CREDIT AGREEMENT
dated as of December 17, 1999,
among
CITADEL BROADCASTING COMPANY,
CITADEL COMMUNICATIONS CORPORATION,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Lead Arranger, Administrative Agent and Collateral Agent
---------------------------
FINOVA CAPITAL CORPORATION,
Syndication Agent
FIRST UNION NATIONAL BANK,
and
FLEET NATIONAL BANK
Documentation Agents
================================================================================
[CS&M Ref No. 5865-055]
2
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined
Terms...........................................................................
...2
SECTION 1.02. Terms
Generally.......................................................................
....23
SECTION 1.03. Classification of Loans and
Borrowings....................................................24
ARTICLE II
The Credits
SECTION 2.01.
Commitments.....................................................................
..........24
SECTION 2.02.
Loans...........................................................................
..........24
SECTION 2.03. Borrowing
Procedure.......................................................................
26
SECTION 2.04. Evidence of Debt; Repayment of
Loans......................................................26
SECTION 2.05.
Fees............................................................................
..........27
SECTION 2.06. Interest on
Loans.........................................................................28
SECTION 2.07. Default
Interest........................................................................
..28
SECTION 2.08. Alternate Rate of
Interest................................................................29
SECTION 2.09. Termination and Reduction of
Commitments..................................................29
SECTION 2.10. Conversion and Continuation of
Borrowings.................................................29
SECTION 2.11. Repayment of Term
Borrowings..............................................................31
SECTION 2.12.
Prepayment......................................................................
..........32
SECTION 2.13. Mandatory
Prepayments.....................................................................
32
SECTION 2.14. Reserve Requirements; Change in
Circumstances.............................................33
SECTION 2.15. Change in
Legality........................................................................
35
SECTION 2.16.
Indemnity.......................................................................
..........35
SECTION 2.17. Pro Rata
Treatment.......................................................................
.36
SECTION 2.18. Sharing of
Setoffs........................................................................3
6
SECTION 2.19.
Payments........................................................................
..........37
SECTION 2.20.
Taxes...........................................................................
..........37
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to
Mitigate.............................................................38
SECTION 2.22. Letters of
Credit.........................................................................3
9
SECTION 2.23. Increase in Revolving Credit
Commitments..................................................43
SECTION 2.24. Increase in Term Loan
Commitments.........................................................44
SECTION 2.25. Extension of Maturity
Date................................................................46
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Powers......................................................................46
SECTION 3.02.
Authorization...................................................................
..........46
SECTION 3.03.
Enforceability..................................................................
..........47
SECTION 3.04. Governmental
Approvals....................................................................47
SECTION 3.05. Financial
Statements......................................................................
47
3
2
SECTION 3.06. No Material Adverse
Change................................................................47
SECTION 3.07. Title to Properties; Possession Under
Leases..............................................47
SECTION 3.08.
Subsidiaries....................................................................
..........47
SECTION 3.09. Litigation; Compliance with
Laws..........................................................47
SECTION 3.10. Agreements and
Licenses...................................................................49
SECTION 3.11. Federal Reserve
Regulations...............................................................49
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act................................49
SECTION 3.13. Use of
Proceeds........................................................................
...49
SECTION 3.14. Tax
Returns.........................................................................
......49
SECTION 3.15. No Material
Misstatements.................................................................49
SECTION 3.16. Employee Benefit
Plans....................................................................50
SECTION 3.17. Environmental
Matters.....................................................................50
SECTION 3.18.
Insurance.......................................................................
..........51
SECTION 3.19. Security
Documents.......................................................................
.51
SECTION 3.20. Location of Real Property and Leased
Premises.............................................52
SECTION 3.21. Labor
Matters.........................................................................
....52
SECTION 3.22.
Solvency........................................................................
..........52
SECTION 3.23. Year
2000............................................................................
.....52
SECTION 3.24.
Ranking.........................................................................
..........53
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit
Events.........................................................................5
3
SECTION 4.02. First Credit
Event........................................................................54
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and
Properties......................................................57
SECTION 5.02.
Insurance.......................................................................
