1
EXHIBIT 10.1
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CREDIT AGREEMENT
DATED AS OF
FEBRUARY 28, 1997
AMONG
STC BROADCASTING, INC.,
AS BORROWER,
THE LENDERS PARTY HERETO,
NATIONSBANK OF TEXAS, N.A.,
AS DOCUMENTATION AGENT
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AND SYNDICATION AGENT
____________________________
CHASE SECURITIES INC.,
AS ARRANGER
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.1 Term Loan Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.2 Procedure for Term Loan Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.3 Repayment of Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.4 Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.5 Procedure for Revolving Credit Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.6 Commitment Fees, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.7 Termination or Reduction of Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . 24
2.8 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.9 Mandatory Prepayments and Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.10 Conversion and Continuation Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.11 Minimum Amounts and Maximum Number of Eurodollar Tranches . . . . . . . . . . . . . . . . . . . . 27
2.12 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.13 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.14 Inability to Determine Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.15 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.16 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.17 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.18 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.19 Change of Lending Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.20 Replacement of Lenders under Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.1 L/C Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.2 Procedure for Issuance of Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.3 Commissions, Fees and Other Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.4 L/C Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.5 Reimbursement Obligation of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.7 Letter of Credit Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.8 Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.3 Corporate Existence; Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.4 Corporate Power; Authorization; Enforceable Obligations . . . . . . . . . . . . . . . . . . . . . 39
4.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.8 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.9 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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4.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.11 Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.12 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.14 Investment Company Act; Other Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.16 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.18 Accuracy of Information, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.19 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.20 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.21 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.22 Regulation H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.23 Station Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.1 Conditions to Initial Extension of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.2 Conditions to Each Extension of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.4 Conduct of Business and Maintenance of Existence, etc. . . . . . . . . . . . . . . . . . . . . . . 53
6.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.6 Inspection of Property; Books and Records; Discussions . . . . . . . . . . . . . . . . . . . . . . 53
6.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.8 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.9 Interest Rate Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.10 Additional Collateral, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.11 WTOV-TV Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.1 Financial Condition Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.2 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.3 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.4 Limitation on Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.5 Limitation on Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.6 Limitation on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.7 Limitation on Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.8 Limitation on Investments, Loans and Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.9 Limitation on Optional Payments and Modifications of Debt Instruments, etc. . . . . . . . . . . . 64
7.10 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.11 Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.12 Limitation on Changes in Fiscal Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.13 Limitation on Negative Pledge Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.14 Limitation on Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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7.15 Limitation on Amendments to Constituent and Acquisition Documents . . . . . . . . . . . . . . . . 65
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 9. THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.4 Reliance by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.6 Non-Reliance on Agents and Other Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.8 Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.9 Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.10 Documentation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.6 Successors and Assigns; Participations and Assignments . . . . . . . . . . . . . . . . . . . . . . 74
10.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.12 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.13 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.16 FCC Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.17 Release of Preferred Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ANNEX A Pricing Grid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
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SCHEDULES:
1.1A Commitments
1.1B Mortgaged Property
1.1C Consolidated EBITDA Prior to Closing Date
4.4 Consents, Authorizations, Filings and Notices
4.6 Litigation
4.12 Labor Matters
4.15 Subsidiaries
4.17 Environmental Matters
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
4.23 Station Licenses
5.1(s) License Subsidiary Licenses
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
7.8(g) Existing Investments
EXHIBITS:
A-1 Form of Guarantee and Collateral Agreement
A-2 Form of Pledge Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Mortgage -- Borrower
D-2 Form of Mortgage -- Subsidiary Guarantor
E Form of Assignment and Acceptance
F Form of Legal Opinion of Weil, Gotshal & Xxxxxx
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
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CREDIT AGREEMENT, dated as of February 28, 1997, among STC
BROADCASTING, INC., a Delaware corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), NATIONSBANK OF TEXAS, N.A., as documentation agent
(in such capacity, the "Documentation Agent"), and THE CHASE MANHATTAN BANK, as
administrative and syndication agent for the Lenders hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by
Chase as its prime rate in effect at its principal office
in New York City (the Prime Rate not being intended to be
the lowest rate of interest charged by Chase in connection
with extensions of credit to debtors); "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the
C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board,
be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such
rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major
money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day
(or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from
three New York City negotiable certificate of deposit
dealers of recognized standing selected by it; and "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
which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative
Agent from three federal
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funds brokers of recognized standing selected by it. Any
change in the ABR due to a change in the Prime Rate, the
Base CD Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective
day of such change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to
which is based upon the ABR.
"Acquisition Agreements": the collective reference to
the Multi-Station Acquisition Agreement and the WTOV-TV
Acquisition Agreement.
"Acquisitions": the collective reference to the
Multi-Station Acquisition and the WTOV-TV Acquisition.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": Chase, together with its
affiliates, as the arranger of the Commitments and as the
administrative and syndication agent for the Lenders under
this Agreement and the other Loan Documents, together with
any of its successors.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes
of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 51% or more of
the securities having ordinary voting power for the
election of directors (or persons performing similar
functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person,
whether by contract or otherwise.
"Agents": the collective reference to the
Administrative Agent and the Documentation Agent.
"Agreement": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Margin": for ABR Loans, 1.50%, and for
Eurodollar Loans, 2.75%; provided, that on and after the
first Adjustment Date occurring after the Closing Date, the
Applicable Margin will be determined pursuant to the
Pricing Grid.
"Application": an application, in such form
(reasonably acceptable to the Borrower) as the Issuing
Lender may specify from time to time, requesting the
Issuing Lender to open a Letter of Credit.
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"Asset Sale": any sale, transfer or other disposition
(including any sale and leaseback of assets and any sale of
accounts receivable in connection with a receivable
financing transaction) by the Borrower or any of its
Subsidiaries of any property of the Borrower or any such
Subsidiary (including property subject to any Lien under
any Security Document), other than as permitted pursuant to
subsection 7.5(a), (b) (provided that, except with respect
to the loss or condemnation of all or substantially all of
the assets of the Borrower and its Subsidiaries, the
proceeds from such casualty or condemnation (including
insurance) are used to replace or rebuild the lost or
condemned assets within the time period specified in
subsection 2.9(b)) or (c) through (e).
"Assignee": as defined in subsection 10.6(c).
"Assignor": as defined in subsection 10.6(c).
"Available Revolving Credit Commitment": as to any
Lender at any time, an amount equal to (a) such Lender's
Revolving Credit Commitment minus (b) such Lender's
Revolving Extensions of Credit.
"Board": the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrowing Date": any Business Day specified by the
Borrower as a date on which the Borrower requests the
Lenders to make Loans hereunder.
"Broadcast Cash Flow": for any period, Consolidated
EBITDA for such period plus Corporate Overhead for such
period.
"Business": as defined in subsection 4.17(b).
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are
authorized or required by law to close, provided that when
used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which
commercial banks are not open for dealing in Dollar
deposits in the London interbank market.
"Capital Contribution": as defined in subsection
5.1(c).
"Capital Contribution Agreement": as defined in
subsection 5.1(c).
"Capital Expenditures": for any period, with respect
to any Person, the aggregate of all expenditures (whether
paid in cash or accrued as a liability) by such Person and
its Subsidiaries for the acquisition or leasing (pursuant
to a capital lease)
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of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and
improvements during such period), excluding the
Acquisitions, which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its
Subsidiaries. For purposes of this definition, the
following items will be excluded from the definition of
"Capital Expenditures": (i) Capital Expenditures to the
extent funded by insurance proceeds, (ii) Capital
Expenditures to the extent made through barter transactions
and (iii) for purposes of subsections 7.1(c) and 7.7,
Capital Expenditures made in 1997 that were deferred
Capital Expenditures from the 1996 fiscal year in the
amount of $300,000.
"Capital Lease Obligations": as to any Person, 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, for the purposes of this
Agreement, the amount of such obligations at any time shall
be the capitalized amount thereof at such time determined
in accordance with GAAP.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any
of the foregoing.
"Cash Equivalents": (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United
States Government or issued by any agency thereof and
backed by the full faith and credit of the United States,
in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits, bankers' acceptances and
repurchase agreements, or overnight bank deposits having
maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or
any state thereof having combined capital and surplus of
not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Ratings
Services or P-2 by Xxxxx'x Investors Service, Inc., or
carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of
acquisition; (d) money market accounts or funds with or
issued by Qualified Issuers; (e) repurchase obligations
with a term of not more than 90 days for underlying
securities of the types described in clause (a) above
entered into with any bank meeting the qualifications
specified in clause (b) above and (f) demand deposit
accounts maintained in the ordinary course of business with
any Lender or with any bank that is not a Lender not in
excess of $100,000 in the aggregate on deposit with such
Lender or any such bank.
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"C/D Assessment Rate": for any day as applied to the
Base CD Rate, the net annual assessment rate (rounded
upward to the nearest 1/100th of 1%) determined by Chase to
be payable on such day to the Federal Deposit Insurance
Corporation or any successor (the "FDIC") for the FDIC's
insuring time deposits made in Dollars at offices of Chase
in the United States.
"C/D Reserve Percentage": for any day as applied to
the Base CD Rate, that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board,
for determining the maximum reserve requirement for a
member of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars in respect of new
non-personal time deposits in Dollars having a three month
maturity and in an amount of $100,000 or more.
"Change of Control": Xxxxx Muse, its principals and
Affiliates and management of Holdings and the Borrower
("HMTF") shall cease to have the power, directly or
indirectly, to vote or direct the voting of securities
having a majority of the ordinary voting power for the
election of directors of Holdings, provided that the
occurrence of the foregoing event shall not be deemed a
Change of Control if (a) at any time prior to the
consummation of an Initial Public Offering, and for any
reason whatever, (i) HMTF otherwise has the right to
designate (and does so designate) a majority of the board
of directors of Holdings or (ii) HMTF and their employees,
directors and officers (the "HMTF Group") own of record and
beneficially an amount of common stock of Holdings equal to
at least 50% of the amount of common stock of Holdings
owned by the HMTF Group of record and beneficially as of
the Closing Date and such ownership by the HMTF Group
represents the largest single block of voting securities of
Holdings held by any Person or related group for purposes
of Section 13(d) of the Securities Exchange Act of 1934, as
amended, or (b) at any time after the consummation of an
Initial Public Offering, and for any reason whatever, (i)
no "Person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), excluding the HMTF Group, shall become the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
under such Act), directly or indirectly, of the greater of
(x) 15% of the shares outstanding or (y) the percentage of
the then outstanding voting stock of Holdings owned by the
HMTF Group and (ii) the board of directors of Holdings
shall consist of a majority of Continuing Directors.
"Chase": The Chase Manhattan Bank.
"Closing Date": February 28, 1997.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
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"Commitment": as to any Lender, the sum of the Term
Loan Commitment and the Revolving Credit Commitment of such
Lender.
"Commitment Fee Rate": 1/2 of 1% per annum, provided
that upon and after issuance of the Senior Subordinated
Notes and the payment in full of the Term Loans, the
Commitment Fee Rate shall be 3/8 of 1% per annum.
"Commonly Controlled Entity": an entity, whether or
not incorporated, which is under common control with the
Borrower within the meaning of Section 4001 of ERISA or is
part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed
by a Responsible Officer substantially in the form of
Exhibit B.
"Consolidated Cash Interest Expense": for any period,
Consolidated Interest Expense (including, without
limitation, that attributable to Capital Lease Obligations
but excluding capitalized financing fees) for such period
(a) minus, in each case to the extent included in
determining such Consolidated Interest Expense for such
period, the sum of the following: (i) non-cash expenses for
interest payable in kind and (ii) amortization of debt
discount and fees and (b) plus the sum of cash payments
made by Holdings or any of its Subsidiaries during such
period in respect of the items referred to in clause (a)(i)
of this definition to the extent previously subtracted
pursuant to clause (a) of this definition (including,
without limitation, all commissions, discounts and other
fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Interest
Rate Protection Agreements to the extent such net costs are
allocable to such period in accordance with GAAP). Prior
to the completion of 12 full calendar months after the
Closing Date, Consolidated Cash Interest Expense will be
annualized by multiplying Consolidated Cash Interest
Expense for the number of then completed months after the
Closing Date by a fraction, the numerator of which is 12
and the denominator of which is the number of months in
such shorter period.
"Consolidated Current Assets": at a particular date,
all amounts (other than cash, Cash Equivalents and the
current portion of programming rights) which would, in
conformity with GAAP, be set forth opposite the caption
"total current assets" (or any like caption) on a
consolidated balance sheet of Holdings and its Subsidiaries
at such date.
"Consolidated Current Liabilities": at a particular
date, all amounts which would, in conformity with GAAP, be
set forth opposite the caption "total current liabilities"
(or any like caption) on a consolidated balance sheet of
Holdings and its Subsidiaries at such date, but excluding
(a) the current portion of any Funded Debt
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and Film Obligations of the Borrower and its Subsidiaries
and (b) without duplication of clause (a) above, all
Indebtedness consisting of Revolving Credit Loans to the
extent otherwise included therein.
"Consolidated Debt Service": for any period, the sum of
Consolidated Cash Interest Expense plus any scheduled
amortization payments on any Indebtedness made or payable
during such period, but excluding mandatory prepayments on
any such Indebtedness.
"Consolidated EBITDA": for any period and as
determined on a consolidated basis, net revenues (defined
as gross operating revenue plus rental income minus the sum
of barter and trade revenue, agency and advertising
commissions and sales representative fees) of Holdings and
its Subsidiaries during such period, minus, with respect to
such period and without duplication (i) operating expenses,
(ii) Corporate Overhead and (iii) Film Cash Payments. For
purposes of this definition "net revenues", "operating
expenses", Corporate Overhead and Film Cash Payments shall
each be determined exclusive of (i) depreciation and
amortization (including, without limitation, amortization
of financing fees, film amortization and related write-off
of programming and amortization in respect of Film Debt),
(ii) Consolidated Interest Expense, (iii) any other
non-cash charges (including, without limitation, non-cash
pension expense and non-cash compensation expense), (iv)
income taxes accrued for such period, restructuring charges
incurred for changes in capitalization, financing fees and
closing costs associated with the Acquisitions, (v) barter
and trade revenues and expenses and (vi) any extraordinary
gains or losses, and any gains or losses from the sale or
other disposition of assets. If during any period for
which Consolidated EBITDA is being determined Holdings or
any of its Subsidiaries shall have made a Permitted
Acquisition or Permitted Disposition, then, for all
purposes of this Agreement (other than for purposes of the
definition of Consolidated EBITDA as used for purposes of
making the calculations to determine (x) compliance with
subsection 7.1(b) and (c) hereof, (y) Excess Cash Flow or
(z) Broadcast Cash Flow, for each of which purposes actual
Consolidated EBITDA for the relevant period shall be used),
Consolidated EBITDA shall be adjusted for the relevant
period as if the relevant Permitted Acquisition or
Permitted Disposition had been made or consummated on the
first day of such period by such amount as shall be agreed
between the Borrower and the Required Lenders (or, if the
Borrower and the Required Lenders shall fail to agree to an
amount within 30 days after the consummation of the
Permitted Acquisition or Permitted Disposition, the actual
amount of Consolidated EBITDA attributable to the Station
or Stations which are the subject of such Permitted
Acquisition or Permitted Disposition). For all purposes of
this Agreement (other than for purposes of determining
Consolidated EBITDA as used in the definition of Excess
Cash Flow), any Film Cash Payments to the extent consisting
of an up-front payment made with respect to a Film
Obligation incurred during such period, shall not be
deducted in determining Consolidated EBITDA for such period
but shall instead (x) in the event
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such contract has a term of twelve months or less, be
amortized over the term of such contract and (y) in the
event such contract has a term of more than twelve months,
be amortized over the term of such contract (or, if
shorter, the pay period of such contract), and in the case
of both (x) and (y), only the portion of such Film Cash
Payments so amortized during such period shall be deducted
in determining Consolidating EBITDA for such period. For
purposes of determining the covenants set forth in
subsection 7.1 prior to the completion of 12 full calendar
months from the Closing Date, Consolidated EBITDA shall be
deemed to equal actual Consolidated EBITDA for the period
of completed fiscal months from the Closing Date plus, (i)
for the Test Period ending March 31, 1997, $13,165,000 plus
actual Consolidated EBITDA for February 1997 as agreed
between the Borrower and the Administrative Agent, (ii) for
the Test Period ending June 30, 1997, $9,240,000 plus
actual Consolidated EBITDA for February 1997 as agreed
between the Borrower and the Administrative Agent, (iii)
for the Test Period ending September 30, 1997, $5,937,000
plus actual Consolidated EBITDA for February 1997 as agreed
between the Borrower and the Administrative Agent and (iv)
for the Test Period ending December 31, 1997, $575,000 plus
actual Consolidated EBITDA for February 1997 as agreed
between the Borrower and the Administrative Agent (which
numbers in the foregoing items (i) through (iv) are based
on actual Consolidated EBITDA of the Stations for the
periods prior to the Closing Date set forth on Schedule
1.1C; provided that if the Borrower shall acquire and/or
dispose of a Station Consolidated EBITDA shall be adjusted
on a pro forma basis to reflect such acquisition and/or
disposition as agreed between the Borrower and the
Administrative Agent.
"Consolidated Fixed Charge Coverage Ratio": for any
period, the ratio of (a) Consolidated EBITDA for such
period to (b) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges": for any period, the sum
(without duplication) of (a) Consolidated Debt Service for
such period, (b) Capital Expenditures made during such
period and (c) any income taxes paid by Holdings or any of
its Subsidiaries during such period, (d) any increases
during such period in Consolidated Working Capital (minus
any decreases during such period in Consolidated Working
Capital) and (e) cash dividends paid during such period.
Prior to the completion of 12 full calendar months after
the Closing Date, Consolidated Fixed Charges will be
annualized by multiplying Consolidated Fixed Charges for
the number of then completed months after the Closing Date
by a fraction, the numerator of which is 12 and the
denominator of which is the number of months in such
shorter period.
"Consolidated Interest Coverage Ratio": for any
period, the ratio of (a) Consolidated EBITDA for such
period to (b) Consolidated Cash Interest Expense for such
period.
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"Consolidated Interest Expense": for any period the
amount of interest expense, both expensed and capitalized,
of Holdings and its Subsidiaries determined on a
consolidated basis in accordance with GAAP, for such period
on the aggregate principal amount of its Indebtedness.
"Consolidated Leverage Ratio": as at the last day of
any period, the ratio of (a) Consolidated Total Debt on
such day to (b) Consolidated EBITDA for such period.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of Holdings and its
Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP (including, without
limitation and without duplication, all Film Debt).
"Consolidated Working Capital": the excess of
Consolidated Current Assets over Consolidated Current
Liabilities.
"Continuing Directors": the directors of Holdings on
the Closing Date, after giving effect to the Acquisitions
and the other transactions contemplated hereby, and each
other director, if, in each case, such other director's
nomination for election to the board of directors of the
Borrower is recommended by a majority of the then
Continuing Directors or such other director receives the
vote of HMTF in his or her election by the shareholders of
Holdings.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking (including,
without limitation, any undertaking made to the FCC) to
which such Person is a party or by which it or any of its
property is bound.
