1
Conformed Copy
EXHIBIT 10.1
CREDIT AGREEMENT
DATED AS OF
MARCH 3, 1998
AMONG
LIN HOLDINGS CORP.,
LIN TELEVISION CORPORATION,
AS BORROWER,
THE LENDERS PARTY HERETO,
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT,
AS ISSUING LENDER
AND AS SWINGLINE LENDER,
THE BANK OF NEW YORK,
AS SYNDICATION AGENT
AND
NATIONAL WESTMINSTER BANK PLC,
AS DOCUMENTATION AGENT
CHASE SECURITIES INC.,
AS ARRANGER
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.1 Term Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.2 Procedure for Term Loan Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.3 Repayment of Term Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.4 Revolving Credit Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.5 Procedure for Revolving Credit Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.6 Commitment Fees, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.7 Termination or Reduction of Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2.8 Optional Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2.9 Mandatory Prepayments and Commitment Reductions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.10 Conversion and Continuation Options. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
2.11 Minimum Amounts and Maximum Number of Eurodollar Tranches. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.12 Interest Rates and Payment Dates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.13 Computation of Interest and Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.14 Inability to Determine Interest Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2.15 Pro Rata Treatment and Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2.16 Requirements of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.17 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
2.18 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2.19 Change of Lending Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2.20 Replacement of Lenders under Certain Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2.21. Notice of Certain Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3.1 L/C Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3.2 Procedure for Issuance of Letter of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3.3 Commissions, Fees and Other Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3.4 L/C Participations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3.5 Reimbursement Obligation of the Borrower. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
3.6 Obligations Absolute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
3.7 Letter of Credit Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
3.8 Applications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.1 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
3
4.2 No Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.3 Corporate Existence; Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.4 Corporate Power; Authorization; Enforceable Obligations.54
4.5 No Legal Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.6 No Material Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.7 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.8 Ownership of Property; Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.9 Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
4.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
4.11 Federal Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
4.12 Labor Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
4.13 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
4.14 Investment Company Act; Other Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.15 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.16 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.17 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.18 Accuracy of Information, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.19 Security Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
4.20 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
4.21 Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
4.22 Station Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.1 Conditions to Initial Extension of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.2 Conditions to Each Extension of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.1 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.2 Certificates; Other Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.3 Payment of Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.4 Conduct of Business and Maintenance of Existence, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.5 Maintenance of Property; Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.6 Inspection of Property; Books and Records; Discussions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.7 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.8 Environmental Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.9 Interest Rate Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.10 Additional Collateral, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.11 WOOD-TV Acquisition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.12 After - Acquired Stations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.13 Changes in Locations, Name, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.1 Financial Condition Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.2 Limitation on Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.3 Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.4 Limitation on Fundamental Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.5 Limitation on Sale of Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.6 Limitation on Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.7 Limitation on Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.8 Limitation on Investments, Loans and Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
4
7.9 Limitation on Optional Payments and Modifications of Debt Instruments, etc. . . . . . . . . . . . . . . . . . . 79
7.10 Limitation on Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.11 Limitation on Sales and Leasebacks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
7.12 Limitation on Changes in Fiscal Periods.81
7.13 Limitation on Negative Pledge Clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
7.14 Limitation on Lines of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
7.15 Limitation on Amendments to Constituent and Transaction Documents. . . . . . . . . . . . . . . . . . . . . . . 81
7.16 Limitations on Changes in Holding Company Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
7.17 Limitation on Changes in Station Affiliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
7.18 Limitation on Minority Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
7.19 Approval of Joint Venture Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 9. THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.2 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.4 Reliance by Administrative Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.6 Non-Reliance on the Administrative Agent and Other Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.8 Agent in Its Individual Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.9 Successor Administrative Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
10.1 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
10.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.3 No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
10.4 Survival of Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
10.5 Payment of Expenses and Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
10.6 Successors and Assigns; Participations and Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
10.7 Adjustments; Set-off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
10.8 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.9 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.10 Integration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.11 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.12 Submission To Jurisdiction; Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.13 Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.14 WAIVERS OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.16 FCC Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.17 Filing of Mortgages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
5
SCHEDULES:
1.1A Commitments
1.1B Mortgaged Properties
1.1C Consolidated EBITDA Prior to Closing Date
1.1D Network Affiliation Agreements
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
4.22 Station Licenses
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
7.8(g) Existing Investments
EXHIBITS:
A Form of Guarantee and Collateral 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 LLP
G Form of Incremental Term Loan Activation Notice
H Form of Swingline Loan Participation Certificate
I-1 Form of Revolving Credit Note
I-2 Form of Term Loan Note
I-3 Form of Swingline Note
J Form of Borrowing Notice
6
CREDIT AGREEMENT, dated as of March 3, 1998, among
LIN HOLDINGS CORP., a newly formed Delaware corporation
("Holdings") organized by Hicks, Muse, Xxxx & Xxxxx
Incorporated ("Xxxxx Muse"), LIN ACQUISITION COMPANY, a newly
formed, wholly owned subsidiary of Holdings organized by Xxxxx
Muse, (the "Borrower"), the several banks and other financial
institutions or entities from time to time parties to this
Agreement (the "Lenders"), THE CHASE MANHATTAN BANK, as
administrative agent (in such capacity, the "Administrative
Agent"), as issuing lender (in such capacity, the "Issuing
Lender"), and as swingline lender (in such capacity, the
"Swingline Lender"), National Westminster Bank Plc, as
documentation agent (in such capacity, the "Documentation
Agent"), and The Bank of New York, as syndication agent (in
such capacity, the "Syndication Agent").
Pursuant to the Agreement and Plan of Merger dated as of
August 12, 1997 (as amended by the Amendment thereto dated October 21, 1997,
the "Merger Agreement"), among the Borrower, Holdings and LIN Television
Corporation, a Delaware corporation ("LIN"), the Borrower will merge (the
"Merger") with and into LIN, with LIN being the surviving entity. Immediately
following the effective time of the Merger, LIN shall succeed to all the rights
and obligations of the Borrower by operation of law and without any further
action by any Person, and the term "Borrower" shall be deemed to mean LIN.
In connection with the Merger, (a) the Borrower (LIN following
the Merger) will issue the Senior Subordinated Notes (such term and each other
capitalized term used but not defined in the preamble of this Agreement having
the meaning assigned to such term in subsection 1.1) in a public offering or
Rule 144A offering or private placement, (b) Holdings will issue the Holdings
Discount Notes in a public offering or Rule 144A offering or private placement,
(c) Holdings will contribute to the Borrower at least $555,000,000 (less the
amount of rollover investment by members of management and employees of LIN and
its Subsidiaries), along with the net proceeds of the issuance of the Holdings
Discount Notes, in cash as common equity from the proceeds of capital
contributions made to Holdings by (i) Ranger Equity Holdings A Corp., a newly
formed Delaware corporation organized by Xxxxx Muse ("Equity Holdings A"), in
an aggregate amount of at least $188,000,000, in exchange for approximately 37%
of the common stock of Holdings, and (ii) Ranger Equity Holdings B Corp., an
additional newly formed Delaware corporation organized by Xxxxx Muse ("Equity
Holdings B"), in an aggregate amount of at least $350,000,000, in exchange for
the remaining common stock of Holdings, in each case from the proceeds of a
capital contribution made, directly or indirectly, by funds managed by Xxxxx
Muse and certain other investors (collectively, the "Investors"), in exchange
for the issuance to the Investors, directly or indirectly, of all the common
stock of Equity Holdings A and Equity Holdings B, (d) LIN will refinance all of
its Existing Indebtedness other than Existing Indebtedness that is permitted
under subsection 7.2(e) ("Refinanced Indebtedness") and (e) subsequent to
receipt of approvals for such mergers and the related asset transfers, each of
Buffalo Broadcasting Co., Inc. and Buffalo Management Enterprises Co. Inc. will
be merged with and into LWWI Broadcasting Inc. ("LWWI"), and LWWI will be
merged with and into LIN.
In addition, in connection with the Merger and pursuant to the
Joint Venture Agreements, (a) on the Funding Date (i) LIN Texas will obtain an
$815,500,000 25-year non-
7
2
amortizing term loan (the "Joint Venture Loan") from GECC, (ii) LIN Texas will
grant to GECC a first priority security interest (the "Original Lien") in the
KXAS Assets, and (iii) NBC will contribute to the LLC an undivided 99% interest
in the KNSD Assets that will be immediately contributed to the LP, (b) also on
the Funding Date, (i) LIN Texas will contribute to the LLC the KXAS Assets,
subject to the Original Lien, (ii) the Joint Venture Loan will be assigned to
and assumed by the LLC and, upon the execution of the Joint Venture Loan
Guarantee, LIN Texas will be released from all liability with respect to the
Joint Venture Loan, (iii) the LP will grant to GECC a first priority security
interest (the "Additional Lien") in its 99% undivided interest in the KNSD
Assets, (iv) the Borrower will execute a guarantee with respect to the LLC's
obligations under the Joint Venture Loan (the "Original Guarantee") and (v) LIN
Texas will loan the cash proceeds of the Joint Venture Loan to LIN or one of
its subsidiaries (any such loan, the "LIN Texas Loan"), (c) immediately
following the effective time of the Merger (i) the LLC will contribute to the
LP the KXAS Assets (subject to the Original Lien), (ii) NBC will contribute to
the LP an undivided 1% interest in the KNSD Assets, (iii) Equity Holdings B
will execute the Joint Venture Loan Guarantee and (iv) the Borrower will be
released from the Original Guarantee and shall have no obligations under the
Joint Venture Loan, (d) Holdings will obtain from NBC an option to acquire the
assets of television station WVTM-TV, serving Birmingham, Alabama (the "WVTM
Assets"), for a purchase price of $199,000,000, subject to certain adjustments,
as provided in the WVTM Purchase Agreement, (e) the NBC network affiliation
agreements for stations KXAS-TV, KNSD-TV and WVTM-TV will each be modified to
provide for a term of 25 years from the Funding Date, (f) the NBC network
affiliation agreements for the other stations owned by LIN and its Subsidiaries
and Affiliates will be modified to provide for (i) a term for each expiring in
the year 2010 and (ii) compensation thereunder at levels which, taken as a
whole, are substantially no less favorable to LIN and its Subsidiaries and
Affiliates as arrangements as may be agreed upon between NBC and a majority of
NBC affiliates in the 25 largest television markets (the network affiliation
agreements of LIN and its Subsidiaries described in this clause (f) and in
clause (e) above, together with any other related network affiliation
compensation arrangements, being collectively referred to as the "NBC Network
Affiliation Agreements") and (g) the LP will enter into the LP Services
Agreement.
The Borrower has requested (a) the Tranche A Term Loan Lenders
to extend credit in the form of (i) Initial Tranche A Term Loans on the Closing
Date in an aggregate principal amount not in excess of $50,000,000 and (ii)
Delayed Tranche A Term Loans at any one time during the Delayed Tranche A
Commitment Period, in an aggregate principal amount not in excess of
$125,000,000, (b) the Tranche B Term Loan Lenders to extend credit in the form
of Tranche B Term Loans on the Closing Date, in an aggregate principal amount
not in excess of $120,000,000, (c) the Revolving Credit Lenders to extend
credit in the form of Revolving Credit Loans from time to time during the
Revolving Credit Commitment Period, in an aggregate principal amount at any
time outstanding not in excess of the difference between (i) $50,000,000 and
(ii) the sum of the L/C Obligations at such time and the Swingline Exposure at
such time, (d) the Issuing Lender to issue Letters of Credit from time to time
during the Revolving Credit Commitment Period in an aggregate stated amount at
any time outstanding not in excess of $25,000,000 and (e) the Swingline Lender
to extend credit in the form of Swingline Loans from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any time
outstanding not in excess of $25,000,000.
8
3
The proceeds of the Initial Tranche A Term Loans and the
Tranche B Term Loans will be used on the Closing Date, in part, to (i) finance
the Merger Transactions, (ii) repay in full the Refinanced Indebtedness and
(iii) pay related fees, expenses and other transaction costs (provided that
fees and expenses payable in connection with the Joint Venture Loan shall be
reimbursed by NBC). The proceeds of the Delayed Tranche A Term Loans will be
used solely to finance the acquisition by the Borrower of the assets of WOOD-TV
Station (the "WOOD-TV Acquisition"), pursuant to the terms of the WOOD-TV
Purchase Agreement. The proceeds of the Incremental Term Loans shall be used
solely to finance Permitted Acquisitions and transaction fees and expenses in
connection therewith and to fund required redemptions of the portion of
Holdings Discount Notes issued in respect of accrued interest on Holdings
Discount Notes. The proceeds of Revolving Credit Loans (other than an amount
not to exceed $20,000,000 to finance a portion of the Merger Transactions) will
be used for general corporate purposes, including Permitted Acquisitions. The
Letters of Credit and Swingline Loans will be used for general corporate
purposes.
The Lenders and the Swingline Lender are willing to extend
such credit to the Borrower and the Issuing Lender is willing to issue Letters
of Credit for the account of the Borrower, in each case on the terms and
subject to the conditions set forth herein.
9
4
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:
"ABC": the American Broadcasting Companies, Inc.
"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
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.
"Additional Lien": as defined in the preamble of this
Agreement.
10
5
"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 agent for
the Lenders under this Agreement and the other Loan Documents,
together with any of its successors.
"Affected Eurodollar Loans": as defined in subsection 2.9(f).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) 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.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": (a) for all Loans, other than
Incremental Term Loans, the Applicable Margin as determined pursuant
to the Pricing Grid and (b) with respect to Incremental Term Loans,
the rate per annum for Incremental Term Loans agreed to, or the rate
per annum determined pursuant to a pricing grid agreed to, by the
Borrower and the applicable Incremental Lenders in the applicable
Incremental Term Loan Activation Notice.
"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.
"Approved Fund": with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans
and is advised or managed by the same investment advisor as such
Lender or by an affiliate of such investment advisor.
"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
Holdings or any of its Subsidiaries of any property of Holdings 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 Holdings 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)) and (c) through (g).
"Asset Swap Transaction": a substantially concurrent purchase
and sale, or exchange, of a Broadcasting Asset of the Borrower or all
the Capital Stock of, or other
11
6
equity interests in, a Subsidiary owning a Broadcasting Asset,
for a Broadcast Station or Broadcast Enterprise of another Person or
group of affiliated Persons, or all the Capital Stock of, or other
equity interests in, a Person or group of affiliated Persons owning a
Broadcast Station or Broadcast Enterprise (or such lesser amount as
shall be determined by the Board of Directors of the Borrower or such
Subsidiary as fair consideration), including, without limitation, the
KXTX Transaction, provided that (a) the Borrower shall receive, in
exchange for such Broadcasting Asset, or Capital Stock of, or other
equity interests in, such Subsidiary owning a Broadcasting Asset, a
Broadcast Station or Broadcast Enterprise, or Capital Stock of, or
other equity interests in, a Person or group of affiliated Persons
owning a Broadcast Station or Broadcast Enterprise, (b) on a pro forma
basis for the most recently completed four-fiscal-quarter period for
which financial statements are available on the date of such Asset
Swap Transaction, no Default or Event of Default will have occurred
and be continuing (including, without limitation, pursuant to
subsection 7.1), provided that for purposes of calculating
Consolidated EBITDA pursuant to this clause (b), the Consolidated
EBITDA of such Broadcast Station or Broadcast Enterprise being
acquired for such four-fiscal-quarter period shall equal the
Consolidated EBITDA of such Broadcast Station or Broadcast Enterprise,
as applicable, for the 12-month period preceding such Asset Swap
Transaction, (c) (i) the Consolidated EBITDA of the Broadcasting Asset
being sold or exchanged plus the Consolidated EBITDA of all
Broadcasting Assets that were sold pursuant to subsection 7.5(h) or
exchanged pursuant to subsection 7.5(i) in such fiscal quarter and in
the immediately preceding four-fiscal- quarter period shall not exceed
25% of the Consolidated EBITDA of the Borrower for such immediately
preceding four-fiscal-quarter period, (ii) the Consolidated EBITDA of
the Broadcasting Asset being sold or exchanged plus the Consolidated
EBITDA of all Broadcasting Assets that were sold pursuant to
subsection 7.5(h) or exchanged pursuant to subsection 7.5(i) in such
fiscal quarter and in the immediately preceding eight-fiscal-quarter
period shall not exceed 40% of the Consolidated EBITDA of the Borrower
for such eight-fiscal-quarter period and (iii) the Consolidated EBITDA
of the Broadcasting Asset being sold or exchanged plus the
Consolidated EBITDA of all Broadcasting Assets that were sold pursuant
to subsection 7.5(h) or exchanged pursuant to subsection 7.5(i) in
such fiscal quarter and in the preceding twenty-fiscal-quarter period
shall not exceed 60% of the Consolidated EBITDA of the Borrower for
such twenty-fiscal-quarter period, (d) any Net Cash Proceeds of such
Asset Swap Transaction shall be deemed Net Cash Proceeds of an Asset
Sale, and shall be applied pursuant to subsection 2.9(d) or reinvested
pursuant to subsection 2.9(b), (e) the Borrower provides the
Administrative Agent with a certificate showing compliance with all of
the covenants contained in subsection 7.1, (f) the Borrower takes such
actions as may be required or reasonably requested to ensure that the
Administrative Agent, for the ratable benefit of the Lenders, has a
perfected first priority security interest in any assets required to
be secured pursuant to subsection 6.10 or any other Loan Document,
subject to Liens permitted by subsection 7.3, and (g) the Borrower
provides the Administrative Agent with appropriate supporting
documentation if reasonably requested by the Administrative Agent,
including, without limitation, any exchange agreement in connection
with such transaction, opinions of counsel, including FCC counsel, in
connection therewith and copies of an FCC consent on Form 732 (or any
comparable form issued by the FCC) relating to the transfer of control
or assignment of the Station Licenses of the acquired Broadcast
Station to the
12
7
Borrower or its Subsidiary and, unless the Administrative Agent shall
otherwise agree, such consent shall have become a Final Order.
"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.
"Benefitted Lender": as defined in subsection 10.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the introductory paragraph of this
Agreement.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the Lenders or Swingline
Lender to make Loans or Swingline Loans hereunder.
"Broadcast Enterprise": assets used and useful for the
operation of broadcasting or entertainment businesses, or any
businesses reasonably related thereto.
"Broadcast Station": all or substantially all the assets used
and useful for operating a full service commercial television
broadcast station pursuant to a Station License, including without
limitation the rights to use such Station License.
"Broadcasting Assets": collectively, any Stations and any
Non-Station Assets of the Borrower and its Subsidiaries.
"Broadcasting Asset Temporary Repayment": as defined in
subsection 2.8(b).
"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 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) of fixed or
capital assets or additions to equipment (including replacements,
capitalized repairs and
13
8
improvements during such period). For purposes of this definition,
the following items will be excluded from the definition of "Capital
Expenditures": (a) Capital Expenditures to the extent funded by
insurance proceeds, condemnation awards or payments pursuant to a deed
in lieu thereof, (b) Capital Expenditures to the extent made through
barter transactions and (c) assets acquired pursuant to (i) Permitted
Acquisitions, (ii) Asset Swap Transactions and (iii) a reinvestment of
proceeds received under subsection 7.5(c).
"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 on or 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 one year
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 (or
whose obligations are guaranteed by an affiliated commercial bank
which has 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; (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.
"CBS": the CBS Television Network, a division of CBS, Inc.
"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.
14
9
"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": the earlier to occur of (a) Xxxxx Muse,
its principals and their 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 (i) at any time prior to the
consummation of an Initial Public Offering, and for any reason
whatever, (A) HMTF otherwise has the right to designate (and does so
designate) a majority of the board of directors of Holdings or (B)
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 (ii) at any time after the consummation of an
Initial Public Offering, and for any reason whatever, (A) 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 more
than the greater of (x) 20% of the shares outstanding or (y) the
percentage of the then outstanding voting stock of Holdings owned
beneficially by the HMTF Group and (B) the board of directors of
Holdings shall consist of a majority of Continuing Directors and (b) a
Change of Control as defined in any document pertaining to any Senior
Subordinated Indebtedness or the Holdings Discount Notes.
"Chase": The Chase Manhattan Bank.
"Closing Date": March 3, 1998.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Lender, the sum of the Term
Commitments, the Revolving Credit Commitment and the Swingline Loan
Commitment of such Lender and with respect to the Issuing Lender and
L/C Participants, as applicable, their L/C Obligations.
"Commitment Fee Rate": 1/2 of 1% per annum, provided that
from and after the First Adjustment Date, the Commitment Fee Rate will
be determined pursuant to the Pricing Grid.
