by applicable law) the
shareholders, or the equivalent thereof, of the business to be acquired has
approved such acquisition;




     (vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be)
rights and interests in, to and under each contract and agreement entered into by
such Person in connection with such acquisition to the extent permitted have been
assigned to the Administrative Agent as security for the irrevocable payment and
performance in full of the Obligations, pursuant to Collateral Assignments of
Contracts in form and substance reasonably satisfactory to Administrative Agent;




     (vii) in the case of any acquisition involving domestic radio or television
assets, the FCC shall have issued orders approving or consenting to such
acquisition;




     (viii) the Borrower shall have delivered to the Administrative Agent evidence
reasonably satisfactory to the Administrative Agent that all liens and encumbrances
with respect to the properties and assets so acquired, other than Permitted liens,
have been discharged in full;




     (ix) the Borrower shall have delivered to the Administrative Agent (A)
evidence satisfactory to the Administrative Agent that the Borrower or such
Subsidiary has completed such acquisition in accordance with the terms of the
contracts and agreements entered into by such Person in connection with such
acquisition, and (B) certified copies of all such documents shall have been
delivered to the Administrative Agent;




     (x) all FCC Licenses acquired in connection with such acquisition shall be
transferred immediately upon consummation of such acquisition to a License
Subsidiary;




     (xi) substantially contemporaneously with such acquisition, the Borrower shall
have delivered to the Administrative Agent an updated Schedule 8.3(b) and an
updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect
to such acquisition.









 



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Notwithstanding the foregoing, during the Suspension Period, if each of the above requirements in
this §10.5.1.(b) have been met and the Borrower has obtained a fairness opinion reasonably
acceptable to the Administrative Agent for all transactions in excess of $10,000,000, the Borrower
may enter into Asset Swaps otherwise permitted pursuant to the terms of this Credit Agreement.





     (c) After the Revert Date, other media-related acquisitions not included in
clause (b) above, provided that (i) so long as the Total Leverage Ratio
calculated on a Pro Forma Basis after giving effect to such acquisition is greater
than 6.00:1.00, the aggregate purchase price for all such acquisitions, whether
payable in cash or otherwise, shall not exceed $100,000,000, and (ii) each of the
conditions set forth in clause (b)(i) through (xi) above shall have been satisfied;




     (d) upon prior written notice to the Administrative Agent, the Borrower or any
of its Subsidiaries may enter into LMA Agreements provided that (i) at the time the
Borrower or such Subsidiary enters into an LMA Agreement, no Default or Event of
Default has occurred and is then continuing or could reasonably be expected to result
as a consequence of entering into such LMA Agreement, (ii) during the Suspension
Period, the Borrower shall not, nor shall any of the Subsidiaries, have an obligation
to purchase any Station, (iii) if (A) the Borrower or any of its Subsidiaries has,
acquired an option to acquire a Station or, after the Revert Date, is otherwise
obligated to purchase a Station in connection with such LMA Agreement or in a related
transaction or (B) such LMA Agreement is material as determined in the reasonable
judgment of the Administrative Agent after consultation with the Borrower, then, in
each case, all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights
and interests in, to and under each such LMA Agreement shall have been assigned to
the Administrative Agent as security for the irrevocable payment and performance in
full of the Obligations, pursuant to Collateral Assignments of Contracts in form and
substance satisfactory to Administrative Agent, (iv) if such LMA Agreement
contemplates a Station acquisition, such Station acquisition must satisfy the
provisions of clause (b) above; provided that, if such LMA Agreement grants
the Borrower or such Subsidiary an option to purchase a Station, the relevant date
for determining whether the provisions of clause (b) above have been satisfied with
respect to such acquisition shall be a date not earlier than five (5) Business Days
prior to the date on which the Borrower or such Subsidiary proposes to exercise such
option, with the intent that this clause (iv) shall not operate to prevent the
Borrower or such Subsidiary from entering into such LMA Agreement if all of the other
conditions of this clause (d) have been satisfied, save that the provisions of clause
(b) cannot be satisfied with respect to such optional acquisition on the date of the
Borrower’s or such Subsidiary’s entry into such LMA Agreement, (v) if such LMA
Agreement contemplates an Asset Sale or Asset Swap, such Asset Sale or Asset Swap is
otherwise permitted









 



112



pursuant to §10.5 hereof, (vi) such LMA Agreement is with a non-Affiliate third
party and on fair and reasonable terms substantially similar to those that would be
obtained in comparable arm’s length transactions, (vii) such LMA Agreement shall be
for cash consideration to the Borrower and the Subsidiaries only, and (viii) the
Borrower shall have delivered to the Administrative Agent a duly executed certificate
substantially in the form of Exhibit F hereto; and




     (e) after the Revert Date, any Investments permitted under §10.3.


For the avoidance of doubt, except for Asset Swaps consummated in accordance with the terms of this
Credit Agreement, during the Suspension Period, the Borrower and the Subsidiaries shall not be
permitted to acquire any Subsidiary or make any acquisition of equity interests, assets
constituting a line of business or Stations.





     10.5.2. Disposition of Assets. The Borrower will not, and will not permit
any of its Subsidiaries to, become a party to or agree to or effect any disposition or swap
of assets (which, for the avoidance of doubt, shall include Asset Sales and Asset Swaps),
including Capital Stock of any Subsidiary (whether by means of a public or private offering
or otherwise), other than:




     (a) the transfers of assets from the Borrower or any Guarantor to the Borrower
or another Guarantor;




     (b) the sale of inventory,




     (c) the licensing of intellectual property,




     (d) the disposition of obsolete assets, in each case in the ordinary course of
business consistent with past practices,




     (e) the sale of receivables in connection with the business operations of such
Person relating thereto or disposition of defaulted receivables for collection and
not as a financing arrangement, and




     (f) Intentionally Deleted;




     (g) (i) During the Suspension Period, Asset Sales and Asset Swaps not described
in clauses (a) through (e) above subject to five (5) Business Days’ prior written
notice to the Administrative Agent, provided that in the case of each such Asset Sale
or Asset Swap, (A) no Default or Event of Default has occurred and is continuing or
would result on a Pro Forma Basis from such Asset Sale or Asset Swap, (B) each such
Asset Sale or Asset Swap is for fair market value and consummated on an arm’s length
basis for fair consideration with a non-Affiliate in whom the Parent, the Borrower or
any of their Subsidiaries has not and will not after









 



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giving effect to the contemplated Asset Sale or Asset Swap have made an
Investment in excess of 25% of the total consideration received in connection with
such Asset Sale or Asset Swap, (C) the Borrower applies the Net Cash Sale Proceeds
received by the Borrower or any of its Subsidiaries in connection with such Asset
Sale or Asset Swap in accordance with §4.2, (D) the Borrower or such Subsidiary has
complied with the provisions of §10.5.1(b)(iii) with respect to the assets acquired
in such Asset Swap, (E) the Borrower has obtained a fairness opinion reasonably
acceptable to the Administrative Agent for Asset Swaps having a value in excess of
$10,000,000 and (F) contemporaneously with such Asset Sale or Asset Swap, the
Borrower shall have delivered to the Administrative Agent (x) an updated
Schedule 8.3(b) and/or Schedule 8.21, as applicable,
after giving effect to such Asset Sale or Asset Swap and (y) an officer’s
certificate, duly executed by a senior financial officer of the Borrower, setting
forth in detail reasonably satisfactory to the Administrative Agent the cumulative
calculations of Consolidated EBITDA as set forth herein, and




     (ii) After the Revert Date, Asset Sales and Asset Swaps not described in clauses (a)
through (e) above, provided that in the case of each such Asset Sale or Asset Swap, (A) no
Default or Event of Default has occurred and is continuing or would result on a Pro Forma
Basis from such Asset Sale or Asset Swap, (B) in the case of an Asset Sale, either (x) at
least seventy-five percent (75%) of the consideration received by the Borrower or such
Subsidiary in connection with any such Asset Sale is in the form of cash and is received
upon consummation of such Asset Sale (provided that (I) Investments permitted hereunder and
converted to cash within thirty (30) days and (II) any Indebtedness secured by the assets
sold and assumed by the buyer shall be treated as cash proceeds for purposes of calculating
compliance with the seventy-five percent (75%) requirement set forth in this clause (B) but
not for purposes of calculating Net Cash Sale Proceeds), or (y) such disposition
constitutes a permitted Investment pursuant to §10.3(j), (C) each such Asset Sale (other
than a Bridge to Sale Transfer as provided under §9.17) or Asset Swap is consummated on an
arm’s length basis for fair consideration with a non-Affiliate in whom the Parent, the
Borrower or any of their Subsidiaries has not and will not after giving effect to the
contemplated Asset Sale or Asset Swap have made an Investment in excess of 25% of the total
consideration received in connection with such Asset Sale or Asset Swap, (D) the Borrower
applies the Net Cash Sale Proceeds received by the Borrower or any of its Subsidiaries in
connection with such Asset Sale or Asset Swap in accordance with §4.2, (E) in the case of
an Asset Swap, the Borrower or such Subsidiary has complied with the provisions of
§10.5.1(b)(iii) with respect to the assets acquired in such Asset Swap, (F) in the case of
an Asset Sale under this clause (g)(ii), the aggregate amount of Consolidated EBITDA
generated by, or attributed to such asset, together with any other assets disposed of
pursuant to this clause (g)(ii) (calculating such generated or attributed Consolidated
EBITDA, as of the most recent Reference Period for which financial statements were
delivered prior to the









 



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closing of such applicable disposition), shall not exceed (x) in the 365 days
immediately preceding such proposed disposition (as reasonably determined by a senior
financial officer of the Borrower at the time of the respective Asset Sale), ten percent
(10%) of the Consolidated EBITDA for the Reference Period most recently ended prior to such
proposed disposition for which financial statements have been delivered, and (y) during the
term of this Credit Agreement (as reasonably determined by a senior financial officer of
the Borrower at the time of the respective Asset Sale), the greater of (I) thirty percent
(30%) of the Consolidated EBITDA for the Reference Period most recently ended prior to such
proposed disposition for which financial statements have been delivered and (II)
$25,000,000 of Consolidated EBITDA, and (G) contemporaneously with such Asset Sale or Asset
Swap, the Borrower shall have delivered to the Administrative Agent (x) an updated
Schedule 8.3(b) and/or Schedule 8.21, as applicable, after
giving effect to such Asset Sale or Asset Swap and (y) an officer’s certificate, duly
executed by a senior financial officer of the Borrower, setting forth in detail reasonably
satisfactory to the Administrative Agent the cumulative calculations of Consolidated EBITDA
as set forth herein. Notwithstanding the foregoing, the Borrower or any Subsidiary shall
not be required to comply with any of the conditions described in clauses (B) and (C) of
this §10.5.2(g)(ii) in connection with any transfer of certain assets used in connection
with the Borrower’s Hawaiian operations into a trust for FCC regulatory purposes or the
subsequent sale or disposal by such trust of such assets, so long as the Borrower applies
the Net Cash Sale Proceeds received by the Borrower or any of its Subsidiaries in
connection with any such Asset Sale in accordance with §4.2.




All non-cash proceeds from any Asset Sale must be included in the calculation of
Investments in connection with compliance with §10.3.(j).


Concurrent with the consummation of each such Asset Sale or Asset Swap permitted under clauses (e)
and (g) above, the Borrower shall provide a detailed good faith estimate of the calculation of the
Net Cash Sale Proceeds of such Asset Sale or Asset Swap together with the usage and anticipated
usage of such Net Cash Sale Proceeds.




     10.6. Sale and Leaseback; LMA Agreements.




     (a) During the Suspension Period, the Borrower will not, and will not permit any
of its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby
the Borrower or any Subsidiary of the Borrower shall sell or transfer any property or
Station or any significant portion of the property, assets and ownership rights used
in connection with the operation of a Station owned by it in order then or thereafter
to lease such property or Station (or associated rights or assets) or lease other
property that the Borrower or any Subsidiary of the Borrower intends to use for
substantially the same purpose as the property being sold or transferred or in order
to then or thereafter enter into a LMA Agreement (or a similar









 



115



agreement regardless of whether such agreement is with a non-Affiliate or an
Affiliate) directly or indirectly relating to such property or the Station operated
in connection with such property unless such LMA Agreement is permitted pursuant to
§10.5.1(d) hereof, provided, however, the Borrower or any of its
Subsidiaries may (i) sell equipment which constitutes Capital Assets which have been
not been acquired by such Person for the purpose of such sale for the fair market
value to an unaffiliated third party and thereafter lease back such equipment and
(ii) sell (A) the Real Estate located at One Emmis Plaza, 40 Monument Circle,
Indianapolis, Indiana 46204 and (B) the Real Estate located at the tower site at
Flint Peak in the County of Los Angeles, California,, provided that in each
case (A) the net present value of liabilities under such leaseback arrangements in
aggregate with Indebtedness incurred under Capitalized Leases and permitted under
§10.1(f) shall not exceed an aggregate amount of $10,000,000 at any one time, (B) all
such sales must be for cash only except to the extent the Borrower or a Subsidiary
receives an Investment calculated to be within the amount permitted during the
Suspension Period, (C) any sale is to a non-Affiliate, (D) the terms of any such sale
and the related lease transaction are at least as favorable to the Borrower and its
Subsidiaries as would have been obtainable in a transaction entered into on an arm’s
length basis in the ordinary course of business and (E) the proceeds of any such sale
are treated as Net Cash Sale Proceeds and 100% of such Net Cash Sale Proceeds are
applied to prepay the Obligations in accordance with §4.2.