"Corporate Overhead: for any period, that amount
classified on an income statement of the Borrower and its
Subsidiaries as corporate overhead for such period (which
shall be deemed to include, without duplication, the
management fees of Xxxxx Muse and its Affiliates
contemplated by subsection 7.10 and the compensation of
senior management of Holdings referred to in subsection
5.1(u)(i) (other than with respect to Xxxx Xxxxxxx)) less
any "development" expenses in conjunction with corporate
development activities (such exclusion in any fiscal year
to be limited to the lesser of (i) the actual amount of
such expenses and (ii) $300,000).
"Default": any of the events specified in Section 8,
whether or not any requirement for the giving of notice,
the lapse of time, or both, has been satisfied.
"Dollars" and "$": lawful currency of the United
States of America.
"ECF Percentage": 66-2/3%.
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15
"Environmental Laws": any and all applicable foreign,
Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, legally
binding requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct
concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without
duplication) of the rates (expressed as a decimal fraction)
of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or
other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum equal to the rate at which Chase
is offered Dollar deposits at or about 10:00 A.M., New York
City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where
the eurodollar and foreign currency and exchange operations
in respect of its Eurodollar Loans are then being conducted
for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loans to be
outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a
rate per annum determined for such day in accordance with
the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to
Eurodollar Loans the then current Interest Periods with
respect to all of which begin on the same date and end
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on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in
Section 8, provided that any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the
Borrower, the excess, if any, of (a) Consolidated EBITDA
for such fiscal year over (b) Consolidated Fixed Charges,
plus or minus the cash portion of any extraordinary gains
or losses incurred during such fiscal year without
duplication of mandatory prepayments resulting from any
transaction giving rise thereto.
"Excess Cash Flow Application Date": as defined in
subsection 2.9(c).
"Facility": each of (a) the Term Loan Commitments and
the Term Loans made thereunder (the "Term Loan Facility")
and (b) the Revolving Credit Commitments and the extensions
of credit made thereunder (the "Revolving Credit
Facility").
"FCC": the Federal Communications Commission or any
governmental authority substituted therefor.
"Federal Funds Effective Rate": as defined in the
definition of "ABR".
"Film Cash Payments: for any period, the sum
(determined on a combined basis in accordance with GAAP) of
all scheduled payments made and to be made by Holdings or
any of its Subsidiaries during such period on Film
Obligations, excluding payments on Film Debt, which were
existing as of, or have been incurred at any time after the
Closing Date, as the same may be modified by the
penultimate sentence of the definition of "Consolidated
EBITDA".
"Film Debt": as at any time, the sum of the scheduled
payments remaining at such time in respect of the
programming Wonder Years, Empty Nest and Doogie Xxxxxx at
the Michigan Station, which payments are in the amount of
$63,535 and will fully amortize during the 1997 fiscal year
of the Michigan Station.
"Film Obligations": all obligations (other than Film
Debt) in respect of the purchase, use, license or
acquisition of programs, programming materials, films and
similar assets used in connection with the business and
operation of Holdings and its Subsidiaries.
"Fund": Hicks, Muse, Xxxx & Xxxxx Equity Fund III,
L.P.
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"Funded Debt": as to any Person, all Indebtedness of
such Person that matures more than one year from the date
of its creation or matures within one year from such date
but is renewable or extendible, at the option of such
Person, to a date more than one year from such date or
arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a
period of more than one year from such date, including,
without limitation, all current maturities and current
sinking fund payments in respect of such Indebtedness
whether or not required to be paid within one year from the
date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans.
"GAAP": generally accepted accounting principles in
the United States of America as in effect from time to time
set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board
and the rules and regulations of the Securities and
Exchange Commission, or in such other statements by such
other entity as may be in general use by significant
segments of the accounting profession, which are applicable
to the circumstances of the Borrower as of the date of
determination, except that for purposes of subsection 7.1,
GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in
the preparation of the audited financial statements
referred to in subsection 4.1(b). In the event that any
"Accounting Change" (as defined below) shall occur and such
change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement,
then the Borrower and the Administrative Agent agree to
enter into negotiations in order to amend such provisions
of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the
criteria for evaluating the Borrower's financial condition
shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as
such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in
this Agreement shall continue to be calculated or construed
as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting
principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the
Securities and Exchange Commission (or successors thereto
or agencies with similar functions).
"Governmental Authority": any nation or government,
any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Guarantee and Collateral Agreement": the Guarantee
and Collateral Agreement to be executed and delivered by
Holdings, the Borrower, each Subsidiary
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Guarantor, substantially in the form of Exhibit A-1, as the
same may be amended, supplemented or otherwise modified
from time to time.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the
guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2)
to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation
of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to
the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in
respect thereof as determined by such Person in good faith.
"Xxxxx Muse": Hicks, Muse, Xxxx & Xxxxx Incorporated.
"HMTF": as defined in the definition of "Change of
Control".
"Holdings": Sunrise Television Corp., a Delaware
corporation.
"Holdings Investors": as defined in subsection 5.1(b).
"Incur": as defined in subsection 7.2; and the term
"Incurrence" shall have a correlative meaning.
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"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than
current trade payables and accrued expenses incurred in the
ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property
acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of
such property), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or
otherwise, as an account party under acceptance, letter of
credit or similar facilities, (g) all obligations in
respect of Film Debt (but excluding obligations in respect
of Film Obligations), (h) the obligations of such Person
under any Interest Rate Protection Agreement, (i) all
Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through
(h) above and (j) all obligations of the kind referred to
in clauses (a) through (i) above secured by (or for which
the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such
obligation and on which obligations such Person has
recourse only to such property, provided, however, that the
amount of such Indebtedness of any Person described in this
clause (j) shall, for the purposes of this Agreement, be
deemed to be equal to the lesser of (i) the aggregate
unpaid amount of such Indebtedness and (ii) the fair market
value of the property or asset encumbered, as determined by
such Person in good faith.
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the
meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Initial Public Offering": an underwritten public
offering by Holdings of Capital Stock of Holdings pursuant
to a registration statement filed with the Securities and
Exchange Commission in accordance with the Securities Act
of 1933, as amended.
"Intellectual Property": as defined in subsection 4.9.
"Interest Payment Date": (a) as to any ABR Loan, the
last day of each March, June, September and December to
occur while such Loan is outstanding, (b) as to any
Eurodollar Loan having an Interest Period of three months
or less, the last day of such Interest Period, (c) as to
any Eurodollar Loan having an Interest Period longer than
three months, each day which is three months, or a whole
multiple
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thereof, after the first day of such Interest Period and
the last day of such Interest Period and (d) as to any
Loan, the date of repayment thereof at final stated
maturity.
"Interest Period": as to any Eurodollar Loan, (a)
initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three, six or (if
available to all Lenders under the relevant Facility) nine
or twelve months thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three, six or (if
available to all Lenders under the relevant Facility) nine
or twelve months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then
current Interest Period with respect thereto; provided
that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period
shall be extended to the next succeeding 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 Business Day;
(ii) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date or beyond
the date final payment is due on the Term Loans shall
end on the Revolving Credit Termination Date or such
due date, as applicable;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;
and
(iv) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period for such
Loan.
"Interest Rate Protection Agreement": any interest
rate protection agreement, interest rate futures contract,
interest rate option, interest rate cap or other interest
rate hedge arrangement, to or under which the Borrower or
any of its Subsidiaries is a party or a beneficiary on the
date hereof or becomes a party or a beneficiary after the
date hereof.
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"Issuing Lender": Chase or any of its affiliates, in
its capacity as issuer of any Letter of Credit.
"L/C Commitment": $20,000,000.
"L/C Fee Payment Date": the last day of each March,
June, September and December and the last day of the
Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the
sum of (a) the aggregate then undrawn and unexpired amount
of the then outstanding Letters of Credit and (b) the
aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to subsection 3.5.
"L/C Participants": with respect to any Letter of
Credit, the collective reference to all the Revolving
Credit Lenders other than the Issuing Lender that issued
such Letter of Credit.
"Letters of Credit": as defined in subsection 3.1(a).
"License Subsidiary": (a) in the case of the Michigan
Station, the Rochester Station and the Salinas-Monterey
Station, STC License Company, (b) in the case of the
Steubenville Station, Xxxxx Acquisition License Company and
(c) in the case of any Station acquired after the date
hereof, the Subsidiary of a Borrower that shall hold the
respective Station Licenses under the authority of which
such Station is operated.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or
any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or
other title retention agreement and any capital lease
having substantially the same economic effect as any of the
foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security
Documents and the Notes.
"Loan Parties": Holdings, the Borrower and each
Subsidiary of the Borrower which is a party to a Loan
Document.
"Majority Facility Lenders": with respect to any
Facility, at least two Lenders which collectively are the
holders of not less than 51% of the aggregate unpaid
principal amount of the Term Loans or the Total Revolving
Extensions of Credit, as the case may be, outstanding under
such Facility (or, in the case of the
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Revolving Credit Facility, prior to any termination of the
Revolving Credit Commitments, at least two Lenders which
are collectively the holders of not less than 51% of the
aggregate Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the
Majority Facility Lenders in respect of the Revolving
Credit Facility.
"Material Adverse Effect": a material adverse effect
on (a) the business, assets, property, condition (financial
or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative
Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Michigan Station": television station WEYI-TV,
Channel 25, Flint-Saginaw, Michigan.
"Mortgaged Properties": the real properties listed on
Schedule 1.1B, as to which the Administrative Agent for the
benefit of the Lenders shall be granted a Lien pursuant to
the Mortgages.
"Mortgages": each of the mortgages and deeds of trust
made by any Loan Party in favor of, or for the benefit of,
the Administrative Agent for the benefit of the Lenders,
substantially in the form of Exhibit D-1 or D-2, as the
case may be (with such changes thereto as shall be
advisable under the law of the jurisdiction in which such
mortgage or deed of trust is to be recorded), as the same
may be amended, supplemented or otherwise modified from
time to time.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Multi-Station Acquisition": as defined in subsection
5.1(b).
"Multi-Station Acquisition Agreement": the Asset
Purchase Agreement, dated as of November 4, 1996, by and
among the Multi-Station Sellers and the Multi-Station
Buyer.
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"Multi-Station Buyer": STV Acquisition Company, a
Delaware corporation and predecessor through name change to
the Borrower.
"Multi-Station Sellers": the collective reference to
Xxxxx Television of Michigan, L.P., Xxxxx Television of
Michigan License, L.P., Xxxxx Television of Rochester,
L.P., Xxxxx Television of Rochester License, L.P., Xxxxx
Television of Salinas-Monterey, L.P., Xxxxx Television of
Xxxxxxx- Monterey License, L.P.
"Net Cash Proceeds": (a) in connection with any Asset
Sale or any Recovery Event, the proceeds thereof in the
form of cash and Cash Equivalents (including any such
proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase
price adjustment receivable or otherwise, but only as and
when received) of such Asset Sale or Recovery Event, net of
attorneys' fees, accountants' fees, investment banking
fees, survey costs, title insurance premiums, amounts
required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any
asset which is the subject of such Asset Sale or Recovery
Event (other than any Lien pursuant to a Security Document)
and other customary fees and expenses actually incurred in
connection therewith, net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking
into account any available tax credits or deductions and
any tax sharing arrangements) and net of purchase price
adjustments reasonably expected to be payable in connection
therewith and (b) in connection with any issuance or sale
of equity securities or debt securities or instruments or
the incurrence of loans, the cash proceeds received from
such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and
expenses actually incurred in connection therewith,
provided that, with respect to any issuance or sale of debt
securities or instruments (other than the Senior
Subordinated Notes) as described in this clause (b), to the
extent that such cash proceeds are used to refinance any
Indebtedness permitted by this Agreement, then such cash
proceeds shall not constitute "Net Cash Proceeds" for the
purpose of this Agreement.
"Non-Excluded Taxes": as defined in subsection
2.17(a).
"Non-Funding Lender": as defined in subsection 2.17(b)
"Non-U.S. Lender": as defined in subsection 2.17(b).
"Notes": the collective reference to the Term Notes
and the Revolving Credit Notes.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the
maturity of the Loans and Reimbursement
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Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the
Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or,
in the case of Interest Rate Protection Agreements, any
affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan
Document, the Letters of Credit, any Interest Rate
Protection Agreement entered into with any Lender or any
affiliate of any Lender or any other document made,
delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that
are required to be paid by the Borrower pursuant hereto) or
otherwise.
"Participant": as defined in subsection 10.6(b).
"Partnership": as defined in subsection 5.1(c).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or
any successor).
"Permitted Acquisition": the acquisition by the
Borrower or its Subsidiaries of one or more additional
Stations in the United States on terms and conditions for
each such acquisition such that, among other things, on a
pro forma basis for the most recently completed 12-month
fiscal period for which financial statements are available
on the date of such acquisition and on a projected basis
for the immediately succeeding 12 months, no Default or
Event of Default will have occurred and be continuing
(including, without limitation, pursuant to subsection 7.1)
and the Borrower will be able to meet its obligations
pursuant to the Loan Documents and so long as the Borrower
provides the Administrative Agent with a certificate
showing compliance with all of the covenants contained in
subsection 7.1 (with appropriate supporting documentation
if requested by the Administrative Agent, including,
without limitation, any acquisition documents in connection
with such acquisition, opinions of counsel, including FCC
counsel, in connection therewith and copies of an FCC
consent on Form 732 relating to the transfer of control of
the licenses of the acquired Station to the Borrower or its
Subsidiary and such consent shall no longer be subject to
reconsideration or review by the FCC).
"Permitted Disposition": with respect to any Station,
any sale, lease, sale and leaseback, assignment,
conveyance, transfer or other disposition thereof.
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"Permitted Issuance": (a) the issuance by the Borrower
of shares of Capital Stock as dividends on issued and
outstanding Capital Stock of the same class of the Borrower
or pursuant to any dividend reinvestment plan, (b) the
issuance by the Borrower of options or other equity
securities of the Borrower to outside directors, members of
management or employees of the Borrower or any Subsidiary
of the Borrower, (c) the issuance of securities as interest
or dividends on pay-in-kind debt or preferred equity
securities permitted hereunder and under the Security
Documents, (d) the issuance to the Borrower or any
Subsidiary (or any director, with respect to directors'
qualifying shares) by any Subsidiary of the Borrower of any
of its Capital Stock, in each case with respect to this
clause (d) to the extent such Capital Stock is pledged to
the Administrative Agent for the benefit of the Lenders
pursuant to the Guarantee and Collateral Agreement, (e) the
issuance by the Borrower of the Preferred Stock, (f) the
issuance by Holdings of the Holdings common stock pursuant
to the terms and conditions of the Securities Purchase
Agreement dated as of February 28, 1997 by and among
Holdings and the purchasers party thereto, and (g) cash
payments made in lieu of issuing fractional shares of
Holdings common stock or Preferred Stock, in an aggregate
amount not to exceed $50,000.00.
"Person": an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit
plan which is covered by ERISA and in respect of which the
Borrower or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Preferred Pledge Agreement": the Pledge Agreement to
be executed and delivered by the holders of the Preferred
Stock, substantially in the form of Exhibit A-2, as the
same may be amended, supplemented or otherwise modified
from time to time.
"Preferred Stock": the 14% Redeemable Preferred Stock,
par value $.01 per share, liquidation preference $100.00
per share of the Borrower.
"Pricing Grid": the pricing grid attached hereto as
Annex A.
"Prime Rate": as defined in the definition of "ABR".
"Pro Forma Balance Sheet": as defined in subsection
4.1(a).
"Projections": as defined in subsection 6.2(c).
"Properties": as defined in subsection 4.17(a).
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"Property": any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, including, without
limitation, Capital Stock.
"Qualified Issuer": any commercial bank (a) which has,
or whose obligations are guaranteed by an affiliated
commercial bank which has, capital and surplus in excess of
$500,000,000 and (b) the outstanding long-term debt
securities of which are rated at least A-2 by Standard &
Poor's Ratings Services or at least P-2 by Xxxxx'x
Investors Service, Inc., or carry an equivalent rating by a
nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of
investments.
"Recovery Event": any settlement of or payment in
respect of any property insurance or casualty insurance
claim or any condemnation proceeding relating to any
Property of the Borrower or any of its Subsidiaries,
excluding any such settlement or payment which, together
with any related settlement or payment, yields gross
proceeds to the Borrower or any of its Subsidiaries of less
than $1,000,000.
"Register": as defined in subsection 10.6(d).
"Reimbursement Obligation": the obligation of the
Borrower to reimburse the Issuing Lender pursuant to
subsection 3.5 for amounts drawn under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds
received by the Borrower or any of its Subsidiaries in
connection therewith which are not applied to prepay the
Term Loans or reduce the Revolving Credit Commitments
pursuant to subsection 2.9(b) as a result of the delivery
of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event
in respect of which the Borrower has delivered a
Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has
occurred and is continuing and that the Borrower (directly
or indirectly through a Subsidiary) intends and expects to
use all or a specified portion of the Net Cash Proceeds of
an Asset Sale or Recovery Event to acquire assets useful in
its business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount
relating thereto less any amount expended prior to the
relevant Reinvestment Prepayment Date to acquire assets
useful in the Borrower's business.
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"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring
180 days after such Reinvestment Event and (b) the date on
which the Borrower shall have determined not to, or shall
have otherwise ceased to, acquire assets useful in the
Borrower's business with all or any portion of the relevant
Reinvestment Deferred Amount; provided, that if the
Reinvestment Notice with respect to such Reinvestment Event
relates to the acquisition of a new Station by the Borrower
or any of its Subsidiaries and the Borrower or such
Subsidiary has filed within 180 days of the Reinvestment
Event an application with the FCC for the approval of the
transfer of control of the Station License of such acquired
Station the period specified in paragraph (a) shall be
extended by a period equal to the lesser of (i) 180 days
and (ii) within five Business Days after the time required
for the FCC to issue a final approval order relating to the
transfer of control of such Station License, which order is
no longer subject to reconsideration or review by the FCC.
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization
within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in
Section 4043(b) of ERISA, other than those events as to
which the thirty day notice period is waived under the
regulations issued pursuant to Section 4043(b) of ERISA.
"Required Lenders": at least two Lenders which
collectively are the holders of not less than 51% of the
sum of (i) the aggregate unpaid principal amount of the
Term Loans and (ii) the aggregate Revolving Credit
Commitments or, if the Revolving Credit Commitments have
been terminated, the Total Revolving Extensions of Credit.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation (including, without
limitation, Environmental Laws or rules, regulations or
orders, whether addressed to Holdings or any of its
Subsidiaries, the Multi-Station Sellers, the WTOV-TV
Sellers or any of the Stations, of the FCC) or
determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer": the chief executive officer,
the president, any vice president or senior vice president,
the treasurer or any assistant treasurer, the secretary or
assistant secretary and the chief financial officer of the
Borrower (including, in any event, any person who is an
officer of the Borrower and is named on the closing
certificate delivered by the Borrower on the Closing Date
pursuant to subsection 5.1(h) whether or not such person
holds any of the foregoing positions).