15
10
"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), net of cash interest income of the Borrower and its
Subsidiaries, 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 the Borrower 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 the Borrower 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 the Borrower and its Subsidiaries at
such date, but excluding (a) the current portion of any Funded Debt
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:
(a) Net Income for such period; plus
16
11
(b) without duplication, the sum of the following items (to
the extent deducted in the computation of such Net Income for such
period):
(i) depreciation expense;
(ii) amortization expense (including amortization in
respect of Film Obligations and other amortized film expense)
and amortization of intangibles (including, but not limited
to, goodwill and organizational costs (including costs
associated with the Transactions));
(iii) Consolidated Interest Expense;
(iv) income and franchise tax expense;
(v) any extraordinary and unusual losses (net of
income taxes);
(vi) the annualized promotional reimbursement from
NBC not to exceed $2,000,000;
(vii) to the extent identified and reasonably
satisfactory to the Administrative Agent, any cost savings
realized in connection with any acquired Broadcasting Assets;
(viii) to the extent set forth in a written contract,
any recurring improvements to Consolidated EBITDA as a result
of any acquired Broadcasting Assets; and
(ix) other non-cash charges (excluding barter
expenses and trade expenses);
less (c) without duplication, the sum of the following items:
(i) all cash payments originally scheduled to be made
during such period in respect of Film Obligations;
(ii) any extraordinary and unusual gains (net of
income taxes);
(iii) non-cash gains included in Net Income; and
(iv) cash dividends or other distributions made by
the Borrower to Holdings for its reasonable corporate overhead
expenses,
provided that for the purpose of calculating Consolidated EBITDA, not
more than (A) 30% of Consolidated EBITDA for any period of four
consecutive fiscal quarters may be attributable to local marketing
agreements and (B) not more than 10% of Consolidated EBITDA for any
period of four consecutive fiscal quarters may be attributable to
non-broadcasting businesses and, provided further, that (x) for
purposes of calculating Consolidated EBITDA for any Test Period prior
to December 31, 1998, the Borrower may
17
12
include during such period an aggregate amount of up to $2,200,000 of
Distributable Cash (as defined in the LLC Agreement) and (y) for
purposes of calculating Consolidated EBITDA for the Test Period ending
December 31, 1998, the Borrower may include during such period the
actual amount of Distributable Cash (without consideration of the
reserve requirement of Section 8.06 of the LLC Agreement and without
duplication of amounts otherwise included in Net Income) for the
period from the Closing Date through December 31, 1998, plus the
amount of Distributable Cash, determined on a pro forma basis assuming
the Transactions had occurred on January 1, 1998, for the period from
January 1, 1998 through the Closing Date. For purposes of subsection
2.9 and subsection 7.1(a), Consolidated EBITDA for any period will be
adjusted to (A) exclude the Consolidated EBITDA attributable to any
asset or business that was disposed of (either directly or as part of
an exchange) by the Borrower or any of its Subsidiaries prior to the
date of determination (as if such asset or business had not been owned
by the Borrower or any of its Subsidiaries prior to the date of
determination) and (B) include the Consolidated EBITDA attributable to
any asset or business that was acquired (either directly or as part of
an exchange) by the Borrower or any of its Subsidiaries (including, to
the extent identified and reasonably satisfactory to the
Administrative Agent, pro forma cost savings in connection therewith)
prior to the date of determination (as if such asset or business had
been owned by the Borrower or any of its Subsidiaries prior to the
date of determination). Notwithstanding the foregoing, (a) the
Consolidated EBITDA of each Designated LMA Station shall be excluded
for purposes of determining Consolidated EBITDA for each fiscal
quarter ending on or before the earlier of June 30, 1999 and the
beginning of the first fiscal quarter after the Closing Date for which
such Designated LMA Station has positive Consolidated EBITDA and (b)
the Consolidated EBITDA of any Designated Future LMA Station shall be
excluded for purposes of determining Consolidated EBITDA for each
fiscal quarter ending on or before the earlier of the date that is
three years after the acquisition of such Designated Future LMA
Station and the beginning of the first fiscal quarter after such
acquisition for which such Designated Future LMA Station has positive
Consolidated EBITDA.
"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 by the Borrower or any of its
Subsidiaries during such period, (c) any income taxes paid by the
Borrower or any of its Subsidiaries, and any amounts paid by the
Borrower to Holdings for purposes of paying income taxes, in each
case, during such period, (d) cash dividends paid by the Borrower
during such period less the amount of any Indebtedness for money
borrowed incurred by the Borrower to fund such dividends to the extent
the proceeds of such dividends are used by Holdings during such period
to pay required redemptions of Holdings Discount Notes after the fifth
anniversary of the Closing Date and (e) any operating losses from
Designated Future LMA Stations to the extent such losses are excluded
from Consolidated EBITDA. Prior to the completion of 12 full calendar
months after the Closing Date, (a) the components of Consolidated
Fixed Charges relating to interest and income taxes will be annualized
by multiplying such components of Consolidated Fixed Charges for
18
13
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, and (b) for purposes of
this definition, Capital Expenditures (i) for the fiscal quarter ended
June 30, 1998 will equal the Capital Expenditures for such fiscal
quarter plus an amount equal to the Capital Expenditures in the three
fiscal quarters preceding the Closing Date, (ii) for the fiscal
quarter ended September 30, 1998 will equal the Capital Expenditures
for the two fiscal quarters ended September 30, 1998 plus an amount
equal to the Capital Expenditures in the two fiscal quarters preceding
the Closing Date and (iii) for the fiscal quarter ended December 31,
1998 will equal Capital Expenditures for the three fiscal quarters
ended December 31, 1998 plus an amount equal to the Capital
Expenditures in the fiscal quarter preceding the Closing Date.
"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.
"Consolidated Interest Expense": for any period, the amount
of interest expense, both expensed and capitalized, of the Borrower
and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP, for such period on the aggregate principal amount of their
Indebtedness, excluding non-cash deferred financing costs (other than
for purposes of the definition of the term "Consolidated EBITDA").
Prior to the completion of 12 full calendar months after the Closing
Date, Consolidated Interest Expense will be annualized by multiplying
Consolidated 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 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 Senior Debt": Consolidated Total Debt less (a)
any Senior Subordinated Indebtedness issued in accordance with the
terms of this Agreement and (b) any subordinated Indebtedness assumed
in connection with a Permitted Acquisition or an Asset Swap
Transaction pursuant to subsection 7.2(j)(iii).
"Consolidated Senior Leverage Ratio": as at the last day of
any period, the ratio of (a) Consolidated Senior Debt to (b)
Consolidated EBITDA for such period.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness for borrowed money of the
Borrower and its Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP, net of cash on the
consolidated balance sheet of the Borrower to the extent the initial
equity contribution (together with any equity contribution made within
45 days after the Closing Date) to the Borrower exceeds $555,000,000
less the amount of rollover investment by members of management and
employees of the Borrower and its Subsidiaries (but only for so long
as the cash relating to such equity contribution shall remain on the
balance sheet), plus an amount of cash on the balance sheet not to
exceed $10,000,000.
19
14
"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 Merger 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 Holdings 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 stockholders 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.
"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, unless cured or waived, has been satisfied.
"Delayed Tranche A Commitment Period": the period from and
including the Closing Date to the Delayed Tranche A Termination Date.
"Delayed Tranche A Term Loan Commitment": as to any Tranche A
Term Loan Lender, the obligation of such Tranche A Term Loan Lender to
make Delayed Tranche A Term Loans to the Borrower hereunder in an
aggregate principal amount not to exceed the amount set forth under
the heading "Delayed Tranche A Term Loan 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 Delayed Tranche A Term Loan Commitments is $125,000,000.
"Delayed Tranche A Term Loans": as defined in subsection
2.1(a)(i).
"Delayed Tranche A Termination Date": the earlier of (a) the
date that is fifteen (15) months after the Closing Date or, if such
date is not a Business Day, the Business Day next succeeding such date
and (b) the date upon which the Delayed Tranche A Term Loan
Commitments shall be earlier terminated pursuant hereto.
"Delivery Date": as defined in the definition of the term
"Pricing Grid".
"Designated Future LMA Station": any Station operated by the
Borrower or any of its Subsidiaries pursuant to local marketing
arrangements (or should the FCC rules permit, under direct ownership)
established after the Closing Date, provided that at the time of such
arrangement such Station has not had positive cash flow for at least
four consecutive fiscal quarters.
"Designated LMA Stations": any Existing LMA Station which has
not had positive cash flow for at least four consecutive fiscal
quarters.
20
15
"Documentation Agent": as defined in the introductory
paragraph of this Agreement.
"Dollars" and "$": lawful currency of the United States of
America.
"ECF Percentage": 75%, provided that the ECF Percentage shall
be deemed to be 50% if, on the applicable Excess Cash Flow Application
Date, the Consolidated Leverage Ratio as of the end of the last fiscal
quarter preceding such Excess Cash Flow Application Date was less than
6.00 to 1.00, provided further that the ECF Percentage shall be deemed
to be 0% if, on the applicable Excess Cash Flow Application Date, the
Consolidated Leverage Ratio as of the end of the last fiscal quarter
preceding such Excess Cash Flow Application Date was less than 5.00 to
1.00.
"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 the environment, as now or may at
any time hereafter be in effect.
"Equity Holdings A": as defined in the preamble of this
Agreement.
"Equity Holdings B": as defined in the preamble of this
Agreement.
"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.
21
16
"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 under the same Facility the then current Interest Periods with
respect to all of which begin on the same date and end 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,
Consolidated EBITDA (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) for such period (before any adjustments thereto
(a) to exclude the Consolidated EBITDA attributable to any asset or
business that was disposed of (either directly or as part of an
exchange) by the Borrower or any of its Subsidiaries during the period
of calculation or (b) to include the Consolidated EBITDA attributable
to any asset or business that was acquired (either directly or as part
of an exchange) by the Borrower or any of its Subsidiaries (excluding,
to the extent identified and reasonably satisfactory to the
Administrative Agent, pro forma cost savings in connection therewith
to the extent included in Consolidated EBITDA) during the period of
calculation), minus the sum of the following (without duplication):
(i) Consolidated Debt Service for such period;
(ii) Capital Expenditures made during such period by the
Borrower and its Subsidiaries;
(iii) distributions permitted to be made by the Borrower
pursuant to subsection 7.6(a)(iii) and other taxes of the Borrower for
such period;
(iv) the amount of any increases during such period in
Consolidated Working Capital;
(v) voluntary prepayments made during such period of the Term
Loans;
(vi) voluntary repayments made during such period of the
Revolving Credit Loans, provided that substantially simultaneously
therewith the aggregate Revolving Credit Commitments are permanently
reduced by an amount equal to the amount of such repayment;
22
17
(vii) any cash used during such period for any Restricted
Payment (other than any dividend, repurchase of Capital Stock or other
distribution made by the Borrower to Holdings), Permitted Acquisition,
Asset Swap Transaction or Investment permitted pursuant to subsections
7.8(f), (j) or (i); and
(viii) amounts referred to in clause (ii) of subparagraph (b)
of the proviso contained in the definition of the term "Net Income";
plus the sum of the following (without duplication):
(i) the amount of all proceeds received during such period of
Capital Lease Obligations, purchase money Indebtedness and any other
Indebtedness to the extent used to finance any Capital Expenditures,
to make any Restricted Payment (other than any dividend, repurchase of
Capital Stock or other distribution made by the Borrower to Holdings)
or to make a Permitted Acquisition; and
(ii) the amount of any decreases during such period in
Consolidated Working Capital.
"Excess Cash Flow Application Date": as defined in subsection
2.9(c).
"Existing Indebtedness": all Indebtedness of the Borrower
existing on the Closing Date and prior to the consummation of the
Merger.
"Existing LMA Station": any Station operated as of the
Closing Date pursuant to local marketing arrangements, including
WBNE-TV, serving New Haven, Connecticut, WVBT-TV, serving Norfolk,
Virginia, KNVA-TV, serving Austin, Texas, and KXTX-TX, serving Dallas,
Texas.
"Facility": each of (a) the Tranche A Term Loan Commitments
and the Tranche A Term Loans made thereunder (the "Tranche A Term Loan
Facility"), (b) the Tranche B Term Loan Commitments and the Tranche B
Term Loans made thereunder (the "Tranche B Term Loan Facility"), (c)
the Incremental Term Loan Amounts and the Incremental Term Loans
related thereto (the "Incremental Term Loan Facility"), (d) the
Swingline Loan Commitments and the Swingline Loans made thereunder and
(e) the Total Revolving Credit Commitments and the Revolving
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 the term "ABR".
"Film Cash Payments": for any period, the sum (determined on
a consolidated 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 which were existing as of, or
have been incurred at any time after, the Closing Date.
23
18
"Film Obligations": all obligations 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.
"Final Order": with respect to the assignment or transfer of
control of the Station Licenses for any Station, an order of the FCC
approving such assignment or transfer that is final (i.e., no longer
subject to further judicial or administrative review), as to which no
requests for judicial or administrative review are pending, and that
has not been reversed, stayed, enjoined, set aside, annulled or
suspended.
"Fox": the Fox Broadcasting Company.
"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
extendable, 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.
"Funding Date": the day immediately prior to the day on which
the Merger is consummated.
"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 Holdings and 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(a). 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. The term "Accounting Changes" refers to changes in
accounting principles
24
19
required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants or, if applicable, the
Securities and Exchange Commission (or successors thereto or agencies
with similar functions).
"GECC": General Electric Capital Corporation, a New York
corporation.
"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 and each Subsidiary Guarantor, substantially in the form of
Exhibit A, 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, counter indemnity 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 (A) for
the purchase or payment of any such primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, 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.
"Guarantors": Holdings and the Subsidiary Guarantors.
"Xxxxx Muse": as defined in the introductory paragraph of
this Agreement.
25
20
"HMTF": as defined in the definition of the term "Change of
Control".
"Holdings": as defined in the introductory paragraph of this
Agreement.
"Holdings Discount Indebtedness": the Holdings Discount Notes
and any unsecured Indebtedness of Holdings the proceeds of which shall
be used to refinance in full all of the Holdings Discount Notes, or
other Holdings Discount Indebtedness outstanding, provided such
refinancing Indebtedness has (a) no maturity, amortization, mandatory
redemption or purchase option (other than with asset sale proceeds,
subject to the provisions of this Agreement, or following a change of
control) or sinking fund payment prior to the tenth anniversary of the
Closing Date, (b) no financial maintenance covenants, (c) such other
terms and conditions (including, without limitation, interest rate,
events of default, covenants and interest Discount period) as shall be
reasonably satisfactory to the Administrative Agent and (d) any
permanent refinancing shall not be less favorable to the Borrower and
the Lenders as the Holdings Discount Notes taken as a whole.
"Holdings Discount Notes": Holdings's 10% Discount Notes due
2008 issued on the Closing Date in accordance with subsection 5.1(x)
(and shall include any substantially identical deferred interest
senior unsecured notes of Holdings in the same aggregate principal
amount issued after the Closing Date in exchange therefor pursuant to
a registered exchange offer or shelf registration statement in
accordance with the Holdings Discount Notes Indenture.)
"Holdings Discount Notes Indenture": the indenture to be
entered into by Holdings in connection with the issuance of the
Holdings Discount Notes or any other Holdings Discount Indebtedness,
together with all instruments and other agreements entered into by
Holdings in connection therewith, all in form and substance reasonably
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.
"Incremental Lenders": (a) on any Incremental Term Loan
Activation Date, the Lenders signatory to the Incremental Term Loan
Activation Notice and (b) thereafter, each Lender which has made, or
acquired pursuant to an assignment made in accordance with subsection
10.6(c), an Incremental Term Loan.
"Incremental Maturity Date": as to the Incremental Term Loans
to be made pursuant to any Incremental Term Loan Activation Notice,
the maturity date specified in such Incremental Term Loan Activation
Notice, which date shall be a date at least six months after the
Tranche B Maturity Date.
"Incremental Term Loan Activation Date": each date, which
shall be a Business Day on or before the Incremental Term Loan
Termination Date, on which any Lender shall execute and deliver to the
Administrative Agent an Incremental Term Loan Activation Notice
pursuant to subsection 2.1(b).
26
21
"Incremental Term Loan Activation Notice": a notice
substantially in the form of Exhibit G.
"Incremental Term Loan Amount": as to each Incremental
Lender, on and after the effectiveness of any Incremental Term Loan
Activation Notice, the obligation of such Incremental Lender to make
Incremental Term Loans hereunder in a principal amount equal to the
amount set forth under the heading "Incremental Term Loan Amount"
opposite such Incremental Lender's name on such Incremental Term Loan
Activation Notice.
"Incremental Term Loan Closing Date": each date, which shall
be a Business Day on or before the Incremental Term Loan Termination
Date, designated as such in an Incremental Term Loan Activation
Notice.
"Incremental Term Loan Facility": as defined in the
definition of the term "Facility".
"Incremental Term Loan Percentage": as to any Incremental
Lender, the percentage which such Lender's Incremental Term Loans then
outstanding constitutes of the aggregate principal amount of the
Incremental Term Loans then outstanding.
"Incremental Term Loans": as defined in subsection 2.1(b).
"Incremental Term Loan Termination Date": March 3, 2003.
"Incremental Term Note": a Term Note evidencing Incremental
Term Loans.
"Incur": as defined in subsection 7.2; and the term
"Incurrence" shall have a correlative meaning.
"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 a bankers' acceptance, letter of credit or similar
facilities, (g) the obligations of such Person under any Interest Rate
Protection Agreement, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through
(g) above and (i) all obligations of the kind referred to in clauses
(a) through (h) 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
27
22
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 (i) 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.
"Initial Public Offering": an underwritten public offering by
Holdings of Capital Stock of Holdings or any Subsidiary or parent
thereof pursuant to a registration statement filed with the Securities
and Exchange Commission in accordance with the Securities Act of 1933,
as amended.
"Initial Tranche A Term Loan Commitment": as to any Tranche A
Term Loan Lender, the obligation of such Tranche A Term Loan Lender to
make an Initial Tranche A Term Loan to the Borrower hereunder in a
principal amount not to exceed the amount set forth under the heading
"Initial Tranche A Term Loan Commitment" opposite such Lender's name
on Schedule 1.1A. The original aggregate amount of the Initial
Tranche A Term Loan Commitments is $50,000,000.
"Initial Tranche A Term Loans": as defined in subsection
2.1(a)(i).
"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.
"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
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, provided that the first Interest
Payment Date shall be June 30, 1998.
28
23
"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
as determined in good faith by such Lenders) 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 as determined in good faith by such Lenders) 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, in the case of Revolving Credit
Loans, or the date final payment is due, in the case of 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 the calendar month at
the end of such Interest Period; 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 Holdings 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.
"Investment" as defined in subsection 7.8.
"Investors": as defined in the preamble of this Agreement.
"Issuing Lender": Chase or any of its affiliates, in its
capacity as issuer of any Letter of Credit.
"Joint Venture Agreements": (a) the LP Agreement, (b) the LLC
Agreement and (c) the NBC Transaction Agreements.
29
24
"Joint Venture Loan": as defined in the preamble of this
Agreement.
"Joint Venture Loan Guarantee": the guarantee, in the form
heretofore approved by the Administrative Agent, executed by Equity
Holdings B with respect to the Joint Venture Loan.
"KNSD Assets": as defined in the Transaction Agreement.
"KNSD-TV Station": television station KNSD-TV, serving San
Diego, California.
"KXAN-TV Station": television station KXAN-TV, serving
Austin, Texas.
"KXAS Assets": as defined in the Transaction Agreement.
"KXTX Transaction": any transaction whereby the Borrower
contributes KXTX-TV Station to any Affiliate of Xxxxx Muse or its
principals in exchange for cash, a minority ownership interest therein
or a combination thereof, provided that (i) the cash component of any
such consideration shall not exceed 20% of the total consideration
received in connection with such transaction and (ii) the Borrower
shall deliver to the Administrative Agent a fairness opinion with
respect to such consideration delivered by an independent investment
banking firm of nationally recognized standing.
"KXTX-TV Station": television station KXTX-TV, serving
Dallas, Texas.
"L/C Commitment": $25,000,000.
"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.
"Lenders": as defined in the introductory paragraph of this
Agreement.
"Letters of Credit": as defined in subsection 3.1(a),
provided that to the extent the Borrower shall have deposited amounts
in a cash collateral account for the benefit of the Lenders, the
Letters of Credit relating thereto shall be deemed not to be Letters
of Credit for purposes of this Agreement.
30
25
"License Subsidiary": (a) as of the Closing Date, (i) in the
case of the WISH-TV Station, the WANE-TV Station, the WAVY-TV Station
and the WIVB-TV Station, LWWI, (ii) in the case of the KXAN-TV
Station, KXAN, Inc., (iii) in the case of the WTNH-TV Station, WTNH
Broadcasting, Inc. and (iv) in the case of the WAND-TV Station, WAND
Television, Inc. and (b) after the Closing Date, in each case for
clauses (i) through (iv) below upon receipt of the necessary FCC
approvals for any transfer, (i) in the case of the WISH-TV Station and
the WANE-TV Station, Indiana Broadcasting LLC, (ii) in the case of the
WIVB-TV Station, WIVB Broadcasting LLC, (iii) in the case of the
WAVY-TV Station, WAVY Broadcasting LLC, (iv) in the case of the
WTNH-TV Station, WTNH Broadcasting Inc., (v) in the case of the
KXAN-TV Station, KXAN, Inc., (vi) in the case of the WAND-TV Station,
WAND Television, Inc. and (vii) in the case of any Station acquired
after the date hereof, the Subsidiary of the Borrower that shall hold
the respective Station Licenses under the authority of which such
Station is operated, provided that each such License Subsidiary shall
be a single purpose entity the sole purpose of which shall be to hold
the Station Licenses and to perform related functions with respect
thereto.