     (b) After the Revert Date, the Borrower will not, and will not permit any of its
Subsidiaries to, enter into any arrangement, directly or indirectly, whereby the
Borrower or any Subsidiary of the Borrower shall sell or transfer any property or
Station or any significant portion of the property, assets and ownership rights used
in connection with the operation of a Station owned by it in order then or thereafter
to lease such property or Station (or associated rights or assets) or lease other
property that the Borrower or any Subsidiary of the Borrower intends to use for
substantially the same purpose as the property being sold or transferred or in order
to then or thereafter enter into a LMA Agreement (or a similar agreement regardless
of whether such agreement is with a non-Affiliate or an Affiliate) directly or
indirectly relating to such property or the Station operated in connection with such
property unless such LMA Agreement is permitted pursuant to §10.5.1(d) hereof,
provided, however, the Borrower or any of its Subsidiaries may (i)
sell equipment which constitutes Capital Assets which have been acquired by such
Person within 180 days prior to such sale and thereafter lease back such equipment,
provided that (A) the net present value of liabilities under such leaseback
arrangements in aggregate with Indebtedness incurred under Capitalized Leases and
permitted under §10.1(f) shall not exceed an aggregate amount of $35,000,000 at any
one time and (B) the proceeds of such sale shall be treated as Net Cash Sale Proceeds
and applied to prepay the Obligations in accordance with §4.2; and









 



116



(ii) sell (A) the Real Estate located at One Emmis Plaza, 40 Monument Circle,
Indianapolis, Indiana 46204 and (B) the Real Estate located at the tower site at
Flint Peak in the County of Los Angeles, California, provided, in each case, that (x)
any sale of such Real Estate is to a non-Affiliate, (y) the terms of any such sale
and the related lease transaction are at least as favorable to the Borrower and its
Subsidiaries as would have been obtainable in a transaction entered into on an arm’s
length basis in the ordinary course of business and (z) the proceeds of any such sale
are treated as Net Cash Sale Proceeds and 100% of such Net Cash Sale Proceeds are
applied to prepay the Obligations in accordance with §4.2(b).



     10.7. Compliance with Environmental Laws. The Borrower will not, and will not permit
any of its Subsidiaries to, (a) use any of the Real Estate or any portion thereof for the handling,
processing, storage or disposal of Hazardous Substances, (b) cause or permit to be located on any
of the Real Estate any underground tank or other underground storage receptacle for Hazardous
Substances, (c) generate any Hazardous Substances on any of the Real Estate, (d) conduct any
activity at any Real Estate or use any Real Estate in any manner so as to cause a release (i.e.
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping) or threatened release of Hazardous Substances on, upon or
into the Real Estate or (e) otherwise conduct any activity at any Real Estate or use any Real
Estate in any manner that in any of clauses (a) through (e) would violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law, except where failure to comply could
not reasonably be expected to result in a Material Adverse Effect.



     10.8. Subordinated Debt; Permitted Parent Indebtedness.




     (a) The Borrower will not, and will not permit any of its Subsidiaries to,
amend, supplement or otherwise modify the terms of, or any other agreement relating
to, Subordinated Debt or (except as otherwise expressly permitted under §10.4)
prepay, redeem, repurchase, defease, or issue any notice of redemption or defeasance
with respect to, any of the Subordinated Debt, provided, however, this §10.8 shall
not restrict the right of the Borrower to amend any document evidencing Subordinated
Debt to extend the maturity thereof or amend any covenants therein so as to make such
covenants less restrictive for the Borrower and its subsidiaries.




     (b) The Parent will not, amend, supplement or otherwise modify the terms of any
of the Required Provisions of any documentation related to any Permitted Parent
Indebtedness, (including, without limitation, any subordination provisions), or
prepay, redeem, repurchase, defease, or issue any notice of redemption or defeasance
with respect to, any of the Permitted Parent Indebtedness, except refinancings
thereof that include the Required Provisions and would have otherwise been permitted
by §10.13 for an initial incurrence of Permitted Parent Indebtedness.
















 



117



     10.9. Employee Benefit Plans. Neither the Borrower nor any ERISA Affiliate will:




     (a) engage in any “prohibited transaction” within the meaning of
§406 of ERISA or §4975 of the Code which could result in a material liability for the
Borrower or any of its Subsidiaries; or




     (b) permit any Guaranteed Pension Plan to incur an “accumulated funding
deficiency”, as such term is defined in §302 of ERISA, whether or not such deficiency
is or may be waived; or




     (c) fail to contribute to any Guaranteed Pension Plan to an extent which, or
terminate any Guaranteed Pension Plan in a manner which, could result in the
imposition of a lien or encumbrance on the assets of the Borrower or any of its
Subsidiaries pursuant to §302(f) or §4068 of ERISA; or




     (d) amend any Guaranteed Pension Plan in circumstances requiring the posting of
security pursuant to §307 of ERISA or §401(a)(29) of the Code; or




     (e) permit or take any action which would result in the aggregate benefit
liabilities (with the meaning of §4001 of ERISA) of all Guaranteed Pension Plans
exceeding the value of the aggregate assets of such Plans, disregarding for this
purpose the benefit liabilities and assets of any such Plan with assets in excess of
benefit liabilities; or




     (f) permit or take any action which would contravene any Applicable Pension
Legislation in any way which could reasonably be expected to have a Material Adverse
Effect.



     10.10. Fiscal Year. The Borrower will not, and will not permit any of it Subsidiaries
to, change the date of the end of its fiscal year from that set forth in §8.4.1.



     10.11. Transactions with Affiliates. The Borrower will not, and will not permit any
of its Subsidiaries to, engage in any transaction with any Affiliate (including, without
limitation, the Excluded Subsidiaries), and the Parent will not engage in any transaction with any
Excluded Subsidiary, in each case whether or not in the ordinary course of business and including,
without limitation, any contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such Affiliate or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any such Affiliate has a substantial
interest or is an officer, director, trustee or partner, other than on fair and reasonable terms
substantially similar to those that would be obtainable at the time by the Borrower or such
Subsidiary, as applicable, and such Affiliate in a comparable arm’s length transaction between or
among Persons that are not Affiliates of one another, provided, that the foregoing
limitation shall not extend to (i)









 



118

transactions for services as directors and for services or activities of employees and
officers to the extent the expenses incurred in connection with such services or activities would
constitute “HoldCo Corporate Overhead Expenses” (as described in clauses (i) through (viii)
thereof) or, in respect of any executive officer that is an Affiliate, are more favorable to the
Parent, the Borrower and its Subsidiaries as a result of any reduced salary and other employment
benefits received by such executive officer that is an Affiliate, (ii) tax sharing arrangements
pursuant to tax sharing agreements between the Parent and the Borrower in form and substance
reasonably acceptable to the Administrative Agent, (iii) transactions between or among the Borrower
or any Subsidiary, on the one hand, and one or more Subsidiaries, on the other hand, and (iv)
services being provided to the Borrower or any of its Subsidiaries as at the effective date of the
First Amendment by Emmis Interactive, Inc. which are similar to those services provided by Emmis
Interactive, Inc. to non-Affiliate third-parties and services related or similar thereto, and
services relating to the use of an airplane by Emmis Interactive, Inc. so long as all such services
are being provided to the Borrower or any of its Subsidiaries on terms at least as favorable to the
Borrower and its Subsidiaries as would have been obtainable in a transaction entered into on an
arm’s length basis in the ordinary course of business. In addition to and without limiting the
foregoing, except with respect to services permitted in clause (iv) above by Emmis Interactive,
Inc., the Borrower will not, and will not permit any of its Subsidiaries to, (x) transfer any
portion of the operations of the Borrower or its Subsidiaries (whether related to general overhead
functions and expenses or operating activities at, or expenses of, any Station or Magazine, or any
significant portion of the property, assets and ownership rights used in connection with the
operation of a Station or Magazine), (y) outsource any services required in connection with the
operation of any such Station or Magazine, or any significant portion of the property, assets and
ownership rights used in connection with the operation of a Station or Magazine owned by it, or (z)
engage in any other activity or enter into any other arrangement in connection with such Station or
Magazine, or any significant portion of the property, assets and ownership rights used in
connection with the operation of such Station or Magazine owned by it; in each of clauses (x), (y)
and (z), with or to any Excluded Subsidiary, any Affiliate of the Borrower or any of its
Subsidiaries or any other Person in whom the Borrower or any of its Subsidiaries has an Investment
if in any such case the effect would be to increase the Borrower’s Consolidated EBITDA for any
period to an amount in excess of what the Borrower’s Consolidated EBITDA would have been in the
absence of such activity or arrangement, provided, that the foregoing shall not be deemed
to limit any Bridge to Sale Transfer otherwise permitted pursuant to the terms of §9.17 hereof.
Notwithstanding the foregoing, prior to the occurrence of the Initial Parent Tranche B Purchase,
the Parent may pay bonuses to officers and other employees of the Parent, the Borrower or any of
their Subsidiaries.




     10.12. Certain Intercompany Matters. The Borrower will not permit any of its Excluded
Subsidiaries to (a) fail to satisfy customary formalities with respect to organization
separateness, including (i) the maintenance of separate books and records and (ii) the maintenance
of separate bank accounts in its own name, (b) fail to act solely in its own name and through its
authorized officers and agents, (c) commingle any money or other assets of any Excluded Subsidiary
with any money or other assets of the









 



119

Borrower or any other Subsidiary of the Borrower, or (d) take any action, or conduct its
affairs in a manner, which could reasonably be expected to result in the separate organizational
existence of the Excluded Subsidiaries being ignored under any circumstance.




     10.13. Activities and Indebtedness of the Parent.




     10.13.1. Activities of Parent. The Parent shall not (i)(x) perform any
services or activities, or make any cash payments for the performance of any services or
activities, other than those services and activities described in clauses (i) through
(viii) of the definition of “HoldCo Corporate Overhead Expenses” or reasonably related
thereto, or (y) perform any services or activities, or make any cash payments for the
performance of any services or activities that are ordinarily performed or paid for by an
operating company, (ii) engage in any trade or business, (iii) own any assets, (iv)
directly or indirectly, beneficially or otherwise, hold or own (whether pursuant to an
Asset Swap or otherwise) any Capital Stock or other securities of any Person, (v) issue or
incur any Indebtedness or (vi) effect any Equity Issuances, except that the Parent may:




     (a) hold and own the Capital Stock of the Borrower and, indirectly, any other
Person that is either a Subsidiary of the Borrower or an Excluded Subsidiary which is
a subsidiary of the Borrower,




     (b) make Investments described under §10.3(a), (b) and (c) hereof, and make
Investments permitted under §10.3 hereof which are held by the Borrower or any of its
Subsidiaries but only to the extent the Borrower and its Subsidiaries are permitted
to make such Investment,




     (c) incur Indebtedness in respect of the Obligations and Permitted Parent
Indebtedness so long as any Permitted Parent Indebtedness continues to qualify as
Permitted Parent Indebtedness at all times after the incurrence thereof, and




     (d) issue any Capital Stock or other Equity-Like Instrument if issued in
accordance with §10.14(b).




     10.13.2. Permitted Parent Indebtedness, Interest Payments; Etc.




     (a) The Parent shall not make, nor shall it permit the Borrower or any
Subsidiary to make, any cash interest, principal, fees, charges or other cash
payments of any kind, whether required or voluntary (including, without limitation,
any redemption, defeasance, setting aside of funds, or other provision for, or
assurance of, payment other than a permitted refinancing) on or in connection with
any Permitted Parent Indebtedness.




     (b) The Borrower will not, and will not permit any of its Subsidiaries to,
Guarantee any Permitted Parent Indebtedness.









 



120

Concurrent with the consummation of each such Equity Issuance and issuance of Permitted Parent
Indebtedness permitted under clauses (c) and (d) of §10.13.1 above, the Borrower shall provide a
detailed good faith estimate of the calculation of the Net Cash Equity Issuance Proceeds or Net
Cash Debt Issuance Proceeds, as applicable, together with the usage and anticipated usage of such
proceeds.




     10.14. Restrictions on Equity Issuances. None of the Parent, the Borrower or any
Subsidiary shall effect any Equity Issuance on or after the Funding Date, except that




     (a) the Borrower may issue common stock to its employees in connection with any
bona fide employee stock option, stock purchase or similar plan of the Borrower, and




     (b) the Parent may:




     (i) issue Common Stock to employees of the Borrower or any Subsidiary in
connection with any bona fide employee stock option, stock purchase or similar plan
of the Parent, and




     (ii) upon not less than five (5) Business Days’ prior written notice to the
Administrative Agent, issue Capital Stock and/or Equity-Like Instruments for not
less than 90% cash, provided that (A) in the case of the redemption of
Parent Preferred Stock, the terms of any new Capital Stock or Equity-Like
Instrument so issued shall not be materially less favorable or more restrictive
than the terms of the Parent Preferred Stock being redeemed and (B) the Parent
complies with §4.3(b). Net Cash Equity Issuance Proceeds of the Parent not subject
to a mandatory prepayment of the Loans in accordance with the terms of §4.3(b), and
not (1) used to redeem or purchase the Parent Preferred Stock or the Common Stock
of the Parent or (2) used to conduct a Dutch Auction in accordance with the terms
of §10.16, or (3) contributed to the Borrower as an equity cash contribution, shall
remain in the Parent to be used for general corporate capital purposes not
inconsistent with activities which are normal and customary for a publicly-held
holding company and until so used may be utilized for the making of Investments
(but excluding any acquisition that is an Investment and provided that any such
Investment must be included in the calculation of maximum Investments in §10.3(j),
and when aggregated together with all other Investments made by the Borrower, the
Subsidiaries and the Parent, must be permitted to be made within the maximum amount
allowed therein). Notwithstanding the foregoing requirement that such Equity
Issuance must be for not less than 90% cash, to the extent that any such Equity
Issuances by the Parent are in connection with a concurrent exchange (or another
transaction accomplishing a concurrent exchange) that are excluded from the
mandatory prepayment provisions of §4.3(b) due to the redemption or









 



121



purchase of the Parent Preferred Stock or Common Stock of the Parent, such
proceeds will not be subject to the 90% cash requirement.


Concurrent with the consummation of each such Equity Issuance permitted under clause (b)(ii) above,
the Borrower shall provide a detailed good faith estimate of the calculation of the Net Cash Equity
Issuance Proceeds of such Equity Issuance together with the usage and anticipated usage of such Net
Cash Equity Issuance Proceeds.




