EXHIBIT 10.6
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CREDIT AGREEMENT
Dated as of August 4, 1998,
among
TLMD ACQUISITION CO.,
as Borrower,
TELEMUNDO HOLDINGS, INC.,
as Parent Guarantor,
THE LENDERS NAMED HEREIN,
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent,
as Collateral Agent and
as Issuing Bank
CANADIAN IMPERIAL BANK OF COMMERCE,
as Documentation Agent
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................ 1
SECTION 1.02. Terms Generally.............................................. 23
ARTICLE II
The Credits
SECTION 2.01. Commitments.................................................. 23
SECTION 2.02. Loans........................................................ 23
SECTION 2.03. Borrowing Procedure.......................................... 25
SECTION 2.04. Evidence of Debt; Repayment of Loans......................... 26
SECTION 2.05. Fees......................................................... 26
SECTION 2.06. Interest on Loans............................................ 26
SECTION 2.07. Default Interest............................................. 27
SECTION 2.08. Alternate Rate of Interest................................... 27
SECTION 2.09. Termination and Reduction of Commitments..................... 27
SECTION 2.10. Conversion and Continuation of Borrowings................... 28
SECTION 2.11. Repayment of Term Borrowings................................. 29
SECTION 2.12. Optional Prepayments......................................... 30
SECTION 2.13. Mandatory Prepayments........................................ 30
SECTION 2.14. Reserve Requirements; Change in Circumstances................ 32
SECTION 2.15. Change in Legality........................................... 33
SECTION 2.16. Indemnity.................................................... 33
SECTION 2.17. Pro Rata Treatment........................................... 34
SECTION 2.18. Sharing of Setoffs........................................... 34
SECTION 2.19. Payments..................................................... 35
SECTION 2.20. Taxes........................................................ 35
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate........................................... 36
SECTION 2.22. Letters of Credit............................................ 37
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers......................................... 40
SECTION 3.02. Authorization................................................ 40
SECTION 3.03. Enforceability............................................... 40
SECTION 3.04. Governmental Approvals....................................... 40
SECTION 3.05. Financial Statements......................................... 40
SECTION 3.06. No Material Adverse Change................................... 41
SECTION 3.07. Title to Properties; Possession Under Leases................. 41
SECTION 3.08. Subsidiaries................................................. 41
SECTION 3.09. Litigation; Compliance with Laws............................. 41
SECTION 3.10. Agreements................................................... 42
Contents, p. 2
SECTION 3.11. Federal Reserve Regulations.................................. 42
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act..................................................... 42
SECTION 3.13. Use of Proceeds.............................................. 42
SECTION 3.14. Tax Returns.................................................. 42
SECTION 3.15. No Material Misstatements.................................... 42
SECTION 3.16. Employee Benefit Plans....................................... 43
SECTION 3.17. Environmental Matters........................................ 43
SECTION 3.18. Insurance.................................................... 43
SECTION 3.19. Security Documents........................................... 44
SECTION 3.20. Intellectual Property........................................ 44
SECTION 3.21. Station Licenses............................................. 44
SECTION 3.22. Labor Matters................................................ 45
SECTION 3.23. Solvency..................................................... 45
SECTION 3.24. Merger Agreement............................................. 45
SECTION 3.25 Year 2000.................................................... 45
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events............................................ 46
SECTION 4.02. First Credit Event........................................... 46
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties, Insurance.............. 49
SECTION 5.02. Obligations and Taxes........................................ 49
SECTION 5.03. Financial Statements, Reports, etc........................... 50
SECTION 5.04. Litigation and Other Notices................................. 51
SECTION 5.05. Employee Benefits............................................ 51
SECTION 5.06. Maintaining Records; Access to Properties
and Inspections......................................... 51
SECTION 5.07. Use of Proceeds.............................................. 52
SECTION 5.08. Compliance with Environmental Laws........................... 52
SECTION 5.09. Further Assurances........................................... 52
SECTION 5.10. Hedging Arrangements......................................... 52
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness................................................. 52
SECTION 6.02. Liens........................................................ 54
SECTION 6.03. Sale and Lease-Back Transactions............................. 55
SECTION 6.04. Investments, Loans and Advances.............................. 55
SECTION 6.05. Mergers, Consolidations, Sales of Assets..................... 56
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends........................... 56
SECTION 6.07. Transactions with Affiliates................................. 57
SECTION 6.08. Business of Parent and Subsidiaries.......................... 57
SECTION 6.09. Amendment of Material Documents.............................. 57
Contents, p. 3
SECTION 6.10. Prepayments, Redemptions and Repurchases of Debt........... 57
SECTION 6.11. Collateral and Guarantee Requirements....................... 57
SECTION 6.12. Fiscal Year................................................. 58
SECTION 6.13. Certain Changes in Ownership or Control..................... 58
SECTION 6.14. Consolidated Leverage Ratio................................. 58
SECTION 6.15. Consolidated Interest Expense Coverage Ratio................ 58
SECTION 6.16. Consolidated Fixed Charge Coverage Ratio.................... 59
ARTICLE VII
Events of Default...................................... 60
ARTICLE VIII
The Agents............................................. 62
ARTICLE IX
Guarantee.............................................. 64
ARTICLE X
Miscellaneous.......................................... 65
SECTION 10.01. Notices..................................................... 65
SECTION 10.02. Survival of Agreement....................................... 66
SECTION 10.03. Binding Effect.............................................. 66
SECTION 10.04. Successors and Assigns...................................... 66
SECTION 10.05. Expenses; Indemnity......................................... 68
SECTION 10.06. Right of Setoff............................................. 69
SECTION 10.07. Applicable Law.............................................. 70
SECTION 10.08. Waivers; Amendment.......................................... 70
SECTION 10.09. Interest Rate Limitation.................................... 71
SECTION 10.10. Entire Agreement............................................ 71
SECTION 10.11. WAIVER OF JURY TRIAL........................................ 71
SECTION 10.12. Severability................................................ 71
SECTION 10.13. Counterparts................................................ 71
SECTION 10.14. Headings.................................................... 72
SECTION 10.15. Jurisdiction; Consent to Service of Process................. 72
SECTION 10.16. Confidentiality............................................. 72
Schedule 1.01 Subsidiary Guarantors
Schedule 2.01 Commitments
Schedule 3.01 Organization; Powers
Schedule 3.02 Authorization
Schedule 3.05 Pro Forma Financial Information
Schedule 3.06 Material Adverse Change
Schedule 3.07 Certain Encumbrances
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Contents, p. 4
Schedule 3.14 Tax Returns
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.21 Station Licenses
Schedule 3.22 Labor Matters
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.04 Existing Investments
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Subsidiary Guarantee Agreement
Exhibit E Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit F Form of Pledge Agreement
Exhibit G-1 Form of Security Agreement
Exhibit G-2 Form of Puerto Rican Security Agreement
Exhibit H-1 Form of Opinion of Xxxxxxx X. Xxxxxx, Esq.,
General Counsel of the Borrower
Exhibit H-2 Form of Opinion of Akin, Gump, Strauss,
Xxxxx & Xxxx, special counsel for the
Parent and the Borrower
Exhibit H-3 Form of Opinion of XxXxxxxxx Xxxxxx, Puerto
Rican counsel for the Parent and the Borrower
Exhibit H-4 Form of Opinion of Xxxxxx & Xxxxxxx, special
counsel for the Borrower
Exhibit K Terms of Subordinated Indebtedness
CREDIT AGREEMENT dated as of August 4, 1998, among TLMD
ACQUISITION CO., a Delaware corporation (the "Borrower");
TELEMUNDO HOLDINGS, INC., a Delaware corporation of which the
Borrower is a wholly owned subsidiary (the "Parent"); the Lenders
(as defined in Article I); CREDIT SUISSE FIRST BOSTON, a bank
organized under the laws of Switzerland, acting through its New
York Branch, as administrative agent (in such capacity, the
"Administrative Agent"), as collateral agent (in such capacity,
the "Collateral Agent") and as issuing bank (in such capacity,
the "Issuing Bank"); and CANADIAN IMPERIAL BANK OF COMMERCE, as
documentation agent (in such capacity, the "Documentation
Agent").
The Borrower, the Parent and Telemundo Group, Inc., a Delaware corporation
(the "Company") have entered into an Agreement and Plan of Merger dated as of
November 24, 1997 (the "Merger Agreement"), pursuant to which the Borrower will
be merged with and into the Company (which at the time of such merger will
become the "Borrower" hereunder), the Company will become a wholly owned
subsidiary of the Parent and each share of the Company's outstanding capital
stock, other than shares owned directly or indirectly by the Parent and
Dissenting Shares, as defined in the Merger Agreement, will be converted into
the right to receive cash equal to $44 plus the Additional Amount, as defined in
the Merger Agreement (the "Merger"). At the time of the Merger, the Company
will sell the Network Assets, as defined in the Network Sale Agreement, to the
Network Company for cash in an amount not less than $73,200,000 pursuant to the
Network Sale Agreement (the "Network Sale") and the Network Company and the
Borrower will enter into the Network Affiliation Agreement.
The Borrower has requested the Lenders to extend credit in the form of (a)
Tranche A Term Loans on the Closing Date in an aggregate principal amount not in
excess of $25,000,000 (subject to reduction as provided herein), (b) Tranche B
Term Loans on the Closing Date in an aggregate principal amount not in excess of
$175,000,000 (subject to reduction as provided herein), (c) Revolving Loans at
any time and from time to time prior to the Revolving Credit Maturity Date in an
aggregate principal amount at any time outstanding not in excess of $150,000,000
(subject to reduction as provided herein) minus the L/C Exposure at any time and
(d) Letters of Credit in an aggregate stated amount at any time outstanding not
in excess of $25,000,000. The proceeds of the Term Loans and of Revolving Loans
made on the Closing Date are to be used by the Borrower solely (i) to finance
the acquisition of the Company pursuant to the Merger, (ii) to refinance certain
existing indebtedness of the Company and (iii) to pay fees and expenses related
to the Closing Date Transactions and the transactions leading to the Merger.
The proceeds of the remaining Revolving Loans are to be used by the Borrower and
the Subsidiaries to provide working capital for use in the ordinary course of
their businesses and for other general corporate purposes. The Letters of
Credit are to be used to support obligations (other than trade payables)
incurred by the Borrower and the Subsidiaries in the ordinary course of their
businesses.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Bank is willing to issue Letters of Credit for the account of the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, including the
preamble hereto, the following terms shall have the meanings specified below:
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
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"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisition" shall mean the acquisition by the Borrower or any Subsidiary,
including through a merger or consolidation or a sale of capital stock, of any
other person or any division or business unit of any other person.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum equal to the product of (a)
the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the sum of (i)
the Federal Funds Effective Rate in effect on such day and (ii) 1/2 of 1%. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability of the Administrative Agent to obtain sufficient quotations in
accordance with the terms of the definition thereof, the Alternate Base Rate
shall be determined without regard to clause (b) of the preceding sentence until
the circumstances giving rise to such inability no longer exist. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Apollo" shall mean Apollo Investment Fund III, Apollo Advisors II, L.P.,
Apollo Management, L.P., and their successors (the "Original Apollo Entities"),
and any other investment fund with respect to which the investment decisions,
decisions as to the exercise of voting or consensual rights and other material
decisions are ultimately controlled by substantially the same group of
individuals at the time controlling such decisions as to any of the Original
Apollo Entities.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan that is part of a Revolving Credit Borrowing or a
Tranche A Term Borrowing, or with respect to the Commitment Fees, as the case
may be, the applicable percentage set forth below under the caption "Eurodollar
Spread", "ABR Spread" or "Fee Percentage", as the case may be, based upon the
Consolidated Leverage Ratio as of the most recent Determination Date:
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Eurodollar ABR Fee
Consolidated Leverage Ratio Spread Spread Percentage
--------------------------- ---------- ------ ----------
Category 1 1.875% 0.875% 0.500%
----------
Greater than or equal to 6.00 to 1.00
Category 2 1.750% 0.750% 0.500%
----------
Less than 6.00 to 1.00 but greater than
or equal to 5.50 to 1.00
Category 3 1.500% 0.500% 0.375%
----------
Less than 5.50 to 1.00 but greater than
or equal to 5.00 to 1.00
Category 4 1.250% 0.250% 0.375%
----------
Less than 5.00 to 1.00 but greater than
or equal to 4.50 to 1.00
Category 5 1.000% 0.000% 0.250%
----------
Less than 4.50 to 1.00 but greater than
or equal to 4.00 to 1.00
Category 6 0.750% 0.000% 0.250%
----------
Less than 4.00 to 1.00
; provided that until the Determination Date next following the first fiscal
quarter end after the Closing Date, the Applicable Percentage shall be
determined by reference to Category 1. At any time when the Borrower has failed
to deliver any financial statements and certificates required to have been
delivered under Section 5.03(a) or (b), the Applicable Percentage shall be
determined (a) for the first 30 days after the Delivery Date by which such
financial statements and certificates were to have been delivered, by reference
to the Category in effect immediately prior to such Delivery Date and (b)
thereafter, for so long as such financial statements and certificates shall not
have been delivered, by reference to the next lower Category (with Category 6
being the highest Category and Category 1 being the lowest Category); provided,
that if, following the delivery of such financial statements and certificates,
it shall appear that the Applicable Percentages employed pursuant to this
sentence to compute interest rates and the Commitment Fees shall have been lower
or higher than the Applicable Percentages that would have been employed had such
financial statements and certificates been timely delivered, the Borrower shall
make supplemental payments to the Lenders, or shall withhold amounts from
payments thereafter becoming due for the accounts of the Lenders, to the extent
necessary to eliminate the effect with respect to each Lender of the deficiency
or excess.