"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).
"LIN": as defined in the preamble of this Agreement.
"LIN Texas": LIN Television of Texas, LP, a Delaware limited
partnership.
"LIN Texas Loan": as defined in the preamble of this
Agreement.
"LLC": Station Venture Holdings, LLC, a Delaware limited
liability company.
"LLC Agreement": the Station Venture Holdings, LLC Amended
and Restated Limited Liability Company Agreement dated as of January
15, 1998, between Outlet and LIN Texas.
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents and
the Notes, if any.
"Loan Parties": Holdings, the Borrower and each Subsidiary of
the Borrower which is a party to a Loan Document.
"LP": Station Venture Operations, LP, a Delaware limited
partnership.
"LP Agreement": the Station Venture Operations, LP Amended
and Restated Limited Partnership Agreement dated as of January 15,
1998, between Outlet, the LLC and Holdings.
31
26
"LP Services Agreement": the TV Master Service Agreement
dated as of January 15, 1998, among the LLC, the LP and NBC.
"LWWI": as defined in the preamble of this Agreement.
"Majority Facility Lenders": with respect to any Facility,
Lenders which collectively are the holders of more than 50% of the
aggregate unpaid principal amount of the Tranche A Term Loans, the
Tranche B Term Loans or the Incremental Term Loans, or of the Total
Revolving Extensions of Credit, as the case may be, outstanding under
such Facility (or, (a) in the case of the Revolving Credit Facility,
prior to any termination of the Revolving Credit Commitments, Lenders
which are collectively the holders of more than 50% of the aggregate
Revolving Credit Commitments or, (b) in the case of the Tranche A Term
Loan Facility, prior to the Delayed Tranche A Termination Date,
Lenders which are collectively the holders of more than 50% of the sum
of the Delayed Tranche A Term Loan Commitments and the outstanding
Tranche A Term Loans).
"Majority Revolving Credit Facility Lenders": the Majority
Facility Lenders in respect of the Revolving Credit Facility.
"Majority Tranche A Term Facility Lenders": the Majority
Facility Lenders in respect of the Tranche A Term Loan Facility.
"Material Adverse Effect": a material adverse effect on (a)
at the Closing Date, the Transactions and the other transactions
contemplated by this Agreement, (b) the business, operations,
properties, condition (financial or otherwise) or prospects of
Holdings and its Subsidiaries or the Borrower and its Subsidiaries,
each taken as a whole (other than, for purposes of the conditions to
the initial funding of Loans on the Closing Date, changes in general
economic conditions or in economic conditions generally affecting the
television broadcasting industry) or (c) the validity or
enforceability of this Agreement or any of the other Loan Documents or
the rights or remedies of the Administrative Agent, the Swingline
Lender, the Issuing Lender 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.
"Merger": as defined in the preamble of this Agreement.
"Merger Agreement": as defined in the preamble of this
Agreement.
"Merger Transactions": the transactions contemplated by the
Merger Agreement.
32
27
"Mortgaged Properties": the real properties listed on
Schedule 1.1B, as to which the Administrative Agent for the benefit of
the Lenders shall, subject to subsection 10.17, be granted a Lien
pursuant to the Mortgages and which initial Schedule 1.1B shall
include only those real properties owned by the Borrower and its
Subsidiaries at the Closing Date with a fair market value in excess of
$1,500,000.
"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.
"NBC": the National Broadcasting Company, Inc., a Delaware
corporation.
"NBC Network Affiliation Agreements": as defined in the
preamble of this Agreement.
"NBC Transaction Agreements": the Transaction Agreement and
all exhibits and schedules thereto.
"NBC Transactions": the transactions contemplated by the NBC
Transaction Agreements.
"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, notarial fees, accountants' fees, investment banking fees,
appraisal fees, survey costs, title insurance premiums, amounts 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, notarial fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and
other customary fees and expenses actually Incurred in connection
therewith.
33
28
"Net Income": at a particular date, all amounts which would,
in conformity with GAAP, be set forth opposite the caption "Net
Income" (or any like caption) on a consolidated statement of
operations of the Borrower and its Subsidiaries at such date; provided
that such amount shall be adjusted to exclude (to the extent otherwise
included therein) (a) earnings or losses attributable to any Person
(other than the LLC) in which the Borrower or any of its Subsidiaries
has a joint interest, except to the extent of the amount of dividends
or other distributions actually paid to the Borrower or such
Subsidiary by such other Person in cash during such period and (b) any
earnings or losses attributable to the interest of the Borrower or any
of its Subsidiaries in the LLC, except for any such earnings to the
extent of (i) actual distributions of Distributable Cash (as defined
in the LLC Agreement) in respect of such interest made to the Borrower
or any of its Subsidiaries and (ii) amounts that would have
constituted Distributable Cash and would have been required to be
distributed to the Borrower and its Subsidiaries in respect of such
interest but for the reserve requirement of Section 8.06 of the LLC
Agreement.
"Network Affiliation Agreements": the NBC Network Affiliation
Agreements, each agreement set forth on Schedule 1.1D and each other
agreement entered into by the Borrower or any of its Subsidiaries
(including any such agreement assumed pursuant to an Asset Swap
Transaction or otherwise) pursuant to which a television network
agrees to serve as the primary source within a designated market area
for television programming for any Station.
"Non-Consenting Lender": as defined in subsection 2.20.
"Non-Excluded Taxes": as defined in subsection 2.17(a).
"Non-Funding Lender": as defined in subsection 2.15(c).
"Non-Station Asset": all of the assets used and useful for
the operation of the Borrower's and its Subsidiaries' broadcasting and
entertainment businesses, other than the Stations.
"Non-U.S. Lender": as defined in subsection 2.17(b).
"Notes": the collective reference to the Term Notes, the
Revolving Credit Notes and the Swingline Notes.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans and Reimbursement 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, the Reimbursement
Obligations and all other obligations and liabilities of the Borrower
to the Administrative Agent, the Swingline Lender, the Issuing Lender
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 Notes, any other
34
29
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, to the Swingline Lender, to the Issuing Lender
or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.
"Original Guarantee": as defined in the preamble of this
Agreement.
"Original Lien": as defined in the preamble of this
Agreement.
"Outlet": Outlet Broadcasting, Inc., a Rhode Island
corporation.
"Participant": as defined in subsection 10.6(b).
"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
any of its Subsidiaries of one or more Broadcast Stations or Broadcast
Enterprises, or all the capital stock of, or other equity interests
in, any other Person whose primary business is the ownership and
operation of one or more Broadcast Stations or Broadcast Enterprises,
in the United States (or such lesser amount as shall be determined by
the Board of Directors of the Borrower or such Subsidiary as fair
consideration), including, without limitation, the KXTX Transaction,
provided that (a) on a pro forma basis for the most recently completed
four-fiscal-quarter period for which financial statements are
available on the date of such acquisition, no Default or Event of
Default will have occurred and be continuing (including, without
limitation, pursuant to subsection 7.1), provided that for purposes of
calculating Consolidated EBITDA pursuant to this clause (a), the
Consolidated EBITDA of such Broadcast Stations or Broadcast
Enterprises being acquired for such four-fiscal-quarter period shall
be equal to the Consolidated EBITDA of such Broadcast Stations or
Broadcast Enterprises for the 12-month period immediately preceding
such acquisition, (b) the Borrower provides the Administrative Agent
with a certificate showing compliance with all of the covenants
contained in subsection 7.1 and showing the aggregate purchase price
(including the assumption of any Indebtedness) for such Permitted
Acquisition, (c) the Borrower takes such actions as may be required or
reasonably requested to ensure that the Administrative Agent, for the
ratable benefit of the Lenders, has a perfected first priority
security interest in any assets required to be secured pursuant to
subsection 6.10 or any other Loan Document, subject to Liens permitted
by subsection 7.3, and (d) the Borrower provides the Administrative
Agent with appropriate supporting documentation if reasonably
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 (or any comparable form
issued by the FCC) relating to the transfer of control or assignment
of the Station Licenses
35
30
of any acquired Broadcast Station to the Borrower or its Subsidiary
and, unless the Administrative Agent shall otherwise agree, such
consent shall have become a Final Order.
"Permitted Issuance": (a) the issuance by Holdings of shares
of Capital Stock as dividends on issued and outstanding Capital Stock
of the same class of Holdings or pursuant to any dividend reinvestment
plan, (b) the issuance by Holdings of options or other equity
securities of Holdings to outside directors, members of management or
employees of Holdings or any Subsidiary of Holdings, (c) the issuance
of securities as interest or dividends on pay-in-kind debt or
preferred equity securities in accordance with their terms permitted
hereunder and under the other Loan Documents, (d) the issuance to
Holdings or any Subsidiary (or any director, with respect to
directors' qualifying shares) by any of its Subsidiaries of any of
their respective Capital Stock, in each case with respect to this
clause (d) to the extent such Capital Stock issued to Holdings or any
Subsidiary is pledged to the Administrative Agent pursuant to the
applicable Loan Document (provided that (i) only 65% of the voting
Capital Stock of any foreign Subsidiary of the Borrower is required to
be so pledged and (ii) no voting Capital Stock of any foreign
Subsidiary of any other foreign Subsidiary is required to be so
pledged), (e) the issuance by Holdings of shares of its common stock
in connection with a Permitted Acquisition, (f) cash payments made in
lieu of issuing fractional shares of Holdings Capital Stock in an
aggregate amount not to exceed $100,000, and (g) the issuance by
Holdings of shares of Capital Stock of Holdings to infuse additional
capital into Holdings in an aggregate amount not to exceed
$25,000,000, plus any amounts relating to the infusion of capital into
Holdings made (i) within 45 days after the Closing Date and (ii)
solely for the purpose of making an Investment in the Joint Venture as
contemplated by subsection 7.8(o).
"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.
"Pledged Debt Securities": as defined in the Guarantee and
Collateral Agreement.
"Pledged Stock": as defined in the Guarantee and Collateral
Agreement.
"Pricing Grid": the pricing grid as follows:
Tranche A Term Loans, Revolving
Credit Loans and Swingline Loans
36
31
Applicable Applicable Revolving/
Consolidated Leverage Ratio Margin for Margin for Tranche A Term
--------------------------- Eurodollar Loans ABR Loans Loan Facility
---------------- ---------- Commitment
Fee
-----------------
Level 1: Greater than or equal to 2.00% 1.00% 0.500%
6.50 to 1.00
Level 2: Greater than or equal to 1.75% 0.75% 0.375%
6.00 to 1.00 and less
than 6.50 to 1.00
Level 3: Greater than or equal to 1.50% 0.50% 0.375%
5.50 to 1.00 and less
than 6.00 to 1.00
Level 4: Greater than or equal to 1.25% 0.25% 0.375%
5.00 to 1.00 and less
than 5.50 to 1.00
Level 5: Greater than or equal to 1.00% 0.00% 0.375%
4.50 to 1.00 and less
than 5.00 to 1.00
Level 6: Less than 4.50 to 1.00 0.75% 0.00% 0.250%
Tranche B Term Loans
--------------------
Applicable Applicable
Consolidated Leverage Ratio Margin for Margin for
--------------------------- Eurodollar Loans ABR Loans
---------------- -----------
Level 1: Greater than or equal to 2.25% 1.25%
6.50 to 1.00
Level 2: Greater than or equal to 2.00% 1.00%
6.00 to 1.00 and less
than 6.50 to 1.00
Level 3: Greater than or equal to 2.00% 1.00%
5.50 to 1.00 and less
than 6.00 to 1.00
Level 4: Greater than or equal to 1.75% .75%
5.00 to 1.00 and less
than 5.50 to 1.00
37
32
Applicable Applicable
Consolidated Leverage Ratio Margin for Margin for
--------------------------- Eurodollar Loans ABR Loans
---------------- -----------
Level 5: Greater than or equal to 1.75% .75%
4.50 to 1.00 and less
than 5.00 to 1.00
Level 6: Less than 4.50 to 1.00 1.75% .75%
Changes in the Applicable Margin and the Commitment Fee Rate resulting from
changes in the Consolidated Leverage Ratio shall become effective on the day
(the "Adjustment Date") of receipt by the Administrative Agent of the financial
statements delivered pursuant to subsection 6.1 and shall remain in effect
until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time
periods specified above, then, until such financial statements are delivered,
at the option of the Administrative Agent or the Required Lenders, the
Consolidated Leverage Ratio as at the end of the fiscal period that would have
been covered thereby shall for the purposes of this definition be determined by
reference to "Level 1". Each determination of the Consolidated Leverage Ratio
pursuant to this paragraph shall be made with respect to the period of four
consecutive fiscal quarters of the Borrower ending at the end of the period
covered by the relevant financial statements, provided that prior to delivery
(the date of such delivery, the "Delivery Date") of the financial statements
for the first fiscal quarter following the Closing Date, the Consolidated
Leverage Ratio shall be determined by reference to the pro forma financial
statements delivered to the Administrative Agent by the Borrower on or prior to
the Closing Date (such statements to be reasonably satisfactory to the
Administrative Agent) giving pro forma effect to the Transactions for the most
recently completed four-fiscal-quarter period of the Borrower for which
financial statements are available, and if no such statements are so delivered,
the Consolidated Leverage Ratio prior to the Delivery Date shall be deemed to
be that corresponding to "Level 1".
"Prime Rate": as defined in the definition of the term "ABR".
"Projections": as defined in subsection 6.2(c).
"Properties": as defined in subsection 4.17(a).
"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,
38
33
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 or deed in lieu thereof relating to any Property of
Holdings or any of its Subsidiaries, excluding any such settlement or
payment which, together with any related settlement or payment, yields
gross proceeds to Holdings or any of its Subsidiaries of less than
$5,000,000.
"Refinanced Indebtedness": as defined in the preamble of this
Agreement.
"Refunded Swingline Loans": as defined in subsection
2.4(c)(ii).
"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
Holdings 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(d) 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, provided that to the extent the Net
Cash Proceeds of an Asset Sale relate to the sale of a Broadcasting
Asset sold in accordance with subsection 7.5(h) or exchanged in
accordance with subsection 7.5(i) or relate to a Recovery Event with
respect to a Broadcasting Asset, the Borrower may deliver a
Reinvestment Notice with respect to such Net Cash Proceeds only to the
extent such Net Cash Proceeds shall be used to make a Permitted
Acquisition pursuant to subsection 7.5(h) or to pay cash consideration
in connection with an Asset Swap Transaction pursuant to subsection
7.5(i).
"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.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring 365 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
39
34
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 (whether as a result of a Permitted Acquisition, an Asset
Swap Transaction or otherwise) and the Borrower or such Subsidiary has
filed within 365 days of the Reinvestment Event an application with
the FCC for the approval of the transfer of control or assignment of
the Station License of such acquired Station, the period specified in
paragraph (a) shall be extended to a period equal to five Business
Days after the time required for the FCC to issue a Final Order
relating to the transfer of control of such Station License.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Replacement Guarantor Pledge Agreement": as defined in the
credit agreement governing the Joint Venture Loan.
"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": Lenders, other than Non-Funding Lenders,
which collectively are the holders of more than 50% of the sum of (i)
the Loans, (ii) the unused Tranche A Term Loan Commitments and (iii)
the aggregate unused Revolving Credit Commitments (excluding
commitments to issue Letters of Credit or make Swingline Loans) or, if
the Revolving Credit Commitments have been terminated, the Total
Revolving Extensions of Credit (other than Swingline Loans).
"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, the Borrower or
any of its Subsidiaries, 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 (or officer having comparable duties) 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(d) whether or
not such person holds any of the foregoing positions).
"Restricted Payment" as defined in subsection 7.6.
40
35
"Revolving Credit Commitment": as to any Revolving Credit
Lender, the obligation of such Revolving Credit Lender, if any, to
make Revolving Credit Loans, and to participate in Swingline 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
$50,000,000.
"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
the term "Facility".
"Revolving Credit Lender": each Lender which has a Revolving
Credit Commitment or which has made, or acquired pursuant to an
assignment made in accordance with subsection 10.6(c), Revolving
Credit Loans or has participations in outstanding Letters of Credit or
Swingline Loans.
"Revolving Credit Loans": as defined in subsection 2.4(a).
"Revolving Credit Note": as defined in subsection 10.6(f).
"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 earlier 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, (b) such Lender's Revolving Credit Percentage of the
L/C Obligations then outstanding and (c) such Lender's Swingline
Exposure at such time.
"Scheduled Revolving Credit Termination Date": March 31,
2005.
"Security Documents": the collective reference to the
Guarantee and Collateral 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.
41
36
"Senior Subordinated Indebtedness": the Senior Subordinated
Notes and any unsecured senior subordinated Indebtedness of the
Borrower the proceeds of which shall be used to refinance in full all
of the Senior Subordinated Notes, or other Senior Subordinated
Indebtedness outstanding, provided such refinancing Indebtedness has
(a) no maturity, amortization, mandatory redemption or purchase option
(other than with asset sale proceeds, subject to the provisions of
this Agreement, or following a change of control) or sinking fund
payment prior to the tenth anniversary of the Closing Date, (b) no
financial maintenance covenants, (c) such other terms and conditions
(including without limitation, interest rate, events of default,
subordination and covenants) as shall be reasonably satisfactory to
the Administrative Agent and (d) any permanent refinancing shall not
be less favorable to the Borrower and the Lenders as the Senior
Subordinated Notes taken as a whole.
"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 or any
other Senior Subordinated Indebtedness, together with all instruments
and other agreements entered into by the Borrower and such
Subsidiaries in connection therewith, all in form and substance
reasonably 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 Borrower's 8 3/8% Senior
Subordinated Notes due 2008 issued on the Closing Date in accordance
with subsection 5.1(w) (and shall include any substantially identical
senior subordinated notes of the Borrower in the same aggregate
principal amount issued after the Closing Date in exchange therefor
pursuant to a registered exchange offer or shelf registration
statement in accordance with 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 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": (a) with respect to the Borrower or any
of its Subsidiaries, all authorizations, licenses or permits issued by
the FCC and granted or assigned to the Borrower or any of its
Subsidiaries, or under which the Borrower or any of its Subsidiaries
has the right to operate any Station, together with any extensions or
renewals thereof and (b) with respect to any other Person, all
authorizations, licenses or permits issued by the
42
37
FCC and granted or assigned to such Person, or under which such Person
has the right to operate any Broadcast Station, together with any
extensions or renewals thereof.
"Stations": collectively, (a) the WISH-TV Station, (b) the
WANE-TV Station, (c) the WIVB-TV Station, (d) the WAVY-TV Station, (e)
the WTNH-TV Station, (f) the KXAN-TV Station, (g) the WAND-TV Station
and (h) any additional Broadcast Station acquired after the date
hereof.
"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 Transactions.
"Subsidiary Guarantor": each Subsidiary of the Borrower party
to the Guarantee and Collateral Agreement.
"Swingline Exposure": at any time, the aggregate principal
amount of all outstanding Swingline Loans at such time. The Swingline
Exposure of any Revolving Credit Lender at any time shall mean its
Revolving Credit Percentage of the aggregate Swingline Exposure at
such time.
"Swingline Lender": as defined in the introductory paragraph
of this Agreement.
"Swingline Loan Participation Certificate": a certificate in
substantially the form of Exhibit H.
"Swingline Loan Commitment": the obligation of the Swingline
Lender to make Swingline Loans to the Borrower hereunder. The
original amount of the Swingline Loan Commitment is $25,000,000.
"Swingline Loans": as defined in subsection 2.4(c)(i).
"Swingline Note": as defined in subsection 10.6(f).
"Syndication Agent": as defined in the introductory paragraph
of this Agreement.
"Term Commitments": the Tranche A Term Loan Commitments and
the Tranche B Term Loan Commitments.
"Term Loans": the Tranche A Term Loans, the Tranche B Term
Loans and the Incremental Term Loans made by the Lenders to the
Borrower pursuant to subsection 2.1.
43
38
"Term Notes": as defined in subsection 10.6(f).
"Test Period": any period of four consecutive fiscal quarters
of the Borrower most recently ended.
"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.
"Tranche A Term Loan Commitment": as to any Tranche A Term
Loan Lender, such Tranche A Term Loan Lender's Initial Tranche A Term
Loan Commitment and Delayed Tranche A Term Loan Commitment.
"Tranche A Term Loan Facility": as defined in the definition
of the term "Facility".
"Tranche A Term Loan Lender": each Lender which has a Tranche
A Term Loan Commitment or which has made, or acquired pursuant to an
assignment made in accordance with subsection 10.6(c), a Tranche A
Term Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term
Loan Lender (a) at any time prior to the Closing Date, the percentage
which such Lender's Tranche A Term Loan Commitment then constitutes of
the aggregate Tranche A Term Loan Commitments, (b) at any time during
the Delayed Tranche A Commitment Period, the percentage which the sum
of such Lender's Delayed Tranche A Term Loan Commitment and the
principal amount of such Lender's Tranche A Term Loans then
outstanding constitutes of the sum of the aggregate Delayed Tranche A
Term Loan Commitments and the aggregate principal amount of the
Tranche A Term Loans then outstanding and (c) at any time after the
end of the Delayed Tranche A Commitment Period, the percentage which
the principal amount of such Lender's Tranche A Term Loans then
outstanding constitutes of the aggregate principal amount of the
Tranche A Term Loans then outstanding.