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"Revolving Credit Commitment": as to any Revolving
Credit Lender, the obligation of such Revolving Credit
Lender, if any, to make Revolving Credit Loans and Letters
of Credit, in an aggregate principal and/or face amount not
to exceed the amount set forth under the heading "Revolving
Credit Commitment" opposite such Lender's name on Schedule
1.1A, as the same may be changed from time to time pursuant
to the terms hereof. The original aggregate amount of the
Revolving Credit Commitments is $35,000,000.
"Revolving Credit Commitment Period": the period from
and including the Closing Date to the Revolving Credit
Termination Date.
"Revolving Credit Facility": as defined in the
definition of "Facility".
"Revolving Credit Lender": each Lender which has a
Revolving Credit Commitment or which has made Revolving
Credit Loans or has participations in outstanding Letters
of Credit.
"Revolving Credit Loans": as defined in subsection
2.4.
"Revolving Credit Note": any promissory note of the
Borrower evidencing Revolving Credit Loans.
"Revolving Credit Percentage": as to any Revolving
Credit Lender at any time, the percentage which such
Lender's Revolving Credit Commitment then constitutes of
the aggregate Revolving Credit Commitments (or, at any time
after the Revolving Credit Commitments shall have expired
or terminated, the percentage which the aggregate principal
amount of such Lender's Revolving Credit Loans then
outstanding constitutes of the aggregate principal amount
of the Revolving Credit Loans then outstanding).
"Revolving Credit Termination Date": the earliest of
(a) the Scheduled Revolving Credit Termination Date or, if
such date is not a Business Day, the Business Day next
preceding such date and (b) the date upon which the
Revolving Credit Commitments shall be earlier terminated
pursuant hereto.
"Revolving Extensions of Credit": as to any Revolving
Credit Lender at any time, an amount equal to the sum of
(a) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding and (b) such
Lender's Revolving Credit Percentage of the L/C Obligations
then outstanding.
"Rochester Station": television station WROC-TV,
Channel 8, Rochester, New York.
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"SAC Pledge Agreement": the Pledge Agreement to be
executed and delivered by SBP, substantially in the form of
Exhibit A-2, as the same may be amended, supplemented or
otherwise modified from time to time.
"Salinas-Monterey Station": television station
KSBW-TV, Channel 8, Salinas, California.
"SBP": Xxxxx Broadcasting Partners, L.P., a Delaware
limited partnership.
"SBP Stock": the voting common stock of the WTOV-TV
Buyer, which represents 1% of the equity of the WTOV-TV
Buyer, but which entitles SBP to 100% of voting power in
the election of the directors of the WTOV-TV Buyer.
"Scheduled Revolving Credit Termination Date":
February 27, 2004.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the SAC Pledge
Agreement, the Preferred Pledge Agreement, the Mortgages
and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any Property of any
Person to secure the obligations and liabilities of any
Loan Party under any Loan Document.
"Senior Subordinated Note Indenture": the Indenture to
be entered into by the Borrower and certain of its
Subsidiaries in connection with the issuance of the Senior
Subordinated Notes, together with all instruments and other
agreements entered into by the Borrower or such
Subsidiaries in connection therewith, all in form and
substance satisfactory to the Administrative Agent, as the
same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 7.9.
"Senior Subordinated Notes": the subordinated notes of
the Borrower to be issued pursuant to the Senior
Subordinated Note Indenture.
"Single Employer Plan": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means
that, as of any date of determination, (a) the fair value
of the property of such Person is greater than the total
amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable
liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (d) such Person is not
engaged in
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business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property
would constitute an unreasonably small capital.
"Station Licenses": all authorizations, licenses or
permits issued by the FCC and granted or assigned to the
Borrower or any of its Subsidiaries, or, prior to the
merger contemplated by subsection 6.11, with respect to the
Steubenville Station, the WTOV-TV Buyer or any of its
Subsidiaries, or under which the Borrower or any of its
Subsidiaries, or, prior to the merger contemplated by
subsection 6.11, with respect to the Steubenville Station,
the WTOV-TV Buyer or any of its Subsidiaries, has the right
to operate any Station, together with any extensions or
renewals thereof.
"Stations": collectively, (a) the Michigan Station,
(b) the Steubenville Station, (c) the Rochester Station,
(d) the Salinas-Monterey Station and (e) any additional
Station acquired after the date hereof.
"Steubenville Station": television station WTOV-TV,
Channel 9, Steubenville, Ohio.
"Subsidiary": as to any Person, a corporation,
partnership, limited liability company or other entity of
which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to
a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower after
giving effect to the Acquisitions and notwithstanding the
foregoing shall be deemed to include the WTOV-TV Buyer and
its Subsidiaries.
"Subsidiary Guarantor": each Subsidiary of the
Borrower party to the Guarantee and Collateral Agreement.
"Term Loan Commitment": as to any Term Loan Lender,
the obligation of such Term Loan Lender, if any, to make a
Term Loan to the Borrower hereunder in a principal amount
not to exceed the amount set forth under the heading "Term
Loan Commitment" opposite such Lender's name on Schedule
1.1A. The original aggregate amount of the Term Loan
Commitments is $60,000,000.
"Term Loan Facility": as defined in the definition of
"Facility".
"Term Loan Lender": each Lender which has a Term Loan
Commitment or which has made a Term Loan.
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"Term Loan Percentage": as to any Term Loan Lender at
any time, the percentage which such Lender's Term Loan
Commitment then constitutes of the aggregate Term Loan
Commitments (or, at any time after the Closing Date, the
percentage which the principal amount of such Lender's Term
Loan then outstanding constitutes of the aggregate
principal amount of the Term Loans then outstanding).
"Term Loans": as defined in subsection 2.1.
"Term Note": any promissory note of the Borrower
evidencing Term Loans.
"Test Period": any period of four consecutive fiscal
quarters of the Borrower (or, if less, the number of full
fiscal quarters of the Borrower subsequent to the Closing
Date).
"Total Revolving Extensions of Credit": at any time,
the aggregate amount of the Revolving Extensions of Credit
of the Revolving Credit Lenders at such time.
"Transferee": as defined in subsection 10.6(g).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Unapplied Excess Cash Flow": any Excess Cash Flow
that is not required to be applied toward the prepayment of
the Term Loans and the reduction of the Revolving Credit
Commitments pursuant to subsection 2.9(c), as determined on
each Excess Cash Flow Application Date in respect of the
immediately preceding fiscal year of the Borrower.
"Uniform Customs": the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be
revised from time to time.
"Wholly Owned Subsidiary": as to any Person, any other
Person all of the Capital Stock of which (other than
directors' qualifying shares required by law) is owned by
such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary
Guarantor that is a Wholly Owned Subsidiary of the
Borrower.
"WTOV-TV Acquisition": as defined in subsection
5.1(b).
"WTOV-TV Acquisition Agreement": the Asset Purchase
Agreement, dated as of November 4, 1996, among the WTOV-TV
Sellers and the WTOV-TV Buyer.
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"WTOV-TV Buyer": Xxxxx Acquisition Company, a Delaware
corporation.
"WTOV-TV Sellers": the collective reference to Xxxxx
Television-WTOV, L.P. and Xxxxx Television-WTOV License,
L.P.
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or
other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents,
and any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms relating to the Borrower and its Subsidiaries not
defined in subsection 1.1 and accounting terms partly defined in subsection
1.1, to the extent not defined, shall have the respective meanings given to
them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and
conditions hereof, each Term Loan Lender severally agrees to make a term loan
(a "Term Loan") to the Borrower on the Closing Date in an amount not to exceed
the amount of the Term Loan Commitment of such Lender. The Term Loans may from
time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower
and notified to the Administrative Agent in accordance with subsections 2.2 and
2.10.
2.2 Procedure for Term Loan Borrowing. The Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time,
one Business Day prior to the anticipated Closing Date) requesting that the
Term Loan Lenders make the Term Loans on the Closing Date and specifying the
amount to be borrowed. The Term Loans made on the Closing Date shall initially
be ABR Loans. Upon receipt of such notice the Administrative Agent shall
promptly notify each Term Loan Lender thereof. Not later than 12:00 Noon, New
York City time, on the Closing Date each Term Loan Lender shall make available
to the Administrative Agent at its office specified in subsection 10.2 an
amount in immediately available funds equal to the Term Loan or Term Loans to
be made by such Lender. The Administrative Agent
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shall credit the account of the Borrower on the books of such office of the
Administrative Agent with the aggregate of the amounts made available to the
Administrative Agent by the Term Loan Lenders in immediately available funds.
2.3 Repayment of Term Loans. The Term Loan of each
Term Loan Lender shall mature in 25 consecutive quarterly installments,
commencing on March 31, 1998, each of which installments in any calendar year
specified below shall be in an amount equal to the product of (x) one quarter
of the percentage set forth opposite such calendar year (except with respect to
2004, during which there will be one installment made on February 27, 2004 in
the lesser of the amount of Term Loans then outstanding and the percentage set
forth below opposite the year 2004), (y) the amount of the outstanding Term
Loans as of December 31, 1997 after giving effect to the application of the
Capital Contribution to the repayment of the Term Loans pursuant to subsections
2.9(d) and (e) and (z) such Lender's Term Loan Percentage:
Year Percentage
---- ----------
1998 10%
1999 10%
2000 15%
2001 15%
2002 15%
2003 15%
2004 20%
2.4 Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's Revolving
Credit Percentage of the L/C Obligations then outstanding, does not exceed the
amount of such Lender's Revolving Credit Commitment. During the Revolving
Credit Commitment Period the Borrower may use the Revolving Credit Commitments
by borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be Eurodollar Loans or ABR Loans,
as determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 2.5 and 2.10, provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month prior
to the Scheduled Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
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2.5 Procedure for Revolving Credit Borrowing. The Borrower
may borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of ABR Loans), specifying (i) the amount and Type of Revolving Credit
Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case
of Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Each borrowing
under the Revolving Credit Commitments shall be in an amount equal to (x) in
the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available Revolving Credit Commitments are
less than $500,000, such lesser amount) and (y) in the case of Eurodollar
Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Credit Lender thereof. Each Revolving Credit
Lender will make the amount of its pro rata share of each borrowing available
to the Administrative Agent for the account of the Borrower at the office of
the Administrative Agent specified in subsection 10.2 prior to 12:00 Noon, New
York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Revolving Credit
Lenders and in like funds as received by the Administrative Agent.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment
of such Lender during the period for which payment is made, payable quarterly
in arrears on the last day of each March, June, September and December and on
the Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent
the fees in the amounts and on the dates set forth in the Fee Letter dated
February 27, 1997 in writing by the Borrower and the Administrative Agent.
2.7 Termination or Reduction of Revolving Credit Commitments.
(a) The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans made on the effective date thereof,
the Total Revolving Extensions of Credit would exceed the Revolving Credit
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Commitments then in effect. Any such reduction shall be in an amount equal to
$500,000, or a whole multiple of $100,000 in excess thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect. Upon receipt of
any notice pursuant to this subsection 2.7, the Administrative Agent shall
promptly notify each Revolving Credit Lender of the contents thereof.
(b) Notwithstanding any other provision of this Agreement,
each Revolving Credit Lender's Revolving Credit Commitment shall automatically
be permanently reduced at the end of each fiscal quarter by the product of (x)
one quarter of the percentage set forth opposite such calendar year (except
with respect to 2004, during which there will be one reduction on the Revolving
Credit Termination Date in the percentage set forth below opposite the year
2004), (y) the amount of the Revolving Credit Commitments then in effect as of
December 31, 1999 and (z) such Lender's Revolving Credit Percentage:
Year Percentage
---- ----------
2000 20%
2001 20%
2002 20%
2003 20%
2004 20%
If at the time of any mandatory reduction of the Revolving Credit Commitments
pursuant to this subsection 2.7(b), the aggregate principal amount of the
Revolving Credit Loans and Letters of Credit then outstanding exceeds the
Revolving Credit Commitments as so reduced on such date, the Borrower shall on
such date prepay the Revolving Credit Loans in the amount of such excess,
together with accrued interest thereon to the date of payment.
2.8 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to subsection
2.18. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein. Amounts prepaid on account of the Term Loans may not be reborrowed.
Partial prepayments of Eurodollar Loans shall be in an aggregate principal
amount of $1,000,000 or a whole multiple of $100,000 in excess thereof.
Partial prepayments of ABR Loans shall be in an aggregate principal amount of
$500,000 or a whole
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multiple of $100,000 thereof. Optional prepayments on account of the Term
Loans shall be applied ratably to the then remaining number of installments
thereof and may not be reborrowed.
2.9 Mandatory Prepayments and Commitment Reductions. (a) If
any Capital Stock or Indebtedness shall be issued or Incurred by the Borrower
or any of its Subsidiaries (excluding any Permitted Issuance and any Incurrence
of Indebtedness (other than the Senior Subordinated Notes) in accordance with
subsection 7.2 as in effect on the date of this Agreement), an amount equal to
100% of the Net Cash Proceeds thereof shall be applied on the date of such
issuance or Incurrence toward the prepayment of the Term Loans and to the
extent of any excess to the prepayment of the Revolving Credit Loans and, with
respect to the Incurrence of any such Indebtedness, the reduction of the
Revolving Credit Commitments as set forth in subsection 2.9(e).
(b) If on any date the Borrower or any of its Subsidiaries
shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then,
unless a Reinvestment Notice shall be delivered in respect thereof, such Net
Cash Proceeds shall be applied, within five Business Days after such date,
toward the prepayment of the Term Loans and the reduction of the Revolving
Credit Commitments as set forth in subsection 2.9(e); provided, that, none of
the Net Cash Proceeds of Asset Sales may be excluded from the foregoing
requirement pursuant to a Reinvestment Notice to the extent of any Term Loans
then outstanding; and provided, further, (i) the aggregate Net Cash Proceeds of
Asset Sales that may be excluded from the foregoing requirement pursuant to a
Reinvestment Notice (x) with respect to the acquisition of a new Station
contemplated by subsection 7.5(h) shall not exceed $90,000,000 and (y) with
respect to the acquisition of other assets useful in the Borrower's or any of
its Subsidiaries' business, shall not exceed in any fiscal year of the Borrower
$200,000 and (ii) on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the Term Loans and the Revolving
Credit Loans and, under certain circumstances, to the reduction of the
Revolving Credit Commitments as set forth in subsection 2.9(e).
(c) If, for any fiscal year of the Borrower commencing with
the fiscal year ending December 31, 1997, there shall be Excess Cash Flow, the
Borrower shall, on the relevant Excess Cash Flow Application Date, apply the
ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans
and the Revolving Credit Loans (but not the reduction of the Revolving Credit
Commitments) as set forth in subsection 2.9(e) and the definition of "ECF
Percentage". Each such prepayment shall be made on a date (an "Excess Cash
Flow Application Date") no later than five days after the earlier of (i) the
date on which the financial statements of the Borrower referred to in
subsection 6.1(a), for the fiscal year with respect to which such prepayment is
made, are required to be delivered to the Lenders and (ii) the date such
financial statements are actually delivered.
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(d) On the date the Borrower receives the Capital
Contribution, the Borrower shall apply 100% of the amount of the Capital
Contribution toward the prepayment of the Term Loans and the Revolving Credit
Loans (but not the reduction of the Revolving Credit Commitments) as set forth
in subsection 2.9(e).
(e) The amount of the Capital Contribution to be applied
pursuant to subsection 2.9(d) shall be applied first, to the prepayment of the
Term Loans and, second, to the prepayment of the Revolving Credit Loans but not
to reduce the Revolving Credit Commitments (except in the event of a
bankruptcy, insolvency or similar condition of Holdings or the Borrower, in
which case the Capital Contribution shall be applied ratably to the prepayment
of the Term Loans and the permanent reduction of the Revolving Credit
Commitments based on the respective amounts thereof. Each of (i) the Excess
Cash Flow to be applied pursuant to subsection 2.9(b) and (ii) the Net Cash
Proceeds of the Senior Subordinated Notes to be applied pursuant to subsection
2.9(a), shall be applied first, to the prepayment of the Term Loans and second,
to the prepayment of any outstanding Revolving Credit Loans but not to reduce
the Revolving Credit Commitments. Subject to subsection 2.9(b), 100% of the
Net Cash Proceeds of any Asset Sale or Recovery Event shall be applied first,
to the prepayment of the Term Loans and to the extent of any excess, second,
unless a Reinvestment Notice shall be delivered in respect thereof (in which
case the terms of subsection 2.9(b) shall apply), to the permanent reduction of
the Revolving Credit Commitments and the prepayment of the Revolving Credit
Loans. Any such reduction of the Revolving Credit Commitments shall be
accompanied by prepayment of the Revolving Credit Loans to the extent, if any,
that the Total Revolving Extensions of Credit exceed the amount of the
aggregate Revolving Credit Commitments as so reduced, provided that if the
aggregate principal amount of Revolving Credit Loans then outstanding is less
than the amount of such excess (because L/C Obligations constitute a portion
thereof), the Borrower shall, to the extent of the balance of such excess,
replace outstanding Letters of Credit and/or deposit an amount in cash in a
cash collateral account established with the Administrative Agent for the
benefit of the Lenders on terms and conditions satisfactory to the
Administrative Agent. The application of any prepayment pursuant to this
subsection 2.9 shall be made first to ABR Loans and second to Eurodollar Loans.
Amounts prepaid on account of the Term Loans shall be applied ratably to the
then remaining number of installments thereof and may not be reborrowed. Any
such permanent reductions of the Revolving Credit Commitments shall be applied
ratably to the then remaining number of scheduled reductions of the Revolving
Credit Commitments as set forth in subsection 2.7(b).
2.10 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to ABR Loans by giving
the Administrative Agent at least one Business Day's prior irrevocable notice
of such election (but no later than 12:00 Noon, New York City time on the
Business Day immediately prior to such election), provided that, unless the
Borrower elects to deposit with the Administrative Agent the amount of any
breakage costs and other Eurodollar Loans related costs to be incurred by the
Borrower under this Agreement with respect to any prepayment or conversion of
such
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Eurodollar Loans prior to the end of an Interest Period, any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election (which notice shall specify the
length of the initial Interest Period therefor), provided that no ABR Loan
under a particular Facility may be converted into a Eurodollar Loan (i) when
any Event of Default has occurred and is continuing and the Administrative
Agent or the Majority Facility Lenders in respect of such Facility have
determined that such a conversion is not appropriate or (ii) after the date
that is one month prior to the final scheduled termination or maturity date of
such Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Majority Facility Lenders in respect of
such Facility have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility, and provided, further, that if the Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Eurodollar Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.11 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, (a) the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $1,000,000 or a whole
multiple of $100,000 in excess thereof, (b) no more than six Eurodollar
Tranches under a particular Facility shall be outstanding at any one time and
(c) no more than ten Eurodollar Tranches in the aggregate shall be outstanding
at any one time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
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(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations (whether or not overdue) shall bear interest at a
rate per annum which is equal to (x) in the case of the Loans, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this subsection 2.12 plus 2% or (y) in the case of Reimbursement Obligations,
the rate applicable to ABR Loans under the Revolving Credit Facility plus 2%,
and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate applicable to ABR Loans under the relevant Facility
plus 2% (or, in the case of any such other amounts that do not relate to a
particular Facility, the rate applicable to ABR Loans under the Revolving
Credit Facility plus 2%), in each case, with respect to clauses (i) and (ii)
above, from the date of such non-payment until such amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection 2.12 shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Interest, fees
and other amounts payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to ABR
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the relevant Lenders
of each determination of a Eurodollar Rate. Any change in the interest rate on
a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by
the Administrative Agent in determining any interest rate pursuant to
subsections 2.12(a) or (c).