"Arranger and Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Arrangers" shall mean Credit Suisse First Boston and Canadian Imperial
Bank of Commerce.
"Asset Sale" shall mean the sale or transfer (by way of merger or
otherwise, and including any casualty event or condemnation that results in the
receipt of any insurance or condemnation proceeds) by the Parent or any of the
Subsidiaries to any person (other than a sale or transfer to the Parent or any
Subsidiary) of (a) any capital stock of any of the Subsidiaries or (b) any other
assets, whether real or personal and whether tangible or intangible, of the
Parent or any of the Subsidiaries, including any assets of broadcast stations;
provided that the following shall not be deemed to be "Asset Sales" for purposes
of this Agreement: (i) the Network Sale, (ii) any disposition of obsolete or
worn out assets or Permitted
4
Investments, in each case in the ordinary course of business, (iii) the
licensing by the Parent or any Subsidiary of any television programming
material, (iv) any asset sale or series of related asset sales described in
clause (b) above resulting in Net Cash Proceeds not in excess of $7,500,000 in
the aggregate during any fiscal year, and (v) sales of any assets permitted to
be sold under clause (d) of Section 6.05 if (w) the Borrower advises the
Administrative Agent in writing within five Business Days following the
completion of each such sale that the Borrower intends to use (or cause its
subsidiaries to use) the Net Cash Proceeds of such sale received by the Parent
or any of the Subsidiaries to purchase additional assets to be used in the
business of the Borrower and its subsidiaries, (x) after giving pro forma effect
to each such sale as if it had occurred at the beginning of the most recent
period of four fiscal quarters for which financial statements shall have been
delivered pursuant to Section 5.03(a) or (b), as applicable, the Borrower shall
be in compliance with the financial covenants set forth in Article VI, (y)
either (A) the Net Cash Proceeds of each such sale received by the Parent or any
of the Subsidiaries are promptly deposited in an escrow account with the
Administrative Agent, pursuant to an escrow agreement satisfactory to the
Borrower and the Administrative Agent, and held in such account pending any such
purchase or the application of such Net Cash Proceeds pursuant to Section
2.13(b) or (B) the Net Cash Proceeds of each such sale received by the Parent or
any of the Subsidiaries are promptly applied to prepay Revolving Credit
Borrowings, in which case an amount of the Revolving Credit Commitments equal to
the amount so prepaid will be held available and not borrowed pending, and will
be made available (subject to the conditions to borrowing set forth herein) to
provide funds for, any such purchase or the application of such Net Cash
Proceeds pursuant to Section 2.13(b), and (z) such Net Cash Proceeds are in fact
used to purchase additional assets to be used in the business of the Borrower
and its subsidiaries within nine months after the date of closing of such sale
(or the Borrower and its subsidiaries shall within nine months of the closing
date of such sale enter into a contract to purchase additional assets to be used
in the business of the Borrower and its subsidiaries using such proceeds and
shall close such purchase within 15 months after the date of closing of such
sale), failing which any portion of such Net Cash Proceeds that have not been
used to purchase additional assets to be used in the business of the Borrower
and its subsidiaries will immediately be deemed for purposes of Section 2.13(b)
to constitute Net Cash Proceeds of an Asset Sale.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Bastion" shall mean Bastion Capital Fund, L.P., Bastion Partners, L.P.,
Bastion Management Corp. and their successors (the "Original Bastion Entities")
and/or any other Affiliate of any of the foregoing with respect to which the
investment decisions, decisions as to the exercise of voting or consensual
rights and other material decisions are ultimately controlled by substantially
the same group of individuals at the time controlling such decisions as to any
of the Original Bastion Entities.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower Equity Contribution" shall mean the contribution by the Parent to
the common equity of the Borrower on the Closing Date of cash representing all
the proceeds of the Parent Equity Contribution and all the net proceeds of the
Senior Discount Note Sale.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit C.
"Broadcast Station" shall mean 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.
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"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York, New York are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any period, additions to property,
plant and equipment and other capital expenditures of the Borrower and its
subsidiaries that are (or would be) set forth in a consolidated statement of
cash flows of the Borrower for such period prepared in accordance with GAAP,
except that Capital Expenditures for any period shall not include Capital Lease
Obligations incurred by the Borrower and its consolidated subsidiaries during
such period.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if at any time (a)
the Sponsors (and their respective Controlled Affiliates) taken together shall
not own, directly or indirectly, in the aggregate, shares representing at least
50.1% of the equity and aggregate ordinary voting power represented by the
outstanding capital stock of the Parent; (b) Liberty and SPE (and their
respective Controlled Affiliates) shall not each own, directly or indirectly,
shares representing at least 15% of the equity and aggregate ordinary voting
power (including for the purpose of calculating the aggregate ordinary voting
power represented by shares owned by Liberty and its Controlled Affiliates or
SPE and its Controlled Affiliates, as the case may be, any voting power
associated with such shares owned by Liberty and its Controlled Affiliates or
SPE and its Controlled Affiliates that shall be controlled by one or more other
Sponsors or Station Holdings) represented by the outstanding capital stock of
the Parent (provided, that if either Liberty or SPE and its Controlled
Affiliates shall be required by the FCC or any Federal court or other Federal
Governmental Authority with applicable jurisdiction to dispose of any of or all
its shares of the capital stock of the Parent and such disposition would, but
for this parenthetical, result in a Change in Control under this clause (b),
such Change in Control will not be deemed to have occurred so long as (i)
Liberty (if SPE or any of its Controlled Affiliates shall have been required by
the FCC or any Federal court or other Federal Governmental Authority to dispose
of any or all of its shares of the capital stock of the Parent) or SPE (if
Liberty or any of its Controlled Affiliates shall have been required by the FCC
or any Federal court or other Federal Governmental Authority to dispose of any
or all of its shares of the capital stock of the Parent) and its Controlled
Affiliates shall continue to own shares representing at least 20% of the equity
represented by the outstanding capital stock of the Parent, (ii) each of Liberty
and SPE (and its respective Controlled Affiliates) continues to own Equity
Interests of the Network Company representing 50% of the aggregate voting power
represented by all such outstanding Equity Interests of the Network Company and
(iii) Liberty and SPE (and their respective Controlled Affiliates) continue to
own Equity Interests of the Network Company that in the aggregate for Liberty
and SPE (and such Controlled Affiliates) represent 80% of the aggregate equity
represented by all such outstanding Equity Interests of the Network Company); or
(c) the Borrower shall not be a wholly owned subsidiary of the Parent.
Notwithstanding anything to the contrary in the foregoing definition, if,
pursuant to any requirement of the FCC or any Federal court or other Federal
Governmental Authority, any person shall receive in exchange for capital stock
of the Parent and shall hold (a) Rights entitling it to acquire capital stock of
the Parent for a nominal exercise price or (b) Rights entitling it to acquire
capital stock of the Parent together with Indebtedness of the Parent in an
amount substantially equal to the exercise price of such Rights, then compliance
with the requirement set forth in subclause (i) of the proviso to clause (b) of
the foregoing definition shall be determined on a pro forma basis giving effect
to the exercise of such Rights for such nominal exercise price (in the case of
Rights described in clause (a) above) or by offset of the exercise price thereof
against such Indebtedness (in the case of Rights described in clause (b) above).
"Chicago Subsidiary Partnership Agreement" shall mean the Amended and
Restated Partnership Agreement dated as of February 26, 1996, among Essaness
Theatres Corporation, a
6
Delaware corporation, Video 44 Acquisition Corp., Inc. (formerly called
Harriscope of Chicago, Inc.), an Illinois corporation and a Wholly Owned
Subsidiary, and Telemundo of Chicago, Inc., a Delaware corporation and a Wholly
Owned Subsidiary.
"Chicago Subsidiary" shall mean Video 44, an Illinois general partnership
and an indirect subsidiary of the Borrower.
"Closing Date" shall mean the date of the initial Credit Event.
"Closing Date Transactions" shall mean the Parent Equity Contribution, the
Senior Discount Note Sale, the Borrower Equity Contribution, the Borrowings
hereunder on the Closing Date, the Merger, the Refinancing, the Network Sale and
the execution and delivery of the Network Affiliation Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document.