"Tranche A Term Loans": the Initial Tranche A Term Loans and
the Delayed Tranche A Term Loans.
"Tranche A Term Note": any Term Note evidencing Tranche A
Term Loans.
"Tranche B Maturity Date": as defined in subsection 2.3(b).
"Tranche B Term Loan Commitment": as to any Tranche B Term
Loan Lender, the obligation of such Tranche B Term Loan Lender to make
a Tranche B Term Loan to the Borrower hereunder in a principal amount
not to exceed the amount set forth under the heading "Tranche B Term
Loan Commitment" opposite such Lender's name on Schedule 1.1A. The
original aggregate amount of the Tranche B Term Loan Commitments is
$120,000,000.
"Tranche B Term Loan Facility": as defined in the definition
of the term "Facility".
44
39
"Tranche B Term Loan Lender": each Lender which has a Tranche
B Term Loan Commitment or which has made, or acquired pursuant to an
assignment made in accordance with subsection 10.6(c), a Tranche B
Term Loan.
"Tranche B Term Loan Percentage": as to any Tranche B Term
Loan Lender at any time, the percentage which such Lender's Tranche B
Term Loan Commitment then constitutes of the aggregate Tranche B Term
Loan Commitments (or, at any time after the Closing Date, the
percentage which the principal amount of such Lender's Tranche B Term
Loans then outstanding constitutes of the aggregate principal amount
of the Tranche B Term Loans then outstanding).
"Tranche B Term Loans": as defined in subsection 2.1(a)(ii).
"Tranche B Term Note": any Term Note evidencing Tranche B
Term Loans.
"Transaction Agreement": the Transaction Agreement dated as
of January 15, 0000, xxxxxxx XXX, Xxxxxx, XXX Xxxxx, the Borrower, the
LLC, the LP and Holdings.
"Transaction Documents": the Merger Agreement, the Joint
Venture Agreements and the other documents relating to the
Transactions.
"Transactions": the Merger Transactions and the NBC
Transactions.
"Transferee": as defined in subsection 10.6(g).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"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.
"WAND-TV Station": television station WAND (TV), serving
Decatur, Illinois.
"WANE-TV Station": television station WANE-TV, serving Fort
Xxxxx, Indiana.
"WAVY-TV Station": television station WAVY-TV, serving
Norfolk, Virginia.
"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.
"WISH-TV Station": television station WISH-TV, serving
Indianapolis, Indiana.
45
40
"WIVB-TV Station": television station WIVB-TV, serving
Buffalo, New York.
"WOOD-TV Acquisition": as defined in the preamble of this
Agreement.
"WOOD-TV Purchase Agreement": the Asset Purchase Agreement
dated August 12, 1997, among Holdings, LIN Broadcasting Corporation,
LIN Michigan Broadcasting Corporation, LCH Communications, Inc. and
the Borrower.
"WOOD-TV Station": television station WOOD-TV, serving Grand
Rapids, Michigan.
"WTNH-TV Station": means television station WTNH-TV, serving
New Haven, Connecticut.
"WVTM Assets": as defined in the preamble of this Agreement.
"WVTM Purchase Agreement": the Asset Purchase Option
Agreement among Holdings, Birmingham Broadcasting (WVTM TV), Inc. and
NBC dated January 15, 1998.
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 Holdings 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 Commitments. (a) Subject to the terms and
conditions hereof,
(i) each Tranche A Term Loan Lender severally agrees (A) to
make a term loan (an "Initial Tranche A Term Loan") to the Borrower on the
Closing Date in a principal amount not to exceed the amount of the Initial
Tranche A Term Loan Commitment of such Lender and (B) to make a term loan (a
"Delayed Tranche A Term Loan") to the Borrower at any one time during the
Delayed Tranche A Commitment Period in a principal amount not to exceed the
Delayed Tranche A Term Loan Commitment of such Lender.
46
41
(ii) each Tranche B Term Loan Lender severally agrees to make
a term loan (a "Tranche B Term Loan") to the Borrower on the Closing Date in a
principal amount not to exceed the Tranche B Term Loan Commitment of such
Lender.
(b) The Borrower and all or certain of the Lenders may, up to
five times during the period from and including the Closing Date to but
excluding the Incremental Term Loan Termination Date, agree that such Lenders
shall become Incremental Lenders or increase the principal amount of their
Incremental Term Loans by executing and delivering to the Administrative Agent
an Incremental Term Loan Activation Notice specifying (i) the respective
Incremental Term Loan Amount of such Incremental Lenders, (ii) the applicable
Incremental Term Loan Closing Date, (iii) the applicable Incremental Maturity
Date, (iv) the amortization schedule for the applicable Incremental Term Loans,
which shall comply with subsection 2.3(c) and (v) the Applicable Margin for the
Incremental Term Loans to be made pursuant to such Incremental Term Loan
Activation Notice, and which shall be otherwise duly completed. Each
Incremental Lender that is a signatory to an Incremental Term Loan Activation
Notice severally agrees, on the terms and conditions of this Agreement, to make
a term loan (an "Incremental Term Loan") to the Borrower on the Incremental
Term Loan Closing Date specified in such Incremental Term Loan Activation
Notice in a principal amount not to exceed the amount of the Incremental Term
Loan Amount of such Incremental Lender specified in such Incremental Term Loan
Activation Notice. Subject to the terms and conditions of this Agreement, the
Borrower may convert Incremental Term Loans of one Type into Incremental Term
Loans of another Type (as provided in subsection 2.10) or continue Incremental
Term Loans of one Type as Incremental Term Loans of the same Type (as provided
in subsection 2.10). Incremental Term Loans that are prepaid may not be
reborrowed. Nothing in this subsection 2.1(b) shall be construed to obligate
any Lender to execute an Incremental Term Loan Activation Notice.
Notwithstanding the foregoing, (a) without the consent of the Required Lenders
the Borrower shall not solicit any Incremental Term Loan Activation Notice
after March 3, 2001 and (b) the aggregate amount of Incremental Term Loans
shall not exceed $225,000,000.
(c) 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. (a) The Borrower
shall give the Administrative Agent irrevocable written (or telephonic promptly
confirmed in writing) notice (which notice must be received by the
Administrative Agent prior to 12:00 noon, New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Tranche A Term Loan
Lenders and the Tranche B Term Loan Lenders make the Initial Tranche A Term
Loans and the Tranche B Term Loans, respectively, on the Closing Date and
specifying the amount to be borrowed. Each such notice shall be given by the
Borrower in the form of Exhibit J. The Initial Tranche A Term Loans and the
Tranche B Term Loans made on the Closing Date shall initially be ABR Loans.
Upon receipt of such notice the Administrative Agent shall promptly notify each
Tranche A Term Loan Lender and Tranche B Term Loan Lender thereof. Not later
than 12:00 Noon, New York City time, on the Closing Date each Tranche A Term
Loan Lender and Tranche B 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 Initial Tranche A Term Loans or
Tranche B Term Loans to
47
42
be made by such Lender. The Administrative Agent 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
Tranche A Term Loan Lenders and Tranche B Term Loan Lenders in like funds as
received by the Administrative Agent.
(b) The Borrower shall give the Administrative Agent
irrevocable written (or telephonic promptly confirmed in writing) notice of
each borrowing of Delayed Tranche A Term Loans or Incremental Term Loans (which
notice must be received by the Administrative Agent prior to 12:00 Noon, New
York City time, (i) three Business Days prior to the requested Borrowing Date,
in the case of Eurodollar Loans, or (ii) one Business Day prior to the
requested Borrowing Date, in the case of ABR Loans), specifying (A) the amount
and Type of Delayed Tranche A Term Loans or Incremental Term Loans to be
borrowed, (B) the requested Borrowing Date and (C) 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 such notice shall be
given by the Borrower in the form of Exhibit J. There shall be only one
borrowing under the Delayed Tranche A Term Loan Commitment and no more than
five borrowings under the Incremental Term Loan Facility. The borrowing under
the Delayed Tranche A Term Loan Commitment and each borrowing under the
Incremental Term Loan Facility shall be in an amount equal to (x) in the case
of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof and
(y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $100,000
in excess thereof. Upon receipt of any such notice with respect to a Delayed
Tranche A Term Loan or Incremental Term Loan from the Borrower, the
Administrative Agent shall promptly notify each Tranche A Term Loan Lender or
Incremental Lender, as the case may be, thereof. Each Tranche A Term Loan
Lender will make the amount of its pro rata share of each borrowing available
to, and each Incremental Lender will make its respective Incremental Term Loan
Amount 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
applicable Lenders and in like funds as received by the Administrative Agent.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loans
of each Tranche A Term Loan Lender shall mature in 26 consecutive quarterly
installments, commencing on December 31, 1998, each of which installments in
any calendar year specified below shall be in an amount equal to the product of
(i) one quarter of the percentage set forth opposite such calendar year (except
with respect to 1998 and 2005, during which there will be one installment made
on December 31, 1998, and March 31, 2005, respectively, and with respect to
2005 in the lesser of the amount of Tranche A Term Loans then outstanding and
the percentage set forth below opposite the year 2005), (ii) the amount of the
outstanding Tranche A Term Loans as of the Closing Date plus $125,000,000 and
(iii) such Lender's Tranche A Term Loan Percentage:
48
43
Year Percentage
---- ----------
1998 1.190%
1999 8.333
2000 11.310
2001 13.690
2002 17.857
2003 19.048
2004 22.619
2005 5.953
Notwithstanding the foregoing, if (a) the WOOD-TV Acquisition
shall not occur prior to the Delayed Tranche A Termination Date or (b) the
WOOD-TV Acquisition shall occur and the difference between $125,000,000 and the
actual aggregate principal amount of the Delayed Tranche A Term Loans is
greater than zero, then the quarterly installments of principal of the Tranche
A Term Loans after the earlier of the Delayed Tranche A Termination Date and
the date, if any, on which the WOOD-TV Acquisition shall occur (such earlier
date, the "Installment Adjustment Date") will be determined in accordance with
the first sentence of this subsection 2.3(a) but substituting for the amount
determined pursuant to clause (ii) thereof the amount (the "Actual Tranche A
Term Loan Amount") equal to the sum of (i) the amount of the outstanding
Tranche A Term Loans on the Closing Date and (ii) the amount of Delayed Tranche
A Term Loans, if any, provided that the amounts of such quarterly installments
payable after the Installment Adjustment Date shall be reduced in order of
maturity in an aggregate amount equal to the difference between (A) the
aggregate amount of the scheduled installments of Tranche A Term Loans paid
prior to the Installment Adjustment Date and (B) the aggregate amount of
scheduled installments of Tranche A Term Loans that would have been required to
have been paid prior to the Installment Adjustment Date if such installments
had been determined in accordance with the first sentence of this subsection
2.3 but substituting for the amount determined pursuant to clause (ii) thereof
the Actual Tranche A Term Loan Amount.
(b) The Tranche B Term Loans of each Tranche B Term Loan
Lender shall mature in 34 consecutive quarterly installments, commencing on
December 31, 1998, each of which installments in any calendar year specified
below shall be in an amount equal to the product of (i) one quarter of the
percentage set forth opposite such calendar year (except with respect to 1998
and 2007, during which there will be one installment made on December 31, 1998
and March 31, 2007 (the "Tranche B Maturity Date"), respectively, and with
respect to 2007 in the lesser of the amount of Tranche B Term Loans then
outstanding and the percentage set forth below opposite the year 2007), (ii)
the amount of the outstanding Tranche B Term Loans as of the Closing Date and
(iii) such Lender's Tranche B Term Loan Percentage:
Year Percentage
---- ----------
1998 0.200%
1999 0.400
2000 0.400
2001 0.400
2002 0.400
2003 0.400
2004 0.400
2005 24.100
2006 57.000
2007 16.300
49
44
(c) The Incremental Term Loans, if any, of each Incremental
Lender shall mature in consecutive quarterly installments as specified in the
Incremental Term Loan Activation Notice pursuant to which such Incremental Term
Loans were made, provided that prior to the date that is six months following
the Tranche B Maturity Date the amounts of such installments for any four
consecutive fiscal quarters shall not exceed 1% of the aggregate principal
amount of such Incremental Term Loans on the date such Loans were first made.
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 Swingline
Exposure at such time and 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 and reborrowing the
Revolving Credit Loans in whole or in part, 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 and all outstanding Swingline
Loans on the earlier of the Revolving Credit Termination Date and the first
date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two Business Days after such Swingline Loan is
made.
(c)(i) Subject to the terms and conditions hereof, the
Swingline Lender agrees to make swingline loans ("Swingline Loans") to the
Borrower from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding not to exceed
$25,000,000, provided that at no time may the Total Revolving Extensions of
Credit exceed the aggregate Revolving Credit Commitments. During the Revolving
Credit Commitment Period, the Borrower may use the Swingline Loan Commitment by
borrowing, prepaying, in whole or in part, and reborrowing the Swingline Loans,
all in accordance with the terms and conditions hereof. All Swingline Loans
shall be ABR Loans. The Borrower shall give the Swingline Lender irrevocable
written (or telephonic promptly confirmed in writing) notice (which notice must
be received by the Swingline Lender prior to 12:00 noon New York City time) on
the requested Borrowing Date specifying the amount of the requested Swingline
Loan which shall be in an aggregate minimum amount of $100,000, or a whole
multiple of $25,000 in excess thereof. Each such notice shall be given by the
Borrower in the form of Exhibit J. The proceeds of the Swingline Loan will be
made available by the Swingline Lender to the Borrower at the office of the
Swingline Lender by 2:00 p.m. New York City time on the Borrowing Date by
crediting the account of the
50
45
Borrower at such office with such proceeds. The Borrower may, at any time and
from time to time, prepay the Swingline Loans, in whole or in part, without
premium or penalty, by notifying the Swingline Lender prior to 12:00 noon New
York City time on any Business Day of the date and amount of prepayment. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments shall be in an
aggregate principal amount of $100,000, or a whole multiple of $25,000 in
excess thereof.
(ii) The Swingline Lender, at any time in its sole and
absolute discretion, may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), and without regard to the
minimum amounts in subsection 2.5, request each Revolving Credit Lender
including the Swingline Lender to make a Revolving Credit Loan in an amount
equal to such Lender's Revolving Credit Percentage of the amount of the
Swingline Loans outstanding on the date such notice is given (the "Refunded
Swingline Loans"). Unless any of the events described in paragraph (f) of
Section 8 shall have occurred with respect to the Borrower (in which event the
procedures of subparagraph (iii) of this subsection 2.4(c) shall apply), each
Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan
available to the Administrative Agent for the account of the Swingline Lender
at the office of the Administrative Agent specified in subsection 10.2 prior to
1:00 p.m. New York City time in immediately available funds on the Business
Day next succeeding the date such notice is given. The proceeds of such
Revolving Credit Loans shall be immediately applied to repay the Refunded
Swingline Loans. Effective on the day such Revolving Credit Loans are made,
the portion of such Loans so paid shall no longer be outstanding as Swingline
Loans, shall no longer be due under any Swingline Note and shall be Revolving
Credit Loans made by the Revolving Credit Lenders in accordance with their
respective Revolving Credit Percentages. The Borrower authorizes the Swingline
Lender to charge its accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Credit Lenders are not sufficient to repay in full such Refunded Swingline
Loans.
(iii) If prior to the making of a Revolving Credit Loan
pursuant to subparagraph (ii) of this subsection 2.4(c) one of the events
described in paragraph (f) of Section 8 shall have occurred and be continuing
with respect to the Borrower, each Revolving Credit Lender will, on the date
such Revolving Credit Loan was to have been made pursuant to the notice in
subsection 2.4(c)(ii), purchase an undivided participating interest in the
Refunded Swingline Loan in an amount equal to (i) its Revolving Credit
Percentage times (ii) the Refunded Swingline Loans. Each Revolving Credit
Lender will immediately transfer to the Swingline Lender, in immediately
available funds, the amount of its participation, and upon receipt thereof the
Swingline Lender will deliver to such Revolving Credit Lender a Swingline Loan
Participation Certificate dated the date of receipt of such funds and in such
amount.
(iv) Whenever, at any time after any Revolving Credit Lender
has purchased a participating interest in a Swingline Loan, the Swingline
Lender receives any payment on account thereof, the Swingline Lender will
distribute to such Revolving Credit Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Revolving Credit Lender's participating
interest was outstanding and funded); provided, however, that in the event that
such payment received by the Swingline
51
46
Lender is required to be returned, such Revolving Credit Lender will return to
the Swingline Lender any portion thereof previously distributed by the
Swingline Lender to it.
(v) Each Revolving Credit Lender's obligation to make the
Loans referred to in subsection 2.4(c)(ii) and to purchase participating
interests pursuant to subsection 2.4(c)(iii) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (A) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default or an Event of Default; (C) any
adverse change in the condition (financial or otherwise) of the Borrower; (D)
any breach of this Agreement or any other Loan Document by Holdings, the
Borrower or any of its Subsidiaries or any other Lender; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
2.5 Procedure for Revolving Credit Borrowing. Subject to
subsection 2.8(b), 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
written (or telephonic promptly confirmed in writing) 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 such notice shall be given by the Borrower in the form of Exhibit J. Each
borrowing under the Revolving Credit Commitments shall be in an amount equal to
(A) in the case of ABR Loans, $1,000,000 or a whole multiple of $100,000 in
excess thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (B) in the case
of Eurodollar Loans, $5,000,000 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. For
52
47
purposes of calculating commitment fees under this subsection 2.6(a) only, no
portion of the Revolving Credit Commitments shall be deemed utilized as a
result of outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent
for the account of each Tranche A Term Loan Lender a commitment fee for the
period from and including the Closing Date to the Delayed Tranche A Termination
Date, computed at the Commitment Fee Rate on the average daily amount of the
Delayed Tranche A Term Loan 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 Delayed Tranche A Termination
Date, commencing on the first of such dates to occur after the date hereof.
(c) The Borrower agrees to pay to the Administrative Agent
the fees in the amounts and on the dates set forth in the Amended and Restated
Fee Letter dated January 12, 1998, in writing among Holdings, the Borrower, the
Administrative Agent and Chase Securities Inc.
2.7 Termination or Reduction of Commitments.
(a) The Initial Tranche A Term Loan Commitments and the
Tranche B Term Loan Commitments shall be automatically and permanently
terminated at 5:00 p.m., New York City time, on the Closing Date. The Delayed
Tranche A Term Loan Commitments shall be automatically and permanently
terminated at 5:00 p.m., New York City time, on the Delayed Tranche A
Termination Date. The Revolving Credit Commitments shall be automatically and
permanently terminated at 5:00 p.m., New York City time, on the Revolving
Credit Termination Date.
(b) 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 the Delayed Tranche A Term Loan Commitments or,
from time to time, to reduce the amount of the Revolving Credit Commitments or
the Delayed Tranche A Term Loan Commitments, provided that no such termination
or reduction with respect to Revolving Credit Commitments shall be permitted
if, after giving effect thereto and to any prepayments of the Swingline Loans
and the Revolving Credit Loans made on the effective date thereof, the Total
Revolving Extensions of Credit would exceed the Revolving Credit Commitments
then in effect. Any reduction pursuant to this subsection 2.7(b) shall be in
an amount equal to $1,000,000, or a whole multiple of $100,000 in excess
thereof, and shall reduce permanently the Revolving Credit Commitments or the
Delayed Tranche A Term Loan Commitments, as applicable, then in effect. Upon
receipt of any notice pursuant to this subsection 2.7(b), the Administrative
Agent shall promptly notify each Tranche A Term Loan Lender or each Revolving
Credit Lender and the Swingline Lender, as applicable, of the contents
thereof).
2.8 Optional Prepayments. (a) 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 written (or telephonic promptly confirmed in writing)
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
53
48
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 (other than as contemplated in subsection 2.8(b)) of
Eurodollar Loans shall be in an aggregate principal amount of $5,000,000 or a
whole multiple of $100,000 in excess thereof. Partial prepayments (other than
of a Swingline Loan or as contemplated by subsection 2.8(b)) of ABR Loans shall
be in an aggregate principal amount of $1,000,000 or a whole multiple of
$100,000 thereof. At the election of the Borrower, the first $20,000,000 in
aggregate amount of optional prepayments on account of the Term Loans shall be
applied to the then remaining installments thereof as the Borrower elects and
thereafter optional prepayments of the Term Loans shall be allocated among the
Term Loans under the Tranche A Term Loan Facility, the Tranche B Term Loan
Facility and the Incremental Term Loan Facility ratably based on the
outstanding principal amount of the Term Loans under each such Facility and
applied to the then remaining installments of the Term Loans under each such
Facility ratably based on the number of then remaining installments under such
Facility (i.e. each then remaining installment of the applicable Term Loans
shall be reduced by an amount equal to the aggregate amount to be applied to
such Term Loan divided by the number of the then remaining installments for
such Term Loans), provided that if the amount to be applied to any installment
required by this Agreement would exceed the then remaining amount of such
installment, then an amount equal to such excess shall be applied to the
remaining installments in the order of maturity after giving effect to all
prior reductions thereto (including the amount of prepayments theretofore
allocated pursuant to the preceding portion of this sentence).