     10.15. Bridge to Sale Transactions Generally. The Borrower shall not permit or
otherwise allow any Bridge to Sale Excluded Subsidiary or Bridge to Sale License Subsidiary to:




     (i) create, incur, assume, guarantee or be or remain liable, contingently or
otherwise, for any Indebtedness; or




     (ii) create or incur or suffer to be created or incurred or to exist any Lien
upon any of its property or assets of any character whether now owned or hereafter
acquired, other than (A) Liens in favor of the Administrative Agent, for the
benefit of the Lenders and the Administrative Agent, under the Loan Documents, (B)
Liens in favor of the non-Affiliate third party that is purchasing the assets or
properties subject to a permitted Bridge to Sale Transfer pursuant to the Bridge to
Sale Transaction Documents and (C) Liens to secure taxes, assessments and other
government charges in respect of obligations not overdue or that are being
diligently contested in good faith and in respect of which appropriate reserves
have been set aside or Liens on properties to secure claims for labor, material or
supplies in respect of obligations not overdue or that are being diligently
contested in good faith and in respect of which appropriate reserves have been set
aside; or




     (iii) transfer or otherwise dispose of any its assets or properties (including
the Station and the FCC License associated with such Station that was subject to a
Bridge to Sale Transfer) other than a Bridge to Sale Third Party Transaction
otherwise permitted hereunder; or




     (iv) enter into or permit to exist any arrangement or agreement (other than
the Loan Documents and the Bridge to Sale Transaction Documents) which directly or
indirectly prohibits such Bridge to Sale Excluded Subsidiary or such Bridge to Sale
License Subsidiary from creating, assuming or incurring any Lien upon its
properties, revenues or assets; or




     (v) make or permit to exist or remain outstanding any Investment other than
(A) an Investment constituting the Bridge to Sale Transfer to such Bridge to Sale
Excluded Subsidiary and Bridge to Sale License Subsidiary which does not violate
§9.17 or (B) in connection with the consummation of a Bridge to Sale Third Party
Transaction, an









 



122



Investment which does not violate clause (ii) of the definition of “Bridge to
Sale Transaction Conditions;” or




     (vi) merge, amalgamate or consolidate (or agree to any merger, amalgamation or
consolidation) or agree to or effect any asset acquisition or asset disposition,
including the Capital Stock of any subsidiary, other than a Bridge to Sale Third
Party Transaction otherwise permitted hereunder; or




     (vii) enter into any Bridge to Sale Transaction Document, perform any
obligations thereunder or consummate a Bridge to Sale Third Party Transaction with
any Person or an Affiliate of such Person in whom the Parent, the Borrower, any of
their Subsidiaries, any Bridge to Sale Excluded Subsidiary, any Bridge to Sale
License Subsidiary or any Affiliate of any of the foregoing has made any Investment
(which for purposes of this §10.15 shall include fundings pursuant to prior
commitments to fund Investments) at any time in connection with the activities
described in this clause (vii), or during the twelve consecutive month period
ending immediately prior thereto or at any time following thereafter, other than an
Investment made in connection with the consummation of a Bridge to Sale Third Party
Transaction which does not violate clause (ii) of the definition of “Bridge to Sale
Transaction Conditions;” or




     (viii) perform any services or activities other than those services and
activities identified in the LMA Agreement entered into by such Bridge to Sale
Excluded Subsidiary or such Bridge to Sale License Subsidiary or reasonably related
to the operation of a Station in the event no such LMA Agreement is in effect.



     10.16. Debt Repurchases. The Borrower and the Parent shall not, and shall not permit
any Subsidiary, Excluded Subsidiary or other Affiliate to, repurchase, buy, redeem, prepay,
defease, receive an assignment of, issue any notice of redemption or defeasance with respect to, or
otherwise cause the cancellation, forgiveness or purchase (including, without limitation, any
setting aside of funds, or other provision for, or assurance of, payment), or enter into any other
transaction which accomplishes a like result, of any of its Indebtedness including the Loans and
Obligations, provided that, notwithstanding the preceding,




     (a) The Parent may enter into any refinancing of Permitted Parent Indebtedness
in accordance with the terms of §10.13 and the definition of Permitted Parent
Indebtedness,




     (b) The Borrower may (i) prepay the Loans hereunder at par in accordance with
the terms of this Credit Agreement and (ii) refinance Indebtedness permitted under
§10.1(b), §10.1(c), §10.1(d), §10.1(f),









 



123



§10.1(g), §10.1(h), §10.1(i) and §10.1(j) provided that such refinanced
Indebtedness is otherwise permitted pursuant to §10.1,




     (c) Subject to the terms and conditions set forth herein and notwithstanding the
definition of “Eligible Assignee” set forth herein, the Parent may purchase Tranche B
Term Loans, but only pursuant to a Dutch Auction conducted subject to the terms of
this Credit Agreement with the proceeds of the Tranche B Purchase Price and pursuant
to the terms, and only upon satisfaction of each of the conditions, set forth below
to the reasonable satisfaction of the Administrative Agent:




     (i) the funds used to purchase the Tranche B Term Loan shall be only that
portion of the Net Cash Equity Issuance Proceeds received in connection with a
permitted Equity Issuance by the Parent after the Second Amendment Effective Date
that is (A) not subject to a mandatory prepayment in accordance with the terms of
§4.3., (B) not used to redeem or purchase any Parent Preferred Stock or Common
Stock of the Parent, (C) not used by the Parent for any Investment, (D) not
contributed, loaned or advanced to the Borrower, any Subsidiary or otherwise
transferred out of the Parent and (E) otherwise not used by the Parent for any
other purpose (such remaining portion of such Net Cash Equity Issuance Proceeds of
the Parent, the “Tranche B Purchase Price”);




     (ii) simultaneously with any purchase of the Tranche B Term Loan by the Parent
as permitted hereby, the Parent shall immediately cancel and forgive the Tranche B
Term Loan so purchased and related Obligations acquired by the Parent in a manner
reasonably satisfactory to the Administrative Agent and shall promptly (but in any
event within two Business Days after any such purchase) deliver to the
Administrative Agent evidence reasonably satisfactory to the Administrative Agent
of the cancellation of such Tranche B Term Loan and related Obligations;




     (iii) any purchase of the Tranche B Term Loan by the Parent as permitted
hereby shall be consummated, and the cancellation or forgiveness of the Tranche B
Term Loan so purchased and related Obligations acquired by the Parent as provided
in clause (ii) above shall be completed, prior to 180 days after such Equity
Issuance described in clause (i) above;




     (iv) no Default or Event of Default shall then be continuing or would arise as
a result of such purchase;




     (v) notwithstanding anything herein or in any other Loan Document to the
contrary, at no time shall the Parent be considered a “Lender” under the Credit
Agreement or any other Loan Document for any purpose, which includes, without
limitation, for the purpose of voting









 



124



interests held by the Parent while holding such outstanding Tranche B Term
Loans and related Obligations; and




     (vi) the Dutch Auction purchase shall be conducted pursuant to the following
terms, conditions and methodology:




     (A) the Parent will notify Bank of America and the Administrative
Agent in writing substantially in the form of Exhibit J hereto (a
“Purchase Notice”) (and the Administrative Agent will deliver such
Purchase Notice to all of the Tranche B Lenders holding the Tranche B Term
Loan) that Parent wishes to make an offer to purchase the Tranche B Term
Loan in an aggregate purchase amount as is specified by the Parent (the
“Purchase Amount”) subject to a range or minimum discount to par expressed
as a price or range of prices at which the Parent would consummate the
purchase of a portion of the Tranche B Term Loan (the “Offer Price”);
provided that (A) the Purchase Notice shall specify that each Return Bid
(as defined below) must be submitted by a date and time to be specified in
the Purchase Notice, which date shall be no earlier than the second
Business Day following the date of the Purchase Notice and no later than
the fifth Business Day following the date of the Purchase Notice; (B) at
the time of delivery of the Purchase Notice to Bank of America and the
Administrative Agent, no Default or Event of Default shall have occurred
and be continuing or would result therefrom (which condition shall, in the
case of a Purchase Notice delivered by the Parent, be certified by the
Parent and the Borrower as being satisfied in such Purchase Notice); (C)
the Purchase Amount specified in each Purchase Notice delivered by the
Parent to Bank of America and the Administrative Agent shall not be less
than $5,000,000 in the aggregate (or such lesser amount as is all of the
remaining amount the Parent is permitted to use for the Dutch Auction
pursuant to §10.16.(c)(i)); and (D) at no time shall the aggregate
purchase price for all such purchases of the Tranche B Term Loan by the
Parent in all Dutch Auctions exceed the Tranche B Purchase Price;




     (B) the Parent will allow each Tranche B Lender holding a Tranche B
Term Loan to submit a notice of participation substantially in the form of
Exhibit K (each, a “Return Bid”) which shall specify (A) one or
more discounts to par of such Tranche B Lender’s Tranche B Term Loan
expressed as a price (each, an “Acceptable Price”) (but in no event will
any such Acceptable Price be greater than the highest Offer Price
specified in such Purchase Notice) and (B) the principal amount of such
Tranche B Lender’s Tranche B Term Loan at which such Tranche B Lender is









 



125



willing to sell at each such Acceptable Price (the “Reply Amount”);




     (C) based on the Acceptable Prices and Reply Amounts of the Tranche B
Term Loan as are specified by the Tranche B Lenders, Bank of America in
consultation with the Parent will determine the applicable discount (the
“Applicable Discount”) which will be the lower of (A) the lowest
Acceptable Price at which the Parent can complete the purchase for the
entire Purchase Amount and (B) in the event that the aggregate Reply
Amounts relating to such Purchase Notice are insufficient to allow the
Parent to complete a purchase of the entire Purchase Amount, the highest
Acceptable Price that is less than or equal to the Offer Price;




     (D) the Parent shall purchase the Tranche B Term Loan (or the
respective portions thereof) from each Tranche B Lender with one or more
Acceptable Prices that are equal to or less than the Applicable Discount
at the Applicable Discount plus accrued and unpaid interest thereon
through the date of such purchase (such Tranche B Term Loans being
referred to as “Qualifying Loans” and such Tranche B Lenders being
referred to as “Qualifying Lenders”), subject to clauses (E), (F) and (G)
below;




     (E) the Parent shall purchase the Qualifying Loans offered by the
Qualifying Lenders at the Applicable Discount plus accrued and unpaid
interest thereon through the date of such purchase; provided that if the
aggregate principal amount required to purchase the Qualifying Loans would
exceed the Purchase Amount, each such purchase shall be allocated to, and
pro-rated among, Qualifying Lenders with the lowest Acceptable Price first
(based on the aggregate principal amounts of all such Qualifying Loans
with the lowest Acceptable Price tendered by Qualified Lenders), and then
among Qualifying Lenders with the Qualified Loans at the next-lowest
Acceptable Price and continuing in that manner until fully allocated;




     (F) the purchase by the Parent of a portion of the Tranche B Term
Loan shall be consummated pursuant to procedures (including as to timing,
rounding and minimum amounts, Interest Periods, and other notices by the
Parent) mutually acceptable to the Administrative Agent and the Parent
(provided that such purchase of the Tranche B Term Loan by the Parent
shall be required to be consummated no later than three (3) Business Days
after the time that Return Bids are required to be submitted by the
Tranche B Lenders pursuant to the applicable Purchase Notice); and









 



126



     (G) upon submission by a Tranche B Lender of a Return Bid, such
Tranche B Lender will be irrevocably obligated to sell the entirety or its
pro rata portion (as applicable pursuant to clause (E) above) of the Reply
Amount at the Applicable Discount plus accrued and unpaid interest thereon
through the date of purchase to the Parent as provided herein.



     10.17. Restrictions on Excluded Subsidiaries. The Parent and the Borrower will not
permit any of the Excluded Subsidiaries to, (a) enter into or permit to exist any arrangement or
agreement (other than the Credit Agreement and the other Loan Documents) which directly or
indirectly prohibits any such Excluded Subsidiary from creating, assuming or incurring any Lien
upon its properties, revenues or assets or those of any of its subsidiaries whether now owned or
hereafter acquired to secure the Obligations (other than restrictions on specific assets, which
assets are the subject of purchase money security interests), or (b) enter into any agreement,
contract or arrangement (other than the Credit Agreement and the other Loan Documents) restricting
the ability of any such Excluded Subsidiary (i) to pay or make dividends or distributions in cash
or kind to the Borrower or any other Subsidiary or Excluded Subsidiary (provided that this
clause (b)(i) shall not prohibit restrictions on the payment of dividends and distributions to the
Borrower or any other Subsidiary contained in any agreement for or authorizing the issuance of
preferred Capital Stock by Emmis Interactive, Inc. to unaffiliated third parties), (ii) to make
loans, advances or other payments of any nature to the Borrower or any other Subsidiary or Excluded
Subsidiary, or (iii) to make transfers or distributions of all or any part of its assets to the
Borrower or any other Subsidiary or Excluded Subsidiary; in each case other than (x) restrictions
on specific assets which assets are the subject of purchase money security interests, (y) customary
anti-assignment provisions contained in leases and licensing agreements entered into by any
Excluded Subsidiary in the ordinary course of its business and (z) property subject to a pending
Asset Sale.



11. FINANCIAL COVENANTS.




     The Borrower covenants and agrees that, so long as any Loan, Unpaid Reimbursement Obligation,
Letter of Credit or Note is outstanding or any Lender has any obligation to make any Loans or the
Administrative Agent has any obligation to issue, extend or renew any Letters of Credit, the
Borrower will comply with the following financial covenants as set forth below during the time
periods set forth below (and which shall be calculated on a Pro Forma Basis with respect to any
Permitted Acquisitions which occurred during the relevant Reference Period):



     11.1. Total Leverage Ratio. The Borrower will not permit the Total Leverage Ratio as
of the last day of each fiscal quarter of the Borrower ending during any period described in the
table set forth below after the Revert Date (or with respect to determinations under §13.1 from and
after the 50th day following the first full fiscal quarter following the Revert Date) to exceed the
ratio set forth opposite such period in such table:









 



127


	 	 	 
	Period (inclusive of dates)	 	Ratio
	From and After the Revert Date — 11/29/11
	 	5.00:1.00
	11/30/11 — 5/30/12
	 	4.50:1.00
	5/31/12 and at all times thereafter
	 	4.00:1.00






     11.2. Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed Charge
Coverage Ratio as of the last day of each fiscal quarter of the Borrower ending after the Revert
Date, to be less than 1.25:1.00.



     11.3. Minimum Liquidity. The Borrower will not permit Liquidity as of the last day of
each fiscal quarter of the Borrower ending during the Suspension Period, to be less than
$5,000,000.