..........57
SECTION 5.03. Obligations and
Taxes.....................................................................58
SECTION 5.04. Financial Statements, Reports,
etc........................................................59
SECTION 5.05. Litigation and Other
Notices..............................................................60
SECTION 5.06. Employee
Benefits........................................................................
.61
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections.................................61
SECTION 5.08. Use of
Proceeds........................................................................
...61
SECTION 5.09. Compliance with Environmental
Laws........................................................61
SECTION 5.10. Preparation of Environmental
Reports......................................................61
SECTION 5.11. Further
Assurances......................................................................
..61
SECTION 5.12. Interest Rate
Protection..................................................................62
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3
ARTICLE VI
Negative Covenants
SECTION 6.01.
Indebtedness....................................................................
..........66
SECTION 6.02.
Liens...........................................................................
..........67
SECTION 6.03. Sale and Lease-Back
Transactions..........................................................68
SECTION 6.04. Investments, Loans and
Advances...........................................................68
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions.................................69
SECTION 6.06. Dividends and Distributions; Restrictions on Ability
of Subsidiaries to Pay
Dividends.............................................70
SECTION 6.07. Transactions with
Affiliates..............................................................71
SECTION 6.08. Capital
Expenditures....................................................................
..71
SECTION 6.09. Consolidated Interest Coverage
Ratio......................................................72
SECTION 6.10. Consolidated Fixed Charge Coverage
Ratio..................................................72
SECTION 6.11. Maximum Consolidated Leverage
Ratio.......................................................72
SECTION 6.12. Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-laws and Certain
Other
Agreements,
etc..............................................................72
SECTION 6.13. Limitation on Creation of
Subsidiaries....................................................73
SECTION 6.14. Hedging
Agreements......................................................................
..73
SECTION 6.15. Internet Trade Out
Transactions...........................................................73
SECTION 6.16. Business of Citadel, Borrower and
Subsidiaries............................................73
SECTION 6.17. Fiscal
Year............................................................................
...73
ARTICLE VII
Events of
Default.........................................................................
..............74
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices.........................................................................
..........79
SECTION 9.02. Survival of
Agreement.....................................................................79
SECTION 9.03. Binding
Effect..........................................................................
..79
SECTION 9.04. Successors and
Assigns....................................................................80
SECTION 9.05. Expenses;
Indemnity.......................................................................
83
SECTION 9.06. Right of
Setoff..........................................................................
.84
SECTION 9.07. Applicable
Law............................................................................8
4
SECTION 9.08. Waivers;
Amendment.......................................................................
.84
SECTION 9.09. Interest Rate
Limitation..................................................................85
SECTION 9.10. Entire
Agreement.......................................................................
...85
SECTION 9.11. WAIVER OF JURY
TRIAL......................................................................85
SECTION 9.12.
Severability....................................................................
..........86
5
4
SECTION 9.13.
Counterparts....................................................................
..........86
SECTION 9.14.
Headings........................................................................
..........86
SECTION 9.15. Jurisdiction; Consent to Service of
Process...............................................86
SECTION 9.16.
Confidentiality.................................................................
..........87
Schedule 1.01(a) Existing Letters of Credit
Schedule 1.01(b) Pending Acquisitions
Schedule 1.01(c) Mortgaged Properties
Schedule 2.01 Lenders and Commitments
Schedule 3.04 Government Approvals
Schedule 3.07(c) Title to Properties
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.10(b) FCC Licenses
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.19(d) Mortgage Offices
Schedule 3.20(a) Real Property Owned In Fee
Schedule 3.20(b) Leased Property
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E Form of Subsidiary Guarantee Agreement
Exhibit F Form of Parent Guarantee Agreement
Exhibit G Form of Pledge Agreement
Exhibit H Form of Security Agreement
Exhibit I-1 Form of Mortgage
Exhibit I-2 Form of Deed of Trust
Exhibit J-1 Form of Opinion of Eckert Seamans Cherin & Mellott, LLC,
Special
Counsel for Citadel, the Borrower and CLI
Exhibit J-2 Form of Opinion of Lionel Sawyer & Collins, Nevada Counsel for
Citadel, the Borrower and CLI
Exhibit J-3 Form of Opinion of Local Counsel
6
5
CREDIT AGREEMENT dated as of
December 17, 1999, among CITADEL
BROADCASTING COMPANY, a Nevada corporation
(the "Borrower"), CITADEL COMMUNICATIONS
CORPORATION, a Nevada corporation
("Citadel"), the Lenders (as defined in
Article I), CREDIT SUISSE FIRST BOSTON, a
bank organized under the laws of
Switzerland, acting through its New York
branch, as issuing bank (in such capacity,
an "Issuing Bank") as administrative agent
(in such capacity, the "Administrative
Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the
Lenders, FINOVA Capital Corporation, as
syndication agent (in such capacity, the
"Syndication Agent") and First Union
National Bank and Fleet National Bank, as
documentation agents (in such capacity, the
"Documentation Agents").