(b) In the event that the Borrower specifies in the
Reinvestment Notice with respect to the sale of any Broadcasting Asset that the
Borrower will apply the Net Cash Proceeds of such sale to the temporary
repayment of Revolving Credit Loans pursuant to this subsection 2.8(b), the
Borrower shall apply such Net Cash Proceeds to the repayment of Revolving
Credit Loans as provided in subsection 2.8(a), without giving effect to any
minimum repayment amounts set forth therein. Any such repayment is referred to
herein as a "Broadcasting Asset Temporary Repayment". The Borrower may from
time to time reborrow all or a portion of the amount prepaid pursuant to any
Broadcasting Asset Temporary Repayment if (i) such borrowing complies with all
the procedures for borrowing set forth in subsection 2.5 and (ii) promptly upon
the receipt of the proceeds of such borrowing, the Borrower (A) applies such
proceeds to make a Permitted Acquisition, (B) deposits such proceeds in a cash
collateral account with the Administrative Agent as contemplated by subsection
2.9(b) or (C) applies such proceeds to the prepayment of Term Loans and the
permanent reduction of Revolving Credit Commitments in the manner specified in
such subsection 2.9(d). So long as any portion of any Broadcasting Asset
Temporary Repayment has not been reborrowed, the Borrower shall not be entitled
to borrow, and no Lender shall be entitled to make, Revolving Credit Loans or
Swingline Loans if after giving effect thereto the aggregate amount of
outstanding Revolving Extensions of Credit at such time would exceed an amount
equal to (i) the aggregate amount of the Revolving Credit Commitments at such
time minus (ii) the aggregate amount of all Broadcasting Asset Temporary
Repayments that have not been reborrowed at such time.
54
49
2.9 Mandatory Prepayments and Commitment Reductions. (a) If
any Capital Stock (other than a Permitted Issuance) or Indebtedness shall be
issued or Incurred by Holdings, the Borrower or any of its Subsidiaries
(excluding any Incurrence of Indebtedness in accordance with subsection 7.2),
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 reduction of the Revolving Credit
Commitments as set forth in subsection 2.9(d), provided that if, at the time of
such issuance or Incurrence, the Consolidated Leverage Ratio as of the last day
of the most recent Test Period is (i) less than 5.00 to 1.00 and greater than
or equal to 4.00 to 1.00, an amount equal to 50% of the Net Cash Proceeds
thereof shall be applied on the date of such issuance or Incurrence first,
toward the prepayment of the Term Loans, and second, to the reduction of the
Revolving Credit Commitments as set forth in subsection 2.9(d) and (ii) less
than 4.00 to 1.00, no such prepayment or reduction shall be required in respect
of such issuance or Incurrence.
(b) If on any date Holdings, 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(d), provided that
if a Reinvestment Notice shall be delivered in respect thereof (i) 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 reduction of the Revolving Credit
Commitments as set forth in subsection 2.9(d) and (ii) if such Net Cash
Proceeds relate to an Asset Sale pursuant to subsection 7.5(h) or an Asset Swap
Transaction pursuant to subsection 7.5(i) and a Reinvestment Notice has been
delivered in connection therewith, pending such Reinvestment Prepayment Date,
such Net Cash Proceeds shall be (A) applied to the repayment of Revolving
Credit Loans pursuant to subsection 2.8(b) to be reborrowed by the Borrower,
subject to compliance by the Borrower at the time of such reborrowing with the
terms and conditions of this Agreement, to make a Permitted Acquisition or as
cash consideration in connection with an Asset Swap Transaction or (B)
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 make a Permitted Acquisition or as cash consideration in
connection with an Asset Swap Transaction, provided further, that,
notwithstanding subsection 2.9(d), if, at the time of receipt of such Net Cash
Proceeds, the Consolidated Leverage Ratio as of the last day of the most recent
Test Period is (i) less than 5.00 to 1.00 and greater than or equal to 4.00 to
1.00, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied
as set forth in subsection 2.9(d) and (ii) less than 4.00 to 1.00, no such
prepayment or reduction shall be required in respect of such Net Cash Proceeds,
(provided that amounts not required to be applied toward the prepayment of the
Term Loans and, if applicable, the reduction of the Revolving Credit
Commitments pursuant to clauses (i) and (ii) above shall be reinvested in the
business of the Borrower or any of its Subsidiaries in a manner permitted by
Section 4.08 of the Senior Subordinated Note Indenture (or any comparable
section after the date hereof) on or prior to the 179th day after receipt of
such Net Cash Proceeds, and any amounts not so reinvested on or prior to such
time shall be applied first, toward the prepayment of the Term Loans
55
50
and, second, to the reduction of the Revolving Credit Commitments prior to the
180th day after receipt thereof).
(c) If, for any fiscal year of the Borrower commencing with
the fiscal year ending December 31, 1998, 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 reduction of the Revolving Credit Commitments as set forth in
subsection 2.9(d). 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 delivered.
(d) Subject to the other provisions of this subsection 2.9,
(i) 100% of the Net Cash Proceeds of the issuance of any Capital Stock (other
than a Permitted Issuance) or the issuance or Incurrence of any Indebtedness
as provided in subsection 2.9(a), (ii) 100% of the Net Cash Proceeds of any
Asset Sale or Recovery Event, unless a Reinvestment Notice shall be delivered
in respect of any Asset Sale or Recovery Event (in which case the terms of
subsection 2.9(b) shall apply) as provided in subsection 2.9(b) and (iii) the
Excess Cash Flow to be applied pursuant to subsection 2.9(c) shall be applied
first, to the prepayment of the Term Loans, and second, to the permanent
reduction of the Revolving Credit Commitments. Any such reduction of the
Revolving Credit Commitments shall be accompanied by prepayment of first, the
Swingline Loans, and second, 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 the Swingline Loans and 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, 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 reasonably 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. Subject to
subsection 2.9(e), amounts prepaid on account of the Term Loans (i) shall be
allocated among the Term Loans under the Tranche A Term Loan Facility, the
Tranche B Term Loan Facility and the Incremental Term Loan Facility ratably
based on the outstanding principal amount of the Term Loans under each such
Facility and applied to the then remaining installments of the Term Loans under
each such Facility ratably based on the number of such installments under such
Facility and (ii) may not be reborrowed.
(e) Any Lender holding Tranche B Term Loans or Incremental
Term Loans may, to the extent Tranche A Term Loans are outstanding, elect on
not less than one Business Day's prior written notice to the Administrative
Agent with respect to any mandatory prepayment made pursuant to this subsection
2.9, not to have such prepayment applied to such Lender's Tranche B Term Loans
or Incremental Term Loans, as applicable, until all Tranche A Term Loans shall
have been paid in full, in which case the amount not so applied shall be
applied to prepay Tranche A Term Loans and shall reduce the then remaining
installments of the Tranche A Term Loans ratably based on the number of such
installments.
56
51
(f) Notwithstanding the foregoing provisions of this
subsection 2.9, if at any time the mandatory prepayment of any Loans pursuant
to this Agreement would result, after giving effect to the procedures set forth
in this Agreement, in the Borrower incurring costs under subsection 2.16, 2.17
or 2.18 as a result of Eurodollar Loans ("Affected Eurodollar Loans") being
prepaid other than on the last day of an Interest Period applicable thereto,
which costs are required to be paid pursuant to subsection 2.18, then, the
Borrower may, in its sole discretion, initially deposit a portion (up to 100%)
of the amounts that otherwise would have been paid in respect of the Affected
Eurodollar Loans with the Administrative Agent (which deposit must be equal in
amount to the amount of the Affected Eurodollar Loans not immediately prepaid)
to be held as security for the obligations of the Borrower to make such
mandatory prepayment pursuant to a cash collateral agreement to be entered into
in form and substance reasonably satisfactory to the Administrative Agent, with
such cash collateral to be directly applied upon the first occurrence (or
occurrences) thereafter of the last day of an Interest Period applicable to the
relevant Loan that is a Eurodollar Loan (or such earlier date or dates as shall
be requested by the Borrower), to repay an aggregate principal amount of such
Loan equal to the Affected Eurodollar Loans not initially repaid pursuant to
this sentence.
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 written
(or telephonic promptly confirmed in writing) 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 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
written (or telephonic promptly confirmed in writing) notice of such election
by 12:00 Noon, New York City time (which notice shall specify the length of the
initial Interest Period therefor), provided that no ABR Loan may be converted
into a Eurodollar Loan (i) when any Event of Default has occurred and is
continuing and the Administrative Agent or the Required Lenders 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 may be continued as such (i) when
any Event of Default has occurred and is continuing and the Administrative
Agent has or the Required Lenders 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 any 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
57
52
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 $5,000,000 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.
(c) Upon the occurrence and during the continuance of an
Event of Default under subsection 8(a), (i) all outstanding Loans and any
overdue amounts hereunder shall bear interest at a rate per annum which is (A)
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 (B) in
the case of Reimbursement Obligations, overdue interest, commitment fee or
other amount payable 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 (after judgment as well 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.
58
53
(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.
2.14 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(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 Required Lenders 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 requested to be made on the first
day of such Interest Period shall be made as ABR Loans, (y) any Loans 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
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 when 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 Tranche A Term Loan Percentages, Tranche B Term
Loan Percentages, Incremental 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 subsection 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 subsections 2.6 and 3.3, ratably among the Revolving
Credit Lenders in accordance with the Revolving Credit Commitment of each
Revolving Credit Lender, the Tranche A Term Loan Lenders in accordance with the
Delayed Tranche A Term Loan Commitments of each Tranche A Term Loan Lender, if
applicable, and, in the case of the Issuing Lender, the amount retained by the
Issuing Lender for its own account pursuant to subsection 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
59
54
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 or Tranche A Term Loan
Lender (each, a "Non-Funding Lender") has (x) failed to make a Revolving Credit
Loan or Delayed Tranche A Term Loan, as applicable, required to be made by it
hereunder, and the Administrative Agent has determined that such Revolving
Credit Lender or Tranche A Term Loan Lender, as applicable, is not likely to
make such Revolving Credit Loan or Delayed Tranche A Term Loan, as applicable,
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 or Delayed Tranche A Term Loans, as applicable, 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 or Tranche A Term Loans,
as applicable, outstanding shall be made as follows:
(i) with respect to Revolving Credit Loans, 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 subsection 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 or Tranche A Term Loans, as
applicable, held by the Revolving Credit Lenders or Tranche A Term
Loan Lenders, as applicable, pro rata according to the respective
outstanding principal amounts of such Revolving Credit Loans or
Tranche A Term Loans, as applicable; and
(iii) any payment made on account of interest on the Revolving
Credit Loans or Tranche A Term Loans, as applicable, shall be made pro
rata according to the respective amounts of accrued and unpaid
interest due and payable on the Revolving Credit Loans or Tranche A
Term Loans, as applicable, with respect to which such payment is being
made.
60
55
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.
(d) Subject to subsection 2.15(c) and subsection 2.9(e), each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Tranche A Term Loans, the Tranche B Term Loans and the
Incremental Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the applicable Term Loans then held by the
applicable Term Loan Lenders.
(e) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Loans (other than the Term
Loans) shall be made first to the Swingline Loans and then 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. Payments received by the Administrative Agent after such time
shall be deemed to have been received on the next Business Day. 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 greater of the daily average Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation 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(g) 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
61
56
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.
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 net income of such Lender and changes in the rate of tax on the
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 if 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 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.
(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
62
57
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.
(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 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 or to the extent such failure to establish a complete
exemption from such withholding thereafter is attributable to the actions of
such Lender. 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
63
58
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 United States
person within the meaning of Section 7701(a)(30) of the Code (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 by the Borrower
or the Administrative Agent for filing and completing such forms. Each
Non-U.S. Lender (and, if applicable, any other Lender or Transferee) 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. If the Administrative Agent or
any Lender (or Transferee) receives a refund in respect of Non-Excluded Taxes
paid by the Borrower, it shall promptly pay such refund, together with any
other amounts paid by the Borrower in connection with such refunded
Non-Excluded Taxes, to the Borrower, net of all out-of-pocket expenses of such
Lender incurred in
64
59
obtaining such refund, provided that the Borrower agrees to promptly return
such refund to the Administrative Agent or the applicable Lender if it receives
notices from the Administrative Agent or applicable Lender that such
Administrative Agent or Lender is required to repay such refund.
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 actually incurs as a consequence of (a) withdrawal of
notice given 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)
failure by the Borrower to make 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 that such
designation is made on terms that in the reasonable 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 subsection 2.16 or 2.17 as a result of any condition described in
such subsections or any Lender ceases to make Eurodollar Loans pursuant to
subsection 2.16, (b) any Lender becomes insolvent and its assets become subject
to a receiver, liquidator, trustee, custodian or other Person having similar
powers, (c) any Lender becomes a "Non-Consenting Lender" (as defined below in
this subsection 2.20) or (d) 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 be obligated to) assign pursuant to subsection
10.6(c) all of its rights and obligations under this Agreement to a Lender or
other entity selected by the Borrower and
65
60
reasonably acceptable to the Administrative Agent (and in the case of Revolving
Credit Commitments or Revolving Loans, reasonably acceptable to the Issuing
Lender and the Swingline Lender) 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 subsection
2.18 as though such Loans were being paid instead of being purchased), provided
that (i) neither the Administrative Agent nor any Lender shall have any
obligation to the Borrower to find a replacement Lender or other such entity,
(ii) in the event of a replacement of a Non-Consenting Lender or a Lender to
which the Borrower becomes obligated to pay additional amounts pursuant to
clause (a) of this subsection 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 (A) the date the Non-Consenting Lender shall have notified the Borrower
and the Administrative Agent of its failure to agree to any requested consent,
waiver or amendment or (B) the Lender shall have demanded payment of additional
amounts under one of the subsections described in clause (a) of this subsection
2.20, as the case may be, and (iii) 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. In the event that (x)
the Borrower or the Administrative Agent has requested the Lenders to consent
to a departure or waiver of any provisions of the Loan Documents or to agree to
any amendment thereto, (y) the consent, waiver or amendment in question
requires the agreement of all Lenders in accordance with the terms of
subsection 10.1 or all the Lenders with respect to a certain class of the Loans
and (z) Required Lenders or more than 50% of the class of such Lenders have
agreed to such consent, waiver or amendment, then any Lender who does not agree
to such consent, waiver or amendment shall be deemed a "Non-Consenting 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.
2.21. Notice of Certain Costs. Notwithstanding anything in
this Agreement to the contrary, to the extent any notice required by subsection
2.15 through and including subsection 2.18 is given by any Lender more than 90
days after such Lender has knowledge (or should have had knowledge) of the
occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such subsections,
such Lender shall not be entitled to compensation under such subsections for
any such amounts incurred or accruing prior to the giving of such notice to the
Borrower.
66
61
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.
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 the average daily face amount of each Letter 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
67
62
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
greater of the daily average Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation 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 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
68
63
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 Dollars 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).
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 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.
69
64
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, the Lenders, the Swingline
Lender and the Issuing Lender to enter into this Agreement and to make the
Loans and issue or participate in the Letters of Credit, Holdings and the
Borrower hereby represent and warrant to the Administrative Agent, the
Swingline Lender, the Issuing Lender and each Lender that:
4.1 Financial Condition. (a) The audited consolidated
financial statements of LIN as of and for the fiscal year ending December 31,
1997, reported on by Ernst & Young LLP, present fairly the consolidated
financial condition of LIN and the results of operations and cash flows as of
such date and for such period. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the period involved (except as approved by the
relevant firm of accountants and disclosed therein). The most recent balance
sheet referred to above reflects, 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 sheet.
(b) The two unaudited pro forma consolidated balance sheets
of Holdings and its consolidated Subsidiaries as at December 31, 1997
(including the notes thereto), copies of which have heretofore been furnished
to each Lender, have each been prepared giving effect (as if such events had
occurred on such date) to (i) the consummation of the Transactions, (ii) the
Loans to be made hereunder and the use of proceeds thereof and (iii) the
payment of fees and expenses in connection with the foregoing, provided, that
one such balance sheet gives effect to such events assuming consummation of the
WOOD-TV Acquisition and one such balance sheet gives effect to such events
assuming the WOOD-TV Acquisition has not been consummated. Each of the
aforementioned unaudited pro forma consolidated balance sheets presents fairly
on a pro forma basis the financial position of Holdings and its consolidated
Subsidiaries, as at December 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.
4.2 No Change. Since the date of the most recent audited
financial statements delivered pursuant to subsection 4.1(a)(i), there has been
no (a) development or event which has had or could reasonably be expected to
have a Material Adverse Effect or (b) sale, transfer or other disposition by
the Borrower or any of its Subsidiaries of any material part of its business or
property, other than as contemplated in the NBC Transactions.
4.3 Corporate Existence; Compliance with Law. Each of
Holdings and its Subsidiaries (a) is duly organized or formed, as the case may
be, validly existing and in good
70
65
standing under the laws of the jurisdiction of its organization or formation,
(b) has the requisite 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 requisite power and authority, and the legal right, to
make, deliver and perform the Loan Documents and the Transaction 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 or other action to authorize the execution, delivery and performance
of the Loan Documents and the Transaction 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. Other than consents
from the FCC as required pursuant to the Merger 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
Transactions and the borrowings and other extensions of credit hereunder or
with the execution, delivery, performance, validity or enforceability of this
Agreement, any of the other Loan Documents or the Transaction 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 and (iii) the filings referred to in subsections 4.19 and 10.17.
Each Loan Document and each Transaction Document has been duly executed and
delivered on behalf of each Loan Party thereto. This Agreement and each
Transaction Document constitutes, and each Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan 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, the Transaction Documents and the 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, 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).
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 Holdings or 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
71
66
or any of the transactions contemplated hereby or thereby, (b) as of the
Closing Date, with respect to the Transaction Documents or any of the
transactions contemplated thereby or (c) which, if adversely determined, 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 (including the
Transaction Documents) 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 material
real property, and good title to, or a valid leasehold interest in, all its
other material 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 for those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect . Except as, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect and to the
knowledge of Holdings and the Borrower (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 Holdings or 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 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 material assessments made against it or any of its property and all
other material taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than (a) 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 (b) taxes, assessments, fees or other charges imposed by any
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 Holdings and the Borrower, no
material claim is being asserted, with respect to any such material tax, fee or
other charge, other than those 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 Loan Parties.
4.11 Federal Regulations. No Letters of Credit and no part
of the proceeds of any Loans will be used for "buying" 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
72
67
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 Holdings and the Borrower,
threatened that (individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect. Hours worked by and payments 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 Holdings and
the Borrower, 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: (a)
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; (b) each Plan (other than
a Multiemployer Plan) has complied in all material respects with the applicable
provisions of ERISA and the Code; (c) 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; (d) 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
in an amount that could reasonably be expected to have a Material Adverse
Effect; (e) none of the Loan Parties nor any Commonly Controlled Entity has had
a complete or partial withdrawal from any Multiemployer Plan, and, to the
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; (f) no such
Multiemployer Plan is in Reorganization or Insolvent; (g) 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(l) 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
73
68
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 after the completion of the Transactions 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 Loans and the
issuances of Letters of Credit shall be used solely for the purposes specified
in the preamble of this Agreement.
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"), the Properties and all operations at the
Properties are, and to the knowledge of Holdings and the Borrower have been, in
compliance in all respects with all applicable Environmental Laws except for
noncompliance which is not reasonably likely to result in a Material Adverse
Effect.
(c) Neither Holdings, the Borrower 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 result in the Borrower
or any of its Subsidiaries incurring 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 result in the Borrower or any of its Subsidiaries
incurring 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.
74
69
(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, the Borrower 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 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
Administrative Agent and 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 (a) of Holdings and LIN
Acquisition Company in the Merger Agreement are true and correct in all
material respects, (b) of Holdings and LIN Acquisition Company in the NBC
Transaction Agreements are true and correct in all material respects and (c) of
all other parties to the Merger Agreement and the NBC Transaction Agreements,
to the knowledge of Holdings and the Borrower, 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
75
70
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 and the Pledged Debt Securities, when stock certificates
representing such Pledged Stock or certificates representing such Pledged Debt
Securities are delivered to the Administrative Agent, or when financing
statements in appropriate form are filed in the offices specified on Schedule
4.19(a), 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 and the Pledged
Debt Securities, to Liens permitted by 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) in accordance with subsection 10.17, 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 Mortgage),
in each case prior and superior in right to any other Person, subject to Liens
permitted by subsection 7.3 (other than, with respect to Mortgaged Properties
as of the Closing Date, subsections 7.3(g) and (q)).
4.20 Solvency. Each Loan Party is, and after giving effect
to the Transactions 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.