     11.4. Minimum Consolidated EBITDA. The Borrower will not permit Consolidated EBITDA
for the most recently completed Reference Period, tested as of the last day of each fiscal quarter
of the Borrower ending during any period described in the table set forth below during the
Suspension Period, to be less than the amount set forth opposite such period in such table:



	 	 	 	 	 
	Period (inclusive of dates)	 	
	(so long as each such period is during the Suspension Period)	 	Amount
	August 31, 2009
	 	$	22,800,000	 
	November 30, 2009
	 	$	21,600,000	 
	February 28, 2010
	 	$	23,400,000	 
	May 31, 2010
	 	$	23,200,000	 
	August 31, 2010
	 	$	22,400,000	 
	November 30, 2010
	 	$	22,700,000	 
	February 28, 2011
	 	$	22,900,000	 
	May 31, 2011
	 	$	23,600,000	 
	August 31, 2011
	 	$	25,000,000	 






12. CLOSING CONDITIONS.




     Unless otherwise agreed to by the Administrative Agent in writing, the obligations of the
Lenders to make the initial Revolving Credit Loans and the Tranche B Term Loan and of the
Administrative Agent to issue any initial Letters of Credit shall be subject to the satisfaction as
of the date on which such initial Loans and any such initial Letters of Credit are to be advanced
of the following conditions precedent:



     12.1. Loan Documents. Each of this Credit Agreement, the Omnibus Amendment and
Reaffirmation Agreement and the Notes shall have been duly executed









 



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and delivered by the respective parties thereto, shall be in full force and effect and shall
be in form and substance satisfactory to each of the Lenders.




     12.2. Certified Copies of Governing Documents. The Administrative Agent shall have
received from the Parent, the Borrower and each of the Subsidiaries a copy, certified by a duly
authorized officer of such Person to be true and complete on the Funding Date, of each of its
Governing Documents as in effect on such date of certification.



     12.3. Corporate or Other Action. All corporate (or other) action necessary for the
valid execution, delivery and performance by the Parent, the Borrower and each of the Subsidiaries
of this Credit Agreement and the other Loan Documents to which it is or is to become a party shall
have been duly and effectively taken, and evidence thereof satisfactory to the Lenders shall have
been provided to each of the Lenders.



     12.4. Officer’s Certificates.




     (a) The Administrative Agent shall have received from the Parent, the Borrower
and each of the Subsidiaries an incumbency certificate, dated as of the Funding Date,
signed by a duly authorized officer of such Person, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (i) to sign, in the
name and on behalf of each of such Person, each of the Loan Documents to which such
Person is or is to become a party; (ii) in the case of the Borrower, to make Loan
Requests and Conversion Requests and to apply for Letters of Credit; and (iii) to
give notices and to take other action on its behalf under the Loan Documents.




     (b) The Administrative Agent shall have received from each of the Parent and the
Borrower a certificate, dated as of the Funding Date, certifying that (i) each of the
representations and warranties made by such Person under this Credit Agreement and
the other Loan Documents are true and correct on the Funding Date as though made on
such date, and (ii) each of the conditions set forth in this §12 have been satisfied.



     12.5. Validity of Liens. The Security Documents shall be effective to create in favor
of the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a legal,
valid and enforceable first priority (except for Permitted Liens entitled to priority under
applicable law) security interest in and Lien upon the Collateral. All filings, recordings,
deliveries of instruments and other actions necessary or desirable in the opinion of the
Administrative Agent to protect and preserve such security interests shall have been duly effected
or provided for. The Administrative Agent shall have received evidence thereof in form and
substance satisfactory to the Administrative Agent.



     12.6. Perfection Certificates and UCC Search Results. The Administrative Agent shall
have received from each of the Parent, the Borrower and the Subsidiaries a completed and fully
executed Perfection Certificate and shall have received the results of









 



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UCC searches with respect to the Collateral, indicating no Liens other than Permitted Liens
and otherwise in form and substance satisfactory to the Administrative Agent.




     12.7. Date Down Endorsements to Title Insurance. The Administrative Agent shall have
received a date down endorsements to each Title Policy covering each Mortgaged Property, together
with proof of payment of all fees and premiums for such endorsements and policies, from the Title
Insurance Company and in amounts reasonably satisfactory to the Administrative Agent, insuring the
interest of the Administrative Agent and each of the Lenders as mortgagee under the Mortgages.



     12.8. Financial Statements. The Administrative Agent shall have received copies of
the consolidated financial statements of the Parent and its subsidiaries as at February 28, 2006,
prepared in accordance with GAAP and SEC requirements, together with a certification by the
principal financial or accounting officer of the Borrower that the information contained in such
financial statements fairly represents the financial position of the Parent and its subsidiaries on
the date thereof and that there are no contingent liabilities of the Parent, the Borrower or any of
its subsidiaries, as of the Funding Date involving material amounts, known to any officer of the
Parent, the Borrower or of any of the Subsidiaries not disclosed such consolidated financial
statements and the related notes thereto other than contingent liabilities disclosed to the Lenders
in writing prior to the Funding Date.



     12.9. FCC Licenses; Third Party Consents.




     (a) The Borrower shall have furnished to the Administrative Agent certified
copies of all FCC Licenses necessary for the operation of the business of each of the
Borrower and its Subsidiaries, or necessary for the operation of any Station owned by
the Borrower or any of the Subsidiaries, in each case, to the extent not previously
delivered pursuant to the Existing Credit Agreement.




     (b) The Borrower shall have furnished to the Administrative Agent certified
copies of all agreements pursuant to which the Operating Subsidiaries shall have
acquired the rights to use the FCC Licenses held by the License Subsidiaries, in each
case, to the extent not previously delivered pursuant to the Existing Credit
Agreement.




     (c) All other necessary governmental and third party consents to and notices of
the transactions contemplated by the Loan Documents shall have been obtained and
given, and evidence thereof satisfactory to the Administrative Agent shall have been
provided to the Administrative Agent.



     12.10. Certificates of Insurance. The Administrative Agent shall have received a
certificate of insurance from an independent insurance broker dated as of the Funding Date,
identifying insurers, types of insurance, insurance limits, and policy terms, and otherwise
describing the insurance obtained in accordance with the provisions of the









 



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Security Agreement and naming the Administrative Agent as additional insured and, on all
casualty insurance, loss payee.




     12.11. Opinions of Counsel. Each of the Lenders and the Administrative Agent shall
have received a favorable legal opinion addressed to the Lenders and the Administrative Agent,
dated as of the Funding Date, in form and substance satisfactory to the Lenders and the
Administrative Agent, from:




     (a) Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Parent and its
Subsidiaries;




     (b) counsel to the Parent and its Subsidiaries in Indiana and California as
applicable; and




     (c) FCC counsel to the Parent and its Subsidiaries.



     12.12. Compliance Certificate. The Administrative Agent shall have received from the
Borrower a Compliance Certificate demonstrating compliance with the covenants set forth in §11 as
of the Funding Date (provided that, for purposes of this §12.12, the Borrower shall use
Consolidated EBITDA for the Reference Period ended May 31, 2006), together with a certificate from
the principal financial or accounting officer of the Borrower certifying that no Default or Event
of Default has occurred and is continuing as of the Funding Date.



     12.13. [Intentionally Omitted]



     12.14. Financial Condition. The Administrative Agent shall be reasonably satisfied
and shall have received an officer’s certificate certifying that there has been no event or
occurrence which has had a Material Adverse Effect since the Balance Sheet Date.



     12.15. Payment of Fees; Administrative Agent Fee Letter. The Borrower shall have paid
to the Lenders or the Administrative Agent, as appropriate, the Fees pursuant to §§6.1 and 6.2 and
all fees and expenses of the Administrative Agent’s Special Counsel and the expenses of the
Administrative Agent; the Administrative Agent Fee Letter shall have been duly executed and
delivered by the respective parties thereto, shall be in full force and effect and shall be in form
and substance satisfactory to the Administrative Agent and the Administrative Agent shall have
received a fully executed copy of such document.



     12.16. Disbursement Instructions. The Administrative Agent shall have received Loan
Requests and disbursement instructions from the Borrower with respect to the proceeds of the Loans
to be made on the Funding Date.



     12.17. Sources and Uses of Cash. The Administrative Agent shall have received a
statement of the sources and uses of proceeds of the Loans advanced hereunder as of the date
hereof.









 



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     12.18. Accountant’s Letter. The Administrative Agent shall have received a copy of
the letter to the Borrower’s accountants pursuant to §9.9.3.



13. CONDITIONS TO ALL BORROWINGS.




     The obligations of the Lenders to make any Loan, and of the Administrative Agent to issue,
extend or renew any Letter of Credit, in each case whether on or after the Funding Date, shall also
be subject to the satisfaction of the following conditions precedent:



     13.1. Representations True; No Event of Default. Each of the representations and
warranties of the Parent, the Borrower and the Subsidiaries contained in this Credit Agreement, the
other Loan Documents or in any document or instrument delivered pursuant to or in connection with
this Credit Agreement shall be true in all material respects as of the date as of which they were
made and shall also be true in all material respects at and as of the time of the making of such
Loan or the issuance, extension or renewal of such Letter of Credit, with the same effect as if
made at and as of that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and warranties relate expressly to an earlier
date); and no Default or Event of Default shall have occurred and be continuing or would have
occurred as of the last day of the last Reference Period if the amount of Consolidated Total Funded
Debt on the last day of such Reference Period was the amount of Consolidated Total Funded Debt on
such proposed date of borrowing after giving effect to all borrowings, Credit Extensions and other
extensions of credit on such date and the use of proceeds thereof. The Administrative Agent shall
have received an officer’s certificate duly executed by a senior financial officer of the Borrower
certifying that the Borrower would have been in compliance with §11.1 as of the last day of the
then most recently ended Reference Period for which financial statements have been delivered on a
pro forma basis after giving effect to the making of such Loan or issuance, renewal or extension of
such Letter of Credit as if such Loan and/or Letter of Credit had been included in Consolidated
Total Funded Debt on such date.



     13.2. No Legal Impediment. No change shall have occurred in any law or regulations
thereunder or interpretations thereof that in the reasonable opinion of any Lender would make it
illegal for such Lender to make such Loan or to participate in the issuance, extension or renewal
of such Letter of Credit or in the reasonable opinion of the Administrative Agent would make it
illegal for the Administrative Agent to issue, extend or renew such Letter of Credit.



     13.3. Proceedings and Documents. All proceedings in connection with the transactions
contemplated by this Credit Agreement, the other Loan Documents and all other documents incident
thereto shall be satisfactory in substance and in form to the Lenders and to the Administrative
Agent and the Administrative Agent’s Special Counsel, and the Lenders, the Administrative Agent and
such counsel shall have received









 



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all information and such counterpart originals or certified or other copies of such documents
as the Administrative Agent may reasonably request.




     13.4. Liquidity/Leverage Compliance.




     (a) During the Suspension Period and thereafter through the date that includes
the first 50 days after the first full fiscal quarter after the Revert Date, on any
date of any Credit Extension, the Borrower shall demonstrate that it is in pro forma
compliance with §11.3. after giving effect to any and all Credit Extensions and other
Indebtedness made or to be made on such date, pursuant to a compliance certificate
delivered to the Administrative Agent prior to such Credit Extension and in form and
detail reasonably acceptable to the Administrative Agent; and




     (b) During the period beginning the date that is 50 days after the first full
fiscal quarter after the Revert Date, on any date of any Credit Extension, the
Borrower shall demonstrate that it is in pro forma compliance with §11.1. after
giving effect to any and all Credit Extensions and other Indebtedness made or to be
made on such date, pursuant to a compliance certificate delivered to the
Administrative Agent prior to such Credit Extension and in form and detail reasonably
acceptable to the Administrative Agent (calculated using Consolidated EBITDA as of
the most recently completed fiscal quarter for which a Compliance Certificate has
been delivered but based on outstanding Consolidated Total Funded Debt on the date of
the proposed Credit Extension, after giving effect to all proposed Credit Extensions
and any other borrowings and Indebtedness on such date).



14. EVENTS OF DEFAULT; ACCELERATION; ETC.




     14.1. Events of Default and Acceleration. If any of the following events
(“Events of Default” or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:




     (a) the Borrower shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable, whether at the
stated date of maturity or any accelerated date of maturity or at any other date
fixed for payment;




     (b) the Borrower or any of its Subsidiaries shall fail to pay any interest on
the Loans, any Fees, or other sums due hereunder or under any of the other Loan
Documents, within three (3) Business Days of when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment;




     (c) (i) the Parent or the Borrower, as applicable, shall fail to comply with any
of its covenants contained in §9.2, §9.4, §9.5 (other than









 



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§9.5.5 and §9.5.6), §9.6(iii) through (vi), §9.9, §9.12, §9.15, §9.17 (other
than §9.17(b)(i), §9.17 (b)(ii) and §9.17 (d)(i)), §10 or §11 after the expiration of
any applicable period; or (ii) the Parent, the Borrower, any Bridge to Sale Excluded
Subsidiary, any Bridge to Sale License Subsidiary or any Affiliate thereof shall fail
to comply with §9.17(b)(i), §9.17 (b)(ii) or §9.17(d)(i) and such failure continues
for fifteen (15) days;




     (d) the Borrower or any of its Subsidiaries shall fail (i) to comply with §9.7
for ten (10) Business Days after written notice of such failure has been given to the
Borrower by the Administrative Agent; or (ii) to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents (other than those
specified elsewhere in this §14.1) for thirty (30) days after written notice of such
failure has been given to the Borrower by the Administrative Agent;




     (e) any representation or warranty of the Parent, the Borrower or any of the
Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any
other document or instrument delivered pursuant to or in connection with this Credit
Agreement shall prove to have been false in any material respect upon the date when
made or deemed to have been made or repeated;




     (f) any of the Parent, the Borrower, any Subsidiary, the Austin Partnership or
RAM, shall fail to pay at maturity, or within any applicable period of grace, any
obligation for borrowed money or credit received or in respect of any Capitalized
Leases in each case in an amount greater than $5,000,000, or fail to observe or
perform any material term, covenant or agreement contained in any agreement by which
it is bound, evidencing or securing borrowed money or credit received or in respect
of any Capitalized Leases in each case in an amount greater than $5,000,000 for such
period of time as would permit (assuming the giving of appropriate notice if
required) the holder or holders thereof or of any obligations issued thereunder to
accelerate the maturity thereof, or any such holder or holders shall rescind or shall
have a right to rescind the purchase of any such obligations;