The Borrower has requested the Lenders to extend credit in the form of
(a) Term Loans at any time during the Term Loan Availability Period, in an
aggregate principal amount not in excess of $250,000,000, and (b) Revolving
Loans at any time and from time to time prior to the Maturity Date, in an
aggregate principal amount at any time outstanding not in excess of
$150,000,000, in each case subject to increase in accordance with Sections 2.23
and 2.24. The Borrower has requested the Issuing Banks to issue letters of
credit, (a) in an aggregate face amount at any time outstanding not in excess of
$75,000,000 until March 31, 2000 and (b) thereafter in an aggregate face amount
at any time outstanding not in excess of $50,000,000, to support payment
obligations incurred in the ordinary course of business by the Borrower and its
Subsidiaries. The proceeds of the Term Loans will be used solely (a) to repay
all amounts due and owing under the Existing Loan Agreement, (b) to finance a
portion of the Pending Acquisitions, (c) in the case of Incremental Term Loans,
to finance future Permitted Acquisitions and (d) to pay related fees and
expenses. The proceeds of the Revolving Loans will be used solely for general
corporate purposes, including for working capital, Capital Expenditures, to
finance a portion of the Pending Acquisitions and to finance future Permitted
Acquisitions.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Banks are willing to issue letters of credit for the account of the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
7
6
"Acquisition Agreements" shall mean any asset purchase agreement,
purchase agreement or exchange agreement entered into in connection with the
Pending Acquisitions.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be supplied
from time to time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified 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, provided that for purposes of Section 6.07, the term "Affiliate"
shall also include any person that directly or indirectly owns more than 5% of
any class of Equity Interests of the person specified or that is an officer or
director of the person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms of the definition
thereof, the Alternate Base Rate shall be determined without regard to clause
(b) of the preceding sentence, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively. The term "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan, or with respect to the Commitment Fees, as the case
may be, the applicable percentage set forth below under the caption "Eurodollar
Spread", "ABR Spread" or "Commitment Fee Percentage", as the case may be, based
upon the Consolidated Leverage Ratio as of the relevant date of determination:
8
7
CONSOLIDATED EURODOLLAR
COMMITMENT
LEVERAGE RATIO SPREAD ABR SPREAD
FEE PERCENTAGE
- ----------------------------- ----------------------- ----------------------
------------------------
Category 1
2.500% 1.500%
0.500%
Greater than 7.00 to
1.00
- ----------------------------- ----------------------- ----------------------
------------------------
Category 2
2.250% 1.250%
0.500%
Greater than 6.50 to
1.00 but less than or
equal to 7.00 to 1.00
- ----------------------------- ----------------------- ----------------------
------------------------
Category 3
2.000% 1.000%
0.500%
Greater than 6.00 to
1.00 but less than or
equal to 6.50 to 1.00
- ----------------------------- ----------------------- ----------------------
------------------------
Category 4
1.625% 0.625%
0.375%
Greater than 5.50 to
1.00 but less than or
equal to 6.00 to 1.00
- ----------------------------- ----------------------- ----------------------
------------------------
Category 5
1.500% 0.500%
0.375%
Greater than 5.00 to
1.00 but less than or
equal to 5.50 to 1.00
- ----------------------------- ----------------------- ----------------------
------------------------
Category 6
1.250% 0.250%
0.250%
Greater than 4.50 to
1.00 but less than or
equal to 5.00 to 1.00
- ----------------------------- ----------------------- ----------------------
------------------------
Category 7
1.000% 0.000%
0.250%
Greater than 4.00 to
1.00 but less than or
equal to 4.50 to 1.00
- ----------------------------- ----------------------- ----------------------
------------------------
Category 8
0.875% 0.000%
0.250%
Greater than 3.50 to
1.00 but less than or
equal to 4.00 to 1.00
- ----------------------------- ----------------------- ----------------------
------------------------
9
8
Consolidated Eurodollar
Commitment
Leverage Ratio Spread ABR Spread
Fee Percentage
- ----------------------------- ----------------------- ----------------------
------------------------
Category 9
0.750% 0.000%
0.250%
Less than or equal to
3.50 to 1.00
- ----------------------------- ----------------------- ----------------------
------------------------
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans,
Commitments and Letters of Credit outstanding on and after the date of delivery
to the Administrative Agent of the financial statements and certificates
required by Section 5.04(a) or (b) and Section 5.04(d), respectively, indicating
such change until the date immediately preceding the next date of delivery of
such financial statements and certificates indicating another such change.