"Collateral Requirement" shall mean, at any time, that (a) the Pledge
Agreement (or a supplement referred to in Section 23 thereof) shall have been
duly executed by the Parent, the Borrower and each Subsidiary (other than the
Chicago Subsidiary and any Foreign Subsidiary) existing at such time and owning
any outstanding capital stock or Indebtedness of the Borrower or any other
Subsidiary (including the Puerto Rican Notes), shall have been delivered to the
Collateral Agent and shall be in full force and effect, and all the outstanding
Equity Interests and Rights (or, in the case of the Chicago Subsidiary, all the
Equity Interests and Rights in the Chicago Subsidiary owned by the Borrower or
any Subsidiary) of the Borrower (after giving effect to the Merger) and the
Subsidiaries (including each License Subsidiary) and all such Indebtedness shall
have been duly and validly pledged thereunder (or to the extent not evidenced by
any instrument, under the Security Agreement) to the Collateral Agent for the
ratable benefit of the Secured Parties and certificates or other instruments
representing such shares or Indebtedness (to the extent such Indebtedness is
evidenced by instruments), accompanied by stock powers or other instruments of
transfer endorsed in blank, shall be in the actual possession of the Collateral
Agent; provided that the Borrower and the Subsidiaries shall not be required to
pledge more than 65% of the voting capital stock (but shall be required to
pledge 100% of the non-voting capital stock) of the Puerto Rican Subsidiary or
any other Foreign Subsidiary; (b) except as expressly permitted under Section
6.11, each Station License owned or controlled directly or indirectly by the
Parent (other than the Station License of the Chicago Subsidiary) is owned by a
License Subsidiary all the capital stock of which is directly owned by the
Parent or the Borrower and pledged to the Collateral Agent under the Pledge
Agreement; (c) the Security Agreement (or a supplement referred to in Section
7.15 thereof) shall have been duly executed by the Parent, the Borrower and each
Subsidiary (other than the Chicago Subsidiary and any Foreign Subsidiary),
existing at such time, and shall have been delivered to the Collateral Agent and
shall be in full force and effect, and each document (including each Uniform
Commercial Code financing statement and each filing with respect to intellectual
property owned by the Parent, the Borrower or any Subsidiary, other than the
Chicago Subsidiary and any Foreign Subsidiary) required by law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest in and
lien on the Collateral subject to the Security Agreement (subject to any Lien
expressly permitted by Section 6.02) shall have been so filed, registered or
recorded and evidence thereof delivered to the Collateral Agent; (d) the Puerto
Rican Note Security Agreement shall have been duly executed by the Puerto Rican
Subsidiary and the Borrower and shall be in full force and effect, and the
original thereof shall have been delivered to the Collateral Agent; (e) each
person required under the terms of the Network Affiliation Agreement and any
other affiliation, programming or other agreement to consent to the assignment
pursuant to the Security Agreement of the rights of the Parent, the Borrower or
any Subsidiary under such agreement in order for such assignment to be effective
shall have executed and delivered a consent to such assignment satisfactory to
the Collateral Agent; and (f) the Indemnity, Subrogation and Contribution
Agreement (or a supplement referred to in Section 12 thereof) shall have been
executed by the Parent, the Borrower and each other Loan Party (other than the
7
Chicago Subsidiary and any Foreign Subsidiary), shall have been delivered to the
Collateral Agent and shall be in full force and effect.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment and Term Loan Commitments.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Common Stock" shall mean the common stock, par value $0.001 per share, of
the Parent.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated April 1998.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period, plus, without duplication and to the extent deducted from
revenues in determining Consolidated Net Income, the sum of (a) the aggregate
amount of Consolidated Interest Expense for such period, (b) the aggregate
amount of income tax expense for such period, (c) all amounts attributable to
depreciation and amortization for such period, (d) permitted termination
payments owed by the Borrower or any Subsidiary during such period resulting
from the early termination of time brokerage agreements, local marketing
agreements or similar agreements, (e) all extraordinary charges during such
period, (f) payments under non-compete agreements during such period, (g)
merger-related and other non-recurring charges during such period, (h) any
amount deducted in determining Consolidated Net Income for such period as a
result of any minority interest in a Subsidiary and (i) all other non-cash
charges during such period, and minus, without duplication and to the extent
added to revenues in determining Consolidated Net Income for such period, (a)
all extraordinary gains during such period and (b) the aggregate amount of all
payments to holders of minority interests in Subsidiaries during such period,
all as determined on a consolidated basis with respect to the Borrower and its
subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) the sum of (i)
Consolidated Interest Expense for such period, (ii) the aggregate amount of cash
taxes paid by the Borrower and its subsidiaries during such period (excluding
payments on account of accrued foreign withholding taxes in an aggregate amount
not exceeding the lesser of the accrued balance of such foreign withholding
taxes at the Closing Date and $25,000,000; provided, that not more than
$5,000,000 of any such amount paid during any fiscal year will be excluded
unless at the time of such payment the Consolidated Leverage Ratio is less than
5.00 to 1.00), (iii) interest payable in cash and mandatory principal payments
during such period in respect of the Senior Discount Notes or any other
Indebtedness of the Parent, (iv) cash dividends on capital stock declared by the
Borrower or any of its subsidiaries during such period (excluding dividends paid
by the Borrower to the Parent in amounts not greater than the interest and
principal payments referred to in the preceding clause (iii) and dividends
payable to the Borrower or any of its Wholly Owned Subsidiaries), (v) scheduled
principal payments of Indebtedness made by the Borrower or any of its
subsidiaries during such period (other than any such payment made to the
Borrower or any of its Wholly Owned Subsidiaries, but including Scheduled
Revolving Credit Principal Payments), (vi) the principal component of Capital
Lease Obligations paid during such period and (vii) Capital Expenditures during
such period (the items referred to in the foregoing clauses (i) through (vii)
being collectively called "Consolidated Fixed Charges"); provided further, that
for purposes of calculating the Consolidated Fixed Charge Coverage Ratio, the
Borrower's Consolidated EBITDA and Consolidated Fixed Charges for each of the
four-fiscal-quarter periods ending at the ends of the three fiscal quarters next
following the fiscal quarter during which the Closing Date occurs shall be
deemed to equal (A) the Borrower's Consolidated EBITDA and Consolidated Fixed
Charges, respectively, for the period commencing at the beginning of the fiscal
quarter next following the fiscal quarter during which the Closing Date occurs
and ending at the end of the applicable period plus (B) the Borrower's pro forma
Consolidated EBITDA and Consolidated Fixed Charges, respectively, for each
quarter in the applicable period that shall have ended prior to the beginning of
the fiscal quarter next following the fiscal quarter during which the Closing
Date occurs, prepared on a basis consistent with that used in preparing the pro
forma financial statements delivered pursuant to Section 4.02(q).
8
"Consolidated Interest Expense" shall mean, for any period, the interest
expense, both expensed and capitalized (including the interest component in
respect of Capital Lease Obligations), accrued or paid by the Borrower and its
subsidiaries during such period net of interest income during such period that
the Borrower and its subsidiaries are entitled to receive in cash on a current
basis, determined on a consolidated basis in accordance with GAAP. For purposes
of the foregoing, interest expense shall be determined exclusive of deferred
financing costs and the amortization thereof and after giving effect to any net
payments made or received by the Borrower and its subsidiaries with respect to
Hedging Agreements.
"Consolidated Interest Expense Coverage Ratio" shall mean, for any period,
the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period; provided that for purposes of calculating the
Consolidated Interest Expense Coverage Ratio, the Borrower's Consolidated EBITDA
and Consolidated Interest Expense for each of the four-fiscal-quarter periods
ending at the end of the three fiscal quarters next following the fiscal quarter
during which the Closing Date occurs shall be deemed to equal (i) the Borrower's
Consolidated EBITDA and Consolidated Interest Expense, respectively, for the
period commencing at the beginning of the fiscal quarter next following the
fiscal quarter during which the Closing Date occurs and ending at the end of the
applicable period plus (ii) the Borrower's pro forma Consolidated EBITDA and
Consolidated Interest Expense, respectively, for each quarter in the applicable
period that shall have ended prior to the beginning of the fiscal quarter next
following the fiscal quarter during which the Closing Date occurs, prepared on a
basis consistent with that used in preparing the pro forma financial statements
delivered pursuant to Section 4.02(q).
"Consolidated Leverage Ratio" shall mean, at any time, the ratio of (a)
Consolidated Total Debt at such time to (b) Consolidated EBITDA for the most
recently ended period of four fiscal quarters, all as determined on a
consolidated basis in accordance with GAAP; provided that for purposes of
calculating the Consolidated Leverage Ratio, the Borrower's Consolidated EBITDA
for each of the four-fiscal-quarter periods ending at the ends of the three
fiscal quarters next following the fiscal quarter during which the Closing Date
occurs shall be deemed to equal (i) the Borrower's Consolidated EBITDA for the
period commencing at the beginning of the fiscal quarter next following the
fiscal quarter during which the Closing Date occurs and ending at the end of the
applicable period plus (ii) the Borrower's pro forma Consolidated EBITDA for
each quarter in the applicable period that shall have ended prior to the
beginning of the fiscal quarter next following the fiscal quarter during which
the Closing Date occurs, prepared on a basis consistent with that used in
preparing the pro forma computations delivered pursuant to Section 4.02(q).
Solely for purposes of this definition, if, at any time the Consolidated
Leverage Ratio is being determined, the Borrower or any Subsidiary shall have
completed an Acquisition or Disposition since the beginning of the relevant four
fiscal quarter period, the Consolidated Leverage Ratio shall be determined on a
pro forma basis as if such Acquisition or Disposition, and any related
incurrence or repayment of Indebtedness, had occurred at the beginning of such
period.
"Consolidated Net Income" shall mean, for any period, net income or loss of
the Borrower and its subsidiaries for such period, as determined on a
consolidated basis in accordance with GAAP, provided that there shall in any
event be excluded the income (or loss) of any person accrued prior to the date
it becomes a subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its subsidiaries or the date that person's assets are
acquired by the Borrower or any of its subsidiaries.
"Consolidated Total Debt" shall mean, as of any date of determination,
without duplication, the aggregate principal amount of Indebtedness of the
Borrower and its subsidiaries outstanding as of such date, determined on a
consolidated basis in accordance with GAAP (other than Indebtedness of the type
referred to in clause (j) of the definition of the term "Indebtedness", except
to the extent of any unreimbursed drawings thereunder).
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
9
"Controlled Affiliate" shall mean (i) with respect to SPE, SCA and any
person which is Controlled and wholly owned by SPE, SCA or any wholly owned
Controlled Affiliate of either of them, any direct, majority-owned and
Controlled subsidiary of SPE, SCA or any such wholly owned Controlled Affiliate,
and any directly or indirectly wholly owned and Controlled subsidiary of any
such direct, majority-owned and Controlled subsidiary (ii) with respect to
Liberty, TCI and any person which is Controlled and wholly owned by Liberty, TCI
or any wholly owned Controlled Affiliate of either of them, any direct, majority
owned and Controlled subsidiary of Liberty, TCI or any such wholly owned
Controlled Affiliate, and any directly or indirectly wholly owned and Controlled
subsidiary of any such direct, majority-owned and Controlled subsidiary, (iii)
with respect to Apollo, any person which is controlled and wholly owned by
Apollo, and (iv) with respect to Bastion, any person which is Controlled and
wholly owned by Bastion.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Determination Date" shall mean each day that is the second Business Day
after the delivery of financial statements pursuant to Section 5.03(a) or (b).
"Disposition" shall mean the sale or transfer by the Borrower or any
Subsidiary, including through a merger or consolidation or a sale of capital
stock, of any subsidiary, division or business unit of the Borrower or such
Subsidiary.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiary" shall mean a Subsidiary incorporated or organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation, notice
of violation, claim, demand, order, directive, cost recovery action or other
cause of action by, or on behalf of, any Governmental Authority or any person
for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including, but not limited to, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 U.S.C. (S)(S) 9601 et seq.
(collectively "CERCLA"), the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. (S)(S) 6901 et seq., the Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. (S)(S) 1251 et
seq., the Clean Air Act of 1970, as amended 42 U.S.C. (S)(S) 7401 et seq., the
Toxic Substances Control
10
Act of 1976, 15 U.S.C. (S)(S) 2601 et seq., the Occupational Safety and Health
Act of 1970, as amended, 29 U.S.C. (S)(S) 651 et seq., the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. (S)(S) 11001 et seq., the
Safe Drinking Water Act of 1974, as amended, 42 U.S.C. (S)(S) 300(f) et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. (S)(S) 5101 et seq., and
any similar or implementing state or local law, and all amendments or
regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Interests" shall mean (a) with respect to a corporation, shares of
the capital stock of such corporation and (b) with respect to a partnership,
limited liability company or other person, partnership, limited liability or
other equity interests in such person.
"Equity Issuance" shall mean any issuance and sale by the Parent or by any
Subsidiary to a person other than the Parent, another Subsidiary, the Sponsors
or any Controlled Affiliate of any Equity Interests of the Parent or any
Subsidiary or any Rights in respect thereof; provided, that the following will
not be deemed to be "Equity Issuances" for purposes of this Agreement: (a) the
issuance of capital stock of the Parent upon the exercise of employee stock
options or Rights granted in the ordinary course of business or (b) the issuance
of capital stock or Rights of the Parent as an "equity kicker" or pursuant to
the exercise of Rights issued as an "equity kicker" in connection with the
issuance of Subordinated Indebtedness, in either case on terms consistent with
current practice in the market for subordinated indebtedness.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (e) the incurrence of any liability under Title IV of ERISA
with respect to the termination of any Plan or the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (f) the receipt by the Borrower or any ERISA Affiliate from
the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g)
the receipt by the Borrower or any ERISA Affiliate of any notice concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the occurrence of a "prohibited transaction" with respect
to which the Borrower or any of the Subsidiaries is a "disqualified person"
(within the meaning of Section 4975 of the Code) or with respect to which the
Borrower or any such Subsidiary could otherwise be liable; and (i) any other
event or condition with respect to a Plan or Multiemployer Plan that could
reasonably be expected to result in material liability of the Borrower.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or Eurodollar
Term Loan.