     (g) any of the Parent, the Borrower, any of the Subsidiaries or the Austin
Partnership or RAM, shall make an assignment for the benefit of creditors, or admit
in writing its inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of any of the Parent, the Borrower, any of the
Subsidiaries, or the Austin Partnership or RAM, or of any substantial part of the
assets of any such Person, or shall commence any case or other proceeding relating to
any such Person under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any jurisdiction,
now or hereafter in effect, or shall take any action to authorize or in furtherance
of









 



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any of the foregoing, or if any such petition or application shall be filed or
any such case or other proceeding shall be commenced against any of the Parent, the
Borrower, any Subsidiary, the Austin Partnership or RAM, and any such Person shall
indicate its approval thereof, consent thereto or acquiescence therein or such
petition or application shall not have been dismissed within sixty (60) days
following the filing thereof;




     (h) a decree or order is entered appointing any such trustee, custodian,
liquidator or receiver or adjudicating any of the Parent, the Borrower, any
Subsidiary, the Austin Partnership or RAM, bankrupt or insolvent, or approving a
petition in any such case or other proceeding, or a decree or order for relief is
entered in respect of any such Person in an involuntary case under federal bankruptcy
laws as now or hereafter constituted;




     (i) there shall remain in force, undischarged, unsatisfied and unstayed, for
more than thirty (30) days, whether or not consecutive, any final judgment against
any of the Parent, the Borrower, any Subsidiary, the Austin Partnership or RAM, that,
with other outstanding final judgments, undischarged, against such Person exceeds in
the aggregate $5,000,000;




     (j) any default shall occur with respect to all or any part of the Subordinated
Debt or the holders of all or any part of the Subordinated Debt shall accelerate the
maturity of all or any part of the Subordinated Debt; the Subordinated Debt shall be
prepaid, redeemed or repurchased in whole or in part (other than pursuant to
§10.4(d)) or an offer to prepay, redeem or repurchase the Subordinated Debt in whole
or in part shall have been made (other than pursuant to §10.4(d)) or the
subordination provisions of such Subordinated Debt are found by any court, or
asserted by the trustee in respect of, or any holder of, Subordinated Debt in a
judicial proceeding to be, invalid or unenforceable;




     (k) any of the Loan Documents shall be cancelled, terminated, revoked or
rescinded or the Administrative Agent’s security interests, mortgages or liens in a
material portion of the Collateral shall cease to be perfected, or shall cease to
have the priority contemplated by the Security Documents otherwise than in accordance
with the terms thereof with respect to the release of any Collateral or in each case
with the express prior written agreement, consent or approval of the Lenders, or any
action or suit at law or in equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of the Parent,
the Borrower or any of the Subsidiaries party thereto or any of their respective
stockholders, or any court or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the









 



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Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;




     (l) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a
Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount
exceeding $5,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal
liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate
annual payments exceeding $5,000,000, or any of the following occurs with respect to
a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of §302(f)(1) of ERISA),
provided that the Administrative Agent determines in its reasonable discretion that
such event (A) could be expected to result in liability of the Borrower or any of its
Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount
exceeding $5,000,000 and (B) is reasonably likely to constitute grounds for the
termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the
appropriate United States District Court of a trustee to administer such Guaranteed
Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension
Plan; or (ii) the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of
proceedings to terminate such Guaranteed Pension Plan;




     (m) any of the Borrower, any Subsidiary, the Austin Partnership or RAM, shall be
enjoined, restrained or in any way prevented by the order of any Governmental
Authority from conducting any material part of its business and such order shall
continue in effect for more than thirty (30) days, provided that with respect to any
such order relating to the renewal or availability of any Necessary Authorization, if
the issuance of such order would not otherwise constitute an Event of Default under
§14.1(t), it shall not cause an Event of Default solely by virtue of meeting the
criteria of this clause (m);




     (n) there shall occur any material damage to, or loss, theft or destruction of,
any Collateral, whether or not insured, or any strike, lockout, labor dispute,
embargo, condemnation, act of God or public enemy, or other casualty, which in any
such case causes, for more than fifteen (15) consecutive days, the cessation or
substantial curtailment of revenue producing activities at any facility of the
Borrower or any of its Subsidiaries if such event or circumstance is not covered by
business interruption insurance and would have a Material Adverse Effect;




     (o) there shall occur the loss, suspension or revocation of, or failure to
renew, any license or permit now held or hereafter acquired by any of the Borrower,
any Subsidiary, the Austin Partnership or RAM, if









 



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such loss, suspension, revocation or failure to renew would have a Material
Adverse Effect;




     (p) a Change of Control shall occur;




     (q) any default or event of default shall occur under any documents entered into
in connection with any Permitted Acquisition, which such default or event of default
could reasonably be expected to have a Material Adverse Effect;




     (r) at any time, any of the Subsidiaries or Excluded Subsidiaries shall provide
a guaranty of the Borrower’s obligations under any Subordinated Debt if such
subsidiary is not at such time guarantying the Obligations pursuant to the Guaranty
or if such guaranty of the Borrower’s obligations under such other Subordinated Debt,
as applicable, is not subordinated to such subsidiary’s Obligations under the
Guaranty;




     (s) the commencement of proceedings to suspend, revoke, terminate or
substantially and adversely modify any material FCC License or other material license
of any of the Borrower, any Subsidiary, the Austin Partnership or RAM, or of any
Stations of any thereof, if such proceeding shall continue uncontested for forty-five
(45) days;




     (t) appropriate proceedings for the renewal of any material Necessary
Authorization shall not be commenced prior to the expiration thereof or if such
Necessary Authorization is not renewed or otherwise made available for the use of any
of the Borrower, any Subsidiary, the Austin Partnership or RAM, provided that no
Event of Default shall be deemed to occur under this clause (t) if (A) no Material
Adverse Effect shall have occurred as a result of such event and (B) the Borrower
shall have demonstrated compliance with §11 on a Pro Forma Basis (both before and
after giving effect to such event) as though the affected Station had been sold in an
Asset Sale as of the first day of the Reference Period most recently ended and the
Borrower, the Subsidiary, the Austin Partnership or RAM, (as applicable) received no
consideration for such sale;




     (u) any contractual obligation which is necessary to the broadcasting operations
of any of the Borrower, any Subsidiary, the Austin Partnership or RAM, shall be
revoked or terminated and not replaced by a substitute, without a Material Adverse
Effect, within ninety (90) days after such revocation or termination;




     (v) any order of the FCC relating to any Permitted Acquisition granting or
consenting to a transfer of an FCC License in connection with any Permitted
Acquisition which has been completed shall not have become final and any Governmental
Authority shall have entered an order reversing such order (whether or not such order
shall be subject to further appeal);









 



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     (w) Intentionally Deleted;




     (x) the Parent shall fail to make any equity contribution to the Borrower in the
amount or at the time required pursuant to §10.14;




     (y) (i) the Austin Partnership shall incur any Indebtedness in an aggregate
amount at any one time outstanding in excess of $20,000,000 or (ii) the partnership
agreement or any other governing documents relating to the Austin Partnership shall
permit, after giving effect to any amendment, modification or waiver of the terms
thereof, or there shall occur, any cash or other distribution (including any
redemption, purchase, retirement or other acquisition of any partnership interests or
return of capital attributable to any partnership interests) by the Austin
Partnership to all or any of its partners which is not made simultaneously to all of
its partners on a pro rata basis, in terms of both value and kind, in accordance with
such partners’ proportional equity interests in the Austin Partnership; provided that
it shall not be an Event of Default hereunder if the Borrower or any of its
Subsidiaries receives any distribution in excess of their pro rata share as so
determined or if the Borrower or any of its Subsidiaries receives any repayment of
Indebtedness advanced by the Borrower or any of its Subsidiaries to the Austin
Partnership;




     (z) any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License
Subsidiary shall make an assignment for the benefit of creditors, or admit in writing
its inability to pay or generally fail to pay its debts as they mature or become due,
or shall petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of any Bridge to Sale Excluded Subsidiary or any Bridge to
Sale License Subsidiary or of any substantial part of the assets of such Person or
shall commence any case or other proceeding relating to such Person under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter in
effect, or shall take any action to authorize or in furtherance of any of the
foregoing, or if any such petition or application shall be filed or any such case or
other proceeding shall be commenced against any Bridge to Sale Excluded Subsidiary or
any Bridge to Sale License Subsidiary and such Person shall indicate its approval
thereof, consent thereto or acquiescence therein or such petition or application
shall not have been dismissed within sixty (60) days following the filing thereof; or




     (aa) a decree or order is entered appointing any such trustee, custodian,
liquidator or receiver or adjudicating any Bridge to Sale Excluded Subsidiary or any
Bridge to Sale License Subsidiary bankrupt or insolvent, or approving a petition in
any such case or other proceeding, or a decree or order for relief is entered in
respect of any such Person in an









 



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involuntary case under federal bankruptcy laws as now or hereafter constituted;


then, and in any such event, so long as the same may be continuing, the Administrative Agent may,
and upon the request of the Required Lenders shall, by notice in writing to the Borrower declare
all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and
all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Borrower; provided that in the event of any Event of Default
specified in §14.1(g) or §14.1(h), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Administrative Agent or any Lender.
In addition, the Administrative Agent may direct the Borrower by notice in writing to pay (and the
Borrower hereby agrees upon notice to pay) to the Administrative Agent such additional amounts of
cash, to be held as security for all Reimbursement Obligations, equal to the Maximum Drawing Amount
of Letters of Credit then outstanding.




     14.2. Termination of Commitments. If any one or more of the Events of Default
specified in §14.1(g) or §14.1(h) shall occur, any unused portion of the credit hereunder shall
forthwith terminate and each of the Lenders shall be relieved of all further obligations to make
Loans to the Borrower and the Administrative Agent shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any other Event of Default shall have occurred and be
continuing the Administrative Agent may and, upon the request of the Required Lenders, shall, by
notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice
being given such unused portion of the credit hereunder shall terminate immediately and each of the
Lenders shall be relieved of all further obligations to make Loans and the Administrative Agent
shall be relieved of all further obligations to issue, extend or renew Letters of Credit. No
termination of the credit hereunder shall relieve the Borrower or any of its Subsidiaries of any of
the Obligations.



     14.3. Remedies. Subject to §18.1, in case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Lenders shall have accelerated the
maturity of the Loans pursuant to §14.1, each Lender, if owed any amount with respect to the Loans
or the Reimbursement Obligations, may, with the consent of the Required Lenders but not otherwise,
proceed to protect and enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement contained in this
Credit Agreement and the other Loan Documents or any instrument pursuant to which the Obligations
to such Lender are evidenced, including as permitted by applicable law the obtaining of the
ex parte appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable
right of such Lender. No remedy herein conferred upon any Lender or the Administrative Agent or
the holder of any Note or purchaser of any Letter of Credit Participation is intended to be
exclusive of any other remedy and each and every remedy









 



139

shall be cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or any other provision of law.




     14.4. Distribution of Collateral Proceeds. In the event that, following the
occurrence or during the continuance of any Default or Event of Default, the Administrative Agent
or any Lender, as the case may be, receives any monies in connection with the enforcement of any of
the Security Documents, or otherwise with respect to the realization upon any of the Collateral,
such monies shall be distributed for application as follows:




     (a) First, to the payment of, or (as the case may be) the reimbursement of the
Administrative Agent, in its capacity as such, for or in respect of all reasonable
costs, expenses, disbursements and losses which shall have been incurred or sustained
by the Administrative Agent in connection with the collection of such monies by the
Administrative Agent, for the exercise, protection or enforcement by the
Administrative Agent of all or any of the rights, remedies, powers and privileges of
the Administrative Agent under this Credit Agreement or any of the other Loan
Documents or in respect of the Collateral or in support of any provision of adequate
indemnity to the Administrative Agent against any taxes or liens which by law shall
have, or may have, priority over the rights of the Administrative Agent to such
monies;




     (b) Second, to all other Obligations in such order or preference as the Required
Lenders may determine; provided, however, that (i) distributions shall be made (A)
pari passu among Obligations with respect to the Administrative Agent’s Fee and all
other Obligations and (B) with respect to each type of Obligation owing to the
Lenders, such as interest, principal, fees and expenses, among the Lenders pro rata
across all Tranches and (ii) the Administrative Agent may in its discretion make
proper allowance to take into account any Obligations not then due and payable;




     (c) Third, upon payment and satisfaction in full in cash or other provisions for
payment in full satisfactory to the Lenders and the Administrative Agent of all of
the Obligations, to the payment of any obligations required to be paid pursuant to
§9-615 of the UCC of the State of New York; and




     (d) Fourth, the excess, if any, shall be returned to the Borrower or to such
other Persons as are entitled thereto.