Notwithstanding the foregoing, until the Borrower shall have delivered the
financial statements and certificates required by Section 5.04(b) and Section
5.04(c), respectively, for the period ended June 30, 2000, the Consolidated
Leverage Ratio shall be deemed to be not lower than the Consolidated Leverage
Ratio corresponding to Category 3 for purposes of determining the Applicable
Percentage; provided, however, that (a) at any time during which the Borrower
has failed to deliver the financial statements and certificates required by
Section 5.04(a) or (b) and Section 5.04(d), respectively, or (b) at any time
after the occurrence and during the continuance of an Event of Default, the
Consolidated Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable Percentage.
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger, casualty, condemnation or otherwise), other than any Asset Swap, by
Citadel or any of its subsidiaries to any person other than the Borrower or any
Subsidiary Guarantor of (a) any Equity Interests of the Borrower or any of the
Subsidiaries (other than directors' qualifying shares) or (b) any other assets
of Citadel or any of its subsidiaries (other than inventory, excess, damaged,
obsolete or worn out assets and Permitted Investments, in each case disposed of
in the ordinary course of business), provided that any asset sale or series of
related asset sales described in clause (b) above having a value not in excess
of $1,000,000 shall be deemed not to be an "Asset Sale" for purposes of this
Agreement.
"Asset Swap" shall mean any transfer of assets of the Borrower or any
Subsidiary to any person other than an Affiliate of Citadel or its subsidiaries
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 Section 1031 of the Code.
Nothing in this definition shall require Citadel or its subsidiaries to elect
that Section 1031 of the Code be applicable to any Asset Swap.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made,
continued or converted on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect.
10
9
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C, or
such other form as shall be approved by the Administrative Agent.
"BPH Acquisition" shall mean the acquisition by the Borrower of
substantially all of the assets, and the assumption of certain of the
liabilities, of Broadcast Partners Holdings, L.P. and its subsidiaries for
approximately $190,000,000.
"Broadcasting Business" shall mean (a) the business of owning and/or
operating a Station, including the operation of a Station pursuant to an LMA
Agreement, (b) the sale of advertising time for a Station pursuant to a JS
Agreement, (c) the business of owning and/or operating a Related Business and
(d) related ancillary activities.
"Broadcast Market" shall mean each of the Stations of the Borrower
serving a specific geographical area or market.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any period and with respect to
any person, all expenditures (other than any noncash expenses incurred in
connection with any Trade Out Transactions) during such period by such person
that would be classified as capital expenditures in accordance with GAAP, but
excluding any such expenditure made (a) to restore, replace or rebuild property
to the condition of such property immediately prior to any damage, loss,
destruction or condemnation of such property, to the extent such expenditure is
made with insurance proceeds, condemnation awards or indemnification or damage
recovery proceeds relating to any such damage, loss, destruction or
condemnation, (b) with proceeds from the sale or exchange of property to the
extent utilized to purchase functionally equivalent property or equipment or (c)
as the purchase price of any Permitted Acquisition.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Caribou Acquisition" shall mean the acquisition by the Borrower of all
of the general partnership interests in Caribou Communications Co. for
approximately $60,000,000.