2.14 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
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(a) the Administrative Agent shall have determined (which
determination, absent manifest error, shall be conclusive and binding
upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurodollar Loans under the relevant Facility
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted to ABR Loans on the last day of the
Interest Period applicable thereto. Until such notice has been withdrawn by
the Administrative Agent (which the Administrative Agent agrees to do if the
circumstances that prompted delivery of such notice no longer exist), no
further Eurodollar Loans under the relevant Facility shall be made or continued
as such, nor shall the Borrower have the right to convert Loans under the
relevant Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee and any reduction of the Commitments of the
Lenders shall be made, with regard to the applicable Facility, pro rata
according to the respective Term Loan Percentages or Revolving Credit
Percentages, as the case may be, of the relevant Lenders.
(b) Whenever (i) any payment received by the Administrative
Agent under this Agreement or any Note or (ii) any other amounts received by
the Administrative Agent for or on behalf of the Borrower (including, without
limitation, proceeds of collateral or payments under any guarantee) is
insufficient to pay in full all amounts then due and payable to the
Administrative Agent and the Lenders under this Agreement and any Note, such
payment shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the following order: First, to the
payment of fees and expenses due and payable to the Administrative Agent under
and in connection with this Agreement; Second, to the payment of all expenses
due and payable under Section 10.5, ratably among the Administrative Agent and
the Lenders in accordance with the aggregate amount of such payments owed to
the Administrative Agent and each such Lender; Third, to the payment of fees
due and payable under Sections 2.6 and 3.3, ratably among the Revolving Credit
Lenders in accordance with the Revolving Credit Commitment of each Revolving
Credit Lender and,
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in the case of the Issuing Lender, the amount retained by the Issuing Lender
for its own account pursuant to Section 3.3(a); Fourth, to the payment of
interest then due and payable under the Loans, ratably in accordance with the
aggregate amount of interest owed to each such Lender; and Fifth, to the
payment of the principal amount of the Loans and the L/C Obligations then due
and payable and, in the case of proceeds of collateral or payments under any
guarantee, to the payment of any other obligations to any Lender not covered in
First through Fourth above ratably secured by such collateral or ratably
guaranteed under any such guarantee, ratably among the Lenders in accordance
with the aggregate principal amount and, in the case of proceeds of collateral
or payments under any guarantee, the obligations secured or guaranteed thereby
owed to each such Lender.
(c) If any Revolving Credit Lender (a "Non-Funding Lender")
has (x) failed to make a Revolving Credit Loan required to be made by it
hereunder, and the Administrative Agent has determined that such Revolving
Credit Lender is not likely to make such Revolving Credit Loan or (y) given
notice to the Borrower or the Administrative Agent that it will not make, or
that it has disaffirmed or repudiated any obligation to make, any Revolving
Credit Loans, in each case by reason of the provisions of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as amended, or
otherwise, any payment made on account of the principal of the Revolving Credit
Loans outstanding shall be made as follows:
(i) in the case of any such payment made on any date when and
to the extent that, in the determination of the Administrative Agent,
the Borrower would be able, under the terms and conditions hereof, to
reborrow the amount of such payment under the Revolving Credit
Commitments and to satisfy any applicable conditions precedent set
forth in Section 5.2 to such reborrowing, such payment shall be made
on account of the outstanding Revolving Credit Loans held by the
Revolving Credit Lenders other than the Non-Funding Lender pro rata
according to the respective outstanding principal amounts of the
Revolving Credit Loans of such Revolving Credit Lenders;
(ii) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans held by the Revolving Credit
Lenders pro rata according to the respective outstanding principal
amounts of such Revolving Credit Loans; and
(iii) any payment made on account of interest on the
Revolving Credit Loans shall be made pro rata according to the
respective amounts of accrued and unpaid interest due and payable on
the Revolving Credit Loans with respect to which such payment is being
made.
The Borrower agrees to give the Administrative Agent such assistance in making
any determination pursuant to this paragraph as the Administrative Agent may
reasonably request. Any such determination by the Administrative Agent shall
be conclusive and binding on the Lenders.
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(d) Otherwise, each payment (including each prepayment) by
the Borrower on account of principal of and interest on the Term Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Term Loans then held by the Term Loan Lenders.
(e) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders.
(f) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in subsection 10.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to
the Lenders promptly upon receipt in like funds as received. If any payment
hereunder becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day (except, in the
case of Eurodollar Loans, as otherwise provided in clause (i) of the definition
of "Interest Period"). In the case of any extension of any payment of
principal pursuant to the preceding sentence, interest thereon shall be payable
at the then applicable rate during such extension.
(g) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this subsection
2.15(e) shall be conclusive in the absence of manifest error. If such Lender's
share of such borrowing is not made available to the Administrative Agent by
such Lender within three Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to ABR Loans under the
relevant Facility, on demand, from the Borrower. The failure of any Lender to
make any Loan to be made by it shall not relieve any other Lender of its
obligation, if any, hereunder to make its Loan on such Borrowing Date, but no
Lender shall be responsible for the failure of any other Lender to make the
Loan to be made by such other Lender on such Borrowing Date.
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2.16 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 2.17 and the establishment of
a tax based on the overall net income of such Lender and changes in
the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable, provided, that before making
any such demand, each Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, in its reasonable discretion, in
any legal, economic or regulatory manner) to designate a different Eurodollar
lending office of the making of such designation would allow the Lender or its
Eurodollar lending office to continue to perform its obligations to make
Eurodollar Loans or to continue to fund or maintain Eurodollar Loans and avoid
the need for, or materially reduce the amount of, such increased cost. If any
Lender becomes entitled to claim any additional amounts pursuant to this
subsection 2.16, it shall promptly (and in any event no later than 90 days
after such Lender becomes entitled to make such claim) notify the Borrower,
through the Administrative Agent, of the event by reason of which it has become
so entitled. If the Borrower notifies the Administrative Agent within five
Business Days after any Lender notifies the Borrower of any increased cost
pursuant to the foregoing provisions of this subsection 2.16(a), the Borrower
may convert all Eurodollar Loans of such Lender then outstanding into ABR Loans
in accordance with subsection 2.10 and shall, additionally, reimburse such
Lender for any cost in accordance with subsection 2.18.
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(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter
of Credit to a level below that which such Lender or such corporation could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, after submission by such Lender, to the Borrower, through the
Administrative Agent, of a written request therefor, the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender or
such corporation for such reduction; provided that the Borrower shall not be
required to compensate a Lender pursuant to this paragraph for any amounts
incurred more than ninety days prior to the date that such Lender notifies the
Borrower of such Lender's intention to claim compensation therefor; and
provided further that, if the circumstances giving rise to such claim have a
retroactive effect, then such ninety-day period shall be extended to include
the period of such retroactive effect.
(c) A certificate as to any additional amounts payable
pursuant to this subsection 2.16, showing in reasonable detail the calculation
thereof and certifying that it is generally charging such costs to other
similarly situated borrowers under similar credit facilities, submitted by any
Lender through the Administrative Agent shall be conclusive in the absence of
manifest error, provided that the determination of such amounts shall be made
in good faith in a manner generally consistent with such Lender's standard
practices. The obligations of the Borrower pursuant to this subsection 2.16
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder for a period of nine months thereafter.
2.17 Taxes. (a) Except as provided below in this
subsection, all payments made by the Borrower under this Agreement shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender
and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Administrative Agent or any Lender
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hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall be entitled to
deduct and withhold any Non-Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof to the extent such
Lender's compliance with the requirements of subsection 2.17(b) at the time
such Lender becomes a party to this Agreement fails to establish a complete
exemption from such withholding. Whenever any Non-Excluded Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official receipt received
by the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection 2.17 shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder for a period of nine months thereafter.
(b) Each Lender (or Transferee) that is not a corporation,
partnership or other entity created or organized in or under the laws of the
United States of America (or any jurisdiction thereof) (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service Form 1001 or
Form 4224, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form
W-8, an annual certificate representing, under penalty of perjury, that such
Non-U.S. Lender is not a "bank" for purposes of Section 881(c) of the Code, is
not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower and is not a controlled foreign corporation related to
the Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall
be delivered by each Non-U.S. Lender on or before the date it becomes a party
to this Agreement (or, in the case of any Participant, on or before the date
such Participant purchases the related participation). In addition, each
Non-U.S. Lender shall deliver such forms on or before the expiration or
obsolescence and promptly upon the invalidity of any form previously delivered
by such Non-U.S. Lender and after the occurrence of any event requiring a
change in the most recently provided form and, if necessary, obtain any
extensions of time reasonably requested
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by the Borrower of the Administrative Agent for filing and completing such
forms. Each Non-U.S. Lender agrees, to the extent legally entitled to do so,
upon reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Administrative Agent) such other forms as may
be reasonably required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to payments of interest
under this Agreement or the other Loan Documents, provided that in determining
the reasonableness of such a request, such Lender shall be entitled to consider
the cost of complying with such request (to the extent unreimbursed by the
Borrower) that would be imposed on such Lender. 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). Notwithstanding any other provision of this subsection 2.17(b), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
subsection 2.17(b) that such Non-U.S. Lender is not legally able to deliver.
2.18 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss (excluding loss of profit) or
expense which such Lender may sustain or incur as a consequence of (a) default
by the Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the Borrower
in making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an
Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this subsection 2.18, showing
in reasonable detail the calculation thereof, submitted to the Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder for a period of nine months thereafter.
2.19 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of subsection 2.16 or
2.17(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided,
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that such designation is made on terms that, in the sole judgment of such
Lender, cause such Lender and its lending office(s) to suffer no economic,
legal or regulatory disadvantage, and provided, further, that nothing in this
subsection 2.19 shall affect or postpone any of the obligations of any Borrower
or the rights of any Lender pursuant to subsection 2.16 or 2.17(a).
2.20 Replacement of Lenders under Certain Circumstances. If
at any time (a) the Borrower becomes obligated to pay additional amounts
described in subsections 2.16, 2.17 or 2.18 as a result of any condition
described in such subsections or any Lender ceases to make Eurodollar Loans
pursuant to Section 2.16, (b) any Lender becomes insolvent and its assets
become subject to a receiver, liquidator, trustee, custodian or other Person
having similar powers or (c) any Lender becomes a "Non-Funding Lender", then
the Borrower may, on ten Business Days' prior written notice to the
Administrative Agent and such Lender, replace such Lender by causing such
Lender to (and such Lender shall) assign pursuant to Section 10.6(c) all of its
rights and obligations under this Agreement to a Lender or other entity
selected by the Borrower and acceptable to the Administrative Agent for a
purchase price equal to the outstanding principal amount of such Lender's Loans
and all accrued interest and fees and other amounts payable hereunder
(including amounts payable under Section 2.18 as though such Loans were being
paid instead of being purchased); provided that (i) the Borrower shall have no
right to replace the Administrative Agent, (ii) neither the Administrative
Agent nor any Lender shall have any obligation to the Borrower to find a
replacement Lender or other such entity, (iii) in the event of a replacement of
a Lender to which the Borrower becomes obligated to pay additional amounts
pursuant to clause (a) of this Section 2.20, in order for the Borrower to be
entitled to replace such a Lender, such replacement must take place no later
than 180 days after the Lender shall have demanded payment of additional
amounts under one of the subsections described in clause (a) of this Section
2.20, as the case may be, and (iv) in no event shall the Lender hereby replaced
be required to pay or surrender to such replacement Lender or other entity any
of the fees received by such Lender hereby replaced pursuant to this Agreement.
In the case of a replacement of a Lender to which the Borrower becomes
obligated to pay additional amounts pursuant to clause (a) of this subsection
2.20, the Borrower shall pay such additional amounts to such Lender prior to
such Lender being replaced and the payment of such additional amounts shall be
a condition to the replacement of such Lender. The Borrower's right to replace
a Non-Funding Lender pursuant to this subsection 2.20 is, and shall be, in
addition to, and not in lieu of, all other rights and remedies available to the
Borrower against such Non-Funding Lender under this Agreement, at law, in
equity, or by statute.
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SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in subsection 3.4(a), agrees to issue
letters of credit ("Letters of Credit") for the account of the Borrower on any
Business Day during the Revolving Credit Commitment Period in such form as may
be approved from time to time by the Issuing Lender; provided that the Issuing
Lender shall not have any obligation to issue any Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available Revolving Credit
Commitments would be less than zero. Each Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
first anniversary of its date of issuance and (y) the date which is five
Business Days prior to the Scheduled Revolving Credit Termination Date,
provided that any Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above).
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed
by, any applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its
receipt of the Application therefor and all such other certificates, documents
and other papers and information relating thereto) by issuing the original of
such Letter of Credit to the beneficiary thereof or as otherwise may be agreed
to by the Issuing Lender and the Borrower. The Issuing Lender shall furnish a
copy of such Letter of Credit to the Borrower promptly following the issuance
thereof. The Issuing Lender shall promptly furnish to the Administrative Agent
notice of the issuance of each Letter of Credit (including the amount thereof).
The Administrative Agent will furnish to the Revolving Credit Lenders (a)
prompt notice of the issuance of each standby Letter of Credit and (b) a
monthly report setting forth for the relevant month the total aggregate daily
amount available to be drawn under commercial Letters of Credit that were
outstanding during such month.
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3.3 Commissions, Fees and Other Charges. (a) The Borrower
will pay to the Administrative Agent, for the account of each Revolving Credit
Lender, a commission on all outstanding Letters of Credit at a per annum rate
equal to the Applicable Margin then in effect with respect to Eurodollar Loans
under the Revolving Credit Facility minus the fronting fee referred to below,
shared ratably among the Revolving Credit Lenders and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date. In addition, the
Borrower shall pay to the Issuing Lender for its own account a fronting fee of
1/4 of 1% per annum of the average daily face amount of each Letter of Credit
issued by the Issuing Lender, payable quarterly in arrears on each L/C Fee
Payment Date after the Issuance Date.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by the Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued by the Issuing Lender and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with the Issuing Lender
that, if a draft is paid under any Letter of Credit issued by the Issuing
Lender for which the Issuing Lender is not reimbursed in full by the Borrower
in accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Lender upon demand an amount equal to such L/C Participant's
Revolving Credit Percentage of the amount of such draft, or any part thereof,
which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to subsection 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit is paid to the Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Effective Rate during the period from and including
the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to subsection 3.4(a) is not made available to the Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, the Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to ABR Loans under the Revolving
Credit Facility. A certificate of the Issuing Lender
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submitted to any L/C Participant with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with subsection 3.4(a), the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment. Each such
payment shall be made to the Issuing Lender in lawful money of the United
States of America and in immediately available funds. Interest shall be
payable on any and all amounts remaining unpaid by the Borrower under this
subsection from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full at the rate set
forth in subsection 2.12(c). Each drawing under any Letter of Credit shall
(unless an event of the type described in clause (i) or (ii) of Section 8(f)
shall have occurred and be continuing with respect to the Borrower, in which
case the procedures specified in subsection 3.4 for funding by L/C Participants
shall apply) constitute a request by the Borrower to the Administrative Agent
for a borrowing pursuant to subsection 2.5 of ABR Loans in the amount of such
drawing. The Borrowing Date with respect to such borrowing shall be the date
of payment of the relevant draft.
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender
(except to the extent resulting from the gross negligence or willful misconduct
of the Issuing Lender), any beneficiary of a Letter of Credit or any other
Person. The Borrower also agrees with the Issuing Lender that, subject to the
last sentence of this subsection 3.6, the Issuing Lender shall not be
responsible for, and the Borrower's Reimbursement Obligations under subsection
3.5 shall not be affected by, among other things, the validity or genuineness
of documents or of any endorsements thereon, even though such documents shall
in fact prove to be invalid, fraudulent or forged, or any dispute between or
among the Borrower and any beneficiary of any Letter of Credit or any other
party to which such Letter of Credit may be transferred or any claims
whatsoever of the Borrower against
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any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender 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, except for errors,
omissions or delays in transmission found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Issuing Lender. The Borrower agrees that any
action taken or omitted by the Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct and in accordance with the standards or
care specified in the Uniform Commercial Code of the State of New York, shall
be binding on the Borrower and shall not result in any liability of the Issuing
Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit issued by it shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of Holdings and its consolidated Subsidiaries
(including for this purpose the WTOV-TV Buyer and its Subsidiaries) as at
January 31, 1997 (including the notes thereto) (the "Pro Forma Balance Sheet"),
copies of which have heretofore been furnished to each Lender, has been
prepared giving effect (as if such events had occurred on such date) to (i) the
consummation of the Acquisitions, (ii) the Loans to be made and the use of
proceeds thereof and (iii) the payment of fees and expenses in connection with
the foregoing. The Pro Forma Balance Sheet presents fairly on a pro forma
basis the financial position of Holdings and its consolidated Subsidiaries as
at January 31, 1997 and is based upon good faith estimates and assumptions
believed by management of Holdings and the Borrower to be reasonable at the
time made, assuming that the events specified in the preceding sentence had
actually occurred at such date.
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(b) The unaudited combined and combining balance sheet of the
Multi-Station Sellers and the WTOV-TV Sellers for the fiscal year ending
December 31, 1996 and the related combined and combining statements of income
and cash flows for the fiscal year ended on such date and delivered to the
Administrative Agent by the Borrower, present fairly the combined and combining
financial condition of the Multi-Station Sellers and the WTOV-TV Sellers, as
the case may be, as at such dates, and the combined and combining results of
its operations and cash flows for the fiscal year then ended (subject to
year-end audit adjustments). The audited combined and unaudited combining (on
a Station by Station basis) statements of operations and cash flows of the
Michigan Station, the Steubenville Station and the Rochester Station and the
audited statements of operations and cash flows of the Salinas-Monterey Station
for each of the fiscal years ended December 31, 1994 and December 31, 1995,
reported on by, and accompanied by unqualified reports from, Xxxxxx Xxxxxxxx
LLP, present fairly the combined and combining (on a Station by Station basis)
results of operations and cash flows of the Michigan Station, the Steubenville
Station and the Rochester Station and the results of operations and cash flows
of the Salinas-Monterey Station for the respective fiscal years then ended.
The unaudited combined and combining balance sheets of the Multi-Station
Sellers and the WTOV-TV Sellers for each of the fiscal quarters and for each
fiscal month ended subsequent to the date of the latest audited financial
statements as to which financial statements are available, and the related
unaudited combined and combining statements of income and cash flows for the
periods ended on such dates, present fairly the combined and combining
financial condition of the Multi-Station Sellers and the WTOV-TV Sellers, as
the case may be, as at such date, and the combined and combining results of its
operations and its combined and combining cash flows for the periods then ended
(subject to normal year-end audit adjustments). All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by the relevant firm of accountants and disclosed therein).