15. ADDITIONAL FINANCING.




     15.1. Commitment Amount. At any time, and from time to time after the Revert Date,
the Borrower may solicit the Lenders and any other lending institution to provide the Borrower with
additional commitments to make Loans under this Credit Agreement in an aggregate amount not to
exceed four hundred fifty million dollars









 



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($450,000,000) subject to the limitations set forth below. Neither the Administrative Agent
nor any Lender shall have any obligation to provide the Borrower with all or any part of such
additional commitment; provided that by execution of this Credit Agreement, the
Administrative Agent and the Lenders shall be deemed to have consented, without the need for
further or subsequent consent, (a) to such additional commitments which any other Lender or lending
institution may agree to provide for the Loans which may be advanced in respect thereof and any
resulting changes in any Commitment Percentage of any Tranche, and (b) any amendments which may be
made to the Loan Documents in order to evidence and document such commitments and Loans to the
extent that any such amendment (i) does not amend any of the provisions specified in §18.13(a) as
requiring the consent of each Lender affected thereby, (ii) does not modify the relative priority
of the Loans (including any such new Loans) and commitments (including any such new commitments)
with respect to the payment, guarantees, collateral or other collateral support, and (iii) is
consistent with all other requirements of this §15. The Borrower may elect to allocate all or any
portion of such additional commitment among the existing Tranches or may allocate all or a portion
of such additional commitment to one or more new Tranches; provided that (x) any additional
Revolving Credit Loans and Revolving Credit Commitments shall mature or terminate, as the case may
be, on or after the Revolving Credit Maturity Date and (y) any amounts not allocated to increase
the Total Revolving Credit Commitment shall be advanced in the form of term loans under a bank term
tranche or fund term tranche and any such additional term loans shall either (A) with respect to
any additional term loans structured as a bank term tranche, amortize on the same or slower
schedule as the Tranche B Term Loan as in effect at such time until the Tranche B Maturity Date and
shall have a final maturity date on or after the Tranche B Maturity Date, and (B) with respect to
any additional term loans structured as a fund term tranche, amortize either on the same schedule
as the Tranche B Term Loan or have a weighted average term to maturity which is longer than the
Tranche B Term Loan. Moreover, if the interest rate in respect of any additional Revolving Credit
Loans, or the commitment fees payable in respect of any additional Revolving Credit Commitments,
made available pursuant to this §15 exceeds the interest rate or the Commitment Fee payable in
respect of the Revolving Credit Loans and the Revolving Credit Commitments as provided in §2.5 and
§2.2, respectively, then the interest rate calculated in accordance with §2.5 or such Commitment
Fee (as applicable) shall automatically be increased to the interest rate or the commitment fee, as
the case may be, payable in respect of the additional Revolving Credit Loans and Revolving Credit
Commitments made available pursuant to this §15 without the requirement of any further action or
consent on the part of the Administrative Agent, any Lender or the Borrower. In addition, if the
interest rate payable in respect of any additional term loans made available pursuant to this §15
at any time exceeds the interest rate payable in respect of the Tranche B Term Loan as provided in
§3.5 plus 0.25%, then the interest rate payable in respect of the Tranche B Term Loan shall
automatically be increased to a rate that is at all times equal to the rate payable with respect to
such additional term loans less 0.25% without the requirement of any further action or
consent on the part of the Administrative Agent, any Lender or the Borrower. Notwithstanding
anything to the contrary set forth herein, no additional commitments shall be permitted hereunder
and no additional loans may be advanced in respect thereof unless (1) no Default or Event of
Default shall have occurred and be then continuing or










 



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would result after giving effect to such additional commitments and the loans to be advanced
in respect thereof, assuming that such loans were fully advanced on the effective date of such
additional commitments, (2) the Borrower shall have delivered to the Administrative Agent a
Compliance Certificate demonstrating compliance with the terms of the Credit Agreement after giving
pro forma effect to such loans to be advanced in respect of the additional commitment and the
application of the proceeds thereof, such compliance to be calculated based on the Borrower’s
Consolidated EBITDA reported in connection with the preparation of the Borrower’s Compliance
Certificate most recently delivered to the Administrative Agent, (3) with respect to each lending
institution not yet a party hereto providing additional commitments, such lending institution shall
have become a party to this Credit Agreement (and become subject to all the rights and obligations
of a Lender hereunder) by executing the delivering to the Administrative Agent an original,
executed Instrument of Accession in the form of Exhibit G hereto (an
“Instrument of Accession”), (4) the Borrower shall have delivered to the
Administrative Agent and the Lenders notice that such solicitation has been made and, prior to the
effectiveness of such additional commitment, copies of all documents and instruments related
thereto, (5) the Borrower shall have delivered to the Administrative Agent copies of updated
financial projections through the final maturity date of any additional commitments provided
hereunder and (6) the additional commitments and additional loans pursuant to this §15.1 (A) are
permitted indebtedness under all Subordinated Debt, (B) constitute for purposes of all Subordinated
Debt, “Senior Debt” to the same degree as the Obligations in existence prior to the making of such
additional loans or such additional commitments, and (C) any Revolving Credit Loans made hereunder
shall constitute permitted indebtedness under the documentation evidencing all Subordinated Debt
without requiring the Borrower to demonstrate compliance with any leverage ratio incurrence
covenants or other incurrence covenant contained in any documentation in any Subordinated Debt.
Neither the Administrative Agent nor any Lender shall have any obligation to provide the Borrower
with any such additional commitments.




     15.2. Evidence of Debt. The Loans made pursuant to this §15 shall be evidenced by one
or more accounts or records maintained by the applicable Lender and by the Administrative Agent in
the ordinary course of business. The accounts or records maintained by the Administrative Agent
and each such Lender shall be conclusive absent manifest error of the amount of the Loans made
pursuant to this §15 by the applicable Lenders to the Borrower and the interest and payments
thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records maintained by any
applicable Lender and the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error. In addition to such accounts or records, upon request of any applicable Lender,
the Borrower shall execute and deliver to such Lender, in the case of any new Tranche, a new Note
for such Tranche and, in the case of an increase to an existing Tranche, an amended Note as
applicable for the corresponding Tranche in the form of the appropriate Note then held by such
Lender (the “Current Note”), in a principal amount equal to such Lender’s
Commitment Percentage of the applicable Tranche as increased









 



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pursuant to this §15 or, if less, the outstanding amount of all loans made by such Person in
respect of such Tranche, plus interest accrued thereon at the applicable rate. Within five (5)
days of the receipt of the amended Note, such Lender shall deliver to the Borrower the Current Note
marked “substituted.”




     15.3. Availability. Notwithstanding anything in this §15 or elsewhere in this Credit
Agreement or in the Loan Documents to the contrary, in no event shall the rights and privileges
under this §15 be available to the Borrower until after the Revert Date and only so long as no
Event of Default has occurred and is continuing.



16. THE ADMINISTRATIVE AGENT.




     16.1. Appointment and Authority. Each Lender hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The provisions of this §16 are
solely for the benefit of the Administrative Agent and the Lenders and neither the Parent nor the
Borrower shall have rights as a third party beneficiary of any such provisions.



     16.2. Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Parent, the
Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative
Agent hereunder and without any duty to account therefor to the Lenders.



     16.3. Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the other
Loan Documents), provided that the Administrative Agent shall not be required to take
any action that, in its opinion or the opinion of its counsel, may expose the









 



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Administrative Agent to liability or that is contrary to any Loan Document or
applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Parent, the Borrower or the Subsidiaries or
any of their respective Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in §18.2 and §14.3) or (ii) in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Parent, the Borrower or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Credit
Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Credit Agreement, any other Loan Document or any other
agreement, instrument or document or (v) the satisfaction of any condition set forth in §12 and §13
or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.



     16.4. Reliance by Administrative Agent.




     16.4.1. General. The Administrative Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by it to be
genuine and to have been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to the making
of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to
the satisfaction of a Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender unless the Administrative Agent shall have received notice to
the contrary from such Lender prior to the making of such









 



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Loan or the issuance of such Letter of Credit. The Administrative Agent may consult
with legal counsel (who may be counsel for the Parent, the Borrower or its Subsidiaries),
independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.




     16.4.2. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender acknowledges that it has, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to
enter into this Credit Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any
of their Related Parties and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Credit Agreement, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder.




     16.4.3. Delegation of Duties. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the Administrative Agent.
The Administrative Agent and any such sub-agent may perform any and all of its duties and
exercise its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this §16 shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.



     16.5. Payments.




     16.5.1. Payments to Administrative Agent. A payment by the Parent or the
Borrower to the Administrative Agent hereunder or any of the other Loan Documents for the
account of any Lender shall constitute a payment to such Lender. The Administrative Agent
agrees promptly to distribute to each Lender such Lender’s pro rata share
of payments received by the Administrative Agent for the account of the Lenders except as
otherwise expressly provided herein or in any of the other Loan Documents.




     16.5.2. Distribution by Administrative Agent. If in the opinion of the
Administrative Agent the distribution of any amount received by it in such capacity
hereunder, under the Notes or under any of the other Loan Documents might involve it in
liability, it may refrain from making such distribution until its right to make such
distribution shall have been adjudicated by a court of competent jurisdiction. If a court
of competent jurisdiction shall adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each









 



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Person to whom any such distribution shall have been made shall either repay to the
Administrative Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be determined by such
court.




     16.5.3. Delinquent Lenders. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any Lender that (a)
fails to make available to the Administrative Agent its pro rata share of
any Loan or to purchase any Letter of Credit Participation within one Business Day of the
date required to be made available to the Administrative Agent by it hereunder unless such
failure has been cured, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one Business
Day of the date when due, unless the subject of a good faith dispute, (c) fails to comply
with the provisions of §16.1 with respect to making dispositions and arrangements with the
other Lenders, where such Lender’s share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and
payable to all of the Lenders within one Business Day of the date when due, unless the
subject of a good faith dispute or unless such failure has been cured, (d) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding, in each case as,
shall be deemed delinquent, (e) the Administrative Agent has a good faith belief that such
Lender has defaulted in fulfilling its obligations under one or more other syndicated
credit facilities or (f) an entity that controls such Lender has been deemed insolvent or
become subject to a bankruptcy or other similar proceeding. (a “Delinquent
Lender”) and shall be deemed a Delinquent Lender until such time as such
delinquency is satisfied. The Administrative Agent may, in its discretion, apply any and
all payments otherwise due to a Delinquent Lender from the Borrower, whether on account of
outstanding Loans, Unpaid Reimbursement Obligations, interest, fees or otherwise, to the
remaining nondelinquent Lenders for application to, and reduction of, their respective
pro rata shares of all outstanding Loans and Unpaid Reimbursement
Obligations. The Delinquent Lender hereby authorizes the Administrative Agent to
distribute and apply such payments to the nondelinquent Lenders in proportion to their
respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. A Delinquent Lender shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned payments to all
outstanding Loans and Unpaid Reimbursement Obligations of the nondelinquent Lenders, the
Lenders’ respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such delinquency.



     16.6. Reimbursement by Lenders. To the extent that the Borrower for any reason fails
to indefeasibly pay any amount required under §18.2 or §18.3 to be paid by it to the Administrative
Agent (or any sub-agent thereof) or any Related Party of any of the foregoing (and without limiting
the Borrower’s obligation to do so), each Lender









 



146

severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related
Party, as the case may be, such Lender’s Total Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
(or any such sub-agent) in its capacity as such, or against any Related Party acting for the
Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of
the Lenders under this §16.6 are several and the failure or refusal of any Lender to reimburse the
Administrative Agent for its portion of such unpaid amount shall not relieve any other Lender from
its several obligation hereunder. The undertaking in this §16.6 shall survive termination of the
Total Commitment, the payment of all other Obligations and the resignation of the Administrative
Agent.




     16.7. Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above, provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment and that any
present or future law, regulation, treaty or directive or in the interpretation or application
thereof shall make it unlawful for the Administrative Agent to continue to act as Administrative
Agent hereunder, then such resignation shall nonetheless become effective in accordance with such
notice and (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents,
the retiring Administrative Agent shall continue to hold such collateral security until such time
as a successor Administrative Agent is appointed) and (b) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent and the term “Administrative Agent” shall mean such successor administrative agent and the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The Borrower agrees to pay the fees of the successor Administrative Agent as may be
agreed between the Borrower and such successor Administrative Agent. After any retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents, the









 



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provisions of this §16 and §§18.2 and 18.3 shall continue in effect for the benefit of the
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was
acting as Administrative Agent.



Any resignation by Bank of America as Administrative Agent pursuant to this §16 shall also
constitute Bank of America’s resignation as issuer of Letters of Credit. Notwithstanding Bank of
America’s resignation as Administrative Agent and issuer of Letters of Credit hereunder, Bank of
America shall retain all the rights, powers, privileges and duties of the issuer of Letters of
Credit hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as issuer of Letters of Credit and all Unpaid Reimbursement Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unpaid Reimbursement Obligations pursuant to §5.3). Upon the appointment of a
successor issuer of Letters of Credit, (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring issuer of Letters of Credit, as
the case may be, (b) the retiring issuer of Letters of Credit shall be discharged from all of its
respective duties and obligations hereunder or under the other Loan Documents and (c) the successor
issuer of Letters of Credit shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to Bank of America to effectively assume the obligations of Bank of America with respect to such
Letters of Credit.




     16.8. 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 the Parent, the Borrower or any Subsidiary,
the Administrative Agent (irrespective of whether the principal of any Loan or Reimbursement
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower or any
other Person primarily or secondarily liable) shall be entitled and empowered, by intervention in
such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans, Reimbursement Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under §5.6, §6 and §18.2) 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;









 



148

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 §6 and §18.2.



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.




     16.9. No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the book managers, arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Credit Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent or a Lender hereunder.



17. ASSIGNMENT AND PARTICIPATION.




     17.1. Successors and Assigns; Conditions to Assignment.




     (a) The provisions of this Credit Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that neither the Parent nor the Borrower may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign
or otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of clause (b) of this §17.1, (ii)
by way of participation in accordance with the provisions of §17.3, (iii) by way of
pledge or assignment of a security interest subject to the restrictions of §17.4, or
(iv) to an SPC in accordance with the provisions of §17.1(c) (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this
Credit Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in §17.3 and, to the extent expressly
contemplated hereby, an Indemnified Person) any legal or equitable right, remedy or
claim under or by reason of this Credit Agreement.




     (b) Any Lender may at any time assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Credit Agreement (including all or a
portion of its Commitment and the Loans









 



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(including for purposes of this clause (b), participations in Reimbursement
Obligations) at the time owing to it); provided that (i) except in the case of an
assignment of the entire remaining amount of the assigning Lender’s Commitment and
the Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) subject to each such assignment, determined as of the date the Assignment
and Acceptance (as defined below) with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Acceptance, as of the Trade Date, shall not be less than $2,000,000, in respect of
assignments of Revolving Credit Commitments and/or Revolving Credit Loans and
$1,000,000, in respect of assignments of Tranche B Term Loans or loans made in
connection with any new Tranche structured as a term tranche pursuant to §15.1
unless, in each case, each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing and such assignee lender is not an Eligible
Assignee, the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent assignments
to members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single assignee (or to an assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining whether
such minimum amount has been met; (ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Credit Agreement with respect to the Loans or the Commitment
assigned; (iii) any assignment of a Commitment must be approved by the Administrative
Agent (such consent not to be unreasonably withheld or delayed) unless the Person
that is the proposed assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to
each assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance substantially in the form of Exhibit H hereto (an “Assignment and
Acceptance”), together with a processing and recordation fee of $3,500;
provided, however that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The Eligible Assignee, if not a Lender, shall deliver to the
Administrative Agent an administrative questionnaire in the form supplied by the
Administrative Agent. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to §17.2, from and after the effective date specified
in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a party
to this Credit Agreement and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under this
Credit Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its obligations
under this Credit Agreement (and, in the case of an Assignment









 



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and Acceptance covering all of the assigning Lender’s rights and obligations
under this Credit Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of §§6.3, 6.7, 6.8, 6.10, 18.2 and 18.3 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and deliver a
Note(s) to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Credit Agreement that does not comply with this clause (b)
shall be treated for purposes of this Credit Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with §17.3.