4.22 Station Licenses. Schedule 4.22 accurately and
completely lists as of the date hereof (after giving effect to the
Transactions), for each Station, all Station Licenses granted or assigned to
the Borrower or any of its Subsidiaries, or under which the Borrower and its
Subsidiaries have the right to operate such Station. As of the Closing Date,
the Station Licenses listed on Schedule 4.22 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 with respect to
such Station, as now conducted or proposed to be conducted. The Station
Licenses listed on Schedule 4.22 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 Station Licenses and validly
issued and in full force and 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,
except as described in Schedule 4.22 hereto, all consents to the transfer of
control
76
71
of the principal broadcasting licenses and any other material Station Licenses
in connection with the transactions contemplated hereby and in the Transaction
Documents shall have been granted by the FCC, provided that such consents will
not be required to have become Final Orders.
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 Responsible
Officer of the Borrower and Holdings, (ii) the Guarantee and
Collateral Agreement, executed and delivered by a Responsible Officer
of Holdings, the Borrower and each Subsidiary Guarantor, (iii) each of
the Mortgages, executed and delivered by a Responsible Officer of each
party thereto, and (iv) a notice of borrowing pursuant to subsection
2.2 and subsection 2.5 of this Agreement.
(b) Lien Searches. The Administrative Agent shall have
received the results of a recent lien, tax and judgment search in each
of the jurisdictions and offices where assets of the Loan Parties are
located or recorded, and such search shall reveal no Liens on any of
the assets of Holdings or its Subsidiaries except for Liens permitted
by subsection 7.3 and Liens that will be removed prior to the Closing
Date.
(c) Environmental Audit. The Lenders shall have received a
Phase I Environmental Site Assessment prepared by Law Engineering,
dated August 1997, and shall be reasonably satisfied with the findings
contained therein with respect to the real properties of LIN and its
Subsidiaries.
(d) Closing Certificate. The Administrative Agent shall have
received, with a copy 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.
(e) 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, substantially in the form of
Exhibit F; and
(ii) the legal opinion of special FCC counsel to the
Loan Parties.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement and the Transaction
Documents as the Administrative Agent may reasonably require.
77
72
(f) 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 Responsible Officer of the pledgor
thereof and the Pledged Debt Securities pledged pursuant to the
Guarantee and Collateral Agreement endorsed in blank by a Responsible
Officer of the pledgor thereof.
(g) 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.
(h) Mortgages, etc. (i) The Administrative Agent shall have
received a Mortgage with respect to each Mortgaged Property, executed
and delivered by a Responsible Officer of each party thereto.
(ii) The Administrative Agent shall have received maps or
plats of an as-built survey of the sites of the Mortgaged Properties
certified to the Administrative Agent in a manner reasonably
satisfactory to them, dated a recent date by an independent
professional licensed land surveyor reasonably satisfactory to the
Administrative Agent, which maps or plats and the 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; and (F) if the site is
described as being on a filed map, a legend relating the survey to
said map.
(iii) The Administrative Agent shall have received in respect
of each Mortgaged Property a title report in form and substance
reasonably satisfactory to the Administrative Agent.
(iv) The Administrative Agent shall have received a copy of
all recorded documents referred to, or listed as exceptions to title,
in the title report referred to in subsection 5.1(h)(iii).
78
73
(i) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of subsection 6.5
of this Agreement.
(j) 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.
(k) The Transactions.
The Transactions shall have been consummated or shall be
consummated substantially simultaneously with the initial borrowing of
Loans under this Agreement in accordance with all applicable
Requirements of Law and the terms of the Transaction Documents
(without giving effect to any amendments or waivers to the Transaction
Documents that could reasonably be expected adversely to impact the
Facilities and are not reasonably satisfactory to the Lenders), and
the Lenders shall be reasonably satisfied that the fees and expenses
to be paid in connection with the Transactions shall not exceed
$95,000,000, unless additional common equity is contributed to the
Borrower in the amount of such excess.
(l) Equity Contributions. The Investors shall have
contributed, directly or indirectly, at least $555,000,000 (in each
case less the amount of rollover investment by members of management
and employees of LIN and its Subsidiaries) to Holdings and at least
$188,000,000 and $350,000,000 in cash to Equity Holdings A and Equity
Holdings B, respectively, in exchange for the issuance to the
Investors, directly or indirectly, of all the outstanding common stock
of Equity Holdings A and Equity Holdings B, respectively; Equity
Holdings A and Equity Holdings B shall have contributed at least
$188,000,000 and $350,000,000 in cash to Holdings, respectively, in
exchange for the issuance to Equity Holdings A and Equity Holdings B
of approximately 37% and 63%, respectively, of the common stock of
Holdings; and Holdings shall have contributed the entire amount (net
of applicable transactions expenses) so received from Equity Holdings
A and Equity Holdings B to LIN in cash as common equity.
(m) Joint Venture Loan. LIN Texas shall have distributed or
loaned to LIN or one of its Subsidiaries at least $815,500,000 in cash
from the proceeds of the Joint Venture Loan.
(n) Outstanding Indebtedness. After giving effect to the
Transactions and the other transactions contemplated by this
Agreement, Equity Holdings A, Equity Holdings B, the LLC, Holdings and
Holdings's Subsidiaries shall have no outstanding Indebtedness or
preferred equity, other than Indebtedness under (i) this Agreement,
(ii) the Senior Subordinated Notes, (iii) the Holdings Discount Notes,
(iv) the Joint Venture Loan and the Joint Venture Loan Guarantee and
(v) other Indebtedness permitted under subsection 7.2, and all
Refinanced Indebtedness shall have been permanently terminated and all
obligations thereunder shall have been discharged.
79
74
(o) Delivery of Financial Information. The Lenders shall
have received consolidated balance sheets and related statements of
income, stockholder's equity and cash flows for LIN for the 1997 and
the 1998 fiscal quarters prior to the Closing Date, and for all full
fiscal months since the end of the most recent fiscal quarter, and such
financial statements shall not, in the reasonable judgment of the
Lenders, reflect any material adverse change in the consolidated
financial condition of LIN and its Subsidiaries, taken as a whole
(other than changes in general economic conditions or in economic
conditions generally affecting the television broadcasting industry),
as reflected in the financial statements previously furnished to the
Lenders.
(p) Certificate of Financial Officer. The Lenders shall have
received a certificate of a financial officer of LIN with respect to
the Consolidated EBITDA of each of LIN and WOOD-TV Station, in each
case calculated in a manner reasonably satisfactory to the
Administrative Agent.
(q) Pro Forma Financial Information. The Lenders shall have
received a pro forma consolidated balance sheet of (i) Holdings and
its Subsidiaries (without giving effect to the WOOD-TV Acquisition)
and (ii) Holdings and its Subsidiaries (after giving effect to the
WOOD-TV Acquisition), in each case on a consolidated basis as of the
Closing Date, after giving effect to the Transactions, which balance
sheets shall not be materially inconsistent with the forecasts
previously provided to the Lenders.
(r) Judicial Actions. (i) There shall be in effect no
temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the
Transactions, nor shall any proceeding by any Governmental Authority
seeking any of the foregoing be pending.
(ii) There shall not be any action taken, or any statute,
rule, regulation or order enacted, entered, enforced or deemed
applicable to the Transactions, that makes the consummation of the
Transactions illegal.
(s) Solvency Opinion. The Lenders shall have received a
solvency opinion in form and substance reasonably satisfactory to the
Lenders from Valuation Research Corporation, which shall opine as to
the solvency of Holdings, LIN and its Subsidiaries, taken as a whole,
after giving effect to the Transactions and the other transactions
contemplated hereby.
(t) Consummation of the Transactions. The consummation of
the Transactions and the other transactions contemplated hereby shall
not (i) violate any material Requirement of Law or (ii) conflict with,
or result in a default or event of default under, any material
Contractual Obligation of Holdings or any of its Subsidiaries, the LLC
or the LP.
(u) Governmental Approvals. All requisite Governmental
Authorities and third parties shall have approved or consented to the
Transactions and the other transactions contemplated hereby to the
extent required (including the grant of all required consents of
80
75
the FCC (which shall not be required to have become Final Orders) and
other applicable material consents including with respect to the
Network Affiliation Agreements and local marketing agreements of LIN
and its Subsidiaries, but excluding approvals or consents that
reasonably could not be expected to have a Material Adverse Effect),
all applicable appeal periods shall have expired (except with respect
to the FCC consents) and there shall be no action, actual or
threatened, of any Governmental Authority that could reasonably be
expected to restrain, prevent or impose materially burdensome
conditions on the Transactions or the other transactions contemplated
hereby.
(v) Certificate as to Network Affiliation Agreements. The
Administrative Agent shall have received a certificate of the chief
executive, chief operating or chief financial officer (or any officer
having comparable duties) of LIN to the effect that such officer has
no reason to believe either (i) that the Network Affiliation
Agreements and local marketing agreements of LIN and its Subsidiaries
will not remain in full force and effect for the remaining stated term
thereof (other than, with respect to the local marketing agreements,
as a result of any action by any Governmental Authority affecting the
television industry as a whole) or (ii) that any such Network
Affiliation Agreement of LIN and its Subsidiaries will not be renewed
upon expiration thereof (it being understood that such statement shall
not relate to the terms of such renewal).
(w) Proceeds of Senior Subordinated Notes. The Borrower
shall have received at least $300,000,000 in gross cash proceeds from
the issuance of the Senior Subordinated Notes, and the subordination
and other terms of the Senior Subordinated Notes shall be reasonably
satisfactory in all respects to the Lenders.
(x) Proceeds of Holdings Discount Notes. Holdings shall have
received at least $200,000,000 in gross cash proceeds from the
issuance of the Holdings Discount Notes, and such proceeds (net of
applicable transaction expenses) shall have been contributed to the
Borrower.
(y) Leverage Ratios. The Consolidated Leverage Ratio and the
Consolidated Senior Leverage Ratio, after giving effect to any
requested borrowing and any other Indebtedness Incurred on the Closing
Date, shall not exceed 7.0x and 5.0x, respectively.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender and the Swingline 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.
81
76
(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) Delayed Tranche A Term Loans. In the case of any Delayed
Tranche A Term Loans, the consummation of the WOOD-TV Acquisition
simultaneously with such borrowing in accordance with all applicable
Requirements of Law and the terms of the WOOD-TV Purchase Agreement
(without giving effect to any amendments or waivers that could
reasonably be expected to adversely impact the Facilities and are not
reasonably satisfactory to the Administrative Agent).
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
Each of Holdings and the Borrower hereby agree 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, the Swingline Lender, the
Issuing Lender or the Administrative Agent hereunder, each of Holdings and the
Borrower shall and (except in the case of delivery of financial information
reports and notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative
Agent which shall in turn be promptly distributed by the Administrative Agent
to the Lenders or, in the case of clause (c) hereof, upon the request of any
Lender):
(a) as soon as available but in any event within 90 days after
the end of each fiscal year of Holdings and the Borrower, as
applicable, (i) a copy of the audited consolidated balance sheet of
each of Holdings and its consolidated Subsidiaries and the Borrower
and its consolidated Subsidiaries as at the end of such year and the
related audited consolidated statements of operations and of cash
flows for such year, and (ii) the annual operating statements of each
Station, in each case setting forth in comparative form the figures
for the previous year, and, in the case of clause (i), 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 and the Borrower, as applicable (i) the
unaudited consolidated balance sheet of each of Holdings and its
consolidated Subsidiaries and the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter,
and (ii) the quarterly operating statements of each Station, in each
case setting forth in comparative form the figures for the
corresponding period in the previous year, certified by
82
77
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 15
days after receipt thereof, the information set forth in clauses (a),
(b), (c) and (d) of Annex D to the Joint Venture Loan.
All such financial statements shall fairly present in all material respects the
financial position of Holdings and its Subsidiaries or the Borrower and its
Subsidiaries, as applicable, 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 WOOD-TV Acquisition, the Borrower shall be required to deliver with
respect to WOOD-TV Station the financial statements required by this subsection
6.1.
6.2 Certificates; Other Information. Furnish to the
Administrative Agent (which shall in turn be promptly distributed by the
Administrative Agent to the Lenders) or, in the case of clause (f), to the
relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a)(i), 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 subsections 7.1 and 7.7, except as specified in
such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to subsection 6.1(a) and 6.1(b),(i) a certificate of a
Responsible Officer stating that, to such Responsible Officer's
knowledge, each Loan Party during such period has 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) (A) 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 (B) to the extent not previously
disclosed to the Administrative Agent, a listing of any state 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 (B)
(or, in the case of the first such list so delivered, since the
Closing Date) and (iii) any final 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 budget for (i) Holdings and its consolidated
83
78
Subsidiaries and (ii) each Station, in each case for such fiscal year
(including a projected consolidated balance sheet of Holdings and its
Subsidiaries, as applicable, as of the end of such 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) 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, 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;
(e) promptly following their submission with the FCC or any
other Federal, state or local Governmental Authority, copies of any
and all periodic or special reports filed by Holdings or any of its
Subsidiaries, if such reports are publicly available and indicate any
material adverse change in the business, operations or financial
condition of Holdings or any of its Subsidiaries or if copies thereof
are requested by any Lender or the Administrative Agent (but only to
the extent such reports are publicly available), 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 any Station; and
(f) 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 Holdings or its Subsidiaries, as the case may be,
provided that notwithstanding the foregoing, Holdings 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) Except as contemplated by subsection 7.4, (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 existence and (iii) take all reasonable
action to preserve and maintain all rights, privileges, licenses and franchises
necessary or
84
79
desirable in the normal conduct of its business, except (other than with
respect to the Station Licenses), in the case of this clause (iii), 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 Holdings, the Borrower or such Subsidiary, as the case may be, it is in its
best economic interest not to preserve and maintain such privileges, rights or
franchises (other than the Station Licenses), and (B) such failure to preserve
and maintain such privileges, rights or 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; (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 and (c) comply in all material
respects with the terms of all Station Licenses.
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 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 or as otherwise reasonably requested by the Administrative Agent; and
furnish to the Administrative Agent, upon written request, information in
reasonable detail as to the insurance carried except to the extent that the
failure to do any of the foregoing with respect to any such property could not
reasonably be expected to materially adversely affect the value or usefulness
of such property.
(b) All such insurance shall (i) provide that no cancelation,
material reduction in amount or material change in coverage thereof shall be
effective until at least thirty (30) days after receipt by the Administrative
Agent of written notice thereof, (ii) name the Administrative Agent as insured
party or loss payee and (iii) if reasonably requested by the Administrative
Agent, include a breach of warranty clause.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and accounts in accordance with sound
business practices 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 Holdings and its
Subsidiaries with officers and employees of Holdings and its Subsidiaries and
with its independent certified public accountants, provided that the
Administrative Agent or such Lender shall notify Holdings and the Borrower
prior to any contact with such accountants and give Holdings and 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;
85
80
(b) any (i) default or event of default under any Contractual
Obligation of Holdings or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between
Holdings 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 Holdings or any of
its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which injunctive or similar relief
is sought;
(d) the following events, as soon as possible and in any event
within 30 days after Holdings or the Borrower knows or has reason to
know thereof and if, individually or in the aggregate, the liability
that could reasonably be expected to result would be material to
Holdings and its Subsidiaries taken as a whole: (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;
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect; and
(f) the receipt by Holdings or any of its Subsidiaries of any
complaint, order, citation, notice or other written communication from
any Person with respect to the existence or alleged existence of a
violation of any Environmental Laws or Materials of Environmental
Concern or any other environmental matter including the occurrence of
any spill, discharge or release in a quantity that is reportable under
any Environmental Laws on any Mortgaged Properties or any other
property owned, leased or utilized by Holdings or any of its
Subsidiaries but only to the extent that such complaint, order,
citation, notice or written communication individually could
reasonably be expected to result in liability or an obligation under
any Environmental Law that 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 Holdings 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
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 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.
86
81
(b) Conduct and complete (or cause to be conducted and
completed) in all material respects 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 failure to do so could not be
reasonably expected to have a Material Adverse Effect.
6.9 Interest Rate Protection. On or before the date that is
the earlier to occur of (a) September 30, 1998 and (b) 60 days after the
closing of the WOOD-TV Acquisition, enter into Interest Rate Protection
Agreements to the extent necessary to provide that at least 50% of the
aggregate principal amount of Indebtedness of the Borrower and its Subsidiaries
outstanding after the Closing Date 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. None of Holdings or any of its Subsidiaries shall
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 $1,000,000 (other than (i) any Property
described in paragraph (b) or (c) below and (ii) 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 and 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), (j) or (q) (but in the case of clause (q), only to the
extent of such Lien)), promptly (i) execute and deliver a first priority
Mortgage (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, (ii) if reasonably requested by the Administrative Agent, provide the
Lenders with a title report as well as a current ALTA survey thereof, together
with a surveyor's
87
82
certificate, in each case in form and substance reasonably satisfactory to the
Administrative Agent. Notwithstanding the foregoing, the Borrower and its
Subsidiaries shall only be required to execute and deliver Mortgages and/or
provide title reports and current ALTA surveys covering fee properties acquired
after the Closing Date by the Borrower or its Subsidiaries with a fair market
value at the time of such acquisition in excess of $1,500,000.
(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 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
and debt securities of such new Subsidiary which are owned by the Borrower or
any of its Subsidiaries and required to be pledged pursuant to the Guarantee
and Collateral Agreement, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock and debt securities, together with
(A) in the case of such Capital Stock, undated stock powers endorsed in blank,
and (B) in the case of such debt securities, endorsed in blank, in each case
executed and delivered by a Responsible 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 opinion shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent, provided that notwithstanding the foregoing, only 65% of the voting
Capital Stock of any direct foreign Subsidiary of Holdings, the Borrower or any
domestic Subsidiary need be pledged under this clause (c), no voting Capital
Stock of any foreign Subsidiary of any other foreign Subsidiary need be pledged
under this clause (c) and no direct or indirect foreign Subsidiary shall become
a Guarantor hereunder or shall be required to pledge any of its assets.
(d) Promptly, but in any event not later than 30 Business
Days after the Administrative Agent or the Required Lenders, as applicable,
shall have made a request contemplated by subsection 10.17, provide to the
Administrative Agent in respect of each Mortgaged Property (i) a mortgagee's
title insurance policy (or policies) or marked up unconditional binder for such
insurance, provided that each such policy shall (A) be in an amount reasonably
satisfactory to the Administrative Agent with respect to each Mortgaged
Property covered thereby (but not in excess of the fair market value thereof);
(B) 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 or otherwise permitted by subsection 7.3 (other than
subsections 7.3(g) and (q)); (C) name the Administrative Agent for the benefit
of the Lenders as the insured thereunder; (D) be in the form of ALTA Loan
Policy - 1992 (or equivalent policies) to the extent available in the
applicable jurisdictions; (E) contain such endorsements and affirmative
coverage as the Administrative Agent may reasonably request to the extent
available in the applicable jurisdictions and available without material cost
to the Borrower or its Subsidiaries; and
88
83
(F) 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) and (ii) 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 or duly provided for.
(e) Upon the request of the Administrative Agent, to the
extent permitted by applicable Requirements of Law at the time of such request,
grant or cause its Subsidiaries to grant, to the Administrative Agent, a direct
security interest in the Station Licenses within 30 days after receipt of such
request, provided that to the extent FCC consent shall be required in
connection with granting such security interest, such consent shall be
requested within 30 days after receipt of such request and upon receipt of such
FCC consent, such security interest shall be granted within 10 Business Days
thereof.
(f) Upon the occurrence and during the continuance of (i) any
Event of Default with respect to paragraph (a) of Section 8, (ii) any payment
default with respect to any Senior Subordinated Indebtedness or the Holdings
Discount Notes or (iii) any Event of Default with respect to subsection 7.1,
promptly, but in any event not more than 30 Business Days (subject to necessary
approvals by the FCC), following the request of the Administrative Agent, cause
the assets relating to each Station held by the Borrower to be transferred to
its respective License Subsidiary or, at the election of the Administrative
Agent, another Subsidiary that has no other assets or liabilities.
6.11 WOOD-TV Acquisition. (a) As soon as practicable after
the Closing Date, take all actions to obtain FCC approval for the WOOD-TV
Acquisition and (b) as soon as practicable after obtaining such FCC approval,
consummate such acquisition.
6.12 After-Acquired Stations. Unless the Borrower and the
Administrative Agent shall otherwise agree, cause the Station License relating
to each after-acquired Station to be held in a separate License Subsidiary,
provided that to the extent the Borrower shall not have received FCC approval
with respect to the foregoing at the scheduled closing of the acquisition of
such Station, the Borrower shall comply with the foregoing requirement as soon
as practicable following such acquisition (but in any event within 60 days
after such acquisition).
6.13 Changes in Locations, Name, etc. The Borrower shall
not, except upon not less than 15 days' prior written notice to the
Administrative Agent and delivery to the Administrative Agent of all additional
executed financing statements and other documents reasonably requested by the
Administrative Agent to maintain the validity, perfection and priority of the
security interests provided for in the Guarantee and Collateral Agreement:
(a) permit any of the Inventory or Equipment (each as defined
in the Guarantee and Collateral Agreement) (other than (i) immaterial Inventory
and Equipment and (ii) Inventory and Equipment in transit in the ordinary
course of business) to be kept at a location other than those listed on
Schedule 5 of the Guarantee and Collateral Agreement;
(b) change the location of its chief executive office or sole
place of business from that referred to in Section 4.4 of the Guarantee and
Collateral Agreement; or
89
84
(c) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Administrative Agent in
connection with the Guarantee and Collateral Agreement would become misleading.