11
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Excess Cash Flow" shall mean, for any fiscal year, the sum (without
duplication) of:
(a) Consolidated Net Income, adjusted to exclude any gains or losses
attributable to any Asset Sale; plus
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining Consolidated Net Income for such period; minus
(c) payments during such period on account of charges added to Excess
Cash Flow for an earlier period pursuant to clause (b) above as "non-cash
charges or losses" in such earlier period; plus
(d) any amount deducted in determining Consolidated Net Income as a
result of any minority interest in a Subsidiary; plus
(e) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such period, plus (ii) the aggregate principal amount of
Indebtedness (other than Capital Lease Obligations) incurred by the
Borrower and its subsidiaries during such period to finance Capital
Expenditures; minus
(f) the sum of (i) any non-cash gains included in determining such
consolidated net income (or loss) for such period, plus (ii) the amount, if
any, by which Net Working Capital increased during such period; plus
(g) amounts received during such period on account of gains
subtracted from Excess Cash Flow for an earlier period pursuant to clause
(f)(i) above as "non-cash gains" in such earlier period; minus
(h) Capital Expenditures for such period; minus
(i) the aggregate amount of all payments to holders of minority
interests in Subsidiaries during such period; minus
(j) the sum of (i) scheduled amortization payments in respect of the
Term Loans during such period, (ii) Scheduled Revolving Credit Principal
Payments during such period, (iii) scheduled amortization or similar
payments during such period in respect of other Indebtedness of the
Borrower and its subsidiaries and (iv) mandatory prepayments during such
period in respect of other Indebtedness of the Borrower and its
subsidiaries (other than prepayments that would not be required if the
Borrower and the Subsidiaries made, or were required to make, prepayments
in respect of Loans outstanding hereunder); plus
(k) the net proceeds of Indebtedness incurred by the Borrower and its
subsidiaries during such period to the extent such proceeds were applied to
make payments or prepayments of Indebtedness referred to in clause (j)
above; minus
(l) dividends and other distributions paid by the Borrower pursuant
to Section 6.06(a) during such period.
12
"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by any Governmental Authority as a result of a present or former
connection between the recipient 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
recipient having received any payment under or taking any other action related
to any loan under this Agreement or any Loan Document, (b) any branch profits
taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction in which such recipient is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.21(a)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that the prior lending office or the assignor, as applicable, of
such Foreign Lender was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to any withholding tax pursuant to Section 2.20(a), or (ii) is
attributable to such Foreign Lender's failure to comply with Section 2.20(e).
"Existing Credit Facility" shall mean the Amended and Restated Loan and
Security Agreement dated December 31, 1996, by and between Telemundo Group,
Inc., certain of its subsidiaries and Foothill Capital Corporation.
"FCC" shall mean the United States Federal Communications Commission or any
Governmental Authority succeeding to the functions thereof.
"Federal Communications Act" shall mean the Communications Act of 1934, as
amended.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fee Payment Date" shall have the meaning assigned to such term in Section
2.05(a).
"Fees" shall mean the Commitment Fees, the Arranger and Agent Fees, the L/C
Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting principles
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person
13
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of such person, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness; provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Requirement" shall mean, at any time, that the Subsidiary
Guarantee Agreement (or a supplement referred to in Section 20 thereof) shall
have been executed by each Subsidiary (other than the Chicago Subsidiary and any
Foreign Subsidiary) existing from time to time, shall have been delivered to the
Collateral Agent and shall be in full force and effect.
"Guarantors" shall mean the Parent and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive substances or
wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls ("PCBs") or PCB-
containing materials or equipment, radon gas, infectious or medical wastes and
all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" shall mean any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations of such person, (i) all obligations of such person in respect of
Hedging Agreements and (j) all obligations of such person as an account party in
respect of letters of credit and bankers' acceptances. The Indebtedness of any
person (i) shall include the Indebtedness of any partnership in which such
person is a general partner, (ii) shall exclude Program Obligations that would
otherwise constitute Indebtedness incurred in the ordinary course of business up
to an aggregate amount of $10,000,000 for the Borrower and its subsidiaries, and
(iii) shall exclude ordinary course payment obligations under Local Marketing
Agreements. For purposes of determining compliance with any covenant in this
Agreement, (i) the amount of any Indebtedness referred to in clause (f) above
that has not been assumed by the subject person shall be the lesser of (A) the
amount of such Indebtedness owed by the primary obligor in respect thereof and
(B) the fair market value of the property owned or acquired by the subject
person that is subject to any Lien securing such Indebtedness and (ii) the
amount of any Indebtedness referred to in clause (g) above shall be limited to
the maximum liability, contingent or otherwise, of the subject person under the
applicable Guarantee.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning assigned to such term in Section
10.05(b).
14
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E, among the Borrower, the Guarantors and the Collateral Agent.
"Intellectual Property" shall have the meaning assigned to such term in
Section 3.20.
"Interest Payment Date" shall mean, with respect to any Loan, (i) each day
that is the last day of an Interest Period applicable to the Borrowing of which
such Loan is a part, (ii) in the case of a Loan with an Interest Period of
longer than three months, each day that would have been the last day of an
Interest Period had a series of three month Interest Periods been applicable to
such Loan and (iii) the date of any prepayment of such Loan or conversion of
such Loan to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing or on the last day of the preceding
Interest Period applicable thereto and ending on the numerically corresponding
day (or, if there is no numerically corresponding day, on the last day) in the
calendar month that is 1, 3, or 6 months thereafter, as the Borrower may elect
and (b) as to any ABR Borrowing, the period commencing on the date of such
Borrowing or on the last day of the preceding Interest Period applicable thereto
and ending on the earliest of (i) the next succeeding March 31, June 30,
September 30 or December 31, (ii) the Revolving Credit Maturity Date, Tranche A
Maturity Date or Tranche B Maturity Date, as applicable, and (iii) the date such
Borrowing is converted to a Borrowing of a different Type in accordance with
Section 2.10 or repaid or prepaid in accordance with Section 2.11 or 2.12;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.22.
"L/C Disbursement" shall mean a payment or disbursement made by the Issuing
Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Revolving Credit Lender at any time shall
mean its Pro Rata Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule 2.01
and (b) any financial institution that has become a party hereto pursuant to an
Assignment and Acceptance (in either case other than any such financial
institution that has ceased to be a party hereto pursuant to an Assignment and
Acceptance).
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.22.
"Liberty" shall mean Liberty Media Corporation and its successors.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period by reference to the
15
British Bankers' Association Interest Settlement Rates for deposits in dollars
(as set forth by any service selected by the Administrative Agent which has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying rates) for a period equal to such Interest
Period, provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the "LIBO Rate" shall
be the interest rate per annum determined by the Administrative Agent equal to
the rate per annum at which deposits in dollars are offered for such Interest
Period by the Administrative Agent in the London interbank market in London,
England at approximately 11:00 a.m., London time, on the date which is two
Business Days prior to the beginning of such Interest Period.
"License Subsidiary" shall mean a Domestic Subsidiary (or, solely in the
case of any License Subsidiary holding Station Licenses used by the Borrower's
Puerto Rican Station, a Puerto Rican Subsidiary) that holds the Station Licenses
for a Station owned by the Borrower or a Subsidiary and that (a) has no
significant assets (other than such Station Licenses) or liabilities (other than
under the Subsidiary Guarantee Agreement) and (b) engages in no business other
than the ownership of such Station Licenses.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Subsidiary Guarantee Agreement, the Security Documents and the Indemnity,
Subrogation and Contribution Agreement.
"Loan Parties" shall mean the Borrower, the Parent and each Subsidiary that
is, or is required by this Agreement to be, a party to the Subsidiary Guarantee
Agreement or any Security Document.
"Loans" shall mean the Revolving Loans and the Term Loans.
"Local Marketing Agreement" shall mean a local marketing arrangement, sale
agreement, time brokerage agreement, management agreement or similar arrangement
pursuant to which a person: (a) obtains the right to sell at least a majority of
the advertising inventory of a television station on behalf of a third party,
(b) purchases at least a majority of the air time of a television station to
exhibit programming and sell advertising time, (c) manages the selling
operations of a television station with respect to at least a majority of the
advertising inventory of such station, (d) manages the acquisition of
programming for a television station, (e) acts as a program consultant for a
television station or (f) manages the operation of a television station
generally.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean a materially adverse effect on (a) the
business, assets, results of operations, financial condition or prospects of the
Parent and its subsidiaries, taken as a whole, or, prior to the Merger, the
Company and its subsidiaries, taken as a whole, or on their ability to perform
their obligations under the Loan Documents, or (b) the validity or
enforceability of any Loan Document or any other material document entered into
in connection with the Transactions or the other transactions contemplated
hereby or the rights, remedies or benefits available to the parties thereunder.
"Merger" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
16
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the cash
proceeds thereof, including any cash received in respect of any non-cash
proceeds, but only as and when received, and any insurance or condemnation
proceeds, net of (i) costs of sale (including payment of the outstanding
principal amount of, premium or penalty, if any, interest and other amounts on
any Indebtedness (other than Loans) required to be repaid under the terms
thereof as a result of such Asset Sale), (ii) taxes attributable to such Asset
Sale in the year in which such Asset Sale occurs as a direct result thereof and
(iii) amounts provided as a reserve, in accordance with GAAP, against any
liabilities under any indemnification obligations associated with such Asset
Sale (provided that, to the extent and at the time any such amounts are released
from such reserve, such amounts shall constitute Net Cash Proceeds), and (b)
with respect to any Equity Issuance or any issuance or other disposition of
Indebtedness for borrowed money, the cash proceeds thereof net of underwriting
commissions or placement fees and expenses directly incurred in connection
therewith. Notwithstanding the foregoing, Net Cash Proceeds will be deemed to
have been received by the Chicago Subsidiary or any of its subsidiaries from any
event only at the times and up to the aggregate amount of any distributions
received by the Borrower or any of its subsidiaries from the Chicago Subsidiary
after the date of such event.
"Net Working Capital" shall mean, at any date, (a) the consolidated current
assets of the Borrower and its subsidiaries as of such date (excluding cash and
Permitted Investments) minus (b) the consolidated current liabilities of the
Borrower and its subsidiaries as of such date (excluding current liabilities in
respect of Indebtedness). Net Working Capital at any date may be a positive
number or negative number. Net Working Capital increases when it becomes more
positive or less negative and decreases when it becomes less positive or more
negative.
"Network Affiliation Agreement" shall mean, collectively, (a) the seven,
Affiliation Agreements, each between one or more Subsidiaries and the Network
Company and (b) the two Memoranda of Agreement, in each case between the Company
and the Network Company, all substantially in the form of the Station
Affiliation Agreement and the Memoranda of Agreement, respectively, previously
provided to the Arrangers.
"Network Company" shall mean Telemundo Network Group L.L.C., a Delaware
limited liability company of which 50% of the membership interests are owned by
one or more Controlled Affiliates of Liberty and 50% are owned by one or more
Controlled Affiliates of SPE.
"Network Sale" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Network Sale Agreement" shall mean the Network Sale Agreement dated as of
August 12, 1998, between the Borrower and the Network Company.
"Obligations" shall mean (a) the due and punctual payment by the Borrower
of (i) the principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise, (ii) each payment
required to be made by the Borrower under the Credit Agreement in respect of any
Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral, and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Loan Parties to the
Administrative Agent, the Collateral Agent, the Lenders, the Issuing Bank or any
other person under the Credit Agreement and the other Loan Documents, (b) the
due and punctual payment and performance of all covenants, agreements,
obligations and liabilities of the Loan Parties under or pursuant to the Loan
Documents and (c) the due and punctual payment and performance of all
obligations of the Borrower, monetary or otherwise, under each Hedging Agreement
entered into with a counterparty that was a Lender at the time such Hedging
Agreement was entered into.
17
"Offer to Purchase" shall mean the Offer to Purchase and Consent
Solicitation Statement of TLMD Acquisition Co.dated July 13, 1998 (as amended on
July 20, 1998).
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Parent Equity Contribution" shall mean the contribution by the Sponsors to
the common equity of the Parent on or prior to the Closing Date of cash in an
amount not less than $273,200,000.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Perfection Certification" shall mean the Perfection Certificate
substantially in the form of Annex 1 to the Security Agreement.
"Permitted Investment" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 180 days from the
date of acquisition thereof and having, at such date of acquisition, a
credit rating of at least A-2 by S&P or P-2 by Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any Lender or domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits or
not less than $500,000,000;
(d) repurchase obligations of any Lender or any commercial bank
satisfying the requirements of clause (c) of this definition, having a term
of not more than 30 days, with respect to obligations of the type described
in clause (a) of this definition;
(e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case
may be) are rated at least A by S&P or A by Moody's;
(f) securities with maturities of one year or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (c) of this
definition.