"Caribou Seller Notes" shall mean any promissory notes due January 4,
2000 made by the Borrower in favor of CAT Communications, Inc. or Desert
Communications III, Inc. to finance the Caribou Acquisition.
"Certificate of Designation" shall mean the Certificate of Designation
filed on July 1, 1997, as amended on July 2, 1997, by the Borrower with the
Secretary of State of Nevada with respect to the Exchangeable Preferred Stock.
11
10
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934 as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding Equity Interests
of Citadel; (b) a majority of the seats (other than vacant seats) on the board
of directors of Citadel shall at any time be occupied by persons who were
neither (i) nominated by the board of directors of Citadel, nor (ii) appointed
by directors so nominated; (c) any change in control (or similar event, however
denominated) with respect to Citadel or the Borrower shall occur under and as
defined in any indenture or agreement in respect of Material Indebtedness to
which Citadel or the Borrower is a party; or (d) Citadel shall cease to own,
directly or indirectly, 100% of the issued and outstanding voting Equity
Interests of the Borrower.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.14, by any lending office of
such Lender or by such Lender's or Issuing Bank's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to (a) any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Term Loans or
Revolving Loans, and (b) any Commitment, refers to whether such Commitment is a
Term Loan Commitment or a Revolving Credit Commitment.
"CLI" shall mean Citadel License, Inc., a Nevada corporation and a
wholly owned subsidiary of the Borrower.
"Closing Date" shall mean December 17, 1999.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment and Term Loan Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Communications Act" shall mean the Communications Act of 1934 and the
rules and regulations issued thereunder, as amended from time to time.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated December 1999.
"Consolidated Cash Interest Expense" for any period shall mean the
interest expense, to the extent paid or payable in cash, of the Borrower and its
consolidated Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
12
11
"Consolidated EBITDA" for any period shall mean Consolidated Net Income
for such period, to which shall be added back, to the extent deducted in
calculating Consolidated Net Income for such period, (a) the Consolidated
Interest Expense for such period, (b) all charges against income for Federal,
state, local and foreign income taxes and assessments of the Borrower and its
consolidated Subsidiaries for such period, (c) the aggregate depreciation
expense of the Borrower and its consolidated Subsidiaries for such period, (d)
losses from sales, transactions, exchanges and other dispositions of property
not in the ordinary course of business, (e) the aggregate amortization expense
of the Borrower and its consolidated Subsidiaries for such period, (f) noncash
expenses during such period incurred in connection with Trade Out Transactions,
(g) noncash nonrecurring charges for such period and (h) noncash compensation,
minus (i) revenue during such period in connection with Trade Out Transactions,
(ii) gains during such period from sales, transactions, exchanges and other
dispositions of property not in the ordinary course of business and (iii) any
noncash gain to the extent included in determining Consolidated Net Income, all
as determined on a consolidated basis in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" for any period shall mean
the ratio of Consolidated EBITDA to Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" for any period shall mean the sum, without
duplication, of (a) Consolidated Cash Interest Expense for such period, (b) the
amount of all Capital Expenditures made by the Borrower and its Subsidiaries
during such period, (c) all cash payments in respect of income taxes made during
such period (net of any cash refund in respect of income taxes actually received
during such period), (d) the scheduled principal amount of all amortization
payments on all Indebtedness (including the principal component of all Capital
Lease Obligations) of the Borrower and its Subsidiaries for such period and (e)
the amount of cash dividends paid by the Borrower and its Subsidiaries during
such period to persons other than the Borrower or a Subsidiary, all as
determined on a consolidated basis in accordance with GAAP
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Cash
Interest Expense for such period.