     (c) Special Purpose Funding Vehicles. 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 Borrower (an “SPC”)
the option to provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make pursuant to this Credit Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make all
or any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof or, if it fails to do so, to make such payment to the
Administrative Agent as is required under §2.8.2(b). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the obligations
of the Borrower under this Credit Agreement (including its obligations under §§6.3,
6.7, 6.8 and 6.10), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Credit Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any amendment,
waiver or other modification of any provision of any Loan Document, remain the lender
of record hereunder. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were made
by such Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Credit 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 herein, any SPC may (i) with notice to, but without prior consent of the
Borrower and the Administrative Agent and with the payment of a processing fee in the
amount of $3,500 (which processing fee may be waived by the Administrative Agent in
its sole discretion) assign all or any portion of its









 



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right to receive payment with respect to any Loan to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of any
surety or Guarantee or credit or liquidity enhancement to such SPC.



     17.2. Register. The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and Reimbursement Obligations
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Credit Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and the Lenders at any
reasonable time and from time to time upon reasonable prior written notice to the Administrative
Agent.



     17.3. Participations.




     (a) Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Credit Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender’s Letter of Credit Participations) owing to
it); provided that (i) such Lender’s obligations under this Credit Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent 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
Credit Agreement. Any agreement or instrument pursuant to which a Lender sells such
a participation shall provide that such Lender shall retain the sole right to enforce
this Credit Agreement and to approve any amendment, modification or waiver of any
provision of this Credit Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
clauses (a) and (b) of §18.13 that directly affects such Participant. Subject to
clause (b) of this §17.3, the Borrower agrees that each Participant shall be entitled
to the benefits of §§6.3, 6.7, 6.8 and 6.10 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to §17.1. To the extent
permitted by law, each Participant also shall be entitled to the benefits of §18.1 as
though it were a









 



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Lender, provided such Participant agrees to be subject to §18.1 as
though it were a Lender.




     (b) A Participant shall not be entitled to receive any greater payment under
§6.3 §6.7, or §6.8 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.
A Participant that would be a Non-U.S. Lender if it were a Lender shall not be
entitled to the benefits of §6.3 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with §6.3.3 as though it were a Lender.



     17.4. Miscellaneous Assignment Provisions. Any Lender may, without the consent of the
Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or
any portion of its rights under this Credit Agreement (including any portion of its Loans owing to
it and its Notes, if any, held by it) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.



     17.5. Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



18. PROVISIONS OF GENERAL APPLICATIONS.




     18.1. Setoff. The Borrower hereby grants to the Administrative Agent and each of the
Lenders a continuing lien, security interest and right of setoff as security for all liabilities
and obligations to the Administrative Agent and each Lender, whether now existing or hereafter
arising, upon and against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of the Administrative Agent or such Lender or any
Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the
adequacy of any collateral, if any of the Obligations are due and payable and have not been paid,
any deposits or other sums credited by or due from any of the Lenders to the Borrower and any
securities or other property of the Borrower in the possession of such Lender may be applied to or
set off by such Lender against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter
arising,









 



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of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with
each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the
Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit
Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such
Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness
evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if
such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of
setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement,
the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by
proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or
Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the
payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any)
held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such
disposition and arrangements with the other Lenders with respect to such excess, either by way of
distribution, pro tanto assignment of claims, subrogation or otherwise as shall
result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to
it, its proportionate payment as contemplated by this Credit Agreement; provided that if
all or any part of such excess payment is thereafter recovered from such Lender, such disposition
and arrangements shall be rescinded and the amount restored to the extent of such recovery, but
without interest.




     18.2. Expenses. The Borrower agrees to pay (a) the reasonable costs of the
Administrative Agent in producing and reproducing this Credit Agreement, the other Loan Documents
and the other agreements and instruments mentioned herein, (b) any taxes (including any interest
and penalties in respect thereto), other than Excluded Taxes (as defined in §6.3.2), payable by the
Administrative Agent or any of the Lenders (other than taxes based upon the Administrative Agent’s
or any Lender’s net income or profits) on or with respect to the transactions contemplated by this
Credit Agreement (the Borrower hereby agreeing to indemnify the Administrative Agent and each
Lender with respect thereto), (c) the reasonable fees, expenses and disbursements of the
Administrative Agent’s Special Counsel (and only one such Administrative Agent’s Special Counsel at
any one time) and any local or FCC counsel to the Administrative Agent incurred in connection with
the preparation, syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, each closing hereunder, any amendments, modifications, approvals,
consents or waivers hereto or hereunder, or the cancellation of any Loan Document upon payment in
full in cash of all of the Obligations or pursuant to any terms of such Loan Document providing for
such









 



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cancellation, (d) the fees, expenses and disbursements (other than reimbursements of legal
fees and expenses) of the Administrative Agent, Syndication Agent or any of their respective
affiliates incurred by such Person or such affiliate in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other instruments mentioned
herein, including all title insurance premiums and surveyor, engineering, appraisal and examination
charges, (e) all reasonable out-of-pocket expenses (including without limitation reasonable
attorneys’ fees and costs, which attorneys may be employees of any Lender or the Administrative
Agent, and reasonable consulting, accounting, appraisal, investment bankruptcy and similar
professional fees and charges) incurred by any Lender or the Administrative Agent in connection
with (i) the enforcement of or preservation of rights under any of the Loan Documents against the
Parent, the Borrower or any of the Subsidiaries or the administration thereof after the occurrence
of a Default or Event of Default and (ii) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to any Lender’s or the Administrative Agent’s
relationship with the Borrower or any of its Subsidiaries, and (f) all reasonable fees, expenses
and disbursements of the Administrative Agent incurred in connection with UCC searches, UCC
filings, intellectual property searches, intellectual property filings or mortgage recordings. The
covenants contained in this §18.2 shall survive payment or satisfaction in full of all other
obligations.




     18.3. Indemnification. The Borrower agrees to indemnify and hold harmless each of the
Administrative Agent, the Syndication Agent and the Lenders and their respective affiliates,
officers, directors, employees, agents, trustees and advisors (each such Person an “Indemnified
Person”) from and against any and all claims, actions and suits whether groundless or otherwise,
and from and against any and all liabilities, losses, damages and expenses of every nature and
character arising out of this Credit Agreement or any of the other Loan Documents or the
transactions contemplated hereby including, without limitation, (a) any actual or proposed use by
the Borrower or any of its Subsidiaries of the proceeds of any of the Loans or Letters of Credit,
(b) the reversal or withdrawal of any provisional credits granted by the Administrative Agent upon
the transfer of funds from lock box, bank agency, concentration accounts or otherwise under any
cash management arrangements with the Borrower or any Subsidiary or in connection with the
provisional honoring of funds transfers, checks or other items, (c) any actual or alleged
infringement of any patent, copyright, trademark, service mark or similar right of the Borrower or
any of its Subsidiaries comprised in the Collateral, (d) the Parent, the Borrower or any of the
Subsidiaries entering into or performing this Credit Agreement or any of the other Loan Documents
or (e) with respect to the Borrower and its Subsidiaries and their respective properties and
assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage,
spillage, discharge, emission, release or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or threatened with respect to any Hazardous
Substances (including, but not limited to, claims with respect to wrongful death, personal injury
or damage to property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in connection with any
such investigation, litigation or other proceeding (all the foregoing, collectively, the
“Indemnified Liabilities”), except to the extent any of the foregoing









 



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Indemnified Liabilities result solely from the gross negligence or willful misconduct of any
such Indemnified Person. In litigation, or the preparation therefor, such Indemnified Person shall
be entitled to select its own counsel and, in addition to the foregoing indemnity, the Borrower
agrees to pay promptly the reasonable fees and expenses of such counsel. If, and to the extent
that the obligations of the Borrower under this §18.3 are unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The covenants contained in this §18.3 shall
survive payment or satisfaction in full of all other Obligations.




     18.4. Treatment of Certain Confidential Information.




     18.4.1. Confidentiality. Each of the Lenders and the Agents agrees, on
behalf of itself and each of its affiliates, directors, officers, employees and any Person
which manages such Lender, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information of the
same nature and in accordance with safe and sound financial industry practices, any
non-public information supplied to it by the Borrower or any of its Subsidiaries pursuant
to this Credit Agreement, provided that nothing herein shall limit the disclosure
of any such information (a) after such information shall have become public other than
through a violation of this §18, or becomes available to any of the Lenders or the Agents
on a nonconfidential basis from a source other than the Borrower, (b) to the extent
required by statute, law, rule, regulation or judicial process, (c) to such Agent’s and
Lender’s Affiliates, directors, officers, employees, trustees, advisors, and agents,
including, without limitation, counsel or financial advisers for any of the Lenders or
Agents (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of the information and instructed to keep such
information confidential), (d) to bank examiners or any other regulatory or self-regulatory
authority having or reasonably claiming to have jurisdiction over any Lender or Agent, or
to auditors or accountants, (e) to the Administrative Agent, any Lender or any Financial
Affiliate, (f) in connection with any litigation to which any one or more of the Lenders,
the Agents or any Financial Affiliate is a party, or in connection with the enforcement of
rights or remedies hereunder or under any other Loan Document, (g) to a Lender Affiliate or
a Subsidiary or affiliate of the Administrative Agent, (h) to any actual or prospective
assignee, pledgee or participant or any actual or prospective direct or indirect
counterparty (or its advisors) to any swap, derivative or securitization transactions
relating to credit or other risks or events arising under this Credit Agreement or any
other Loan Document so long as such assignee, participant or direct or indirect
counterparty (or its advisors), as the case may be, agrees to be bound by the provisions of
§18.4 or (i) with the consent of the Borrower. Moreover, each of the Agents, the Lenders
and any Financial Affiliate is hereby expressly permitted by the Parent and the Borrower to
refer to any of the Parent, the Borrower and their respective Subsidiaries in connection
with any advertising, promotion or marketing undertaken by any such Agent, such Lender or
such









 



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Financial Affiliate and, for such purpose, any such Agent, such Lender or such
Financial Affiliate may utilize any trade name, trademark, logo or other distinctive symbol
associated with the Parent, the Borrower or any of their respective Subsidiaries or any of
their businesses.




     Each of the Administrative Agent and the Lenders acknowledges that (a) any
confidential information may include material non-public information concerning the
Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such material
non-public information in accordance with applicable Law, including Federal and state
securities Laws.




     18.4.2. Prior Notification. Unless specifically prohibited by applicable
law or court order, each of the Lenders and the Administrative Agent shall, prior to
disclosure thereof, notify the Borrower of any request for disclosure of any such
non-public information by any governmental agency or representative thereof (other than any
such request in connection with an examination of the financial condition of such Lender by
such governmental agency) or pursuant to legal process.




     18.4.3. Other. In no event shall any Lender or Agent be obligated or
required to return any materials furnished to it or any Financial Affiliate by the Parent,
the Borrower or any of their respective Subsidiaries. The obligations of each Lender under
this §18 shall supersede and replace the obligations of such Lender under any
confidentiality letter in respect of this financing signed and delivered by such Lender to
the Borrower prior to the date hereof and shall be binding upon any assignee of, or
purchaser of any participation in, any interest in any of the Loans or Reimbursement
Obligations from any Lender.



     18.5. Survival of Covenants, Etc. All covenants, agreements, representations and
warranties made herein and in any of the other Loan Documents or in any documents or other papers
delivered by or on behalf of the Borrower or any of its Subsidiaries pursuant hereto (i) shall be
deemed to have been relied upon by the Lenders and the Administrative Agent, notwithstanding any
investigation heretofore or hereafter made by any of them, and (ii) shall survive the execution and
delivery hereof and thereof and the making by the Lenders of any of the Loans and the issuance,
extension or renewal of any Letters of Credit, as herein contemplated, and (iii) shall continue in
full force and effect so long as any Letter of Credit or any amount due under this Credit Agreement
or the Notes or any of the other Loan Documents remains outstanding or any Lender has any
obligation to make any Loans or the Administrative Agent has any obligation to issue, extend or
renew any Letter of Credit, and for such further time as may be otherwise expressly specified in
this Credit Agreement. All statements contained in any certificate or other paper delivered to any
Lender or the Administrative Agent at any time by or on behalf of the Borrower or any of its
Subsidiaries pursuant hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrower or such Subsidiary hereunder and have
been or will be relied upon by the









 



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Administrative Agent and each Lender, regardless of any investigation made by the
Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative
Agent or any Lender may have had notice or knowledge of any Default at the time of any borrowing
hereunder, and shall continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.




     18.6. Notices. Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this Credit Agreement or
any Note or any Letter of Credit Applications shall be in writing and shall be delivered in hand,
mailed by United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, facsimile or telex and confirmed by delivery via
courier or postal service, addressed as follows:




     (a) if to the Parent, the Borrower or any of the Subsidiaries, at One Emmis
Plaza, 40 Monument Circle, Suite 700, Indianapolis, Indiana 46204, Attention: Jeffrey
H. Smulyan, Chairman, with a copy to J. Scott Enright, Esq., Emmis Operating Company,
40 Monument Circle, Suite 700, Indianapolis, Indiana 46204 and Eric Goodison, Esq.,
Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York,
New York 10019, or at such other address for notice as the Borrower shall last have
furnished in writing to the Person giving the notice; and




     (b) if to any Lender or the Administrative Agent, at such Lender’s or
Administrative Agent’s address set forth on Schedule 1 hereto, with a
copy to Melissa R. Stewart, Esq., Winstead PC, 5400 Renaissance Tower, 1201 Elm
Street, Dallas, Texas, 75270, or such other address for notice as such party shall
have last furnished in writing to the Person giving the notice.