(g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through
(f) of this definition; and
(h) other investment instruments approved in writing by the Required
Lenders.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
18
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in the
form of Exhibit F, between the Parent, the Borrower, each Subsidiary owing
capital stock or Indebtedness of the Borrower or any other Subsidiary and the
Collateral Agent for the benefit of the Secured Parties.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City, New York; each change in the Prime Rate shall
be effective on the date such change is publicly announced as being effective.
"Pro Forma Financial Information" shall mean the pro forma financial
information heretofore delivered to the Lenders and set forth in Schedule 3.05
hereto.
"Pro Rate Percentage" of any Revolving Credit Lender at any time shall mean
the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment. In the event the Revolving Credit
Commitments shall have been terminated, the Pro Rata Percentages of the
Revolving Credit Lenders shall be determined by reference to the Revolving
Credit Commitments most recently in effect (giving effect to any assignments
pursuant to Section 10.04).
"Program Obligations" shall mean all obligations, whether fixed or
contingent, of the Borrower and its Subsidiaries in respect of the right to
broadcast programs and films produced or supplied by any person (other than a
Loan Party).
"Puerto Rican Note Security Agreement" shall mean the Security Agreement,
substantially in the form of Exhibit G-2, between the Borrower, the Puerto Rican
Subsidiary and the Collateral Agent.
"Puerto Rican Notes" shall mean that zero coupon note due 2002, dated March
23, 1998, for the aggregate amount of $187,666,000 and any note issued in
renewal or replacement thereof.
"Puerto Rican Subsidiary" shall mean Telemundo of Puerto Rico, Inc., a
Puerto Rican corporation.
"Refinancing" shall mean (a) the redemption by the Company, on or prior to
the Closing Date, of its Senior Notes due 2006 in an aggregate outstanding
amount of $192,000,000 and its Senior Notes due 2001 in an aggregate outstanding
amount of approximately $200,000, on the date hereof and (b) the repayment of
all amounts outstanding under the Existing Credit Facility and the termination
of any letters of credit outstanding thereunder and the commitments thereunder.
"Register" shall have the meaning assigned to such term in Section
10.04(d).
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official ruling and interpretations thereunder or thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund that
invests in loans, any other fund that invest in loans and is managed by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
19
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to; (i) clean up, remove,
treat, xxxxx or in any other way address any Hazardous Material in the
environment; (ii) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material in the environment; (ii) prevent the
Release or threat of Release, or minimize the further Release of any Hazardous
Material so it does not migrate or endanger or threaten to endanger public
health, welfare or the environment; or (iii) perform studies and investigations
in connection with, or as a precondition to, clause (i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans, L/C
Exposures and unused Revolving Credit and Term Loan Commitments representing
more than 50% of the sum of all Loans outstanding, L/C Exposures and unused
Revolving Credit and Term Loan Commitments at such time.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender assumed its Revolving Credit Commitment, as applicable, as the same may
be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any
time, the aggregate principal amount at such time of all outstanding Revolving
Loans of such Lender plus the aggregate amount at such time of such Lender's L/C
Exposure.
"Revolving Credit Lender" shall mean a Lender that has a Revolving Credit
Commitment (or that had such a Commitment at the time the Revolving Credit
Commitments were terminated).
"Revolving Credit Maturity Date" shall mean the seventh anniversary of the
last day of the calendar quarter in which the Closing Date occurs.
"Revolving Credit Reduction Date" shall mean the last day of each calendar
year beginning with December 31, 2001 (or, if any such day shall not be a
Business Day, the next preceding Business Day).
"Revolving Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to clause (a)(iii) of Section 2.01. Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Rights" shall mean, with respect to any person, warrants, options or other
rights to acquire Equity Interests in such person.
"S&P" shall mean Standard & Poor's.
"SCA" shall mean Sony Corporation of America and its successors.
"Scheduled Revolving Credit Principal Payments" shall mean, with respect to
any period, the excess of (a) the aggregate amount of the outstanding Revolving
Credit Borrowings at the beginning of such period over (b) the amount of the
Total Revolving Credit Commitment at the end of such period, giving effect to
any schedule reduction in the Total Revolving Credit Commitment under Section
20
2.09(c) during such period, but excluding the effect of (i) any voluntary
reductions in the Total Revolving Credit Commitment during such period to the
extent they exceed such schedule reduction and (ii) any voluntary reductions in
the Total Revolving Credit Commitment during any prior period.
"Secured Parties" shall mean the Administrative Agent, the Collateral
Agent, each Lender, the Issuing Bank and each other person to which any of the
Obligations is owed.
"Security Agreement" shall mean the Security Agreement, substantially in
the form of Exhibit G-1, between the Borrower, the Subsidiaries (other than any
Foreign Subsidiary) and the Collateral Agent for the benefit of the Secured
Parties.
"Security Documents" shall mean the Security Agreement, the Pledge
Agreement, the Puerto Rican Note Security Agreement and each of the security
agreements and other instruments and documents executed and delivered pursuant
to any of the foregoing or pursuant to Section 5.09.
"Senior Discount Note Indenture" shall mean the Indenture dated as of
August 12, 1998 between the Parent, as issuer and Bank of Montreal Trust
Company, as trustee.
"Senior Discount Note Sale" shall mean the issuance and sale by the Parent
of the Senior Discount Notes for gross proceeds of not less than $100,000,000
and not more than $125,000,000.
"Senior Discount Notes" shall mean the Parent's Senior Discount Notes Due
2008 issued under the Senior Discount Note Indenture.
"SPE" shall mean Sony Pictures Entertainment Inc. and its successors.
"Sponsors" shall mean Apollo, Liberty, SPE and Bastion and any transferee
of the shares of capital stock of the Parent owned by Station Holdings on the
date hereof in accordance with the express provisions of the Stockholders'
Agreement (other than Section 3.3.1(b) of such Agreement) that shall have been
approved by each of Liberty and SPE (or any Controlled Affiliates to which their
shares of capital stock of the Parent shall have been transferred).
"Station Holdings" shall mean the entity formed by Apollo and Bastion to
acquire shares of the common stock of the Parent pursuant to the Stockholders'
Agreement.
"Station Licenses" shall mean, 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.
"Stations" shall mean, collectively, (a) Stations KVEA (Los Angeles), WNJU
(New York), WSCV (Miami), KSTS (San Francisco), WSNS (Chicago), KVDA (San
Antonio), KTMD (Houston), WKAQ (San Xxxx), K47DQ, K52CK and K61F1 (Sacramento),
W32AY (Boston), K15CU (Salinas-Monterey), K49CJ (Colorado Springs), K27E1 (Santa
Xxxxxxx/Santa Xxxxx), X00XX (Xxxx Xxxx Xxxx), X00XX and K49CD (Odessa/Midland),
K11SF (Austin), K36DV (Amarillo), K52FF (Reno) and K40DX (Abilene), and (b) any
additional television broadcast station owned or acquired by the Borrower or a
Subsidiary after the date hereof, other than any such broadcast station, whether
owned on the date hereof or hereafter acquired, disposed of by the Borrower or
any Subsidiary after the date hereof in accordance with the terms of this
Agreement.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Such reserve percentages shall include those imposed pursuant
to such Regulation D.
21
Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Stockholders' Agreement" shall mean the Agreement dated as of [ ],
1998, among the Parent, Apollo, Bastion, Station Holdings, Liberty and SPE, as
in effect on such date.
"Subordinated Indebtedness" shall mean Indebtedness of the Parent or the
Borrower that is not by its terms required to be repaid, prepaid, redeemed,
purchased or defeased prior to the Tranche B Maturity Date and that is
subordinated to the obligations of the Parent or the Borrower, as the case may
be, under the Loan Document on terms at least as favorable to the Lenders as
those set forth in Exhibit K hereto.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean subsidiary of the Parent.
"Subsidiary Guarantee Agreement" shall mean the Guarantee Agreement,
substantially in the form of Exhibit D, made by the Subsidiary Guarantors in
favor of the Collateral Agent for the benefit of the Secured Parties.
"Subsidiary Guarantors" shall mean each person listed on Schedule 1.01 and
each other person that becomes party to the Subsidiary Guarantee Agreement as a
Guarantor, and the permitted successors and assigns of each such person.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TCI" shall mean Tele-Communications, Inc., a Delaware corporation, and its
successors.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term Loans
or Tranche B Term Loans.
"Term Loan Commitments" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan Repayment
Dates and the Tranche B Term Loan Repayment Dates as set forth in Section
2.11(a).
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term
Loans.
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans as set forth on Schedule
2.01 or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Tranche A Commitment, as applicable, as the same may be (a)
reduced on the Closing Date pursuant to Section 2.01(b), (b) reduced
22
from time to time pursuant to Section 2.09 and (c) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04.
"Tranche A Lender" shall mean a Lender with a Tranche A Commitment or with
outstanding Tranche A Term Loans.
"Tranche A Maturity Date" shall mean the seventh anniversary of the last
day of the calendar quarter in which the Closing Date occurs.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche A
Term Loans.
"Tranche A Term Loan Repayment Date" shall mean (a) if the Closing Date
occurs on or before September 30, 1998, each of the 24 consecutive calendar
quarter end dates commencing with December 31, 1999 (or, if any such day shall
not be a Business Day, the next preceding Business Day) and (b) if the Closing
Date occurs after September 30, 1998, each of the 24 consecutive calendar
quarter end dates commencing with March 31, 2000 (or, if any such day shall not
be a Business Day, the next preceding Business Day).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (a)(i) of Section 2.01. Each Tranche A Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans as set forth on Schedule
2.01 or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Tranche B Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04.
"Tranche B Lender" shall mean a Lender with a Tranche B Commitment or with
outstanding Tranche B Term Loans.
"Tranche B Maturity Date" shall mean the last day of the month that is six
months after the eighth anniversary of the last day of the calendar quarter in
which the Closing Date occurs.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche B
Term Loans.
"Tranche B Term Loan Repayment Date" shall mean (a) if the Closing Date
occurs on or before September 30, 1998, each of the 30 consecutive calendar
quarter end dates commencing with December 31, 1999 (or, if any such day shall
not be a Business Day, the next preceding Business Day) and (b) if the Closing
Date occurs after September 30, 1998, each of the 30 consecutive calendar
quarter end dates commencing with March 31, 2000 (or, if any such day shall not
be a Business Day, the next preceding Business Day).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (a)(ii) of Section 2.01. Each Tranche B Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Transactions" shall mean the execution, delivery and performance by each
Loan Party of each of the Loan Documents, the Closing Date Transactions and the
Borrowings and issuances of Letters of Credit hereunder after the Closing Date.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
23
"Wholly Owned Subsidiary" shall mean a Subsidiary of which securities
(except for directors' qualifying shares) or other ownership interests
representing 100% of the equity or 100% of the ordinary voting power or 100% of
the general partnership interests are, at the time any determination is being
made, owned, controlled or held, directly or indirectly, by the Borrower or one
or more wholly owned subsidiaries of the Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, (a) any reference in this Agreement to any Loan Document shall
mean such document as amended, restated, supplemented or otherwise modified from
time to time and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (i) to make a Tranche A Term Loan to the
Borrower on the Closing Date in a principal amount equal to its Tranche A
Commitment, (ii) to make a Tranche B Term Loan to the Borrower on the Closing
Date in a principal amount equal to its Tranche B Commitment and (iii) to make
Revolving Loans to the Borrower, at any time and from time to time on or after
the Closing Date and until the earlier of the Revolving Credit Maturity Date and
the termination of the Revolving Credit Commitment of such Lender in accordance
with the terms hereof, in an aggregate principal amount at any time outstanding
that will not result in (x) such Lender's Revolving Credit Exposure exceeding
(y) such Lender's Revolving Credit Commitment. Within the limits set forth in
clause (iii) of the preceding sentence and subject to the terms, conditions and
limitations set forth herein, the Borrower may borrow, pay or prepay and
reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans may
not be reborrowed.
(b) In the event that the Parent issues the Senior Discount Notes on
or before the Closing Date for gross cash proceeds (before deduction of any
underwriting fees) in excess of $100,000,000, the aggregate amount of the
Tranche A Commitments shall be reduced (but not below zero) on the Closing Date,
or the amount of Revolving Loans funded on the Closing Date shall be reduced
(without reduction of the Revolving Credit Commitments ), in either case by such
amount in excess of $100,000,000, as the Borrower shall elect by written notice
to the Administrative Agent given not later than 12:00 (noon) New York City time
two Business Days prior to the Closing Date. Reductions in the Tranche A
Commitments of the Lenders pursuant to this Section 2.01(b) shall be allocated
among the Lenders in accordance with Section 2.09(e).