"Consolidated Interest Expense" for any period shall mean the total
interest expense of the Borrower and its consolidated Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" shall mean, at any date of determination,
the ratio of Total Debt on such date to Consolidated EBITDA for the period of
four consecutive fiscal quarters of the Borrower most recently ended on or prior
to such date. Solely for purposes of this definition, if at any time the
Consolidated Leverage Ratio is being determined the Borrower or any Subsidiary
shall have completed a Permitted Acquisition or an Asset Sale since the
beginning of the relevant four fiscal quarter period, the Consolidated Leverage
Ratio shall be determined on a pro forma basis as if such Permitted Acquisition
or Asset Sale, and any related incurrence or repayment of Indebtedness, had
occurred at the beginning of such period and taking into account any
identifiable cost savings documented to the reasonable satisfaction of the
Administrative Agent.
"Consolidated Net Income" shall mean, for any period, net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of any Subsidiary to the extent that the
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declaration or payment of dividends or similar distributions by the Subsidiary
of that income is prohibited by operation of the terms of its charter or any
agreement, instrument, judgment, decree, statute, rule or governmental
regulation applicable to the Subsidiary, and (b) the income (or loss) of any
person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any of the Subsidiaries or the date that
person's assets are acquired by the Borrower or any of the Subsidiaries.
"Control" shall mean 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 ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in
Section 4.01.
"Current Assets" shall mean, at any time, the consolidated current
assets (other than cash and Permitted Investments) of the Borrower and its
consolidated Subsidiaries.
"Current Liabilities" shall mean, at any time, the consolidated current
liabilities of the Borrower and its consolidated Subsidiaries at such time, but
excluding, without duplication, (a) the current portion of any long-term
Indebtedness and (b) outstanding Revolving Loans.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Engagement Letter" shall mean the Engagement Letter dated December 10,
1999, between the Borrower and the Administrative Agent.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface, soils
or subsurface strata, the workplace or any building, structure, facility or
fixture or as otherwise defined in any Environmental Law.
"Environmental Claim" shall mean any accusation, allegation, notice of
violation, claim, demand, order, directive, cost recovery action or other cause
of action by, or on behalf of, any Governmental Authority or any person for
damages, injunctive or equitable relief, personal injury (including sickness,
disease or death), Remedial Action costs, tangible or intangible property
damage, natural resource damages, nuisance, pollution, any adverse effect on the
environment caused by any Hazardous Material, or for fines, penalties or
restrictions, resulting from or based upon (a) the existence, or the
continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases) or a threatened Release, (b) exposure to
any Hazardous Material, (c) the presence, use, handling, transportation,
storage, treatment or disposal of any Hazardous Material or (d) any
non-compliance or alleged non-compliance with any Environmental Law or
Environmental Permit.
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"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes and ordinances, and all orders,
decrees, judgments, injunctions, notices or agreements which are binding on a
Loan Party and issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters, including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Sections
9601 et seq. (collectively "CERCLA"), the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid
Waste Amendments of 1984, 42 U.S.C. Sections 6901 et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C.
Sections 1251 et seq., the Clean Air Act of 1970, as amended 42 U.S.C. Sections
7401 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. Sections 2601
et seq., the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C.
Sections 651 et seq., the Emergency Planning and Community Right-to-Know Act of
1986, 42 U.S.C. Sections 11001 et seq., the Safe Drinking Water Act of 1974, as
amended, 42 U.S.C. Sections 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Sections 5101 et seq., and any similar or
implementing state, local or foreign law, and all amendments or regulations
promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a person.