SECTION 7. NEGATIVE COVENANTS
Each of Holdings and 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, neither Holdings nor the Borrower shall, or shall permit (except
with respect to subsection 7.1) any of its Subsidiaries to, directly or
indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the last day of any Test Period set forth below to exceed
the ratio set forth below opposite such period:
Period Consolidated Leverage Ratio
------ ---------------------------
(prior to any KXTX Transaction)
-------------------------------
Closing Date to 6/30/99 7.25x
7/01/99 to 6/30/00 7.00x
7/01/00 to 6/30/01 6.75x
7/01/01 to 6/30/02 6.50x
7/01/02 to 6/30/03 5.75x
7/01/03 and thereafter 5.00x
Period Consolidated Leverage Ratio
------ ---------------------------
(following any KXTX
-------------------
Transaction)
------------
Closing Date to 7.40x
12/31/98
1/01/99 to 6/30/99 7.25x
7/01/99 to 6/30/00 7.00x
7/01/00 to 6/30/01 6.75x
7/01/01 to 6/30/02 6.50x
7/01/02 to 6/30/03 5.75x
7/01/03 and thereafter 5.00x
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the last day of any Test Period set
forth below to be less than the ratio set forth below opposite such period:
90
85
Period Consolidated Interest
------ ---------------------
Coverage Ratio
--------------
Closing Date to 12/31/99 1.60x
1/01/00 to 12/31/00 1.75x
1/01/01 to 12/31/01 1.95x
1/01/02 to 12/31/02 2.05x
1/01/03 and thereafter 2.10x
(c) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio as at the completion of any Test
Period to be less than 1.05x.
(d) Consolidated Senior Leverage Ratio. Permit the
Consolidated Senior Leverage Ratio as of the last day of any Test Period set
forth below to exceed the ratio set forth below opposite such period:
Period Consolidated Senior
------ -------------------
Leverage Ratio
--------------
(prior to any KXTX
Transaction)
Closing Date to 6/30/99 5.25x
7/01/99 to 6/30/00 5.00x
7/01/00 to 6/30/01 5.00x
7/01/01 to 6/30/02 4.75x
7/01/02 to 6/30/03 4.50x
7/01/03 and thereafter 4.00x
Period Consolidated Senior
------ -------------------
Leverage Ratio
---------------
(following any KXTX
Transaction)
Closing Date to 12/31/98 5.35x
1/01/99 to 6/30/99 5.25x
7/01/99 to 6/30/00 5.00x
7/01/00 to 6/30/01 5.00x
7/01/01 to 6/30/02 4.75x
7/01/02 to 6/30/03 4.50x
7/01/03 and thereafter 4.00x
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
91
86
(b) Indebtedness among the Loan Parties (other than Holdings)
arising as a result of intercompany loans;
(c) purchase money Indebtedness, provided that the aggregate
amount of Indebtedness incurred pursuant to this subsection 7.2(c)
shall not exceed $20,000,000 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, shall not exceed the amount
permitted to be expended during such fiscal year pursuant to
subsection 7.7;
(e) Indebtedness (other than Senior Subordinated Indebtedness
and Holdings Discount 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 other than pursuant to the instrument creating such Lien
without any modification thereof after the date hereof);
(f) (i) indemnities and guarantees (including guarantees of
Indebtedness if such Indebtedness is otherwise permitted hereunder)
made in the ordinary course of business by the Borrower or any of its
Subsidiaries, provided that such indemnities and guarantees could not
individually or in the aggregate have a Material Adverse Effect, (ii)
guarantees by Holdings or any of its Subsidiaries of (A) real property
leases and (B) personal property operating leases, in each case
entered into in the ordinary course of business by the Borrower or any
of its Subsidiaries and (iii) indemnities in favor of the Persons
issuing title insurance policies insuring the title to any property;
(g) (i) Senior Subordinated Indebtedness of the Borrower in an
aggregate principal amount not to exceed $200,000,000, (ii) Holdings
Discount Indebtedness in an aggregate principal amount not to exceed
$125,000,000 plus an amount equal to the pay-in-kind or accrued
interest payable on the Holdings Discount Notes over the first five
years the Holdings Discount Notes shall be outstanding and (iii)
Guarantee Obligations of any Subsidiary Guarantor in respect of
Indebtedness referred to in clause (i) of this subsection 7.2(g),
provided that a Subsidiary Guarantor shall not guarantee any Senior
Subordinated Indebtedness unless (A) such guarantee of the Senior
Subordinated Indebtedness is subordinated to the guarantee of such
Subsidiary Guarantor of the Obligations on terms no less favorable to
the Lenders than the subordination provisions of the Senior
Subordinated Notes and (B) such guarantee of the Senior Subordinated
Indebtedness provides for the release and termination thereof, and is
released and terminated, without action by any party, upon (I) the
sale of all or substantially all of the assets of such Subsidiary
Guarantor (including by way of an Asset Swap Transaction), (II) a sale
of all of the equity interest in such Subsidiary Guarantor or (III)
such Subsidiary Guarantor ceasing to be a Restricted Subsidiary (as
defined in the Senior Subordinated Note Indenture);
92
87
(h) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business;
(i) Indebtedness in respect of any Interest Rate Protection
Agreements;
(j) Indebtedness (i) of the Borrower or any of its
Subsidiaries to the seller on an unsecured basis representing the
purchase price in a Permitted Acquisition or any Asset Swap
Transaction in an aggregate amount for all Permitted Acquisitions and
Asset Swap Transactions not to exceed $30,000,000, (ii) of the
Borrower or any of its Subsidiaries that is not subordinated to the
Obligations, assumed in connection with any Permitted Acquisition or
any Asset Swap Transaction in an aggregate amount for all Permitted
Acquisitions and Asset Swap Transactions not to exceed $30,000,000 and
(iii) (A) of the Borrower and (B) of any Subsidiary of the Borrower,
in each case that is subordinated to the Obligations and is assumed in
connection with any Permitted Acquisition or any Asset Swap
Transaction, in an aggregate amount for all Permitted Acquisitions and
Asset Swap Transactions not to exceed $200,000,000 in the case of
clause (A) and $30,000,000 in the case of clause (B), provided that in
the case of this clause (iii), (A) after giving effect to the
assumption of such Indebtedness, (I) no Default or Event of Default
will have occurred and be continuing and no default or event of
default shall have occurred and be continuing under the Senior
Subordinated Note Indenture and (II) the Borrower shall be in
compliance with all covenants contained in subsection 7.1, (B) the
subordination provisions of such Indebtedness shall be reasonably
satisfactory in all respects to the Administrative Agent (it being
understood that, to the extent such subordination provisions are no
less favorable to the Lenders than the subordination provisions of the
Senior Subordinated Notes, such terms shall be deemed satisfactory)
(C) the aggregate amount of such Indebtedness, to the extent its terms
provide for any maturity, amortization or mandatory redemption (other
than with asset sale proceeds, subject to the provisions of this
Agreement, or following a change of control) or sinking fund payment
prior to the date that is six months following the Tranche B Maturity
Date, shall not exceed $100,000,000 and (D) the covenants and events
of default relating to such Indebtedness shall be no more restrictive
than those contained in this Agreement taken as a whole;
(k) Indebtedness of any Loan Party (other than Holdings) to
any other Loan Party from intercompany transfers of assets made in the
ordinary course of business or to the extent permitted under
subsections 7.5 and 7.8;
(l) Indebtedness subject to Liens permitted under subsections
7.3(a), (b), (c), (d) and (r);
(m) indemnities made in (i) the Loan Documents, the
Transaction Documents or in any of the agreements contemplated hereby
and thereby and (ii) the monitoring and oversight agreement and
financial advisory agreement described in subsection 7.6(a)(iv), and
in the corporate charter and/or bylaws or other comparable constituent
documents of Holdings and its Subsidiaries; and
93
88
(n) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and
all Subsidiaries) not to exceed $25,000,000 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 to contested taxes are maintained on the books
of Holdings or one of its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', 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) previously or
hereinafter incurred in the ordinary course of business which, in the
aggregate, are not material in amount and which, in the case of such
encumbrances on any of the Mortgaged Properties, do not in the
aggregate materially detract from the value of the Property subject
thereto or, in the case of such encumbrances on property, 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 title
reports delivered to the Administrative Agent on or prior to the
Closing Date pursuant to subsection 5.1(h)(iii) or after the Closing
Date pursuant to subsection 6.10(b);
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by subsection 7.2(e)
(including refinancings, refundings, renewals and extensions of such
Indebtedness as permitted by subsection 7.2(e)), provided that no such
Lien is spread to cover any additional property (other than after
acquired title in or on such property and proceeds of the existing
collateral in accordance with the instrument creating such Lien) after
the Closing Date and that the amount of Indebtedness secured thereby
is not increased except pursuant to the instrument creating such Lien
(without any modification thereof after the date hereof);
(g) (i) Liens securing Indebtedness of the Borrower or any of
its Subsidiaries permitted pursuant to subsections 7.2(c) and 7.2(d)
(provided that (A) such Liens shall be
94
89
created substantially simultaneously with the acquisition of such
fixed or capital assets, (B) such Liens do not at any time encumber
any property other than the property financed by such Indebtedness and
(C) the amount of Indebtedness secured thereby is not increased except
pursuant to the instrument creating such Lien (without any
modification thereof after the date hereof)) 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) and (iii)
Liens securing Indebtedness of the Borrower or any of its Subsidiaries
assumed in connection with a Permitted Acquisition or an Asset Swap
Transaction in accordance with the terms of subsection 7.2(j)(ii);
(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) 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 $10,000,000;
(m) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(n) 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;
(o) licenses (other than Station Licenses), leases or
subleases permitted hereunder granted to others not interfering in any
material respect with the business of Holdings or any of its
Subsidiaries;
95
90
(p) Liens on property of the Borrower or any of its
Subsidiaries in favor of landlords securing licenses (other than
Station Licenses), subleases and leases permitted hereunder and
granted to others and not interfering in any material respect in the
business of Holdings or any of its Subsidiaries;
(q) Liens not otherwise permitted by this subsection 7.3 so
long as the aggregate outstanding principal amount of the obligations
secured thereby does not exceed $7,500,000 at any one time; and
(r) Liens granted by LIN Texas with respect to its interest in
the LLC to GECC in connection with the Joint Venture Loan.
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 convey, sell, lease, assign,
transfer or otherwise 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, except as set
forth below, any License Subsidiary or, at any time after any of the
conditions set forth in subsection 6.10(f)(i), (ii) or (iii) shall
have occurred, any Subsidiary holding the assets and liabilities of
any Station) 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
(other than, except as set forth below, any License Subsidiary or, at
any time after any of the conditions set forth in subsection 6.10(f)
(i), (ii) or (iii) shall have occurred, any Subsidiary holding the
assets and liabilities of any Station) (provided that the Wholly Owned
Subsidiary Guarantor shall be the continuing or surviving
corporation); provided, however, that (i) a License Subsidiary and any
Subsidiary holding the assets and liabilities of any Station may take
any actions otherwise prohibited by this clause (a) to the extent such
merger or consolidation occurs in contemplation of, and immediately
preceding, a sale, transfer or other disposition (including an Asset
Swap Transaction) of such License Subsidiary or other Subsidiary and
(ii) any Subsidiary may take any actions otherwise prohibited by this
clause (a) to the extent necessary to comply with the requirements of
subsection 6.10(f);
(b) any Subsidiary of the Borrower (other than, except as set
forth below, any License Subsidiary or, at any time after any of the
conditions set forth in subsection 6.10(f)(i), (ii) or (iii) shall
have occurred, any Subsidiary holding the assets and liabilities of
any Station) 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; provided, however,
that (i) a License Subsidiary and any Subsidiary holding the assets
and liabilities of any Station may take any actions otherwise
prohibited by this clause (b) to the extent any sale, transfer or
other disposition occurs in contemplation of, and immediately
preceding, a sale, transfer or other disposition (including an Asset
Swap Transaction) of such License Subsidiary or other Subsidiary and
96
91
(ii) any Subsidiary may take any actions otherwise prohibited by this
clause (b) to the extent necessary to comply with the requirements of
subsection 6.10(f); and
(c) the Borrower may be merged or consolidated with or into a
newly formed limited liability company with no assets or liabilities
that is a Subsidiary of Holdings solely for the purposes of realizing
certain tax benefits so long as Holdings shall take such actions as
would be required under subsection 6.10(c) if such limited liability
company were a Subsidiary of the Borrower.
7.5 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables, leasehold interests and its
interest in the LLC), whether now owned or hereafter acquired, 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;
(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 at least 75% 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 $5,000,000 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 each case 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;
(h) the sale of any Broadcasting Asset for aggregate
consideration equal to the fair market value of such Broadcasting
Asset (as determined in good faith by the board of directors of the
Borrower or the applicable Subsidiary), provided that (i) after giving
effect to such sale, no Default or Event of Default exists or shall be
continuing, (ii) at least 75% of such consideration received by the
Borrower in respect thereof shall be in the form of cash and Cash
Equivalents, (iii) the Net Cash Proceeds of such sale shall be applied
in the manner prescribed by subsection 2.9(d) and (iv) (A) the
Consolidated EBITDA of the Broadcasting Asset being sold plus the
Consolidated EBITDA of all Broadcasting Assets that were sold pursuant
to this subsection 7.5(h) or exchanged pursuant to
97
92
subsection 7.5(i) in such fiscal quarter and in the immediately
preceding four-fiscal-quarter period shall not exceed 25% of the
Consolidated EBITDA of the Borrower for such immediately preceding
four-fiscal-quarter period, (B) the Consolidated EBITDA of the
Broadcasting Asset being sold plus the Consolidated EBITDA of all
Broadcasting Assets that were sold pursuant to this subsection 7.5(h)
or exchanged pursuant to subsection 7.5(i) in such fiscal quarter and
in the preceding eight-fiscal-quarter period shall not exceed 40% of
the Consolidated EBITDA of the Borrower for such eight-fiscal quarter
period and (C) the Consolidated EBITDA of the Broadcasting Assets
being sold plus the Consolidated EBITDA of all Broadcasting Assets
that were sold pursuant to this subsection 7.5(h) or exchanged
pursuant to subsection 7.5(i) in such fiscal quarter and in the
preceding twenty-fiscal-quarter period shall not exceed 60% of the
Consolidated EBITDA of the Borrower for such twenty-fiscal-quarter
period;
(i) Asset Swap Transactions; and
(j) the KXTX Transaction
7.6 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock) 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 Holdings or any of its Subsidiaries 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
Holdings or any of its Subsidiaries (such declarations, payments, setting
apart, purchases, redemptions, defeasance, retirements, acquisitions and
distributions being herein called "Restricted Payments"), except that:
(a) the Borrower may make Restricted Payments to Holdings, so
long as no Event of Default (or with respect to clause (vi) below, any
interest payment Default) has occurred and is continuing or would be
continuing after giving effect to such Restricted Payment, provided
that the Borrower shall be permitted to make the Restricted Payments
in clauses (iii) and (iv) below notwithstanding any such Event of
Default, unless, in the case of clause (iv), such Event of Default
relates to a payment Default under subsection 8(a):
(i) the proceeds of which shall be applied by
Holdings directly to pay out of pocket expenses, for
administrative, legal and accounting services provided by
third parties that are reasonable and customary and incurred
in the ordinary course of business for such professional
services, or to pay franchise fees and similar costs;
provided, however, any such administrative expenses shall not
exceed an aggregate amount of $3,000,000 per fiscal year;
(ii) payments, the proceeds of which will be used to
repurchase the Capital Stock or other securities of Holdings
from outside directors, employees or members of the management
of Holdings, or any Subsidiary of Holdings, at a price not in
excess of fair market value, in an aggregate amount not in
excess of
98
93
$15,000,000, net of the proceeds received by Holdings as a
result of any resales of any such Capital Stock or other
securities;
(iii) payments, the proceeds of which will be used to
pay taxes of Holdings, the Borrower and its Subsidiaries as
part of a consolidated, combined or unitary tax filing group
or of the separate operations of Holdings;
(iv) payments, the proceeds of which will be used to
pay management fees to Xxxxx Muse & Co. Partners, L.P. in
accordance with the terms of its monitoring and oversight
agreement and the financial advisory agreement contemplated by
subsection 7.10(b)(ii);
(v) if such Restricted Payment is a purchase of
Capital Stock or a distribution to Holdings to permit Holdings
to purchase its Capital Stock, in either case, made in order
to fulfill the obligations of Holdings or any of its
Subsidiaries under an employee stock purchase plan or similar
plan covering employees of Holdings or any Subsidiary of
Holdings as from time to time in effect in an aggregate net
amount not to exceed $15,000,000; and
(vi) at any time after the fifth anniversary of the
Closing Date, the proceeds of which shall be applied by
Holdings to pay cash interest and scheduled principal
(including pursuant to a mandatory redemption) on the Holdings
Discount Indebtedness in accordance with its terms, provided
that such Restricted Payments shall not exceed in any
quarterly period, the amounts due with respect to the Holdings
Accrued Indebtedness for such quarter.
(b) any Subsidiary may make Restricted Payments to the
Borrower or any of its Subsidiaries;
(c) Permitted Issuances may be made; and
(d) Restricted Payments necessary to complete the
Transactions.
7.7 Limitation on Capital Expenditures. (a) Make or commit
to make any Capital Expenditure, except Capital Expenditures of the Borrower
and its Subsidiaries in the ordinary course of business not exceeding for any
fiscal year $30,000,000, provided that 100% of any amount not used in any
fiscal year may be carried forward into the next succeeding fiscal year (it
being understood and agreed that no amount may be carried forward beyond the
year immediately succeeding the fiscal year in which it arose).
(b) In addition to the Capital Expenditures permitted
pursuant to paragraph (a) of this subsection 7.7, to the extent such proceeds
are not otherwise utilized pursuant to subsection 7.8(n) or 7.9(e), the
Borrower and its Subsidiaries may make additional Capital Expenditures (which
shall not be counted in the limitations set forth in paragraph (a) of this
subsection 7.7) consisting of (i) the investment of Net Cash Proceeds not
required to be applied pursuant to subsection 2.9, including with respect to
the investment of the proceeds of the sale of
99
94
assets which are permitted pursuant to subsection 7.5 and (ii) the investment
of Excess Cash Flow generated during prior fiscal years (beginning with Excess
Cash Flow generated in the fiscal year ended in December 1998 but, in each
case, including the retained portion of Excess Cash Flow for only those periods
where the respective Excess Cash Flow payment has theretofore occurred) and not
required to be applied pursuant to subsection 2.9(c).
(c) Notwithstanding the foregoing, in no event shall Capital
Expenditures be made by Holdings.
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 ("Investments"), 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) and
subsection 7.2(g)(iii);
(d) the Transactions and, subject to the proviso set forth in
the definition of the term "Permitted Acquisition", the WOOD-TV
Acquisition and the acquisition of the WVTM Assets in accordance with
all material applicable Requirements of Law and the terms of the WVTM
Purchase Agreement (without giving effect to any amendments or waivers
that could reasonably be expected to adversely impact the Facilities
and are not reasonably satisfactory to the Administrative Agent);
(e) Investments (other than Permitted Acquisitions) by
Holdings and its Subsidiaries in any of the Loan Parties, including
any new Subsidiary which becomes a Loan Party;
(f) loans and advances by Holdings or its Subsidiaries to
their respective directors, officers and employees in an aggregate
principal amount not exceeding $5,000,000 at any one time outstanding;
(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
material respect;
(h) Investments permitted by subsections 7.2(b), (f) and (l),
subsections 7.4 and 7.6 and Capital Expenditures permitted by
subsection 7.7;
100
95
(i) promissory notes and other similar non-cash consideration
received by the Subsidiaries of Holdings in connection with the
dispositions permitted by subsection 7.5, including equity interests
received in connection with Asset Swap Transactions permitted by
subsection 7.5(i);
(j) Investments in Interest Rate Protection Agreements in the
ordinary course of the business of the Borrower or any of its
Subsidiaries and not for purposes of speculation;
(k) 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;
(l) in addition to the foregoing but subject to subsection
7.18, Investments by the Borrower and its Subsidiaries in an aggregate
amount not exceeding $30,000,000 (valued at cost, without regard to
any write down or write up thereof) at any one time outstanding;
(m) Investments after the Closing Date by the Borrower and its
Subsidiaries constituting Permitted Acquisitions or Asset Swap
Transactions;
(n) in addition to the foregoing, to the extent such proceeds
are not otherwise utilized pursuant to subsection 7.7(b) or 7.9(e),
the Subsidiaries of Holdings may make additional Investments (which
shall not be counted in the limitations set forth above) as follows:
(i) Investments consisting of the Investment of Net Cash Proceeds not
required to be applied pursuant to subsection 2.9, including (A) with
respect to the Investment of proceeds of the insurance and
condemnation proceeds not required to be applied pursuant to
subsection 2.9 and (B) with respect to the Investment of proceeds of
the sale of assets which are permitted pursuant to subsection 7.5; and
(ii) Investments consisting of the Investment of Excess Cash Flow
generated during prior fiscal years (beginning with Excess Cash Flow
generated in the fiscal year ended in December 1998 but, in each case,
including the retained portion of the respective Excess Cash Flow for
only those periods where the respective Excess Cash Flow payment has
theretofore occurred) and not required to be applied pursuant to
subsection 2.9(c); and
(o) Investments in Holdings that are downstreamed to the Joint
Venture within two Business Days solely for the purpose of curing any
event of default under the Joint Venture Loan.