24
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, that the failure of any Lender to make any
Loan shall not in itself relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible for
the failure of any other Lender to make any Loan required to be made by such
other Lender). Except for Loans deemed made pursuant to paragraph (f) below, the
Loans comprising any Borrowing shall be in an aggregate principal amount that is
(i) an integral multiple of $1,000,000 and not less than $1,000,000 or (ii)
equal to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than twelve Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to paragraph (f) below,
each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 12:00 (noon),
New York City time, and the Administrative Agent shall promptly transfer the
amounts so received to an account in the name of the Borrower designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). Without limiting the rights of the
Borrower against such Lender, if such Lender shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Lender's Loan
as part of such Borrowing for purposes of this Agreement and any amounts
theretofore repaid by the Borrower pursuant to this paragraph shall be promptly
returned to the Borrower.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Revolving Credit Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.22(e) in respect of any L/C
Disbursement within the time specified in such Section, the Issuing Bank will
promptly notify the Administrative Agent of the amount of such L/C Disbursement
and the Administrative Agent will promptly notify each Revolving Credit Lender
of such amount and
25
its Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by wire
transfer of immediately available funds to the Administrative Agent not later
than 2:00 p.m., New York City time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 11:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount shall
be deemed to constitute an ABR Revolving Loan of such Lender and such payment
shall be deemed to have reduced the L/C Exposure), and the Administrative Agent
will promptly pay to the Issuing Bank amounts so received by it from the
Revolving Credit Lenders. The Administrative Agent will promptly pay to the
Issuing Bank any amounts received by it from the Borrower pursuant to Section
2.22(e) prior to the time that any Revolving Credit Lender makes any payment
pursuant to this paragraph (f); any such amounts received by the Administrative
Agent thereafter will be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to the Issuing
Bank, as their interests may appear. If any Revolving Credit Lender shall not
have made its Pro Rata Percentage of such L/C Disbursement available to the
Administrative Agent as provided above, such Lender and the Borrower severally
agree to pay interest on such amount, for each day from and including the date
such amount is required to be paid in accordance with this paragraph to but
excluding the date such amount is paid, to the Administrative Agent for the
account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum
equal to the interest rate applicable to ABR Revolving Loans pursuant to Section
2.06(a), and (ii) in the case of such Lender, for the first such day, the
Federal Funds Effective Rate, and for each day thereafter, the Alternate Base
Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other
than a deemed Borrowing pursuant to Section 2.02(f), as to which this Section
2.03 shall not apply), the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Borrowing Request (a) in the case of a
Eurodollar Borrowing, not later than 12:00 (noon), New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the Business Day of
a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Tranche A
Term Borrowing, a Tranche B Term Borrowing or a Revolving Credit Borrowing, and,
subject to the third sentence of Section 2.02(b), whether such Borrowing is to
be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the number and location of the account to
which funds are to be disbursed (which shall be an account that complies with
the requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.02. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the applicable Lenders of any notice given pursuant
to this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the then unpaid principal amount of each Revolving
Loan on the Revolving Credit Maturity Date and (ii) the principal amount of each
Term Loan of such Lender as provided in Section 2.11.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount
26
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder from the Borrower or any Guarantor and
each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans in
accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 10.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. The Borrower agrees to pay to each Lender, through the
Administrative Agent, (a) on the Closing Date (i) a commitment fee (the "Ticking
Fee") equal to .50% of the amount of the Commitment of such Lender commencing to
accrue on July 1, 1998 and ceasing to accrue on the Closing Date. All Ticking
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days; provided, that no Ticking Fee shall be due or payable if the
Closing Date does not occur, and (b) on each calendar quarter end date
commencing with the first such date after the Closing Date (or, if any such day
shall not be a Business Day, the next preceding Business Day), and on the date
on which the Revolving Credit Commitment of such Lender shall expire or be
terminated as provided herein (each such day being called a "Fee Payment Date"),
a commitment fee (a "Commitment Fee") equal to the Applicable Percentage per
annum in effect from time to time on the average daily unused amount of the
Revolving Credit Commitment of such Lender during the preceding quarter (or
other period commencing with the Closing Date or ending with the date on which
the Revolving Credit Commitment of such Lender shall expire or be terminated).
All Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commitment Fee due to each Lender shall
commence to accrue on the Closing Date and shall cease to accrue on the date on
which the Revolving Credit Commitment of such Lender shall expire or be
terminated as provided herein; provided, that no Commitment Fee shall be due or
payable if the Closing Date does not occur.
(b) The Borrower agrees to pay to the Arrangers and to the Administrative
Agent, for their own accounts, the fees separately agreed upon by the Borrower,
the Arrangers and the Administrative Agent (the "Arranger and Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on each Fee Payment Date, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the
average daily aggregate L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements) during the preceding quarter (or shorter
period commencing with the date hereof or ending with the Revolving Credit
Maturity Date or the date on which all Letters of Credit have been canceled or
have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Revolving Credit Borrowings comprised of
Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing Bank, (A) on
each Fee Payment Date and on the date on which the Letter of Credit Commitment
shall be terminated as provided herein and no Letters of Credit shall be
outstanding, a fronting fee of .25% per annum on the undrawn face amount of each
outstanding Letter of Credit, and (B) issuance and drawing fees specified from
time to time by the Issuing Bank (collectively, the "Issuing Bank Fees"). All
L/C Participation Fees and Issuing Bank Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days.
27
All Fees shall be paid on the dates due, in immediately available funds, to
the Administrative Agent for distribution, if and as appropriate, among the
Lenders, except that the Issuing Bank Fees shall be paid directly to the Issuing
Bank. Once paid, none of the Fees shall be refundable.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when the Alternate Base Rate is determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the Alternate Base Rate plus (x) in the case of Revolving Loans
and Tranche A Term Loans, the Applicable Percentage in effect from time to time
and (y) in the case of Tranche B Term Loans, 1.125%.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus (x)
in the case of Revolving Loans and Tranche A Term Loans, the Applicable
Percentage in effect from time to time and (y) in the case of Tranche B Term
Loans, 2.125%.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2%
per annum and (b) in all other cases, at the rate per annum applicable at such
time to ABR Loans plus 2% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event and on each occasion
that on the day two Business Days prior to the commencement of any Interest
Period for a Eurodollar Borrowing the Administrative Agent shall have determined
that dollar deposits in the principal amounts of the Loans comprising such
Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately
reflect the cost to any Lender of making or maintaining its Eurodollar Loan
during such Interest Period, or that reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term Loan
Commitments shall automatically terminate at 5:00 p.m., New York City time, on
the Closing Date. The Revolving Credit Commitments and the L/C Commitment shall
automatically terminate at 5:00 p.m., New York City time, on the Revolving
Credit Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., New York City time, on October 31, 1998,
if the initial Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Tranche A
28
Commitments, the Tranche B Commitments or the Revolving Credit Commitments;
provided, however, that (i) each partial reduction of the Tranche A Commitments,
the Tranche B Commitments or the Revolving Credit Commitments shall be in an
integral multiple of $1,000,000 and in a minimum amount of $1,000,000 and (ii)
the Total Revolving Credit Commitment shall not be reduced to an amount that is
less than the sum of (A) the Aggregate Revolving Credit Exposure at the time and
(B) any portion of the Total Revolving Credit Commitment at the time being held
available to fund the purchase of additional assets, as contemplated by the
definition of "Asset Sale" in Article I, or to pay the principal of and premium
and interest on the Company's Senior Notes due 2006, as contemplated by Section
4.02(j).
(c) On each Revolving Credit Reduction Date the Revolving Credit
Commitments shall be permanently reduced by such amount as shall be necessary in
order that the Total Revolving Credit Commitment will not exceed the amount set
forth below opposite such date:
Date Amount
---- ------
December 31, 2001 $142,500,000
December 31, 2002 $127,500,000
December 31, 2003 $112,500,000
December 31, 2004 $ 90,000,000
(d) The Revolving Credit Commitments shall be automatically and
permanently reduced by the amount of any prepayment of the Revolving Loans
pursuant to paragraph (b), (c) or (e) of Section 2.13.
(e) Each reduction in the Tranche A Commitments, the Tranche B Commitments
or the Revolving Credit Commitments hereunder shall be made ratably among the
Lenders in accordance with their respective applicable Commitments. The
Borrower shall pay to the Administrative Agent for the accounts of the Revolving
Credit Lenders, on the date of each termination or reduction, the Commitment
Fees due on the amount of the Revolving Credit Commitments so terminated or
reduced accrued to but excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as a
Eurodollar Borrowing for an additional Interest Period, and (c) not later than
12:00 (noon), New York City time, three Business Days prior to conversion, to
convert the Interest Period with respect to any Eurodollar Borrowing to another
permissible Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and (b)
regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than the
end of the Interest Period applicable thereto, the Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.16;
29
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing;
(vii) no Interest Period may be selected for any Tranche A Term
Borrowing or Tranche B Term Borrowing that is a Eurodollar Borrowing that
would end later than a Term Loan Repayment Date occurring on or after the
first day of such Interest Period if, after giving effect to such
selection, the aggregate outstanding amount of (A) the Tranche A Term
Borrowings or Tranche B Term Borrowings, as the case may be, that are
Eurodollar Borrowings with Interest Periods ending on or prior to such Term
Loan Repayment Date and (B) the Tranche A Term Borrowings or Tranche B Term
Borrowings, as the case may be, that are ABR Borrowings would not be at
least equal to the principal amount of Tranche A Term Borrowings or Tranche
B Term Borrowings to be paid on such Term Loan Repayment Date; and
(viii) upon notice to the Borrower from the Administrative Agent given
at the request of the Required Lenders, after the occurrence and during the
continuance of a Default or Event of Default, no outstanding Loan may be
converted into, or continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR
Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall pay
to the Administrative Agent, for the accounts of the Lenders, on each Tranche A
Term Loan Repayment Date, a principal amount of the Tranche A Term Loans equal
to the percentage of the Tranche A Term Loans made on the Closing Date set forth
below opposite the number corresponding to such Tranche A Term Loan Repayment
Date (subject to adjustment from time to time pursuant to Sections 2.12 and
2.13(f)), together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment:
Tranche A Term Loan Percentage
------------------- ----------
Repayment Date
--------------
1-4 2.500
5-8 3.125
9-12 3.750
13-16 4.375
17-20 5.000
21-24 6.250
In the event that the Tranche A Term Loans made on the Closing Date shall be
less than the aggregate Tranche A Commitments, the installments payable on each
Tranche A Term Loan Repayment Date shall
30
be reduced pro rata by an aggregate amount equal to the amount of such
reduction, expiration or termination.
(ii) The Borrower shall pay to the Administrative Agent, for the accounts
of the Lenders, on each Tranche B Term Loan Repayment Date, a principal amount
of the Tranche B Term Loans equal to the percentage of the Tranche B Term Loans
made on the Closing Date set forth below opposite the number corresponding to
such Tranche B Term Loan Repayment Date (subject to adjustment from time to time
pursuant to Sections 2.12 and 2.13(f)), together in each case with accrued and
unpaid interest on the principal amount to be paid to but excluding the date of
such payment:
Tranche B Term Loan Percentage
------------------- ----------
Repayment Date
--------------
1-29 0.25
30 92.75
(b) To the extent not previously paid, all Tranche A Term Loans and
Tranche B Term Loans shall be due and payable on the Tranche A Maturity Date and
Tranche B Maturity Date, respectively, together with accrued and unpaid interest
on the principal amount to be paid to but excluding the date of payment.
(c) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Optional Prepayments. (a) The Borrower shall have the right
at any time and from time to time to prepay any Borrowing, in whole or in part,
upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the
Administrative Agent before 12:00 noon, New York City time; provided, however,
that each partial prepayment shall be in an amount that is an integral multiple
of $1,000,000 and not less than $1,000,000.