"Equity Issuance" shall mean any issuance or sale by Citadel, the
Borrower or any Subsidiary of any Equity Interests of Citadel, the Borrower or
any Subsidiary, as applicable, or any obligations convertible into or
exchangeable for, or giving any person a right, option or warrant to acquire
such Equity Interests or such convertible or exchangeable obligations, except in
each case for (a) any issuance or sale to Citadel, the Borrower or any
Subsidiary, (b) any issuance of directors' qualifying shares and (c) sales or
issuances of common stock of Citadel to management or employees of Citadel, the
Borrower or any Subsidiary under any employee stock option or stock purchase
plan or employee benefit plan in existence from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the
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Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by the Borrower or
any of its ERISA Affiliates from the PBGC or a plan administrator of any notice
relating to the intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any of its ERISA
Affiliates of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any of its ERISA Affiliates of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, of (i) Consolidated EBITDA for such fiscal year and (ii)
reductions to noncash working capital of the Borrower and its consolidated
Subsidiaries for such fiscal year (i.e., the decrease, if any, in Current Assets
minus Current Liabilities from the beginning to the end of such fiscal year)
over (b) the sum, without duplication, of (i) the amount of any cash income
taxes payable by the Borrower and its consolidated Subsidiaries with respect to
such fiscal year, (ii) cash interest paid (net of cash interest received) by the
Borrower and its consolidated Subsidiaries during such fiscal year, (iii)
Capital Expenditures made in cash in accordance with Section 6.08 during such
fiscal year, except to the extent financed with the proceeds of Indebtedness,
casualty proceeds or condemnation proceeds, (iv) permanent repayments of
Indebtedness made by the Borrower and its consolidated Subsidiaries during such
fiscal year, but only to the extent that such prepayments by their terms cannot
be reborrowed or redrawn and do not occur in connection with a refinancing of
all or any portion of such Indebtedness, and (v) additions to noncash working
capital for such fiscal year (i.e., the increase, if any, in Current Assets
minus Current Liabilities from the beginning to the end of such fiscal year);
provided that to the extent otherwise included therein, the Net Cash Proceeds of
Asset Sales shall be excluded from the calculation of Excess Cash Flow.
"Exchange Indenture" shall mean the Indenture dated as of July 1, 1997,
among the Borrower, CLI and The Bank of New York, as trustee, relating to the
Exchangeable Debentures.
"Exchangeable Debentures" shall mean any Exchangeable Debentures due
2009 issued in exchange for Exchangeable Preferred Stock.
"Exchangeable Debt Instruments" shall mean the Exchange Indenture and
the Exchangeable Debentures.
"Exchangeable Preferred Stock" shall mean the 13-1/4% Series A
Exchangeable Preferred Stock issued by the Borrower on July 1, 1997, any
exchangeable preferred stock issued in exchange therefor pursuant to the
Preferred Stock Registration Rights Agreement, and any exchangeable preferred
stock issued by the Borrower as dividends thereon in accordance with the
Certificate of Designation.
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"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.21(a)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.20(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.20(a).
"Existing Loan Agreement" shall mean the Amended and Restated Loan
Agreement dated as of July 3, 1997, as further amended, among the Borrower, CLI,
the lenders from time to time party thereto, and FINOVA Capital Corporation, as
agent.
"Existing Letter of Credit" shall mean each Letter of Credit previously
issued for the account of the Borrower that (a) is outstanding on the Closing
Date and (b) is listed on Schedule 1.01(a).
"FCC" shall mean the Federal Communications Commission or any
Governmental Authority succeeding to its functions.
"FCC Licenses" shall mean the Licenses issued by the FCC.
"Fees" shall mean the Commitment Fee, the Administrative Agent Fees,
the L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such person.
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting
principles applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Lender" shall have the meaning assigned to such term in
Section 9.04(i).
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"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or any other financial statement condition or liquidity of the primary obligor
so as to enable the primary obligor to pay such Indebtedness; provided, however,
that the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business.
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and
the Subsidiary Guarantee Agreement.
"Guarantors" shall mean Citadel and the Subsidiary Guarantors.
"Hazardous Material" shall mean all hazardous, toxic, explosive or
radioactive substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls ("PCBs") or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other substances or wastes of
any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" shall mean any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, foreign exchange
contract, currency swap agreement or other similar agreement or arrangement.
"Incremental Facility Cutoff Date" shall mean December 17, 2002.
"Incremental Revolving Facility Amount" shall mean, at any time, the
lesser of (a) $100,000,000 and (b) the excess, if any, of (i) $300,000,000 over
(ii) the sum of (x) the aggregate amount of all Incremental Term Loan
Commitments established at or prior to such time pursuant to Section 2.24 and
(y) the aggregate increase in the Revolving Credit Commitments established prior
to such time pursuant to Section 2.23.