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make any optional payment or prepayment on or redemption
of or any payments in redemption, defeasance or repurchase of (A) any Senior
Subordinated Indebtedness (except pursuant to a permanent refinancing of Senior
Subordinated Indebtedness) or (B) the Holdings Discount Indebtedness (except
pursuant to a permanent refinancing of the Holdings Discount Indebtedness),
except in each case mandatory payments of interest, scheduled principal
(including
101
96
pursuant to a mandatory redemption) after the fifth anniversary of the Closing
Date with respect to interest accruing following the Closing Date, fees and
expenses required by the terms of the agreement governing or instrument
evidencing such Indebtedness but only to the extent permitted under the
subordination provisions, if any, applicable thereto;
(b) amend, supplement, waive or otherwise modify any of the
provisions of any Senior Subordinated Indebtedness, the Senior Subordinated
Note Indenture, the Holdings Discount Indebtedness or the Holdings Discount
Notes Indenture:
(i) in the case of Senior Subordinated Indebtedness and the
Senior Subordinated Note Indenture, which amends or modifies any
subordination provisions contained therein;
(ii) which shortens the fixed maturity, or increases the rate
or shortens the time of payment of interest on, or increases the
amount or shortens the time of payment of any principal or premium
payable whether at maturity, at a date fixed for prepayment or by
acceleration or otherwise of such Indebtedness, or increases the
amount of, or accelerates the time of payment of, any fees payable in
connection therewith;
(iii) which relates to the affirmative or negative covenants,
events of default or remedies under the documents or instruments
evidencing such Indebtedness and the effect of which is to subject
Holdings or any of its Subsidiaries to any more onerous or more
restrictive provisions; or
(iv) which otherwise adversely affects the interests of the
Lenders as senior creditors or the interests of the Lenders under this
Agreement or any other Loan Document in any respect;
(c) make any payment in cash on any equity or debt security
that may be made under the terms thereof by the issuance of any security of the
same nature;
(d) designate any Indebtedness (other than the Loans) as
"Designated Senior Indebtedness" under any Senior Subordinated Indebtedness
(including, without limitation, under the Senior Subordinated Note Indenture);
or
(e) make any optional payment or prepayment on or redemption
of or any payments in redemption, defeasance or repurchase of any Indebtedness
that is subordinated to the Obligations and that is assumed in connection with
a Permitted Acquisition or an Asset Swap Transaction pursuant to subsection
7.2(j)(iii) (except pursuant to a permanent refinancing of such Indebtedness),
except (i) mandatory payments of interest, fees and expenses required by the
terms of the agreement governing or instrument evidencing such Indebtedness but
only to the extent permitted under the subordination provisions, if any,
applicable thereto, and (ii) the Borrower and its Subsidiaries may, to the
extent such proceeds are not otherwise utilized pursuant to subsections 7.7(b)
or 7.8(n), use cash consisting of the retained amount of Excess Cash Flow
generated during prior fiscal years (beginning with Excess Cash Flow generated
in the fiscal year ended December 1998 but, in each case, including the
retained portion of the respective Excess Cash flow for only those periods
where the respective Excess Cash Flow payment has theretofore occurred) to make
102
97
voluntary prepayments on such Indebtedness in an aggregate amount, which, when
added to the aggregate amount of all prior prepayments of such Indebtedness,
shall not exceed $100,000,000.
7.10 Limitation on Transactions with Affiliates. (a) Enter
into any transaction, including, without limitation, any purchase, sale, lease
or exchange of Property or the rendering of any service, with any Affiliate
unless such transaction is (i) otherwise permitted under this Agreement, (ii)
in the ordinary course of business of Holdings or the relevant Subsidiary of
Holdings, as the case may be, and (iii) upon fair and reasonable terms no less
favorable to Holdings 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.
(b) In addition, notwithstanding the foregoing, Holdings and
its Subsidiaries shall be entitled to make the following payments and/or to
enter into the following transactions:
(i) the payment of reasonable and customary fees and
reimbursement of expenses payable to directors of Holdings;
(ii) the payment to Xxxxx Muse & Co. Partners, L.P. of fees
and expenses pursuant to a monitoring and oversight agreement and a
financial advisory agreement approved by the board of directors of
Holdings; and
(iii) the employment arrangements with respect to the
procurement of services of directors, officers and employees in the
ordinary course of business and the payment of reasonable fees in
connection therewith.
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, immovable or movable, 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, provided that this subsection 7.11 shall not
prohibit any sale and leaseback resulting from the incurrence of any lease in
respect of any capital asset entered into within 120 days of the acquisition of
such capital asset for the purpose of providing permanent financing of such
capital asset.
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,
provided that Holdings and the Borrower may change such fiscal year upon the
approval of the Administrative Agent or change Holdings's 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
any other agreement evidencing Senior Subordinated Indebtedness, (c) the
Holdings Discount Notes Indenture and any other agreement evidencing the
Holdings Discount Indebtedness (d) any indenture evidencing Indebtedness
permitted under subsection 7.2(j)(iii) and (e) in the case of clause (i) below
only, any agreements
103
98
governing any purchase money Liens Capital Lease Obligations, Liens permitted
under subsection 7.3(j) or any other similar agreement or transaction 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 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, Asset Swap
Transaction or otherwise).
7.15 Limitation on Amendments to Constituent and Transaction
Documents. (a) Amend, supplement or otherwise modify its certificate of
incorporation or by-laws unless such amendment, supplement or other
modification does not adversely affect the interests of any Lender in any
material respect or (b) amend, supplement or otherwise modify (pursuant to a
waiver or otherwise) the Joint Venture Loan Guarantee, the LLC Agreement, the
LP Agreement or the Network Affiliation Agreements or consent to, or permit
Equity Holdings B to consent to, any amendment, supplement or other
modification (pursuant to a waiver or otherwise) to the Joint Venture Loan or
the Replacement Guarantor Pledge Agreement unless such amendment, supplement or
other modification does not adversely affect the interests of any Lender in any
material respect.
7.16 Limitations on Changes in Holding Company Status.
Permit Holdings, Equity Holdings B or Equity Holdings A to engage in any
activities or incur any Indebtedness or Guarantee Obligations other than (a) in
the case of Holdings, (i) owning the stock of the Borrower, (ii) its activities
incident to the performance of the Loan Documents, including its guarantee
thereunder, (iii) transactions pursuant to or expressly contemplated by the
Transaction Documents or this Agreement, (iv) its unsecured subordinated
guarantee of any Senior Subordinated Indebtedness in accordance with the terms
of this Agreement and (v) any Holdings Discount Indebtedness, (b) in the case
of Equity Holdings B, (i) owning the stock of Holdings and (ii) the Joint
Venture Loan Guarantee and (c) in the case of Equity Holdings A, owning the
stock of Holdings.
7.17 Limitation on Changes in Station Affiliation. Permit
any Station (other than a Station that, on the date hereof, is affiliated with
United Paramount Network or Warner Brothers Network) to change its network
affiliation if the percentage represented by such Station of Consolidated
EBITDA for the twelve month period preceding the date of the proposed change
(giving pro forma effect to any acquisitions or dispositions that have occurred
since the beginning of such twelve month period as if such acquisitions or
dispositions had occurred at the beginning of such twelve month period),
together with the percentage represented by each such other Station that
previously changed its network affiliation after the date hereof of the
Consolidated EBITDA for the twelve month period preceding the date of such
previous change (determined on a pro forma basis as aforesaid), would exceed
40%, provided that WAVY-TV Station may become affiliated
104
99
with Fox and such change will not be subject to the foregoing restriction and
will not be taken into account for purposes of this subsection 7.17.
7.18 Limitation on Minority Investments. Permit more than
10% of Consolidated EBITDA for any Test Period to be derived from minority
investments in partnerships and local marketing agreements where the Borrower
or any Wholly Owned Subsidiary is not the operating and control entity of the
local marketing agreement, provided that such percentage shall be increased to
15% following any KXTX Transaction.
7.19 Approval of Joint Venture Actions. Approve any
corporate transaction involving the LLC or the LP that could reasonably be
expected to materially and adversely impact the Lenders without the prior
consent of the Required Lenders.
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 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) Holdings, the Borrower or any of their Subsidiaries
shall default in the observance or performance of any agreement
contained in subsection 6.4(a)(ii), subsection 6.7(a), subsection
6.10(e) or (f), subsection 6.13 or Section 7 of this Agreement; or
(d) Holdings, the Borrower or any Subsidiary 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 after notice thereof from
the Administrative Agent to the Borrower (which notice will be given
at the request of any Lender); or
(e) Holdings, the Borrower or any of its Subsidiaries shall
(i) default in making any payment of any principal of or interest on
any Indebtedness (other than pursuant to the Loan Documents) 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
105
100
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 amount of which exceeds in the aggregate $10,000,000; or
(f) (i) Holdings, 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 Holdings, 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 Holdings, 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 Holdings, 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) Holdings, 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) Holdings,
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 (other than intercompany debt) 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
106
101
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
(h) One or more judgments or decrees shall be entered against
Holdings, the Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$10,000,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60
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 (including, without limitation, any
Mortgage filed pursuant to subsection 10.17) 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 free and clear of all Liens other than
Liens in favor of the Lenders pursuant to the Loan Documents; or
(k) 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
(l) The principal broadcasting licenses of any Station, or any
other material authorizations, licenses or permits issued by the FCC,
shall be revoked or canceled or expire by its terms and not be
renewed, or shall be modified in each case in a manner which would
have a Material Adverse Effect; or
107
102
(m) The Borrower or any of its Subsidiaries shall have
received a notice of termination with respect to any Network
Affiliation Agreements(or any alternative network affiliation
agreement in compliance with this clause (m)) if the percentage
represented by such Network Affiliation Agreement (for the Station in
question) of Consolidated EBITDA for the 12-month period preceding the
date of the termination (giving pro forma effect to any acquisitions
or dispositions that have occurred since the beginning of such
12-month period as if such acquisitions or dispositions had occurred
at the beginning of such 12-month period), would exceed 15%, unless,
within 30 days after receipt of such termination notice, an
alternative network affiliation agreement in form and substance
reasonably satisfactory to the Required Lenders 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
(n) 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 $2,000,000 and such default shall continue unremedied for a
period of 150 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
(o) Any Event of Default shall have occurred and be continuing
with respect to the Joint Venture Loan and the lender thereunder shall
have instituted proceedings against Equity Holdings B with respect to
the Joint Venture Loan Guarantee, the outcome of which, if adversely
determined, could reasonably be expected to have a Material Adverse
Effect.
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 Holdings or 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 immediately become due and payable, and (B) if such
event is any other Event of Default, either or any 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; (ii) with the consent of the Majority Tranche A Term Facility
Lenders, the Administrative Agent may, or upon the request of the Majority
Tranche A Term Facility Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Delayed Tranche A Term Loan Commitments to be
terminated forthwith, whereupon the Delayed Tranche A Term Loan Commitments
shall immediately terminate and (iii) 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
108
103
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 ADMINISTRATIVE AGENT
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.
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 the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (a) 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 (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan
109
104
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 Administrative Agent 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
Administrative Agent 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 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 the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in- fact or affiliates have made any representations or warranties to
it and that no act by the Administrative 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
110
105
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative 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 the Administrative 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 the
Administrative 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 pro rata share of the aggregate Revolving Credit
Exposure, Term Loans outstanding and unused Commitments 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 share 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 the Administrative 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 the Administrative 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 the Administrative 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. The Administrative
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 the Administrative
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, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other
111
106
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 the Administrative
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.
112
107
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 to the relevant Loan
Documents may, or, with the written consent of the Required Lenders, the
Administrative Agent and each Loan 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 or Delayed Tranche A Term Loan 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 Holdings or 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 other than pursuant to a transaction permitted by this
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 Tranche A Term Loan Facilities, the Tranche B
Term Loan Facilities and the Incremental Term Loan Facilities, as applicable,
specified in subsection 2.15(b) or the allocation of payments between the
Facilities pursuant to subsection 2.9(d), in each case without the consent of
the Majority Facility Lenders in respect of each Facility adversely affected
thereby; (v) amend the definition of the term "Majority Facility Lenders",
"Majority Revolving Credit Facility Lenders" or "Majority Tranche A Term
Facility Lenders" or modify in any other manner the number, percentages or
class of Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof without the consent of each Lender
directly affected thereby; (vi) amend, modify or waive any provision of Section
9 without the written consent of the Administrative Agent; (vii) amend, modify
or waive any provision of Section 3 without the written consent of the Issuing
Lender or (viii) amend, modify or waive any provision of subsection 2.4(c)
without the written consent of the Swingline Lender. In furtherance of clause
(iii) of this subsection 10.1, no amendment to or waiver of any representation
or warranty or any covenant contained in this Agreement or any other Loan
Document, or of any Default or Event of Default, shall be deemed to be
effective for purposes of determining whether the conditions precedent set
forth in subsection 5.2 to the making of any Revolving Credit Loan have been
satisfied unless the Majority Revolving Credit Facility Lenders shall have
consented to such amendment or waiver. Any waiver and any amendment,
supplement or modification in accordance with this subsection 10.1 shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Administrative Agent and all future
113
108
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 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, Holdings and
the Administrative Agent, and as set forth on the signature pages hereto or in
any Assignment and Acceptance in the case of the Lenders, or to such other
address as may be hereafter notified by the respective parties hereto:
The Borrower: LIN Television Corporation
0 Xxxxxxxx Xxxxxx, Xxxxx 000X
Providence, Rhode Island 02906
Attention: Xxxxxxx X. Xxxxxxxx
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
with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: 000-000-0000
Holdings: Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Telecopy: 000-000-0000
with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: 000-000-0000
114
109
The Administrative
Agent: Chase Agency Services
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: 000-000-0000
with a copy to: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: 212-270-1264
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 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 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 similar 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
115
110
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 willful misconduct of such indemnitee or, in the
case of indemnified liabilities arising under this Agreement, any Notes and the
other documents, from material breach by the indemnitee of this Agreement, any
Notes or the other Loan Documents, as the case may be. 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 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. No
Lender shall permit any Participant to have (and no participant shall have) the
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
116
111
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.
(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, affiliate or Approved Fund 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,
an affiliate thereof or an Approved Fund, 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 or an Approved
Fund) shall be in an aggregate principal amount of less than $5,000,000 (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, (A) 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 (B) 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, 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
117
112
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.
(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, an affiliate thereof or an Approved Fund, by the Borrower and
the Administrative Agent) together with payment to the Administrative Agent of
a registration and processing fee of $3,500, 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, upon request the Borrower,
at its own expense, shall execute and deliver to the Administrative Agent (in
exchange for any Revolving Credit Note, Term Note or Swingline Note of the
assigning Lender) a new Revolving Credit Note, Term Note or Swingline Note, as
the case may be, to the order of such Assignee in an amount equal to the
Revolving Credit Commitment, Delayed Tranche A Term Loan Commitment or portion
of the Tranche A Term Loans or Tranche B Term Loans or Incremental 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
Delayed Tranche A Term Loan Commitment or portion of a Tranche A Term Loan,
Tranche B Term Loan or Incremental Term Loan hereunder, a new Revolving Credit
Note, Tranche A Term Note, Tranche B Term Note or Incremental Term Note, as the
case may be, to the order of the assigning Lender in an amount equal to the
Revolving Credit Commitment or Delayed Tranche A Term Loan Commitment or
Tranche A Term Loan, Tranche B Term Loan or Incremental Term Loan, as the case
may be, retained by it hereunder. Such new Notes shall be in the form of the
Note replaced thereby.
(f) The Borrower agrees that, upon request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender (i) a promissory note of the Borrower evidencing the Revolving
Credit Loans of such Lender, substantially in the form of Exhibit I-1 (each as
amended, supplemented, replaced or otherwise modified from time to time, a
"Revolving Credit Note"), and/or (ii) a promissory note of the Borrower
evidencing the applicable Term Loan of such Lender, substantially in the form
of Exhibit I-2 (each as amended, supplemented, replaced or otherwise modified
from time to time, a "Term Note"), and/or (iii) a promissory note of the
Borrower evidencing the Swingline Loans of the Swingline Lender, substantially
in the form of Exhibit I-3) (as amended, supplemented, replaced or otherwise
modified from time to time, the "Swingline Note").
(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.
118
113
(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 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.
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
119
114
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 Holdings, 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. Each of Holdings
and 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
(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.
120
115
10.13 Acknowledgments. Each of Holdings and 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 Holdings 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 Holdings and the
Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. HOLDINGS, 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 or to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provision of
this Section 10.15), (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 (including the Securities
Valuation Office of the National Association of Insurance Commissioners) 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 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.
121
116
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 Filing of Mortgages. Notwithstanding anything to the
contrary contained in this Agreement, it is understood and agreed that (a) the
Mortgages will not be filed on the Closing Date and (b) at any time after the
Closing Date, at the request of the Administrative Agent or the Required
Lenders, the Mortgages delivered on the Closing Date and each Mortgage
delivered pursuant to subsection 6.10(b) shall be filed, at the Borrower's
expense, in the offices specified in Schedule 4.19(b) and each other
jurisdiction reasonably requested by the Administrative Agent or the Required
Lenders, as applicable.
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.
LIN HOLDINGS CORP.,
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
LIN ACQUISITION COMPANY,
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
THE CHASE MANHATTAN BANK, as
Administrative Agent,
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
122
117
NATIONAL WESTMINSTER BANK PLC, as
Documentation Agent,
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK, as Syndication
Agent,
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES,
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
FLEET NATIONAL BANK,
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH,
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
123
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH,
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
BANKBOSTON, N.A.,
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
NATIONSBANK OF TEXAS, NA.,
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
124
BHF BANK AKTIENGESELLSCHAFT,
GRAND CAYMAN BRANCH,
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Treasurer
NATEXIS BANQUE - BFCE,
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Associate
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: VP-Group Manager
BANK OF HAWAII,
By: /s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
125
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY,
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANQUE PARIBAS,
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate Vice President
CREDIT LYONNAIS, NEW YORK
BRANCH,
By: /s/ Xxxx X. Judge
--------------------------------
Name: Xxxx X. Judge
Title: Vice President
DAI-ICHI KANGYO BANK, LIMITED,
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Associate Vice President
FIRST HAWAIIAN BANK,
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
126
PNC BANK NATIONAL ASSOCIATION,
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
ROYAL BANK OF CANADA,
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Manager
SOCIETE GENERALE, NEW YORK
BRANCH,
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
SUMITOMO BANK, LTD.,
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
SUMMIT BANK,
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
127
SUNTRUST BANK, CENTRAL FLORIDA,
N.A.,
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA,
By: /s/ Xxxxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
DEEPROCK & COMPANY,
BY: Xxxxx Xxxxx Management as Investment
Advisor,
By: /s/ Xxxxx X. Page
--------------------------------
Name: Xxxxx X. Page
Title: Vice President
NORTHERN LIFE INSURANCE COMPANY
BY: ING CAPITAL ADVISORS, INC., AS
INVESTMENT ADVISOR,
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Portfolio Manager
KZH-ING-2 CORPORATION,
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
128
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
CYPRESS TREE BOSTON PARTNERS,
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: Partner
KHZ-CRESCENT-2 CORPORATION,
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KHZ-SOLEIL-2 CORPORATION,
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
PRIME INCOME TRUST,
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
129
METROPOLITAN LIFE INSURANCE COMPANY,
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (A UNIT OF THE CHASE
MANHATTAN BANK),
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CREDIT AGRICOLE INDOSUEZ,
By: /s/ Xxxxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Executive Managing Director
PILGRIM AMERICA PRIME RATE TRUST,
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Portfolio Manager
KZH HOLDING CORPORATION III,
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
130
BALANCED HIGH YIELD FUND I, LTD.
BHF - BANK AKTIENGESELLSCHAFT
ACTING THROUGH ITS NEW YORK
BRANCH AS ATTORNEY-IN-FACT,
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Treasurer
131
126
SCHEDULE 1.1A
REVOLVING CREDIT COMMITMENTS
----------------------------
Lender Revolving Credit Commitment
------ ---------------------------
The Chase Manhattan Bank $
The Bank of New York
National Westminster Bank Plc
TERM LOAN COMMITMENTS
---------------------
Lender Term Loan Commitment
------ --------------------
The Chase Manhattan Bank $
The Bank of New York
National Westminster Bank Plc