The most recent balance sheets referred to above reflect, as required by GAAP,
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, and any long-term leases and unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, in each
case as of the date of such balance sheets. During the period from the date of
the most recent audited financial statements delivered pursuant to this
paragraph to and including the date hereof there has been no sale, transfer or
other disposition by any of the Multi-Station Sellers or the WTOV-TV Sellers of
any material part of its business or Property (other than in connection with
the Acquisitions).
(c) The most recent financial statements for the
Multi-Station Sellers and the WTOV-TV Sellers delivered pursuant to subsection
4.1(b) (which shall be for a period ended not more than 60 days prior to the
Closing Date) shall indicate on a pro forma basis (after giving effect to the
Acquisitions) that as of the Closing Date, the ratio of Consolidated Total Debt
to Consolidated EBITDA is no greater than 6.40 to 1.00.
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4.2 No Change. Since the date of the most recent audited
financial statements delivered pursuant to subsection 4.1(b), there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries and Holdings (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that the
failure to so qualify could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect and (d) is in compliance with all Requirements
of Law except to the extent that the failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow and obtain other extensions of credit
hereunder. Each Loan Party has taken all necessary corporate action to
authorize the execution, delivery and performance of the Loan Documents to
which it is a party and, in the case of the Borrower, to authorize the
borrowings and other extensions of credit on the terms and conditions of this
Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the Acquisitions and the borrowings and other extensions of
credit hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the other Loan Documents, except (i)
consents, authorizations, filings and notices described in Schedule 4.4, which
consents, authorizations, filings and notices have been obtained or made and
are in full force and effect, (ii) consents under immaterial Contractual
Obligations relating to limitations on the assignability thereof and (iii) the
filings referred to in subsection 4.19(b). Each Loan Document has been duly
executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any material Contractual Obligation of any of the
Loan Parties and will not result in, or require,
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the creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such material Contractual
Obligation (other than the Liens created by the Security Documents). No
Requirement of Law or Contractual Obligation applicable to the any of the Loan
Parties could reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. Except as set forth in Schedule
4.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against any of the Loan Parties or against any of their
respective properties or revenues (a) with respect to any of the Loan Documents
or any of the transactions contemplated hereby or thereby, or (b) which could
reasonably be expected to have a Material Adverse Effect.
4.7 No Default. None of the Loan Parties is in default under
or with respect to any of its Contractual Obligations in any respect which
could reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Loan Parties
has title in fee simple to, or a valid leasehold interest in, all its real
property, and good title to, or a valid leasehold interest in, all its other
property, and none of such property is subject to any Lien except as permitted
by subsection 7.3.
4.9 Intellectual Property. Each of the Borrower and each of
its Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
service marks, copyrights, technology, know-how and processes ("Intellectual
Property") necessary for the conduct of its business as currently conducted.
Except as, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect and to the knowledge of the Borrower and each of its
Subsidiaries (a) no claim has been asserted and is pending by any Person
challenging or questioning the use of any Intellectual Property or the validity
of any Intellectual Property (nor does the Borrower know of any valid basis for
any such claim) and (b) the use of Intellectual Property by the Borrower and
its Subsidiaries does not infringe on the rights of, and no Intellectual
Property of the Borrower or any of its Subsidiaries is being infringed upon by,
any Person.
4.10 Taxes. Each of the Loan Parties has filed or caused to
be filed all Federal and all material state and other material tax returns
which are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than (i) any taxes, fees or other
charges the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the applicable Loan
Party, and (ii) taxes, assessments, fees or other charges
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imposed by an Governmental Authority, other than income taxes imposed by the
United States of America, with respect to which the failure to make payments
could not, by reason of the amount thereof or of remedies available to such
Governmental Authorities, reasonably be expected to have a Material Adverse
Effect); and no tax Lien has been filed, and, to the knowledge of the Borrower,
no material claim is being asserted, with respect to any such tax, fee or other
charge.
4.11 Federal Regulations. No Letters of Credit and no part
of the proceeds of any Loans will be used for "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the quoted terms under
Regulation G or Regulation U of the Board as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form G-3 or FR Form U-1 referred to in said Regulation G or Regulation U, as
the case may be.
4.12 Labor Matters. Except as set forth on Schedule 4.12,
there are no strikes or other labor disputes against the Borrower or any of its
Subsidiaries pending or, to the knowledge of the Borrower, threatened that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. Hours worked by and payment made to employees of the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters that (individually or in the aggregate) could reasonably be expected to
have a Material Adverse Effect. To the knowledge of Borrower and its
Subsidiaries, all payments due from the Borrower or any of its Subsidiaries on
account of employee health and welfare insurance that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect if
not paid have been paid or accrued as a liability on the books of the Borrower
or the relevant Subsidiary.
4.13 ERISA. Except where the liability, individually or in
the aggregate, which could reasonably be expected to result has not had or
could not reasonably be expected to have a Material Adverse Effect: (i) neither
a Reportable Event nor an "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (ii) each Plan (other
than a Multiemployer Plan) has complied in all material respects with the
applicable provisions of ERISA and the Code; (iii) no termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Single
Employer Plan has arisen and remains outstanding, during such five-year period;
(iv) the present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits; (v) none of the Loan Parties nor any Commonly Controlled
Entity has had a complete or partial withdrawal
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from any Multiemployer Plan, and, to the best knowledge of the Loan Parties,
none of the Loan Parties nor any Commonly Controlled Entity would become
subject to any liability under ERISA if the Loan Parties or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as
of the valuation date most closely preceding the date on which this
representation is made or deemed made; (vi) no such Multiemployer Plan is in
Reorganization or Insolvent; (vii) the present value (determined using
actuarial and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the liability of the Borrower and
each Commonly Controlled Entity for post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit plans
(as defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the
assets under all such Plans allocable to such benefits.
4.14 Investment Company Act; Other Regulations. No Loan
Party is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the date hereof. Holdings
has no Subsidiaries other than the Borrower.
4.16 Use of Proceeds. The proceeds of the Term Loans shall
be used to finance a portion of the Acquisitions and to pay related fees and
expenses. The proceeds of the Revolving Credit Loans and the Letters of Credit
shall be used to finance (a) a portion of the Acquisitions, (b) related fees
and expenses of the Acquisitions, (c) general corporate purposes in the
ordinary course of business and (d) Permitted Acquisitions (including deposits
made in connection with Permitted Acquisitions).
4.17 Environmental Matters. Except as set forth on Schedule
4.17:
(a) The facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under such conditions which (i) constitute or
constituted a violation of, or could reasonably be expected to give rise to
liability under, any Environmental Law in effect at the time of the making of
this representation, or (ii) could materially and adversely interfere with the
continued operation of the Properties, or (iii) materially impair the fair
saleable value thereof except in each case insofar as such violation,
liability, interference, or reduction in fair market value, or any aggregation
thereof, is not reasonably likely to result in a Material Adverse Effect.
(b) The business operated by the Borrower or any of its
Subsidiaries (the "Business"), Properties and all operations at the Properties
are, and to the knowledge of
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Holdings and the Borrower have been, in compliance in all material respects
with all applicable Environmental Laws except for noncompliance which is not
reasonably likely to result in a Material Adverse Effect.
(c) Neither Holdings nor any of its Subsidiaries has received
any written notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does Holdings or the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened except insofar as such notice or
threatened notice, or any aggregation thereof, does not involve a matter or
matters that is or are reasonably likely to result in a Material Adverse
Effect.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to give rise to liability
under, any Environmental Law in effect at the time of the making of this
representation, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law in effect at the time of the
making of this representation except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, is not reasonably
likely to result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of Holdings or the Borrower, threatened,
under any Environmental Law to which Holdings or any of its Subsidiaries is or
will be named as a party with respect to the Properties or the Business, nor
are there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or the
Business except insofar as such proceeding, action, decree, order or other
requirement, or any aggregation thereof, is not reasonably likely to result in
a Material Adverse Effect.
(f) There has been no release or, to the best knowledge of
Holdings or the Borrower, threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the operations
of Holdings or any of its Subsidiaries in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or in
a manner that could reasonably give rise to liability under Environmental Laws
in effect at the time of making this representation except insofar as any such
violation or liability referred to in this paragraph, or any aggregation
thereof, is not reasonably likely to result in a Material Adverse Effect.
4.18 Accuracy of Information, etc. No statement or
information contained in this Agreement, any other Loan Document or any other
document, certificate or statement furnished to the Administrative Agent or the
Lenders, or any of them, by or on behalf of any
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Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents (but excluding all projections and pro
forma financial information and other estimates covered by the next sentence),
contained as of the date such statement, information, document or certificate
was so furnished, any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. The projections and pro forma financial information
and other estimates and opinions contained in the materials referenced above
are based upon good faith estimates and assumptions believed by management of
the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not
to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount. As of the date hereof, the representations
and warranties of the Multi-Station Buyer, the WTOV-TV Buyer and, to the best
knowledge of the Borrower, the Multi-Station Sellers and the WTOV-TV Sellers in
the Acquisition Agreements are true and correct in all material respects. As
of the Closing Date, there is no fact known to any Loan Party (other than
general economic conditions, which conditions are commonly known and affect
businesses generally) that could reasonably be expected to have a Material
Adverse Effect that has not been expressly disclosed herein, in the other Loan
Documents or in any other documents, certificates and statements furnished to
the Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.
4.19 Security Documents. (a) Except as described in
subsection 10.16, the Guarantee and Collateral Agreement is effective to create
in favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable security interest in the collateral described therein and
proceeds thereof. In the case of the Pledged Stock described in the Guarantee
and Collateral Agreement, when stock certificates representing such Pledged
Stock are delivered to the Administrative Agent, and in the case of the other
collateral described in the Guarantee and Collateral Agreement, when financing
statements in appropriate form are filed in the offices specified on Schedule
4.19(a), the Guarantee and Collateral Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such collateral and the proceeds thereof, as security for
the Obligations (as defined in the Guarantee and Collateral Agreement), in each
case prior and superior in right to any other Person subject, except in the
case of such Pledged Stock, to Liens permitted by paragraphs (a) through (f) of
subsection 7.3.
(b) Each of the Mortgages is effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
4.19(b), each Mortgage shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the Mortgaged
Properties and the proceeds thereof, as security for the Obligations (as
defined in the relevant
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Mortgage), in each case prior and superior in right to any other Person,
subject to Liens permitted by paragraphs (a) through (f) of subsection 7.3.
4.20 Solvency. Each Loan Party is, and after giving effect
to the Acquisitions and the incurrence of all Indebtedness and obligations
being incurred in connection herewith and therewith will be, Solvent.
4.21 Senior Indebtedness. The Obligations will constitute
"Senior Indebtedness" of the Borrower under and as defined in the Senior
Subordinated Note Indenture. The obligations of each Subsidiary Guarantor and
Holdings under the Guarantee and Collateral Agreement will constitute
"Guarantor Senior Indebtedness" of such Subsidiary Guarantor or Holdings under
and as defined in the Senior Subordinated Note Indenture (it being understood
that this representation will be deemed repeated at the time of the issuance of
the Senior Subordinated Notes).
4.22 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood
Insurance Act of 1968.
4.23 Station Licenses. Schedule 4.23 accurately and
completely lists as of the date hereof (after giving effect to the
Acquisitions), for each Station, all Station Licenses granted or assigned to
the Borrower or any of its Subsidiaries (or, in the case of the Steubenville
Station, to the WTOV-TV Buyer or any of its Subsidiaries), or under which the
Borrower and its Subsidiaries (or the WTOV-TV Buyer or any of its Subsidiaries)
have the right to operate such Station. The Station Licenses listed on
Schedule 4.23 with respect to any Station include all material authorizations,
licenses and permits issued by the FCC that are required or necessary for the
operation of such Station, and the conduct of the business of the Borrower and
its Subsidiaries (or the WTOV-TV Buyer and its Subsidiaries) with respect to
such Station, as now conducted or proposed to be conducted. The Station
Licenses listed on Schedule 4.23 will be, as of the Closing Date, issued in the
name of, or validly assigned to the respective License Subsidiary for the
Station being operated under authority of such Licenses and validly issued and
in full force and effect, and the Borrower and its Subsidiaries (or the WTOV-TV
Buyer and its Subsidiaries) will have fulfilled and performed in all material
respects of their obligations with respect thereto and have full power and
authority to operate thereunder, and, except as described in Schedule 4.23
hereto, all consents of the FCC to the transfer of the principal broadcasting
licenses and any other material Station Licenses in connection with the
transactions contemplated hereby will have been approved by orders of the FCC
that shall have become final (i.e. no longer subject to further judicial or
administrative review).
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SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date, of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, (ii) the Guarantee and Collateral
Agreement, executed and delivered by a duly authorized officer of
Holdings, the Borrower and each Subsidiary Guarantor, (iii) each of
the Preferred Pledge Agreement and the SAC Pledge Agreement, executed
and delivered by a duly authorized officer of the parties thereto,
(iv) each of the Mortgages, executed and delivered by a duly
authorized officer of each party thereto, and (v) for the account of
each relevant Lender, Notes conforming to the requirements hereof and
executed and delivered by a duly authorized officer of the Borrower.
(b) Acquisitions, Equity Issuances. The following
transactions shall have been consummated, in each case on terms and
conditions reasonably satisfactory to the Lenders:
(i) (x) the Borrower shall have acquired (the
"Multi-Station Acquisition") all of the assets of the
Multi-Station Sellers pursuant to the Multi-Station
Acquisition Agreement for an aggregate purchase price of not
more than $128,500,000, plus or minus the Net Working Capital
Amount (as defined in the Multi-Station Acquisition Agreement)
and (y) the WTOV-TV Buyer shall have acquired (the "WTOV-TV
Acquisition") all of the assets of the WTOV-TV Sellers
pursuant to the WTOV-TV Acquisition Agreement for an aggregate
purchase price of not more than $28,500,000, plus or minus the
Net Working Capital Amount (as defined in the WTOV-TV
Acquisition Agreement), and none of the material terms and
conditions of the Acquisition Agreements shall have been
amended or waived without the consent of the Required Lenders;
and
(ii) (x) the Borrower shall have received (1) at
least $50,000,000 from the proceeds of the issuance of its
common equity to Holdings and (2) at least $30,000,000
liquidation preference of the Preferred Stock from certain
other investors satisfactory to the Administrative Agent; and
(y) Holdings shall have received at least $50,000,000 from the
proceeds of the issuance of its common equity to Sunrise
Television Partners, L.P., a Delaware limited partnership (the
"Partnership"), whose partners shall include the Fund and
other investors satisfactory to the Lenders (collectively,
with the Fund, the "Holdings Investors"), each on terms and
conditions satisfactory to the
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Administrative Agent, including, without limitation, in the
case of the Preferred Stock a restriction that any regularly
scheduled dividends on such Preferred Stock shall only be
payable in kind until at least August 31, 2002 and shall only
be payable so long as after giving pro forma effect thereto
(as certified to the Administrative Agent by a Responsible
Officer prior to the payment of any such dividends), no
Default or Event of Default shall have occurred and be
continuing (including, without limitation, pursuant to
subsection 7.1).
(c) Capital Contribution Agreement. The Partnership shall
have entered into a definitive equity contribution agreement
satisfactory to the Lenders (the "Capital Contribution Agreement")
with Holdings, the Borrower and the Administrative Agent which shall
provide, among other things, that the Partnership will, if the Senior
Subordinated Notes are not issued or the Term Loans have not been paid
in full on or prior to December 31, 1997, contribute equity to
Holdings, which, in turn, will agree to contribute equity to the
Borrower, within 45 days of December 31, 1997 in an aggregate amount
equal to the lesser of (i) the principal amount of the Loans the
prepayment of which would cause the ratio of Total Debt to
Consolidated EBITDA on a pro forma basis as of December 31, 1997 to be
no greater than 5.50 to 1.00 (subject to adjustment based on the
Borrower's audited financial statements for the year then ended) or
(ii) $15,000,000 (such lesser amount, the "Capital Contribution").
The Capital Contribution Agreement shall also provide that (i) in the
event of a bankruptcy, insolvency or similar condition of Holdings,
the Borrower or the Partnership, the Capital Contribution shall be
made by the Partnership through a purchase of a subordinated
participation in the Loans and (ii) the Fund shall, so long as the
Capital Contribution Agreement is in effect, reserve from the capital
contributions available to it from its partners an amount equal its
share of the maximum required Capital Contribution for use in funding
such share and the Fund will guarantee (in form and substance
satisfactory to the Administrative Agent) the Partnership's obligation
to make the Capital Contribution.
(d) Pro Forma Balance Sheet; Financial Statements. The
Lenders shall have received (i) the Pro Forma Balance Sheet, (ii)
audited combined and combining financial statements of the
Multi-Station Sellers and the WTOV-TV Sellers for the periods for
which audited financial statements are required pursuant to subsection
4.1(b) and (iii) unaudited interim combined and combining financial
statements of the Multi-Station Sellers and the WTOV-TV Sellers for
each fiscal month and quarterly period ended subsequent to the date of
the latest applicable financial statements delivered pursuant to
clause (ii) of this paragraph as to which such financial statements
are available, and such financial statements shall not, in the
reasonable judgment of the Lenders, reflect any material adverse
change in the consolidated financial condition of the Multi-Station
Sellers and the WTOV-TV Sellers, as reflected in the financial
statements or projections previously furnished to the Lenders.
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(e) Lien Searches. The Administrative Agent shall have
received the results of a recent lien search in each of the
jurisdictions where assets of the Loan Parties are located, and such
search shall reveal no liens on any of the assets of the Borrower or
its Subsidiaries except for liens permitted by subsection 7.3.
(f) Environmental Audit. The Lenders shall have received and
be reasonably satisfied with environmental audits prepared as of a
date reasonably satisfactory to the Administrative Agent with respect
to the real properties of the Borrower and its Subsidiaries.
(g) Expenses. The Administrative Agent shall have received
satisfactory evidence that the fees and expenses to be incurred in
connection with the Acquisitions and the financing thereof shall not
exceed $7,000,000.
(h) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each
Loan Party, dated the Closing Date, substantially in the form of
Exhibit C, with appropriate insertions and attachments.
(i) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of Weil, Gotshal & Xxxxxx
LLP, counsel to the Loan Parties and the Affiliate of Xxxxx
Muse party to the Preferred Pledge Agreement, substantially in
the form of Exhibit F;
(ii) the legal opinion of special FCC counsel to
the Loan Parties;
(iii) the legal opinion of Xxxxx and Xxxxxxx
L.L.P., counsel to SBP; and
(iv) within 15 days of the Closing Date, the
legal opinion of local counsel in each of the states in which
the properties covered by the Mortgages to be executed and
delivered by the Borrower or any of its Subsidiaries are
located and any other jurisdiction reasonably requested by the
Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative
Agent may reasonably require.
(j) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the
pledgor
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thereof and the Pledged Notes (as defined in the Guarantee and
Collateral Agreement) pledged pursuant to the Guarantee and Collateral
Agreement endorsed in blank by a duly authorized officer of the
pledgor thereof.