(b) Optional prepayments of Term Borrowings shall be allocated pro rata
between the then-outstanding Tranche A Term Borrowings and Tranche B Term
Borrowings and applied against the remaining scheduled installments of principal
due in respect of the Tranche A Term Borrowings and Tranche B Term Borrowings
under Sections 2.11(a)(i) and (ii), respectively, in the inverse order of
maturity.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued interest
on the principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination
of all the Revolving Credit Commitments, the Borrower shall repay or prepay all
the outstanding Revolving Credit Borrowings on the date of such termination. In
the event of any partial reduction of the Revolving Credit Commitments, then (i)
at or prior to the effective date of such reduction, the Administrative Agent
shall notify the Borrower and the Revolving Credit Lenders of the Aggregate
Revolving Credit Exposure after giving effect thereto and (ii) if the Total
Revolving Credit Commitment after giving effect to such reduction or termination
would be less than the sum of (A) the Aggregate Revolving Credit Exposure at the
time and (B) any portion of the Total Revolving Credit Commitment at the time
being held available to fund the purchase of additional assets, as contemplated
by the definition of "Asset Sale" in Article I, or to pay the principal of and
premium and interest on the Company's Senior Notes due 2006, as contemplated by
Section 4.02(j), then the Borrower shall, on the date of such reduction or
termination, repay or prepay Revolving Credit Borrowings in an amount sufficient
to eliminate such deficiency.
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(b) As promptly as practicable and in any event not later than the fifth
Business Day following the completion of any Asset Sale with respect to which
the Borrower has not by 1:00 p.m., New York City time, on such fifth Business
Day given the Administrative Agent written advice that it intends to use the Net
Cash Proceeds of such Asset Sale to purchase additional assets to be used in the
business of the Borrower and its subsidiaries, the Borrower shall apply 100% of
the Net Cash Proceeds received with respect thereto to prepay outstanding Term
Loans and, if the Term Loans shall have been paid in full, to prepay Revolving
Credit Loans. As promptly as practicable and in any event not later than the
Business Day following the date on which any Net Cash Proceeds are deemed for
purposes of this paragraph to constitute Net Cash Proceeds of an Asset Sale
pursuant to clause (z) of the definition of "Asset Sale", the Borrower shall
apply such Net Cash Proceeds to prepay outstanding Term Loans and, if the Term
Loans shall have been repaid in full, to prepay Revolving Credit Loans.
(c) As promptly as practicable and in any event not later than the third
Business Day following the receipt of Net Cash Proceeds from any Equity
Issuance, the Borrower shall apply an amount equal to 100% of such Net Cash
Proceeds (or, if less, the amount by which the aggregate Net Cash Proceeds of
such Equity Issuance and all prior Equity Issuances after the date hereof
exceeds $50,000,000) to prepay outstanding Term Loans and, if the Term Loans
shall have been paid in full, to prepay Revolving Credit Loans.
(d) Not later than the earlier of (i) 90 days after the end of each fiscal
year of the Borrower, commencing with the fiscal year ending December 31, 1999,
and (ii) the date on which the financial statements with respect to such fiscal
year are delivered pursuant to Section 5.03(a), the Borrower shall prepay
outstanding Term Loans in an aggregate principal amount equal to (A) if the
Consolidated Leverage Ratio at the end of the applicable fiscal year shall have
been greater than or equal to 5.00 to 1.00, 75% of Excess Cash Flow for such
fiscal year and (B) if the Consolidated Leverage Ratio at the end of the
applicable fiscal year shall have been less than 5.00 to 1.00, 50% of Excess
Cash Flow for such fiscal year, in either case minus $5,000,000.
(e) In the event that the Borrower or any Subsidiary shall receive Net Cash
Proceeds from the incurrence or disposition of any Indebtedness permitted under
clause (h) of Section 6.01 (other than (i) Indebtedness permitted under such
clause (h) in an aggregate principal amount not to exceed $25,000,000, and (ii)
other Indebtedness permitted under such clause (h) the Net Cash Proceeds of
which are promptly applied to finance acquisitions permitted under Section
6.04(h); provided, that no Event of Default has occurred and is continuing at
the time the Net Cash Proceeds of any such Indebtedness referred to in this
parenthetical are received), the Borrower shall, as promptly as practicable and
in any event not later than the third Business Day following the receipt of such
Net Cash Proceeds, apply an amount equal to (A) if the Consolidated Leverage
Ratio at the most recent fiscal quarter end, adjusted to give effect to such
Indebtedness as if it had been outstanding at such fiscal quarter end, shall be
greater than or equal to 5.00 to 1.00, 100% of such Net Cash Proceeds, or (B)
if the Consolidated Leverage Ratio at the most recent fiscal quarter end, as so
adjusted, shall be less than 5.00 to 1.00, 50% of such Net Cash Proceeds, to
prepay outstanding Term Loans and, if the Term Loans shall have been paid in
full, to prepay Revolving Credit Loans.
(f) Mandatory prepayments of Term Loans shall, subject to paragraph (i)
below, be allocated pro rata between the then-outstanding Tranche A Term Loans
and Tranche B Term Loans and applied against the remaining scheduled
installments of principal due in respect of Tranche A Term Loans or Tranche B
Term Loans under Section 2.11(a)(i) and (ii), respectively, in the inverse order
of maturity.
(g) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date and the Type and principal amount
of each Loan (or portion thereof) to be prepaid. All prepayments under this
Section 2.13 shall be subject to Section 2.16, but shall otherwise be without
premium or penalty.
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(h) Amounts to be applied pursuant to this Section 2.13 to the prepayment
of Term Loans and Revolving Loans shall be applied first to reduce outstanding
ABR Term Loans or ABR Revolving Loans, as the case may be, and then to prepay
Eurodollar Term Loans or Eurodollar Revolving Loans, as the case may be. In the
event the amount of any prepayment required to be made pursuant to this Section
shall exceed the aggregate principal amount of the ABR Tranche A Term Loans, ABR
Tranche B Term Loans or ABR Revolving Loans, as the case may be, outstanding
(the amount of any such excess being called the "Excess Amount"), the Borrower
shall have the right, in lieu of making such prepayment in full, to prepay all
the outstanding applicable ABR Loans of the applicable class and to deposit an
amount equal to the Excess Amount with the Collateral Agent in a cash collateral
account maintained (pursuant to documentation reasonably satisfactory to the
Administrative Agent) by and in the sole dominion and control of the Collateral
Agent. Any amounts so deposited shall be held by the Collateral Agent as
collateral for the Obligations and applied to the prepayment of the applicable
Eurodollar Loans at the ends of the current Interest Periods applicable thereto.
At the request of the Borrower, amounts so deposited shall be invested by the
Collateral Agent in Permitted Investments maturing prior to the date or dates on
which it is anticipated that such amounts will be applied to prepay Eurodollar
Loans; any interest earned on such Permitted Investments will be for the account
of the Borrower, and the Borrower will deposit with the Administrative Agent the
amount of any loss on any such Permitted Investment to the extent necessary in
order that the amount of the prepayment to be made with the deposited amounts
may not be reduced.
(i) Any Tranche B Lender may elect, by notice to the Administrative Agent
in writing (or by telephone or telecopy promptly confirmed in writing) at least
one Business Day prior to any prepayment of Tranche B Term Loans required to be
made by the Borrower for the account of such Lender pursuant to this Section
2.13, to waive all or a portion of such prepayment. Any prepayment so waived
will be applied instead (i) to prepay Tranche A Term Loans to the extent Tranche
A Term Loans in a sufficient amount are outstanding, and (ii) otherwise, to
prepay Revolving Loans (without reducing the Revolving Credit Commitments).
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Loan made by such Lender
or any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Lender or the Issuing Bank by
the jurisdiction in which such Lender or the Issuing Bank has its principal
office or applicable lending office or by any political subdivision or taxing
authority therein), or shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender or the Issuing Bank (except any
such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall
impose on such Lender or the Issuing Bank or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or the Issuing Bank of
making or maintaining any Eurodollar Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender or the Issuing Bank to be
material, then the Borrower will pay to such Lender or the Issuing Bank, as the
case may be, upon demand such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing
33
Bank's holding company with any request or directive issued after the date
hereof regarding capital adequacy (whether or not having the force of law) of
any Governmental Authority has or would have the effect of reducing the rate of
return on such Lender's or the Issuing Bank's capital or on the capital of such
Lender's or the Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made or participations in Letters of Credit purchased by
such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank
pursuant hereto to a level below that which such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company could have achieved but for
such applicability, adoption, change or compliance (taking into consideration
such Lender's or the Issuing Bank's policies and the policies of such Lender's
or the Issuing Bank's holding company with respect to capital adequacy) by an
amount deemed by such Lender or the Issuing Bank to be material, then from time
to time the Borrower shall pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b), together
with supporting documentation or computations, above shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and the Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter
(for the duration of such unlawfulness) be made by such Lender hereunder
(or, for such duration, be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to such
Lender only, be deemed a request for an ABR Loan (or a request to continue
an ABR Loan as such for an additional Interest Period or to convert a
Eurodollar Loan into an ABR Loan, as the case may be), unless such
declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans made
by it be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date of
such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
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(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
(a) any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor (including by reason
of any assignment pursuant to Section 2.21), (ii) the conversion of any
Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with
respect to any Eurodollar Loan, in each case other than on the last day of the
Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made by
such Lender (including any Eurodollar Loan to be made pursuant to a conversion
or continuation under Section 2.10) not being made after notice of such Loan
shall have been given by the Borrower hereunder (any of the events referred to
in this clause (a) being called a "Breakage Event") or (b) any default in the
making of any payment or prepayment required to be made hereunder. In the case
of any Breakage Event, such loss shall include an amount equal to the excess, as
reasonably determined by such Lender, of (i) its cost of obtaining funds for the
Eurodollar Loan that is the subject of such Breakage Event for the period from
the date of such Breakage Event to the last day of the Interest Period in effect
(or that would have been in effect) for such Loan over (ii) the amount of
interest likely to be realized by such Lender in redeploying the funds released
or not utilized by reason of such Breakage Event for such period. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled
to receive pursuant to this Section 2.16, together with supporting documentation
or computations, shall be delivered to the Borrower and shall be conclusive
absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as required under Sections 2.13
and 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, each reduction of the Term Loan Commitments or the Revolving Credit
Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their applicable outstanding Loans), and the
Borrower and each Lender agrees to take all such actions as shall be necessary
to give effect to such requirement. Each Lender agrees that in computing such
Lender's portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender's percentage of such Borrowing to the
next higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law, or by any other
means, obtain payment, voluntary or involuntary, in respect of any Loan or Loans
or L/C Disbursement as a result of which the unpaid principal portion of its
Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and
participations in L/C Disbursements shall be proportionately less than the
unpaid principal portion of the Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans and participations in L/C Disbursements of any other Lender, it
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Tranche A Term Loans, Tranche B Term Loans, Revolving Loans
and L/C Exposure, as the case may be, of such other Lender, so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with
the aggregate unpaid principal amount of the Tranche A Term Loans, Tranche B
Term Loans and Revolving Loans and L/C Exposure and participations in Tranche A
Term Loans, Tranche B Term Loans, Revolving Loans and L/C Exposure held by all
the Lenders; provided, however, that (i) if any such participations are
purchased pursuant to this Section 2.18 and the payment giving rise thereto
shall thereafter be recovered, such participations shall be rescinded to the
extent of such recovery
35
and the purchase price restored without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in L/C
Disbursements to any assignee or participant, other than to the Borrower or any
of the Subsidiaries or any Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in a Term Loan
or Revolving Loan or L/C Disbursement deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lender by reason of
such participation as fully as if such Lender had made a Loan directly to the
Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. Each such payment
(other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing
Bank, and (ii) payments pursuant to Sections 2.14, 2.16, 2.20 and 10.05 or
pursuant to other Loan Documents, which shall be made directly to the persons
entitled thereto) shall be made to the Administrative Agent at its offices at
Eleven Madison Avenue, New York, New York 10010, or as otherwise directed.