"Incremental Term Lender" shall mean a Lender with an Incremental Term
Loan Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan Amount" shall mean, at any time, the excess, if
any, of (a) $300,000,000 over (b) the sum of (i) the aggregate increase in the
Revolving Credit Commitments established at or prior to such time pursuant to
Section 2.23 and (ii) the aggregate amount of all Incremental Term Loan
Commitments established prior to such time pursuant to Section 2.24.
"Incremental Term Loan Assumption Agreement" shall mean an Incremental
Term Loan Assumption Agreement in form and substance reasonably satisfactory to
the Administrative Agent, among the Borrower, the Administrative Agent and one
or more Incremental Term Lenders.
"Incremental Term Loan Commitment" shall mean the commitment of any
Lender, established pursuant to Section 2.24, to make Incremental Term Loans to
the Borrower.
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"Incremental Term Loans" shall mean Term Loans made by one or more
Lenders to the Borrower pursuant to clause (b) of Section 2.01.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
under conditional sale or other title retention agreements relating to property
or assets purchased by such person, (d) all obligations of such person issued or
assumed as the deferred purchase price of property or services (excluding trade
accounts payable and accrued obligations incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (f) all Guarantees by such person
of Indebtedness of others, (g) all Capital Lease Obligations of such person, (h)
all obligations, contingent or otherwise, of such person as an account party in
respect of letters of credit and (i) all obligations, contingent or otherwise,
of such person in respect of bankers' acceptances. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person is
a general partner.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
"Indentures" shall mean the Exchange Indenture, the 1997 Note Indenture
and the 1998 Note Indenture.
"Interest Payment Date" shall mean, (a) with respect to any ABR Loan,
the last Business Day of each March, June, September and December, and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
three months' duration been applicable to such Borrowing, and, in addition, the
date of any prepayment of a Eurodollar Borrowing or conversion of a Eurodollar
Borrowing to an ABR Borrowing.
"Interest Period" shall mean, as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months (or, with the consent of
all Lenders participating in such Borrowing, 9 or 12 months) thereafter, as the
Borrower may elect; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
For purposes hereof, the date of a Borrowing initially shall be the date on
which such Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
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"Internet Company" shall mean a business in which the majority of its
revenues arise out of its activities selling goods and/or services over the
internet.
"Internet Trade Out Transaction" shall mean a Trade Out Transaction in
which the Borrower or any Subsidiary exchanges unused and preemptible
advertising time for Equity Interests or any obligations convertible into or
exchangeable for, or giving any person a right, option or warrant to acquire
such Equity Interests or such convertible or exchangeable obligations, of an ISP
or any other Internet Company.
"ISP" shall mean a business in which the majority of its revenues arise
out of its activities as an internet service provider.
"Issuing Bank" shall mean, as the context may require, (a) Credit
Suisse First Boston, with respect to Letters of Credit issued by it, (b) Bank
Boston, N.A., with respect to each Existing Letter of Credit, (c) any other
Lender that may become an Issuing Bank pursuant to Section 2.22(i) or 2.22(k),
with respect to Letters of Credit issued by such Lender or (d) collectively, all
of the foregoing.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"JS Agreement" shall mean an agreement in which (a) two or more
licensees of Stations join to market air time or (b) a licensee of a Station
sells air time to a broker.
"L/C Commitment" shall mean, with respect to any Issuing Bank, the
commitment of such Issuing Bank to issue Letters of Credit pursuant to Section
2.22.
"L/C Disbursement" shall mean a payment or disbursement made by an
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.22 and any Existing Letter of Credit.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of the relevant Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in dollars
(as set
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forth by the Bloomberg Information Service or any successor thereto or any other
service selected by the Administrative Agent that has been nominated by the
British Bankers' Association as an authorized information vendor for the purpose
of displaying such rates) for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the "LIBO Rate" shall be the interest
rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in dollars are offered for such relevant
Interest Period to major banks in the London interbank market in London, England
by the Administrative Agent at approximately 11:00 a.m. (London time) on the
date that is two Business Days prior to the beginning of such Interest Period.
"Licenses" shall mean all licenses, permits, consents, approvals and
authorities issued by any Governmental Authority that authorize a person to
operate a Station.
"Lien"