     Any such notice or demand shall be deemed to have been duly given or made and to have become
effective (i) if delivered by hand, overnight courier or facsimile to a responsible officer of the
party to which it is directed, at the time of the receipt thereof by such officer or the sending of
such facsimile and (ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof. Any notice or other communication to be made
hereunder or under any Note or any Letter of Credit Applications, even if otherwise required to be
in writing under other provisions of this Credit Agreement, any Note or any Letter of Credit
Applications, may alternatively be made in an electronic record transmitted electronically under
such authentication and other procedures as the parties hereto may from time to time agree in
writing (but not an electronic record), and such electronic transmission shall be effective at the
time set forth in such procedures. Unless otherwise expressly provided in such procedures, such an
electronic record shall be equivalent to a writing under the other provisions of this Credit
Agreement, any Note or any Letter of Credit Applications, and such authentication, if made in
compliance with the procedures so agreed by the parties









 



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hereto in writing (but not an electronic record), shall be equivalent to a signature under the
other provisions of this Credit Agreement, any Note or any Letter of Credit Applications.




     18.7. Electronic Communications.




     (a) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved
by the Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender pursuant to Section 2 if such Lender has notified the
Administrative Agent that it is incapable of receiving notices under such Section by
electronic communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




     (b) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM
FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or
any of its Related Parties (collectively, the “Agent Parties”) have any
liability to Parent, the Borrower,









 



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any Lender or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of the
Borrower’s or the Administrative Agent’s transmission of Borrower Materials through
the Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event
shall any Agent Party have any liability to Parent, the Borrower, any Lender or any
other Person for indirect, special, incidental, consequential or punitive damages (as
opposed to direct or actual damages).




     (c) Change of Address, Etc. Each of Parent, the Borrower and the
Administrative Agent may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto.
Each other Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the Borrower and the Administrative
Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail
address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.




     (d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices) purportedly given by or on behalf of the Borrower even if
(i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation thereof.
The Borrower shall indemnify the Administrative Agent, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting
from the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the
parties hereto hereby consents to such recording.



     18.8. Governing Law. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW
YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE
PARENT AND THE BORROWER









 



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AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON SUCH PERSON BY MAIL AT THE ADDRESS SPECIFIED IN §18.6. EACH OF THE
PARENT AND THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.




     18.9. Headings. The captions in this Credit Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.



     18.10. Counterparts. This Credit Agreement and any amendment hereof may be executed
in several counterparts and by each party on a separate counterpart, each of which when executed
and delivered shall be an original, and all of which together shall constitute one instrument. In
proving this Credit Agreement it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom enforcement is sought. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof or of any amendment or waiver hereto
shall be as effective as an original executed counterpart hereof or of such amendment or waiver and
shall be considered a representation that an original executed counterpart hereof or such amendment
or waiver, as the case may be, will be delivered.



     18.11. Entire Agreement, Etc. The Loan Documents and any other documents executed in
connection herewith or therewith express the entire understanding of the parties with respect to
the transactions contemplated hereby. Neither this Credit Agreement nor any term hereof may be
changed, waived, discharged or terminated, except as provided in §18.13.



     18.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER
RELATING TO THE ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREES THAT IT
WILL NOT SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE
OR HAS NOT BEEN WAIVED. Except as prohibited by law, each of the Parent and the Borrower hereby









 



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waives any right it may have to claim or recover in any litigation referred to in the preceding sentence any special,
exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages. Each of the Parent and the
Borrower (a) certifies that no representative, agent or attorney of any Lender or any Agent has represented, expressly or
otherwise, that such Lender or such Agent would not, in the event of litigation, seek to enforce
the foregoing waivers and (b) acknowledges that the Agents and the Lenders have been induced to
enter into this Credit Agreement, the other Loan Documents to which it is a party by, among other
things, the waivers and certifications contained herein.




     18.13. Consents, Amendments, Waivers, Etc. Any consent or approval required or
permitted by this Credit Agreement to be given by the Lenders may be given, and any term of this
Credit Agreement, the other Loan Documents or any other instrument related hereto or mentioned
herein may be amended, and the performance or observance by the Parent, the Borrower or any of the
Subsidiaries of any terms of this Credit Agreement, the other Loan Documents or such other
instrument or the continuance of any Default or Event of Default may be waived (either generally or
in a particular instance and either retroactively or prospectively) with, but only with, the
written consent of the Parent, the Borrower and the written consent of the Required Lenders and
acknowledged by the Administrative Agent; provided, however, that any amendment or waiver of any
condition described in §13 shall require the written consent of the Parent, the Borrower, the
Required Revolver Lenders and the Required Term Lenders and acknowledged by the Administrative
Agent. Notwithstanding the foregoing, no amendment, modification or waiver shall:




     (a) without the written consent of the Parent, the Borrower and each Lender
directly affected thereby:




     (i) reduce or forgive the principal amount of any Loans, Reimbursement
Obligations or other amounts payable to such Lender, or reduce the rate of interest
on the Loans or the amount of the Commitment Fee or Letter of Credit Fees, amend
the definition of Total Leverage Ratio or any of the components thereof or the
method of calculation thereof solely for purposes of calculating the Applicable
Margin;




     (ii) (A) increase the aggregate amount of such Lender’s Revolving Credit
Commitment or Tranche B Commitment, as the case may be, subject to increases set
forth in §15; (B) extend the expiration date of such Lender’s Revolving Credit
Commitment or Tranche B Commitment; or (C) change the requirement that any
scheduled payments of principal of the Loans or voluntary or mandatory prepayments
of the Loans or reductions in the Revolving Credit Commitments be applied pro rata
to all Loans outstanding within the applicable Tranche or outstanding Revolving
Credit Commitments, as applicable; and









 



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     (iii) postpone or extend the Revolving Credit Maturity Date or the Tranche B
Maturity Date or any other regularly scheduled dates for payments of principal of,
or interest on, the Loans or Reimbursement Obligations or any Fees or other amounts
payable to such Lender (it being understood that (A) any vote to rescind any
acceleration made pursuant to §14.1 of amounts owing with respect to the Loans and
other Obligations and (B) any modifications of the provisions relating to amounts,
timing or application of prepayments of Loans and other Obligations shall require
only the approval of the Required Lenders); and




     (iv) amend the definition of “Interest Period” so as to permit Eurodollar Rate
Loan intervals in excess of six months without regard to a Lender’s capacity to
lend in any such greater intervals; and




     (b) without the written consent of all of the Lenders, amend or waive (i) this
§18.13, (ii) the definition of Required Lenders, (iii) the distribution of collateral
proceeds after an Event of Default pursuant to §14.4, (iv) other than pursuant to a
transaction permitted by the terms of this Credit Agreement, release any material
portion of the Collateral, release any material guarantor from its guaranty
obligations under the Guaranty (excluding, if the Parent, the Borrower or any
Subsidiary becomes a debtor under the federal Bankruptcy Code, the release of “cash
collateral”, as defined in Section 363(a) of the federal Bankruptcy Code pursuant to
a cash collateral stipulation with the debtor approved by the Required Lenders), or
change the seniority of any Loans or the priority of any Loans with respect to any
Collateral or guarantor; or




     (c) without the consent of each Granting Lender, amend, waive or otherwise
modify all or any part of the Loans that are being funded by an SPC at the time of
such amendment, waiver or other modification; or




     (d) without the written consent of the Administrative Agent, (i) amend or waive
§16, or amend or waive the amount or time of payment of the Administrative Agent’s
Fee or any Letter of Credit Fees payable for the Administrative Agent’s account or
any other provision applicable to the Administrative Agent or (ii) affect the rights
and duties of the Administrative Agent in respect of Letters of Credit issued by the
Administrative Agent hereunder or under any Letter of Credit Applications or any
Letter of Credit, or (iii) and, without the consent of the Required Revolver Lenders,
change the definition of “Required Revolver Lenders” or (iv) and without the consent
of the Required Term Lenders, change the definition of “Required Term Lenders”.



     Notwithstanding anything to the contrary contained herein, no Delinquent Lender shall have any
right to approve or disapprove any amendment, waiver or consent









 



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hereunder, except that the Commitment of such Lender may not be increased or extended without
the consent of such Lender.




     Notwithstanding the foregoing, the parties hereto acknowledge and agree that the
Administrative Agent may, without the consent of any Lender, at its option and in its discretion:




     (i) release liens on Excluded Assets;




     (ii) release its liens on the Collateral and/or any Subsidiary from its
obligations under the Guaranty solely to the extent that such Collateral and/or
Subsidiary is sold (or to be sold) or otherwise disposed of in accordance with the
terms of this Credit Agreement, including without limitation, §10.5.2;




     (iii) subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by §10.2.1(viii);




     (iv) take any and all action necessary, including, without limitation,
entering into joinder and accession agreements with additional Subsidiaries (or RAM
or the Austin Partnership, as the case may be) and amendments to any of the
Security Documents, all in furtherance of the provisions of §9.13 and §9.15. Any
termination or other modification of any Interest Rate Agreement with a Lender as a
counterparty shall not require the consent of any other Lender hereunder; or




     (v) release its liens on the Collateral upon termination of the Commitments
and payment in full in cash of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters of
Credit.



     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 §18.13. In each case as specified in this §18.13, the Administrative Agent will,
at the Borrower’s expense, execute and deliver to the Borrower such documents as the Borrower may
reasonably request to evidence the release of such item of Collateral from the assignment and
security interest granted under the Collateral Documents or to subordinate its interest in such
item, or to release such Guarantor from its obligations under the Guaranty, in each case in
accordance with the terms of the Loan Documents and this §18.13.



     No waiver shall extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the Administrative
Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower









 



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shall entitle the Borrower to other or further notice or demand in similar or other
circumstances.




     18.14. Severability. The provisions of this Credit Agreement are severable and if any
one clause or provision hereof shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision,
or part thereof, in such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Credit Agreement in any
jurisdiction.



     18.15. USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.



     18.16. No Advisory or Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated hereby, the Borrower and Parent each acknowledge and agree, and
acknowledge their respective Affiliates’ understanding, that: (i) the credit facilities provided
for hereunder and any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document)
are an arm’s-length commercial transaction between the Borrower, the Parent and their respective
Affiliates, on the one hand, and the Administrative Agent the Lead Arrangers, on the other hand,
and each of the Borrower and Parent is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated hereby and by the other
Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, the Administrative Agent and each Lead
Arranger each is and has been acting solely as a principal and is not the financial advisor, agent
or fiduciary, for the Borrower, the Parent or any of their respective Affiliates, stockholders,
creditors or employees or any other Person; (iii) neither the Administrative Agent nor any Lead
Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the
Borrower or Parent with respect to any of the transactions contemplated hereby or the process
leading thereto, including with respect to any amendment, waiver or other modification hereof or of
any other Loan Document (irrespective of whether the Administrative Agent or any Lead Arranger has
advised or is currently advising the Borrower, the Parent or any of their respective Affiliates on
other matters) and neither the Administrative Agent nor any Lead Arranger has any obligation to the
Borrower, the Parent or any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and the Lead Arrangers and their respective Affiliates may
be engaged in a broad range of transactions that involve interests that differ from those of the
Borrower, the









 



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Parent and their respective Affiliates, and neither the Administrative Agent nor any Lead
Arranger has any obligation to disclose any of such interests by virtue of any advisory, agency or
fiduciary relationship; and (v) the Administrative Agent and the Lead Arrangers have not provided
and will not provide any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other modification hereof or
of any other Loan Document) and each of the Borrower and Parent has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of the
Borrower and Parent hereby waives and releases, to the fullest extent permitted by law, any claims
that it may have against the Administrative Agent and the Lead Arrangers with respect to any breach
or alleged breach of agency or fiduciary duty.




19. FCC APPROVAL.




     Notwithstanding anything to the contrary contained in this Credit Agreement or in the other
Loan Documents, neither the Administrative Agent nor any Lender will take any action pursuant to
this Credit Agreement or any of the other Loan Documents, which would constitute or result in a
change in control of the Borrower or any of its Subsidiaries requiring the prior approval of the
FCC without first obtaining such prior approval of the FCC. After the occurrence of an Event of
Default, the Borrower shall take or cause to be taken any action which the Administrative Agent may
reasonably request in order to obtain from the FCC such approval as may be necessary to enable the
Administrative Agent to exercise and enjoy the full rights and benefits granted to the
Administrative Agent, for the benefit of the Administrative Agent and the Lenders by this Credit
Agreement or any of the other Loan Documents, including, at the Borrower’s cost and expense, the
use of the Borrower’s best efforts to assist in obtaining such approval for any action or
transaction contemplated by this Credit Agreement or any of the other Loan Documents for which such
approval is required by law, including specifically, without limitation, upon request, to prepare,
sign and file with the FCC the assignor’s or transferor’s portion of any application or
applications for the consent to the assignment or transfer of control necessary or appropriate
under the FCC’s rules and approval of any of the transactions contemplated by this Credit Agreement
or any of the other Loan Documents.



20. TRANSITION ARRANGEMENTS.




     Upon the effectiveness of this Credit Agreement, this Credit Agreement shall supersede the
Existing Credit Agreement in its entirety, except as otherwise provided in this §20. This Credit
Agreement constitutes an amendment and restatement of the Existing Credit Agreement effective from
and after the Funding Date. The execution and delivery of this Credit Agreement shall not
constitute a novation of any indebtedness or other obligations owing to the Lenders or the
Administrative Agent under the Existing Credit Agreement or evidence repayment of any such
indebtedness or other obligations. It is the intent of the parties hereto that this Credit
Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the
obligations of the Borrower outstanding thereunder, secured by the Security Documents. As of the
Funding Date, the









 



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rights and obligations of the parties under the Existing Credit Agreement and the “Notes” (as
defined in the Existing Credit Agreement) shall be subsumed within and be governed by this Credit
Agreement and the Notes; provided, however, that each of the “Loans” (as defined in
the Existing Credit Agreement) advanced by the Existing Lenders and outstanding under the Existing
Credit Agreement immediately prior to the effectiveness of this Credit Agreement shall be
refinanced on the Funding Date, subject to the provisions of §6.10 hereof, with the proceeds of the
Loans advanced hereunder. Interest with respect to Loans outstanding under the Existing Credit
Agreement on the Funding Date shall be paid on the Funding Date. As of the Funding Date, the
Existing Letters of Credit shall be deemed to be a Letter of Credit issued pursuant and subject to
the conditions of §5 hereof and the Borrower hereby affirms its obligations thereunder.




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