(k) Consents, Licenses and Approvals. (i) All governmental
and material third party approvals (including, without limitation, a
consent from the FCC, which consent shall have become final, and
landlords' and other consents) reasonably necessary or advisable in
connection with the execution, delivery and performance of the Loan
Documents and the Acquisitions and the financing thereof and the
continuing operation of the Stations shall have been obtained and be
in full force and effect, (ii) all applicable waiting periods shall
have expired without any action being taken or threatened by any
competent Governmental Authority which would restrain, prevent or
otherwise impose adverse conditions on Holdings, the Borrower or any
of their Subsidiaries and (iii) the Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of a
Responsible Officer of the Borrower (A) attaching copies of all
consents, authorizations and filings in connection with the Loan
Documents and the Acquisitions and the financing thereof and (B)
stating that such consents, licenses and filings are in full force and
effect, and each such consent, authorization and filing shall be in
form and substance satisfactory to the Administrative Agent.
(l) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing
statement and any filings with the FCC or the United States Patent and
Trademark Office) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Lenders, a perfected Lien
on the collateral described therein, prior and superior in right to
any other Person (other than with respect to Liens expressly permitted
by subsection 7.3), shall be in proper form for filing, registration
or recordation.
(m) Mortgages, etc. (i) The Administrative Agent shall have
received a Mortgage with respect to each Mortgaged Property, executed
and delivered by a duly authorized officer of each party thereto.
(ii) Within 15 days of the Closing Date, if reasonably
requested by the Administrative Agent, the Administrative Agent shall
have received, and the title insurance company issuing the policy
referred to in subsection 5.1(m)(iii) (the "Title Insurance Company")
shall have received, maps or plats of an as-built survey of the sites
of the Mortgaged Properties certified to the Administrative Agent and
the Title Insurance Company in a manner satisfactory to them, dated a
recent date by an independent professional licensed land surveyor
reasonably satisfactory to the Administrative Agent and the Title
Insurance Company, which maps or plats and the
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surveys on which they are based shall be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1992, and, without
limiting the generality of the foregoing, there shall be surveyed and
shown on such maps, plats or surveys the following: (A) the locations
on such sites of all the buildings, structures and other improvements
and the established building setback lines; (B) the lines of streets
abutting the sites and width thereof; (C) all access and other
easements appurtenant to the sites; (D) all roadways, paths,
driveways, easements, encroachments and overhanging projections and
similar encumbrances affecting the site, whether recorded, apparent
from a physical inspection of the sites or otherwise known to the
surveyor; (E) any encroachments on any adjoining property by the
building structures and improvements on the sites; (F) if the site is
described as being on a filed map, a legend relating the survey to
said map; and (G) the flood zone designations, if any, in which the
Mortgaged Properties are located.
(iii) The Administrative Agent shall have received in respect
of each Mortgaged Property a mortgagee's title insurance policy (or
policies) or marked up unconditional binder for such insurance. Each
such policy shall (A) be in an amount reasonably satisfactory to the
Administrative Agent with respect to each Mortgage Property covered
thereby; (B) be issued at ordinary rates; (C) insure that the Mortgage
insured thereby creates a valid first Lien on such Mortgaged Property
free and clear of all defects and encumbrances, except as disclosed
therein; (D) name the Administrative Agent for the benefit of the
Lenders as the insured thereunder; (E) be in the form of ALTA Loan
Policy - 1992 (or equivalent policies) to the extent available in the
applicable jurisdictions; (F) contain such endorsements and
affirmative coverage as the Administrative Agent may reasonably
request to the extent available in the applicable jurisdictions; and
(G) be issued by title companies satisfactory to the Administrative
Agent (including any such title companies acting as co-insurers or
reinsurers, at the option of the Administrative Agent). The
Administrative Agent shall have received evidence satisfactory to it
that all premiums in respect of each such policy, all charges for
mortgage recording tax, and all related expenses, if any, have been
paid.
(iv) If any Mortgage encumbers improved real property which
is located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards
and in which flood insurance has been made available under the
National Flood Insurance Act of 1968, and if reasonably requested by
the Administrative Agent, the Administrative Agent shall have received
(A) a policy of flood insurance which (1) covers any parcel of
improved real property which is encumbered by any Mortgage, (2) is
written in an amount not less than the outstanding principal amount of
the indebtedness secured by such Mortgage which is reasonably
allocable to such real property or the maximum limit of coverage made
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available with respect to the particular type of property under the
National Flood Insurance Act of 1968, whichever is less, and (3) has a
term ending not later than the maturity of the Indebtedness secured by
such Mortgage and (B) confirmation that the Borrower has received the
notice required pursuant to Section 208(e)(3) of Regulation H of the
Board.
(v) The Administrative Agent shall have received a copy of
all recorded documents referred to, or listed as exceptions to title,
in the title policy or policies referred to in subsection 5.1(m)(iii)
and a copy of all other material documents affecting the Mortgaged
Properties.
(n) Solvency Opinion. The Administrative Agent shall have
received a solvency opinion from the chief financial officer of
Holdings in form and substance satisfactory to the Administrative
Agent.
(o) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of the Guarantee
and Collateral Agreement, the Mortgages and subsection 6.5(b) of this
Agreement.
(p) Capital Structure. The capital structure of each Loan
Party, after giving effect to the Acquisitions shall be reasonably
satisfactory to the Administrative Agent. Neither Holdings, the
Borrower or any of their subsidiaries shall have any outstanding
indebtedness or preferred equity other than as permitted pursuant to
subsection 7.2 and other than the Preferred Stock.
(q) Fees and Expenses of Lenders. The Administrative Agent
and the Lenders (and their Affiliates) shall have received all fees
and expenses required to be paid by the Borrower on or before the
Closing Date, or provision for payment with proceeds of the initial
extensions of credit hereunder shall have been made by the Borrower.
(r) Tax Matters. The Administrative Agent shall have
received a certificate of the chief financial officer of the Borrower
to the effect that as of the Closing Date (after giving effect to the
Acquisitions) the Borrower and its Subsidiaries shall have tax
depreciable or amortizable assets for federal income tax purposes of
at least the sum of $141,000,000 plus the fees and expenses in
connection with the Acquisitions and the financing thereof (including
for this purpose each of the Stations on the date hereof).
(s) Station Licenses, etc.. The Administrative Agent shall
have received evidence that all of the principal broadcasting licenses
appearing in Schedule 5.1(s) hereto for each of the Stations shall
have been validly issued in the name of, or will be validly assigned
to, the relevant License Subsidiary, and shall be in full force and
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effect, and the Borrower and its Subsidiaries will have fulfilled and
performed in all material respects their obligations with respect
thereto and have full power and authority to operate thereunder, and
all consents to such assignments will have been approved by orders of
the FCC that shall have become final (i.e. no longer subject to
further judicial or administrative review).
(t) Network Affiliations. The Administrative Agent shall
have received evidence that the respective network affiliation
agreements of the Stations for the carriage of programming over the
facilities of such Stations to be operated by the Borrower and its
Subsidiaries (and, with respect to the Steubenville Station, SBP)
shall each be in full force and effect and that each such agreement
shall be for a term reasonably satisfactory to the Administrative
Agent and that the aggregate annual compensation to be paid to the
Borrower (and, with respect to the Steubenville Station, SBP) for all
such Stations under such agreements shall be not less than $2,500,000.
Each such network affiliation agreement and each other material
programming contract for each Station and the principal lease
contracts for each Station shall be in form and substance satisfactory
to the Administrative Agent and true and complete copies of each shall
have been provided to the Administrative Agent, with copies for each
of the Lenders. The Administrative Agent shall have received a
certificate of a Responsible Officer to the effect that, to the best
knowledge of such Responsible Officer, (i) there is no fact known to
such Responsible Officer that would prevent each such network
affiliation agreement from remaining in full force and effect through
its current term and (ii) there is no reason to believe that each such
network affiliation agreement as then in effect will not be renewed
upon termination thereof in accordance with its terms.
(u) Management Agreements. The Administrative Agent shall
have received and be reasonably satisfied with (i) the employment
agreements of senior management of Holdings with respect to the
management of the Stations and (ii) the management agreement with
Xxxxx Muse or its Affiliate.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant
to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date
except for any representation and warranty which is expressly made as
of an earlier date, which representation and warranty shall have been
true and correct in all material respects as of such earlier date.
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(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Revolving Credit Facility. In the case of any extension
of credit under the Revolving Credit Facility, after giving effect
thereto, the sum of the Total Revolving Extensions of Credit shall not
exceed $35,000,000.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall and shall cause Holdings and (except in the case of delivery of
financial information reports and notices) each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative
Agent (with sufficient copies for each Lender, which shall in turn be promptly
distributed by the Administrative Agent to the Lenders):
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of Holdings, a copy of the audited
consolidated and unaudited consolidating (or, if prior to the merger
contemplated by subsection 6.11, audited combined and unaudited
combining on a Station by Station basis) balance sheet of Holdings and
its consolidated Subsidiaries as at the end of such year and the
related audited consolidated and unaudited consolidating (or audited
combined and unaudited combining) statements of operations and of cash
flows for such year, setting forth in each case in comparative form
the figures for the previous year (for the 1997 fiscal year, such
previous year's figures shall be on a pro forma combined and combining
Station by Station basis), reported on without a "going concern" or
like qualification or exception, or qualification arising out of the
scope of the audit, by independent certified public accountants of
nationally recognized standing;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of
each fiscal year of Holdings, the unaudited consolidated and
consolidating (or, if prior to the merger contemplated by subsection
6.11, combined and combining on a Station by Station basis) balance
sheet of Holdings and its consolidated Subsidiaries as at the end of
such quarter and the
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related unaudited consolidated and consolidating (or combined and
combining) statements of income and of cash flows for such quarter and
the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the
corresponding period in the previous year (for the first twelve months
from the Closing Date, such previous year's figures shall be on a pro
forma combined and combining Station by Station basis), certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments); and
(c) as soon as available, but in any event not later than 30
days after the end of each month occurring during each fiscal year of
Holdings, the unaudited consolidated and consolidating (or, if prior
to the merger contemplated by subsection 6.11, combined and combining
on a Station by Station basis) balance sheet of Holdings and its
consolidated Subsidiaries as at the end of such month and the related
unaudited consolidated and consolidating (or combined and combining)
statements of income and of cash flows for such month and the portion
of the fiscal year through the end of such month, setting forth in
each case in comparative form the figures for the corresponding period
in the previous year (for the first twelve months from the Closing
Date, such previous year's figures shall be on a pro forma combined
and combining Station by Station basis), certified by a Responsible
Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments).
All such financial statements shall fairly present in all material respects the
financial position of Holdings and its Subsidiaries as of such date and shall
be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein). Prior to the WTOV-TV merger contemplated by subsection
6.11, the Borrower shall be required to deliver with respect to the
Steubenville Station the financial statements required by this subsection 6.1.
6.2 Certificates; Other Information. Furnish to the
Administrative Agent (with sufficient copies for each Lender, which shall in
turn be promptly distributed by the Administrative Agent to the Lenders) or, in
the case of clause (h), to the relevant Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 6.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default relating
to the covenants contained in subsection 7.1, except as specified in
such certificate;
(b) concurrently with the delivery of any financial
statements pursuant to subsection 6.1, (i) a certificate of a
Responsible Officer stating that, to the best of such Responsible
Officer's knowledge, each Loan Party during such period has
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observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other
Loan Documents to which it is a party to be observed, performed or
satisfied by it in all material respects, and that such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate, (ii) in the case of quarterly
or annual financial statements, (x) a Compliance Certificate
containing all information necessary for determining compliance by
Holdings and its Subsidiaries with the provisions of this Agreement
referred to therein as of the last day of the relevant fiscal quarter
or fiscal year and (y) to the extent not previously disclosed to the
Administrative Agent, a listing of any state or province within the
United States where any Loan Party keeps inventory or equipment and of
any Intellectual Property arising under the laws of the United States
(or any jurisdiction therein) acquired by any Loan Party since the
date of the most recent list delivered pursuant to this clause (y)
(or, in the case of the first such list so delivered, since the
Closing Date) and (iii) any accountants' management letters delivered
by the independent certified public accountants reporting on such
financial statements to Holdings or any of its Subsidiaries;
(c) as soon as available, and in any event no later than 45
days after the end of each fiscal year of Holdings, a detailed
consolidated and consolidating budget for the following fiscal year
(including a projected consolidated and consolidating balance sheet of
Holdings and its Subsidiaries as of the end of the following fiscal
year, and the related consolidated statements of projected cash flow,
projected changes in financial position and projected income), and, as
soon as available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the
"Projections"), which Projections shall in each case be accompanied by
a certificate of a Responsible Officer stating that such Projections
are based upon good faith estimates and assumptions believed by
management of Holdings to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it
relates to future events is not to be viewed as fact and that actual
results during the period or periods covered by such financial
information may differ from the projected results set forth therein by
a material amount;
(d) unless the same is included in reports being provided
under paragraph (e) of this subsection 6.2, within 45 days after the
end of each fiscal quarter of Holdings, a narrative discussion and
analysis of the financial condition and results of operations of
Holdings and its Subsidiaries for such fiscal quarter and for the
period from the beginning of the then current fiscal year to the end
of such fiscal quarter, as compared to the portion of the Projections
covering such periods and to the comparable periods of the previous
year;
(e) within five days after the same are sent, copies of all
financial statements and reports which Holdings or the Borrower sends
to the holders of any class of its debt securities or public equity
securities and within five days after the same are filed,
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copies of all financial statements and reports which Holdings or the
Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(f) as soon as available, and in any event no later than 45
days after the end of each fiscal quarter of Holdings, a schedule
setting forth, for each Station on a program-by-program basis, the
respective Film Cash Payments for each fiscal year commencing with the
beginning of the then current fiscal year through and including the
fiscal year ending December 31, 2004;
(g) promptly upon their becoming available, copies of any and
all periodic or special reports filed by Holdings or any of its
Subsidiaries or, if prior to the merger contemplated by subsection
6.11, SBP, with the FCC or with any other Federal, state or local
governmental authority, if such reports indicate any material adverse
change in the business, operations or financial condition of Holdings
or any of its Subsidiaries or either of the WTOV-TV Sellers or if
copies thereof are requested by any Lender or the Administrative
Agent, and copies of any and all material notices and other material
communications from the FCC or from any other Federal, state or local
Governmental Authority with respect to Holdings or any of its
Subsidiaries or either of the WTOV-TV Sellers or any Station; and
(h) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be,
provided that, notwithstanding the foregoing, the Borrower and each of its
Subsidiaries shall have the right to pay any such obligation and in good faith
contest, by proper legal actions or proceedings, the validity or amount of such
claims.
6.4 Conduct of Business and Maintenance of Existence, etc.
(a) (i) Continue to engage in business of the same general type as now
conducted by it, (ii) preserve, renew and keep in full force and effect its
corporate existence and (iii) take all reasonable action to maintain all
rights, privileges, licenses and franchises necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise permitted by
subsection 7.4 and except, in the case of clause (iii) above, to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect and except if (a) in the reasonable business judgment of the
Borrower or such Subsidiary, as the case may be, it is in its best economic
interest not to preserve and maintain such rights or franchises (other than the
Station Licenses), and (b) such failure to preserve and maintain such
privileges, rights or
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franchises (other than the Station Licenses) would not materially adversely
affect the rights of the Lenders hereunder or the value of the collateral
security for the Loans, and as otherwise permitted pursuant to subsection 7.4;
and (b) comply with all Contractual Obligations and Requirements of Law except
to the extent that failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or a
similar business.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities and
(b) upon reasonable prior notice and at any reasonable time, permit
representatives of the Administrative Agent or any Lender to visit and inspect
any of its properties and examine and, if reasonably requested, make copies of
its contracts, books and records and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants, provided that the
Administrative Agent or such Lender shall notify the Borrower prior to any
contact with such accountants and give the Borrower the opportunity to
participate in such discussions.
6.7 Notices. Promptly give notice to the Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority and which has a reasonable likelihood of being adversely
determined, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $1,000,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought;
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(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to
any Plan (other than a MultiEmployer Plan), a failure to make any
required contribution to a Plan, the creation of any Lien in favor of
the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary
proposes to take with respect thereto.
6.8 Environmental Laws. (a) Except as could not reasonably
be expected to have a Material Adverse Effect, comply with, and use reasonable
best efforts to ensure compliance by all tenants and subtenants, if any, with,
all applicable Environmental Laws, and obtain and comply with and maintain, and
use reasonable best efforts to ensure that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required
under Environmental Laws and in a timely fashion comply in all material
respects with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws, except to the extent that the same are being
contested in good faith by appropriate proceedings and the pendency of such
proceedings could not be reasonably expected to have a Material Adverse Effect.
6.9 Interest Rate Protection. In the case of the Borrower,
within 60 days after the Closing Date, enter into Interest Rate Protection
Agreements to the extent necessary to provide that at least 60% of the
aggregate principal amount of Indebtedness of the Borrower and its Subsidiaries
outstanding on the date of entering into such Interest Rate Protection
Agreements, if necessary is subject to either a fixed interest rate or interest
rate protection for a period of not less than two years (provided, that in the
event that the term thereof shall be less than two years, such Interest Rate
Protection Agreements shall be extended or replaced no later than the
expiration of such term, with the term of such extended or replacement Interest
Rate Protection Agreements ending no earlier than the second anniversary of the
date on which the original Interest Rate Protection Agreements were entered
into), which Interest Rate Protection Agreements shall in each case have terms
and conditions reasonably satisfactory to the Administrative Agent. Borrower
shall use its best
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efforts to maintain in full force and effect Interest Rate Protection
Agreements reasonably satisfactory to the Administrative Agent in order to
ensure compliance with the terms of this subsection 6.9 and shall not default
(beyond any applicable grace period) in the performance of any of its material
obligations thereunder.
6.10 Additional Collateral, etc. (a) If at any time
following the Closing Date the aggregate monetary value (as determined by
aggregating the monetary value of each item or items of property so acquired on
the date of the acquisition thereof) of all property (to the extent not already
secured) of any nature whatsoever acquired by the Borrower or any Subsidiary
after the Closing Date is in excess of $250,000 (other than (x) any Property
described in paragraph (b), (c) or (d) below and (y) any Property subject to a
Lien expressly permitted by subsection 7.3(g)) as to which the Administrative
Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
such Property and (ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in such Property, including without limitation, the
filing of Uniform Commercial Code financing statements and filings with the
United States Patent and Trademark Office in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
reasonably requested by the Administrative Agent.
(b) With respect to any fee interest in any real estate
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than any such real estate subject to a Lien expressly permitted by
subsection 7.3(g)), promptly (i) execute and deliver a first priority mortgage
or deed of trust (subject only to Liens permitted by subsection 7.3) in favor
of the Administrative Agent, for the benefit of the Lenders, covering such real
estate, in form and substance reasonably satisfactory to the Administrative
Agent, (ii) if reasonably requested by the Administrative Agent, provide the
Lenders with (x) title and extended coverage insurance covering such real
estate in an amount at least equal to the purchase price of such real estate
(or such other amount as shall be reasonably specified by the Administrative
Agent) as well as a current ALTA survey thereof, together with a surveyor's
certificate and (y) any consents or estoppels reasonably deemed necessary or
advisable by the Administrative Agent in connection with such mortgage or deed
of trust, each of the foregoing in form and substance reasonably satisfactory
to the Administrative Agent and (iii) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(c) With respect to any new Subsidiary created or acquired
after the Closing Date by the Borrower or any of its Subsidiaries, promptly (i)
execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement as the
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Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Subsidiary which is
owned by the Borrower or any of its Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the Borrower or such Subsidiary, as the case may be,
(iii) cause such new Subsidiary (A) to become a party to the Guarantee and
Collateral Agreement and (B) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
first priority security interest in the collateral described in the Guarantee
and Collateral Agreement with respect to such new Subsidiary, including,
without limitation, the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be reasonably requested by the Administrative
Agent, and (iv) if reasonably requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
6.11 WTOV-TV Merger. (a) (i) As soon as practicable after
the Closing Date, take all actions to obtain FCC approval for the merger of the
operations, assets and licenses of the Steubenville Station into the Borrower
and (ii) as soon as practicable after obtaining such FCC approval, consummate
such merger, so that immediately thereafter, the Steubenville Station (and each
of its Subsidiaries, including, without limitation, its License Subsidiary)
becomes wholly-owned and controlled by the Borrower and (b) simultaneously with
the consummation of such merger, take all actions necessary for the redemption
or retirement of the SBP Stock.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall not, and shall not permit Holdings or (except with respect to
subsection 7.1) any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. (i) At any time prior to
the issuance of the Senior Subordinated Notes, permit the Consolidated Leverage
Ratio at any time during any Test Period ending during any period set forth
below to exceed the ratio set forth below opposite such period:
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Period Consolidated Leverage Ratio
------ ---------------------------
Closing Date-12/30/97 6.50 to 1.0
12/31/97-12/30/98 5.50 to 1.0*
12/31/98-12/30/99 5.00 to 1.0
12/31/99-12/30/00 4.50 to 1.0
12/31/00 and thereafter 4.00 to 1.0
* The ratio during this period will be calculated on a pro
forma basis after giving effect to the Capital Contribution,
if any.
and (ii) after the issuance of the Senior Subordinated Notes, permit the
Consolidated Leverage Ratio at any time during any Test Period ending during
any period set forth below to exceed the ratio set forth below opposite such
period:
Fiscal Quarter Ending Consolidated Leverage Ratio
--------------------- ---------------------------
Closing Date-6/29/98 7.00 to 1.0
6/30/98-12/30/98 6.75 to 1.0
12/31/98-12/30/00 5.75 to 1.0
12/31/00-12/30/02 4.75 to 1.0
12/31/02 and thereafter 4.25 to 1.0
(b) Consolidated Interest Coverage Ratio. (i) At any time
prior to the issuance of the Senior Subordinated Notes, permit the Consolidated
Interest Coverage Ratio at any time during any Test Period ending during any
period set forth below to exceed the ratio set forth below opposite such
period:
Period Consolidated Interest Coverage Ratio
------ ------------------------------------
Closing Date-12/30/97 1.60 to 1.0
12/31/97-12/30/98 1.75 to 1.0*
12/31/98-12/30/99 2.25 to 1.0
12/31/99-12/30/00 2.50 to 1.0
12/31/00 and thereafter 3.00 to 1.0
* The ratio during this period will be calculated on a pro
forma basis after giving effect to the Capital Contribution,
if any.
and (ii) after the issuance of the Senior Subordinated Notes, permit the
Consolidated Interest Coverage Ratio at any time during any Test Period ending
during any period set forth below to exceed the ratio set forth below opposite
such period:
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Fiscal Quarter Ending Consolidated Interest Coverage Ratio
--------------------- ------------------------------------
Closing Date-12/30/98 1.25 to 1.0
12/31/98-12/30/00 1.50 to 1.0
12/31/00-12/30/02 1.90 to 1.0
12/31/02 and thereafter 2.20 to 1.0
(c) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio at any time during any Test Period to
be less than 1.05 to 1.00.
(d) Corporate Overhead. Permit Corporate Overhead for any
fiscal year to exceed 10% of Broadcast Cash Flow for such fiscal year.
(e) Film Cash Payments. (i) Incur any Film Obligations
unless on the date of the proposed incurrence of any Film Obligation, and after
giving effect thereto, Film Cash Payments shall not exceed in the aggregate for
the then current or any subsequent fiscal year set forth below, the amount set
forth opposite such fiscal year:
Year Amount
---- ------
1997 $4,250,000
1998 $4,500,000
1999 $5,000,000
2000 $5,000,000
2001 $5,000,000
2002 $5,000,000
2003 $5,000,000
2004 $5,000,000
or (ii) modify or supplement any agreement or other instrument evidencing or
relating to any Film Obligation, the effect of which is to advance or defer all
or any portion of the payments to be made by the Borrower or any Subsidiary
thereunder, as the case may be, unless, after giving effect thereto, the
Borrower or any of its Subsidiaries would be permitted to incur at least $1.00
of additional Film Obligations without resulting in a breach of this subsection
7.1(e).
It is understood that for purposes of the covenants contained in this
subsection 7.1, that for any period prior to the merger contemplated by
subsection 6.11, to the extent not already included therein all items in this
subsection 7.1 shall be deemed to include the amounts with respect to such
items attributable to the Steubenville Station.
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist (in each case, to "Incur") any Indebtedness, except:
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(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Wholly Owned Subsidiary Guarantor to the Borrower or any other
Subsidiary;
(c) purchase money Indebtedness and Indebtedness secured by
Liens permitted by subsection 7.3(g), provided, that the aggregate
amount of Indebtedness incurred pursuant to this subsection 7.2(c)
shall not exceed $500,000 at any one time outstanding;
(d) Capital Lease Obligations, provided, that the aggregate
principal amount of Capital Lease Obligations incurred pursuant to
this subsection 7.2(d) in any fiscal year of the Borrower, when added
to the aggregate amount of other Capital Expenditures made during such
fiscal year pursuant to subsection 7.7(a), shall not exceed the amount
permitted to be expended during such fiscal year pursuant to
subsection 7.7(a);
(e) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(e) and any refinancings, refundings, renewals or
extensions thereof (without any increase in the principal amount
thereof);
(f) guarantees made in the ordinary course of business by the
Borrower or any of its Subsidiaries of obligations of any Wholly Owned
Subsidiary Guarantor;
(g) (i) Indebtedness of the Borrower in respect of the Senior
Subordinated Notes in an aggregate principal amount not to exceed
$85,000,000 and (ii) Guarantee Obligations of any Subsidiary Guarantor
in respect of such Indebtedness;
(h) Film Debt;
(i) additional Indebtedness of the Borrower (which may be
guaranteed by the Subsidiaries of the Borrower) secured by Liens
permitted under subsection 7.3(l) owing to one or more of the Lenders
up to but not exceeding $10,000,000 in the aggregate at any one time
outstanding which Indebtedness shall be extended under and be governed
by the terms and conditions of this Agreement (subject to an agreement
between the Borrower and such Lender governing solely the procedures
for the initial borrowing thereof and whether such Indebtedness will
be in the form of Term Loans or Revolving Credit Loans) and shall be
treated for all purposes hereunder as Loans;
(j) Indebtedness in respect of any Interest Rate Protection
Agreements permitted hereunder;
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(k) Indebtedness of the Borrower or any of its Subsidiaries
(i) to the seller on an unsecured basis representing the purchase
price in a Permitted Acquisition or (ii) assumed in connection with
any Permitted Acquisition, in an aggregate amount for all Permitted
Acquisitions not to exceed, in the case of clause (i), $2,500,000 and,
in the case of clause (ii), $500,000; and
(l) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and
all Subsidiaries) not to exceed $5,000,000 at any one time
outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', statutory landlord's, warehousemen's,
mechanics', materialmen's, repairmen's or other like Liens arising in
the ordinary course of business which are not overdue for a period of
more than 60 days or which are being contested in good faith by
appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, insurance contracts, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions, covenants, minor
exceptions to title and other similar encumbrances (i) incurred in the
ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower or any of
its Subsidiaries or (ii) which are set forth in the "marked up"
commitments for title insurance delivered to the Administrative Agent
on the Closing Date;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by subsection 7.2(e), provided
that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is
not increased;
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(g) (i) Liens securing Indebtedness of the Borrower or any of
its Subsidiaries incurred to finance the acquisition of fixed or
capital assets (provided that (x) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or
capital assets, (y) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (z)
the amount of Indebtedness secured thereby is not increased) and (ii)
Liens existing on any property or asset at the time of acquisition
thereof by the Borrower or any Subsidiary or existing on any property
or asset of any Person that becomes a Subsidiary after the date hereof
at the time such Person becomes a Subsidiary (provided that (x) such
Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be,
(y) such Lien shall not apply to any other property or assets of the
Borrower or any of its Subsidiaries and (z) such Lien shall secure
only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case
may be);
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered
into by the Borrower or any of its Subsidiaries in the ordinary course
of its business and covering only the assets so leased;
(j) any obligations or duties affecting any of the Property
of the Borrower or its Subsidiaries to any municipality or public
authority with respect to any franchise, grant, license or permit
which do not materially impair the use of such Property for the
purposes for which it is held;
(k) Liens imposed by operation of law with respect to any
judgments or orders not constituting an Event of Default;
(l) Liens on the assets subject to the Security Documents
securing Indebtedness permitted under subsection 7.2(i), which Liens
shall be pari passu with the Liens referred to in subsection 7.3(h);
(m) licenses, leases or subleases (other than with respect to
any Station Licenses) permitted hereunder granted to others not
interfering in any material respect in the business of the Borrower or
any of its Subsidiaries;
(n) attachment or judgment Liens (other than judgment Liens
paid or fully covered by insurance which are not outstanding for more
than 60 days) in an aggregate amount outstanding at any one time not
in excess of $1,000,000;
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(o) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases entered
into by the Borrower or any of its Subsidiaries in the ordinary course
of business;
(p) Liens in favor of a banking institution arising by
operation of law encumbering deposits (including the right of set-off)
held by such banking institution incurred in the ordinary course of
business and which are within the general parameters customary in the
banking industry; and
(q) Liens not otherwise permitted by this subsection 7.3 so
long as neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets
subject thereto exceeds (as to the Borrower and all Subsidiaries)
$2,500,000 at any one time.
7.4 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or dispose of all or substantially
all of its property, business or assets, or make any material change in its
present method of conducting business, except:
(a) any Subsidiary of the Borrower (other than any License
Subsidiary) may be merged or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving
corporation) or with or into any Wholly Owned Subsidiary Guarantor
(provided that the Wholly Owned Subsidiary Guarantor shall be the
continuing or surviving corporation);
(b) any Subsidiary of the Borrower (other than any License
Subsidiary) may sell, lease, transfer or otherwise dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any Wholly Owned Subsidiary Guarantor; and
(c) the Borrower may effectuate the merger of the
Steubenville Station contemplated by subsection 6.11.
7.5 Limitation on Sale of Assets. Dispose of any of its
property, business or assets (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, or issue or sell
any shares of Capital Stock to any Person, except:
(a) obsolete or worn out property disposed of in the ordinary
course of business or property that is no longer useful in the conduct
of the Borrower's business disposed of in the ordinary course of
business;
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(b) transfers resulting from any casualty or condemnation of
property or assets;
(c) any sale or other transfer at fair market value of any
property or assets constituting fixed assets for cash, provided that
the aggregate net cash proceeds of the sales and transfers made
pursuant to this paragraph (c) in the aggregate do not exceed $500,000
in any fiscal year;
(d) intercompany sales or transfers of assets made in the
ordinary course of business;
(e) the sale or discount of overdue accounts receivable
arising in the ordinary course of business, but only in connection
with the compromise or collection thereof;
(f) licenses or sublicenses of intellectual property and
general intangibles (other than any Station Licenses) and licenses,
leases, or subleases of other property (other than any Station
Licenses) in the ordinary course of business and which do not
materially interfere with the business of the Borrower and its
Subsidiaries;
(g) dispositions permitted by subsection 7.4(b); and
(h) the sale of one Station for aggregate consideration equal
to the fair market value of such Station (as determined in good faith
by the board of directors of the Borrower, as evidenced by a board
resolution) and in any event not to exceed $90,000,000; provided, that
at least 75% of such consideration received by the Borrower in respect
thereof shall be in the form of Cash and Cash Equivalents; and
provided further, that the Net Cash Proceeds of such sale shall be
applied, on the date of receipt of such Net Cash Proceeds, first,
toward the prepayment of the Term Loans and second, to the extent of
any excess either (i) to the permanent reduction of the Revolving
Credit Commitments in the manner prescribed by the last sentence of
subsection 2.9(e) and to the prepayment of the Revolving Credit Loans
or (ii) if a Reinvestment Notice shall be delivered in respect
thereof, deposited in a cash collateral account with the
Administrative Agent (the proceeds of which will be invested by the
Administrative Agent in Cash Equivalents at the request of the
Borrower) to be released by the Administrative Agent at the request of
the Borrower, subject to compliance by the Borrower at the time of
such release with the terms and conditions of this Agreement, to the
extent the Borrower is using the Net Cash Proceeds then on deposit for
a Permitted Acquisition; provided that on the Reinvestment Prepayment
Date with respect thereto, such Net Cash Proceeds shall be applied to
the permanent reduction of the Revolving Credit Commitments and the
prepayment of the Revolving Credit Loans in the manner set forth in
clause (i) of this paragraph.
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7.6 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any Subsidiary or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any Subsidiary (collectively,
"Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the
Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have
occurred and be continuing, Holdings may (i) purchase Holding's common
stock or common stock options from present or former officers or
employees of Holdings, the Borrower or any Subsidiary upon the death,
disability or termination of employment of such officer or employee,
provided, that the aggregate amount of payments under this clause (i)
during any fiscal year shall not exceed $2,500,000 net of any proceeds
received by Holdings in connection with resales of any common stock or
common stock options so purchased and (ii) pay management fees to
Xxxxx Muse and its Affiliates expressly permitted by subsection 7.10;
and
(d) the Borrower may declare dividends on the Preferred Stock
as set forth in the terms of the Preferred Stock, provided, that the
Borrower may not pay such dividends in cash on or prior to May 31,
2002; and provided further that the Borrower may pay such dividends in
cash after May 31, 2002 so long as no Default or Event of Default has
occurred and is continuing or would occur as a result of such payment
and the Borrower provides the Administrative Agent with a certificate
showing compliance with all of the covenants contained in subsection
7.1 (with appropriate supporting documentation if requested by the
Administrative Agent).
7.7 Limitation on Capital Expenditures. Make or commit to
make (by way of the acquisition of securities of a Person or otherwise but not
duplicative of Investments permitted by subsection 7.8(k)) any Capital
Expenditure, except (a) Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not exceeding for any fiscal
year the greater of (i) $2,500,000 and (ii) 15% of Consolidated EBITDA for the
immediately preceding fiscal year.
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7.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or make any other
investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by subsection 7.2(f);
(d) loans and advances to employees of the Borrower or its
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses) in an
aggregate amount for the Borrower and its Subsidiaries not to exceed
$750,000 at any one time outstanding;
(e) the Acquisitions;
(f) investments by the Borrower or any of its Subsidiaries in
the Borrower or any Wholly Owned Subsidiary Guarantor;
(g) loans, advances or investments in existence on the
Closing Date and listed on Schedule 7.8(g), and extensions, renewals,
modifications or restatements or replacements thereof, provided that
no such extension, renewal, modification or restatement shall (i)
increase the amount of the original loan, advance or investment, or
(ii) adversely affect the interests of the Lenders with respect to
such original loan, advance or investment or the interests of the
Lenders under this Agreement or any other Loan Document in any
respect;
(h) investments constituting (but not duplicative of) Capital
Expenditures permitted by subsection 7.7;
(i) investments consisting of Interest Rate Protection
Agreements entered into in the ordinary course of business of the
Borrower or any of its Subsidiaries and not for purposes of
speculation;
(j) investments (including debt obligations and Capital
Stock) received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations
of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(k) Permitted Acquisitions; and
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(l) in addition to investments otherwise expressly permitted
by this subsection 7.8, investments by the Borrower or any of its
Subsidiaries in an aggregate amount (valued at cost) not to exceed
$2,500,000 at any one time outstanding, so long as, after giving pro
forma effect thereto, no Default or Event of Default shall have
occurred and be continuing (including, without limitation, pursuant to
subsection 7.1).
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make or offer to make any optional payment, prepayment,
repurchase or redemption of or otherwise defease or segregate funds with
respect to the Senior Subordinated Notes, (b) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any uof the terms of the Senior Subordinated Notes or the Senior
Subordinated Note Indenture (other than any such amendment, modification,
waiver or other change which (i) would extend the maturity or reduce the amount
of any payment of principal thereof or which would reduce the rate or extend
the date for payment of interest thereon and (ii) does not involve the payment
of a consent fee), the Preferred Stock or the management agreement with Hick
Muse referred to in subsection 5.1(u) (other than changes that do not increase
the amount or affect the timing of payments by Holdings, the Borrower or any of
their Subsidiaries thereunder) or (c) designate any Indebtedness as "Designated
Senior Indebtedness" for the purposes of the Senior Subordinated Note
Indenture.
7.10 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, with any Affiliate (other
than the Borrower or any Wholly Owned Subsidiary Guarantor) unless such
transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of business of the Borrower or such Subsidiary, as the case may
be, and (c) upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate. Notwithstanding
the foregoing, Holdings, the Borrower and its Subsidiaries may pay to Xxxxx
Muse and its Affiliates fees and expenses pursuant to a monitoring and
oversight agreement and a financial advisory agreement, in each case approved
by the board of directors of Holdings; provided that such agreements may not be
amended to increase the amount of such fees above those set forth in such
agreements as of the Closing Date without the consent of the Administrative
Agent.
7.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary.
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7.12 Limitation on Changes in Fiscal Periods. Permit the
fiscal year of Holdings or the Borrower to end on a day other than December 31
or change Holdings' or the Borrower's method of determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into with
any Person, or suffer to exist, any agreement, other than (a) this Agreement
and the other Loan Documents, (b) the Senior Subordinated Note Indenture and
(c) in the case of clause (i) below only, any agreements governing any purchase
money Liens or Capital Lease Obligations otherwise permitted hereby (in which
case, any prohibition or limitation shall only be effective against the assets
financed thereby), which prohibits or limits the ability of Holdings, the
Borrower or any of its Subsidiaries to (i) create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, or (ii) pay dividends or make other distributions, or pay
any Indebtedness owed, to Holdings, the Borrower or any of its Subsidiaries.
7.14 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for those
businesses in which Holdings, the Borrower and its Subsidiaries are engaged on
the date of this Agreement or which are reasonably related thereto (including,
without limitation, in connection with any Permitted Acquisition).
7.15 Limitation on Amendments to Constituent and Acquisition
Documents and Material Contracts. (a) Amend, supplement or otherwise modify
its certificate of incorporation or by-laws or any of its other material
contracts unless such amendment does not adversely affect the interests of any
Lender in any material respect, (b) amend, supplement or otherwise modify
(pursuant to a waiver or otherwise) the terms and conditions of the indemnities
and licenses furnished to the Multi-Station Buyer or the WTOV-TV Buyer pursuant
to the Acquisition Agreements or any other document delivered by the
Multi-Station Sellers or the WTOV-TV Sellers or any of their affiliates in
connection therewith such that after giving effect thereto such indemnities and
licenses shall be materially less favorable to the interests of the Loan
Parties or the Lenders with respect thereto or (c) otherwise amend, supplement
or otherwise modify the terms and conditions of the Acquisition Agreements or
any such other documents except to the extent that any such amendment,
supplement or modification could not reasonably be expected to have a Material
Adverse Effect.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or
under any other Loan Document, within five
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days after any such interest or other amount becomes due in accordance
with the terms hereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or which is contained
in any certificate, document or financial or other statement furnished
by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made; or
(c) (i) any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of
subsection 6.4(a) (with respect to the Borrower only), subsection
6.7(a), Section 7 of this Agreement or subsections 5.1(i)(iv) or
5.1(m)(ii) of this Agreement or subsection 5.5 or 5.7(b) of the
Guarantee and Collateral Agreement or (ii) an "Event of Default" under
and as defined in any Mortgage shall have occurred and be continuing;
or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this subsection), and such default shall continue unremedied
for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in making any payment of any principal of or interest on any
Indebtedness (including, without limitation, any Guarantee Obligation
and any Film Debt, but excluding the Loans, Reimbursement Obligations
and Guarantee Obligations pursuant to the Guarantee and Collateral
Agreement) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(ii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its
stated maturity or (in the case of any such Indebtedness constituting
a Guarantee Obligation) to become payable; provided, that a default,
event or condition described in clause (i) or (ii) of this paragraph
(e) shall not at any time constitute an Event of Default under this
Agreement unless, at such time, one or more defaults, events or
conditions (without duplication as to the same item of Indebtedness)
of the type described in clauses (i) and (ii) of this paragraph (e)
shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate
$1,000,000; or
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(f) (i) The Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or the Borrower or any
of its Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) the Borrower or any of its
Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any
of its Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become
due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of
the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed
(or a trustee shall be appointed) to administer, or to terminate, any
Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion
of the Required Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or
any Commonly Controlled Entity shall, or in the reasonable opinion of
the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
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(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance as to which the
relevant insurance company has acknowledged coverage) of $1,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 45 days from the
entry thereof; or
(i) Any Loan Document shall, at any time, cease to be in full
force and effect (unless released by the Administrative Agent at the
direction of the Required Lenders or all Lenders (to the extent
required by subsection 10.1) or as otherwise permitted under this
Agreement or the other Loan Documents) or shall be declared null and
void (and, if such invalidity is such so as to be amenable to cure
without materially disadvantaging the position of the Administrative
Agent and the Lenders thereunder, the relevant Loan Party shall have
failed to cure such invalidity within 30 days after notice from the
Administrative Agent or such shorter time period as is specified by
the Administrative Agent in such notice and is reasonable in the
circumstances), or the validity or enforceability thereof shall be
contested by any Loan Party, or any of the Liens intended to be
created by any Security Document shall cease to be or shall not be a
valid and perfected Lien having the priority contemplated thereby
(and, if such invalidity is such so as to be amenable to cure without
materially disadvantaging the position of the Administrative Agent and
the Lenders as secured parties thereunder, the relevant Loan Party
shall have failed to cure such invalidity within 30 days after notice
from the Administrative Agent or such shorter time period as specified
by the Administrative Agent in such notice and is reasonable in the
circumstances); or
(j) A Change of Control shall occur or Holdings shall fail to
own directly or indirectly, beneficially and of record 100% of the
Capital Stock of the Borrower (other than the Preferred Stock) free
and clear of all Liens other than Liens in favor of the Lenders
pursuant to the Loan Documents; or
(k) (i) The Senior Subordinated Notes or the guarantees
thereof shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors or
Holdings under the Guarantee and Collateral Agreement, as the case may
be, as provided in the Senior Subordinated Note Indenture, or any Loan
Party, any Affiliate of any Loan Party, the trustee in respect of the
Senior Subordinated Notes or the holders of at least 25% in aggregate
principal amount of the Senior Subordinated Notes shall so assert or
(ii) an event of default shall occur with respect to the Senior
Subordinated Notes or any event shall occur which does or with the
giving of notice or passage of time would require the Borrower to
prepay, purchase, redeem, retire, defease or otherwise acquire, or to
make any payment on account of any principal of or premium payable in
connection with the prepayment, purchase, redemption, retirement,
defeasance or other acquisition of, any of the Senior Subordinated
Notes; or
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(l) Holdings, the Borrower or any Subsidiary shall incur any
liability (not paid or fully covered by insurance) under any
Environmental Law in an amount which would result in a Material
Adverse Effect; or
(m) Failure by Holdings or the Holdings Investors or the
Partnership to make the Capital Contribution as required by the
Capital Contribution Agreement; or
(n) The principal broadcasting licenses of any Station, or
any other material authorizations, licenses or permits issued by the
FCC, shall be revoked or cancelled or expire by its terms and not be
renewed, or shall be modified in a manner which would have a Material
Adverse Effect; or
(o) The Borrower (or, prior to the merger contemplated by
subsection 6.11, the WTOV-TV Buyer) shall have received a notice of
termination with respect to its network affiliation agreements in
existence on the Closing Date (or any alternative network affiliation
agreement in compliance with this clause (o)) unless, within 30 days
after receipt of such termination notice, an alternative network
affiliation agreement in form and substance satisfactory to the
Required Lenders with American Broadcasting Companies, Inc., Columbia
Broadcasting Systems, Inc., Fox Broadcasting Company or National
Broadcasting Company shall have been executed and delivered and come
into effect prior to or concurrently with the termination date of such
network affiliation agreement; or any such network affiliation
agreement shall otherwise for any reason be terminated or cease to be
in full force and effect; or
(p) the Borrower or any of its Subsidiaries shall default in
the payment when due of any Film Obligations in an aggregate amount in
excess of $250,000 and such default shall continue unremedied for a
period of 90 or more days, except to the extent the same shall be
contested in good faith and by proper proceedings and against which
adequate reserves are being maintained; or
(q) Holdings shall conduct, transact or otherwise engage in
any business or operations, incur, create, assume or suffer to exist
any Indebtedness or other liabilities or obligations or Liens (other
than pursuant to any of the Loan Documents), or own, lease, manage or
otherwise operate any properties or assets, other than (1) incident to
the ownership of all of the Capital Stock of the Borrower or (2) as
otherwise permitted by this Agreement;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall
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immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Majority Revolving Credit Facility Lenders, the Administrative
Agent may, or upon the request of the Majority Revolving Credit Facility
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Revolving Credit Commitments to be terminated forthwith, whereupon the
Revolving Credit Commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) to be due and payable forthwith,
whereupon the same shall immediately become due and payable. With respect to
all Letters of Credit with respect to which presentment for honor shall not
have occurred at the time of an acceleration pursuant to this paragraph, the
Borrower shall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon,
if any, shall be applied to repay other obligations of the Borrower hereunder
and under the other Loan Documents. After all such Letters of Credit shall
have expired or been fully drawn upon, all Reimbursement Obligations shall have
been satisfied and all other obligations of the Borrower hereunder and under
the other Loan Documents shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Borrower (or such other
Person as may be lawfully entitled thereto). Except as otherwise expressly
provided above in this Section 8, the Borrower waives presentment, demand,
protest or other notice of any kind.
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto
to the extent permitted by applicable law. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
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9.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Agents under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Agents shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation 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 (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
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 Agreement and the other Loan Documents in accordance with a
request of the Required Lenders (or, if so specified by this Agreement, all
Lenders), and such request
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and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates and made its own decision to make its Loans hereunder and
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party which may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7 Indemnification. The Lenders agree to indemnify each
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Revolving Credit
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Percentages and Term Loan Percentages in effect on the date on which
indemnification is sought under this subsection 9.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against such Agent in any way relating
to or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing; provided that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements which are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent's gross
negligence or willful misconduct. The agreements in this subsection 9.7 shall
survive the payment of the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent were not an Agent.
With respect to its Loans made or renewed by it and with respect to any Letter
of Credit issued or participated in by it, each Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
9.10 Documentation Agent. The Documentation Agent shall not
have any duties or responsibilities hereunder in its capacity as such.
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SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection 10.1. The Required Lenders and each Loan Party party to the
relevant Loan Documents may, or, with the written consent of the Required
Lenders, the Administrative Agent and each Loan Party party to the relevant
Loan Document may, from time to time, (a) enter into written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders or of the Loan Parties
hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Administrative Agent, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall (i) forgive the principal amount or extend the final scheduled date of
maturity of any Loan, extend the scheduled date of any amortization payment in
respect of any Term Loan, reduce the stated rate of any interest, fee or letter
of credit commission payable hereunder or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Lender's Revolving Credit Commitment, in each case without the consent of each
Lender directly affected thereby; (ii) amend, modify or waive any provision of
this subsection 10.1 or reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement and the other Loan
Documents, release all or substantially all of the collateral or release all or
substantially all of the Subsidiary Guarantors or Holdings from their
obligations under the Guarantee and Collateral Agreement, in each case without
the written consent of all Lenders; (iii) amend, modify or waive any condition
precedent to any extension of credit under the Revolving Credit Facility set
forth in subsection 5.2 without the written consent of the Majority Revolving
Credit Facility Lenders; (iv) change the allocation of payments among the Term
Loan Facilities specified in subsection 2.15(b) or the allocation of payments
between the Term Loan Facilities and the Revolving Credit Facility pursuant to
subsection 2.9(e), in each case without the consent of the Majority Facility
Lenders in respect of each Facility adversely affected thereby; (v) reduce the
percentage specified in the definition of Majority Facility Lenders without the
written consent of all Lenders under each affected Facility; (vi) amend, modify
or waive any provision of Section 9 without the written consent of the
Administrative Agent; or (vii) amend, modify or waive any provision of Section
3 without the written consent of the Issuing Lender. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not
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continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: STC Broadcasting, Inc.
0000 0xx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: 000-000-0000
with copies to: Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Telecopy: 000-000-0000
The Administrative Agent: Chase Agency Services
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 212-552-7953
with a copy to: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: 000-000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver
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thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a)
to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the reasonable fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to the Administrative
Agent and, at any time after and during the continuance of an Event of Default,
of one counsel of all the Lenders, (c) to pay, indemnify, and hold harmless
each Lender and the Administrative Agent from and against any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify and hold harmless each
Lender and the Administrative Agent and their respective officers, directors,
trustees, professional advisors, employees, affiliates, agents and controlling
persons (each, an "indemnitee") from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Borrower shall
have no obligation hereunder to any indemnitee with respect to indemnified
liabilities to the extent such indemnified liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or
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willful misconduct of such indemnitee. The agreements in this subsection 10.5
shall survive repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that the Borrower may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrower, in
the ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks, financial institutions or other entities
(each, a "Participant") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by
a Lender of a participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event
shall any Participant under any such participation have any right to approve
any amendment or waiver of any provision of any Loan Document, or any consent
to any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Loans or any fees payable hereunder, or postpone the date of the final maturity
of the Loans, in each case to the extent subject to such participation. The
Borrower agrees that if amounts outstanding under this Agreement and the Loans
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall, to
the maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to
have agreed to share with the Lenders the proceeds thereof as provided in
subsection 10.7(a) as fully as if it were a Lender hereunder. The Borrower
also agrees that each Participant shall be entitled to the benefits of
subsections 2.16, 2.17 and 2.18 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it were a Lender;
provided that, in the case of subsection 2.17, such Participant shall have
complied with the requirements of said subsection and provided, further, that
no Participant shall be entitled to receive any greater amount pursuant to any
such subsection than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
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(c) Any Lender (an "Assignor") may, in the ordinary course of
its business and in accordance with applicable law, at any time and from time
to time assign to any Lender or any affiliate thereof or, with the consent of
the Borrower and the Administrative Agent (which, in each case, shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other entity (an "Assignee") all or any part of its rights and obligations
under this Agreement pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit E, executed by such Assignee and such Assignor (and, in the
case of an Assignee that is not then a Lender or an affiliate thereof, by the
Borrower and the Administrative Agent) and delivered to the Administrative
Agent for its acceptance and recording in the Register; provided that no such
assignment to an Assignee (other than any Lender or any affiliate thereof)
shall be in an aggregate principal amount of less than $2,500,000 (other than
in the case of an assignment of all of a Lender's interests under this
Agreement), unless otherwise agreed by the Borrower and the Administrative
Agent. Any such assignment need not be ratable as among the Facilities. Upon
such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment and/or Loans as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding any provision of this subsection 10.6, the
consent of the Borrower shall not be required, and, unless requested by the
Assignee and/or the Assignor, new Notes shall not be required to be executed
and delivered by the Borrower, for any assignment which occurs at any time when
any of the events described in Section 8(f) shall have occurred and be
continuing.
(d) The Administrative Agent shall maintain at its address
referred to in subsection 10.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the
names and addresses of the Lenders and the Commitments of, and the principal
amount of the Loans owing to, each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, each other Loan Party, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. Any assignment of
any Loan or other obligation hereunder (whether or not evidenced by a Note)
shall be effective only upon appropriate entries with respect thereto being
made in the Register. The Register shall be available for inspection by the
Borrower of any Lender at any reasonable time and from time to time upon
reasonable prior notice.
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(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Administrative
Agent) together with payment to the Administrative Agent of a registration and
processing fee of $4,000, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) record the information contained
therein in the Register on the effective date determined pursuant thereto and
give notice of such acceptance and recordation to the Borrower. On or prior to
such effective date, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent (in exchange for any Revolving Credit Note
or Term Note of the assigning Lender) a new Revolving Credit Note or Term Note,
as the case may be, to the order of such Assignee in an amount equal to the
Revolving Credit Commitment or portion of the Term Loan, as the case may be,
assumed by it pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Revolving Credit Commitment or portion of a Term Loan
hereunder, a new Revolving Credit Note or Term Note, as the case may be, to the
order of the assigning Lender in an amount equal to the Revolving Credit
Commitment or Term Loan, as the case may be, retained by it hereunder. Such
new Notes shall be dated the Closing Date and shall otherwise be in the form of
the Note replaced thereby.
(f) The Loans made by each Lender shall be evidenced by a
Note issued by the Borrower, substantially in the form of Exhibit G-1 or G-2,
as the case may be, payable to the order of such Lender. Each Lender is hereby
authorized to record, on the schedule annexed to and constituting a part of the
relevant Note, information regarding the relevant Loans made by such Lender,
and any such recordation shall constitute prima facie evidence of the accuracy
of the information so recorded, provided that the failure to make any such
recordation or any error in such recordation shall not affect the Borrower's
obligations hereunder or under any Note. On or prior to the effective date of
an Assignment and Acceptance, the Borrower, at its own expense, shall execute
and deliver to the Administrative Agent, in exchange for the relevant Notes,
new Notes to the order of the Assignee and, if applicable, the Assignor. Such
new Notes shall be dated the Closing Date and shall otherwise be in the form of
the Notes replaced thereby.
(g) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information concerning the Loan Parties and their
respective affiliates which has been delivered to such Lender by or on behalf
of any Loan Party pursuant to this Agreement or any other Loan Document or
which has been delivered to such Lender by or on behalf any Loan Party in
connection with such Lender's credit evaluation of the Loan Parties and their
respective affiliates, under the condition that such Transferee or prospective
Transferee shall previously have agreed to be bound by the provisions of
subsection 10.15.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 10.6 concerning assignments
of Loans and Notes relate only to absolute assignments and that such provisions
do not prohibit assignments creating security
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interests, including, without limitation, any pledge or assignment by a Lender
of any Loan or Note to any Federal Reserve Bank in accordance with applicable
law; provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such lender as a party hereunder.
10.7 Adjustments; Set-off. (a) Except to the extent that
this Agreement provides for payments to be allocated to the Lenders under a
particular Facility, if any Lender (a "Benefitted Lender") shall at any time
receive any payment of all or part of its Loans or the Reimbursement
Obligations owing to it, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of such other Lender's Loans or the
Reimbursement Obligations owing to such other Lender, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loans and/or
of the Reimbursement Obligations owing to each such other Lender, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
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10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan
Documents represent the entire agreement of the Borrower, the Administrative
Agent and the Lenders with respect to the subject matter hereof and thereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof or thereof
not expressly set forth or referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection 10.12 any special,
exemplary, punitive or consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15 Confidentiality. Each Lender agrees to keep
information obtained by it pursuant hereto and the other Loan Documents
identified as confidential in writing at the time of delivery confidential in
accordance with such Lender's customary practices and agrees that it will only
use such information in connection with the transactions contemplated by this
Agreement and not disclose any of such information other than (a) to such
Lender's employees, representatives, directors, attorneys, auditors, agents,
professional advisors, trustees or affiliates who are advised of the
confidential nature of such information, (b) to the extent such information
presently is or hereafter becomes available to such Lender on a
non-confidential basis from any source or such information that is in the
public domain at the time of disclosure, (c) to the extent disclosure is
required by law (including applicable securities laws), regulation, subpoena or
judicial order or process (provided that notice of such requirement or order
shall be promptly furnished to the Borrower unless such notice is legally
prohibited) or requested or required by bank, securities, insurance or
investment company regulations or auditors or any administrative body or
commission to whose jurisdiction such Lender may be subject, (d) to any rating
agency to the extent required in connection with any rating to be assigned to
such Lender, (e) to Transferees or prospective Transferees who agree to be
bound by the provisions of this subsection 10.15, (f) to the extent required in
connection with any litigation between any Loan Party and any Lender with
respect to the Loans or this
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Agreement and the other Loan Documents or (g) with the Borrower's prior written
consent. The agreements in this subsection 10.15 shall survive repayment of
the Loans and all other amounts payable hereunder.
10.16 FCC Compliance. Notwithstanding anything to the
contrary contained herein or in any other agreement, instrument or document
executed in connection herewith, no party hereto shall take any actions
hereunder that would constitute or result in a transfer or assignment of any
Station License, permit or authorization or a change of control over such
Station License, permit or authorization requiring the prior approval of the
FCC without first obtaining such prior approval of the FCC.
10.17 Release of Preferred Pledge Agreement. Upon the
payment in full of the Term Loans, together with accrued interest, fees and
other amounts with respect thereto, whether out of the proceeds of the Senior
Subordinated Notes or otherwise, the obligations of the pledgors under the
Preferred Pledge Agreement (except for those obligations which are expressly
stated to survive the termination thereof) shall terminate and the
Administrative Agent and the Lenders agree to release to the pledgors thereof
the Preferred Stock from the lien and pledge created by the Preferred Pledge
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
STC BROADCASTING, INC.
By: /s/ XXXXX X. XXXX
--------------------------------
Name: Xxxxx X. Xxxx
Title: Senior V.P., CFO & Secretary
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Attorney-in-fact
NATIONSBANK OF TEXAS, N.A., as
Documentation Agent and as a Lender
By: /s/ XXXXX X. XXXXX
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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