(b) The Administrative Agent shall distribute any such payments received
by it for the account of any other person to the appropriate recipient promptly
following receipt thereof. Whenever any payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder or under any
other Loan Document shall become due, or otherwise would occur, on a day that is
not a Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the
36
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Each Lender 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
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Borrower (with a copy to the Administrative Agent) two copies of either United
States 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, a certificate representing
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 of the Borrower (within the meaning of
Section 871(h)(3)(B) of the Code) 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 reduced rate of, U.S. Federal withholding tax on payments by
the Borrower under this Agreement or any other Loan Document. Such forms shall
be delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement or designates a new lending office. In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence, expiration or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.20, a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.20(e) that
such Non-U.S. Lender is not legally able to deliver.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any amount to any Lender or the Issuing Bank or any
Governmental Authority on account of any Lender or the Issuing Bank pursuant to
Section 2.20, the Borrower may, at its sole expense and effort (including with
respect to the processing and recordation fee referred to in Section 10.04(b)),
upon notice to such Lender or the Issuing Bank and the Administrative Agent,
require such Lender or the Issuing Bank to transfer and assign, without recourse
(in accordance with and subject to the restrictions contained in Section 10.04),
all of its interests, rights and obligations under this Agreement to an assignee
designated by the Borrower that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (w) such assignment will result in a reduction in the claim for
compensation under Section 2.14 or in the withdrawal of the notice under Section
2.15 or in the reduction of payments under Section 2.20, as the case may be, (x)
such assignment shall not conflict with any law, rule or regulation or order of
any court or other Governmental Authority having jurisdiction, (y) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Credit Commitment is being assigned, of the Issuing Bank), which
consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or the Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or the Issuing Bank
hereunder (including any amounts under Section 2.14 and Section 2.20); provided
further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's or the Issuing Bank's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender or the
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by
such Lender or the Issuing Bank pursuant to paragraph (b) below), or if such
Lender or the Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event, as the case may be, then
such Lender or the Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
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(b) If (i) any Lender or the Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in
Section 2.15 or (iii) the Borrower is required to pay any amount to any Lender,
the Issuing Bank or any Governmental Authority on account of any Lender or the
Issuing Bank, pursuant to Section 2.20, then such Lender or the Issuing Bank
shall use reasonable efforts (which shall not require such Lender or the Issuing
Bank to incur an unreimbursed loss or unreimbursed cost or expense or otherwise
take any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under Section
2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would
reduce amounts payable pursuant to Section 2.20, as the case may be, in the
future. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender or the Issuing Bank in connection with any such filing or
assignment, delegation and transfer.
SECTION 2.22. Letters of Credit. (a) General. The Borrower may request the
issuance of Letters of Credit for its own account, at any time and from time to
time while the Revolving Credit Commitments remain in effect, to support
obligations (other than trade payables) incurred by the Borrower and the
Subsidiaries in the ordinary course of their businesses. Each Letter of Credit
will be in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank. This Section shall not be construed to impose an obligation upon
the Issuing Bank to issue any Letter of Credit that is inconsistent with the
terms and conditions of this Agreement.
(b) Notice of Issuance; Certain Conditions. In order to request the
issuance of a Letter of Credit, the Borrower shall hand deliver or telecopy to
the Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance) a notice requesting the issuance of a Letter of
Credit and setting forth the date of issuance, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) below), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare such Letter of Credit. A
Letter of Credit shall be issued only if, and upon issuance of each Letter of
Credit the Borrower shall be deemed to represent and warrant that, after giving
effect to such issuance (A) the L/C Exposure shall not exceed $25,000,000 and
(B) the Aggregate Revolving Credit Exposure shall not exceed the Total Revolving
Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby irrevocably, absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the Issuing Bank, such Lender's
Pro Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower forthwith on the date due as provided in Section
2.02(f). Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is irrevocable, absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default or the termination of the
Revolving Credit Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C
38
Disbursement not later than two hours after the Borrower shall have received
notice from the Issuing Bank that payment of such draft will be made, or, if the
Borrower shall have received such notice later than 10:00 a.m., New York City
time, on any Business Day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit
or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with,
the Borrower, any Subsidiary or other Affiliate thereof or any other person
may at any time have against the beneficiary under any Letter of Credit,
the Issuing Bank, the Administrative Agent or any Lender or any other
person, whether in connection with this Agreement, any other Loan Document
or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act, or omission to act, or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in substantial compliance with the terms of a Letter
of Credit, without responsibility for further investigation, and make payment
under such Letter of Credit, unless, in the Issuing Bank's judgment, it has
received information that proves any such documents to be forged or fraudulent;
provided that the Issuing Bank shall not be liable in any respect for any error
made as a result of, or damages resulting from, the exercise of its judgment
with regard to any such documents if such judgment is made in good faith. The
parties hereto expressly agree that (i) the Issuing Bank's exclusive reliance on
the documents presented to it under such Letter of Credit as to any and all
matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in substantial
compliance with the terms of a Letter of Credit, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged, fraudulent or invalid or any statement therein
39
proves to be inaccurate or untrue in any respect whatsoever and (ii) any
noncompliance in any immaterial respect of the documents presented under such
Letter of Credit with the terms thereof shall, in each case, be deemed not to
constitute wilful misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as
possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the Borrower of such demand for payment and whether the
Issuing Bank has made or will make an L/C Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Revolving
Credit Lenders with respect to any such L/C Disbursement. The Administrative
Agent shall promptly give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would apply
to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as a successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Borrower shall pay all accrued and
unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment
as the Issuing Bank hereunder by a successor Lender shall be evidenced by an
agreement entered into by such successor, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Lender shall have all the rights and obligations
of the previous Issuing Bank under this Agreement and the other Loan Documents
and (ii) references herein and in the other Loan Documents to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the resignation or removal of the Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity
40
of the Loans has been accelerated (but subject to the consent of Revolving
Credit Lenders holding participations in outstanding Letters of Credit
representing greater than 50% of the aggregate undrawn amount of all outstanding
Letters of Credit), be applied to satisfy the Obligations. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
ARTICLE III
Representations and Warranties
Each of the Parent and the Borrower represents and warrants to the
Administrative Agent, the Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Parent, the Borrower and each of
the Subsidiaries (a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
all requisite power and authority, and all requisite licenses and permits from
the FCC and other Governmental Authorities, to own its property and assets and
to carry on its business as now conducted and as proposed to be conducted, (c)
is qualified to do business, and is in good standing, in every jurisdiction
where such qualification is required, except, as set forth on Schedule 3.01,
where the failure so to qualify could not reasonably be expected to result in a
Material Adverse Effect, and (d) has the corporate power and authority to
execute, deliver and perform its obligations under each of the Loan Documents
and each other agreement or instrument contemplated hereby to which it is or
will be a party and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The Transactions (a) have been duly
authorized by all requisite corporate and, if required, stockholder action and
(b) will not (i) violate (A) any material provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of the Parent, the Borrower or any of the
Subsidiaries, (B) any order of any Governmental Authority or (C) any provision
of any indenture, or any material agreement or other instrument, to which the
Parent, the Borrower or any of the Subsidiaries is a party or by which any of
them or any of their property is or may be bound, (ii) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such indenture,
agreement or other instrument or (iii) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or hereafter
acquired by the Parent, the Borrower or any of the Subsidiaries (other than any
Lien created hereunder or under the Security Documents). Schedule 3.02
discloses certain agreements which, if not for the consummation of the
Transactions, would be violated.
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Parent and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party thereto will constitute,
a legal, valid and binding obligation of the Parent or the Borrower or such Loan
Party enforceable against the Parent or the Borrower or such Loan Party in
accordance with its terms subject to the limitations set forth on Schedule 3.03.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements (including filings under
the Uniform Commercial Code as adopted in the Commonwealth of Puerto
Rico) and filings with the United States Patent and Trademark Office and the
United States Copyright Office, (b) such as have been or will at the Closing
Date have been made or obtained and are or will at the Closing Date be in full
force and effect, (c) such as may be required pursuant to any bank regulatory or
other requirement applicable to the Administrative Agent, the Collateral Agent,
any Lender or any of their
41
respective Affiliates and (d) such as by their nature are to be made on or after
the Closing Date and the failure to make or complete which prior to the Closing
Date will not have a material adverse impact on the Closing Date Transactions or
on the rights or interests of the Lenders.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders (i) consolidated and consolidating balance sheets and
statements of operations and consolidated statements of cash flow and
stockholders' equity of the Company (A) as of the end of and for each fiscal
year in the three-fiscal year period ended December 31, 1997, audited, in the
case of such consolidated financial statements, by Deloitte & Touche LLP,
independent public accountants and (B) as of the end of and for the fiscal
quarter ended March 31, 1998 and the corresponding quarter of the immediately
preceding fiscal year, certified by a Financial Officer of the Company. Such
financial statements present fairly the financial condition and results of
operations and cash flows of the Company and its consolidated Subsidiaries as of
such dates and for such periods. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the dates thereof. Such financial statements
were prepared in accordance with GAAP applied on a consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited pro
forma consolidated balance sheets and statements of operations as of the end of
and for the fiscal year ended December 31, 1997, and as of the fiscal quarter
ended and for the twelve months ended March 31, 1998, prepared giving effect to
the Closing Date Transactions as if they had occurred on each such date and at
the beginning of each such period. Both the financial statements referred to in
the first sentence of this Section 3.05(b) and the Pro Forma Financial
Information have been prepared in good faith by the Borrower, based on the best
information available to the Borrower as of the date of delivery thereof . The
Pro Forma Financial Information , subject to the assumptions set forth therein
(which assumptions are believed by the Borrower to be reasonable), accurately
reflects all adjustments required to be made to give effect to the Closing Date
Transactions and presents fairly on a pro forma basis the estimated consolidated
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries as of the dates and for the periods set forth therein,
assuming that the Closing Date Transactions had actually occurred at such dates
and at the beginnings of such periods.
SECTION 3.06. No Material Adverse Change. Since the date of the most recent
financial statements referred to in Section 3.05, except as set forth on
Schedule 3.06, there has occurred or become known no event, condition or change
in or affecting the Parent and the Subsidiaries or the Company and its
subsidiaries that, individually or in the aggregate with other such events,
conditions or changes, has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Except as
set forth on Schedule 3.07, the Parent, the Borrower and each of the
Subsidiaries has good and marketable title to, or valid leasehold interests in,
all its material properties and assets (including the Collateral), except for
minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties and assets for
their intended purposes. All such material properties and assets are free and
clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Except as set forth in Schedule 3.07, (i) each of the Parent, the
Borrower and each Subsidiary has complied with all material obligations under
all material leases to which it is a party and all such leases are in full force
and effect and (ii) each of the Parent, the Borrower and each Subsidiary enjoys
peaceful and undisturbed possession under all such material leases to which it
is a party.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date, after giving effect to the Merger, a list of all Subsidiaries and the
ownership interest of the Parent, the Borrower and each other Subsidiary
therein. The shares of capital stock or other ownership interests so indicated
on Schedule 3.08 are fully paid and non-assessable and are owned by the persons
indicated on such Schedule, free and clear of all Liens.
42
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on
Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Parent or the Borrower, threatened against the Parent, the
Borrower or any of the Subsidiaries or any business, property or rights of any
such person (i) that involve any Loan Document or the Closing Date Transactions,
(ii) as to which there is a reasonable possibility of an adverse determination
and that, if adversely determined, could reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Effect, (iii) that could
materially and adversely effect the ability of the Loan Parties to fully and
timely perform their respective obligations under the Loan Documents or the
other documents executed in connection with the Transactions or the ability of
the parties to consummate the Transactions or (iv) that have or would have,
individually or in the aggregate, a reasonable likelihood of restraining,
preventing or imposing burdensome conditions on the Transactions.
(b) The Parent, the Borrower and each Subsidiary is in compliance with all
laws, regulations, consent decrees and orders of any Governmental Authority
applicable to it (including, without limitation, the Federal Communications Act
and the regulations thereunder, employee health and safety laws and
Environmental Laws) or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to comply,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.10. Agreements. None of the Parent, the Borrower or any of the
Subsidiaries is in default in any manner under any provision of any indenture or
other material agreement or instrument evidencing Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any of
its properties or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of the Parent, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation U or
X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.
None of the Parent, the Borrower or any of the Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the
Loans and will request the issuance of Letters of Credit only for the purposes
specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Parent, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, state, local and
foreign income tax returns and all other material Federal, state, local and
foreign tax returns required to have been filed by it and has paid or caused to
be paid all taxes due and payable by it and all assessments received by it,
except taxes that are being contested in good faith by appropriate proceedings
and for which the Parent, the Borrower or such Subsidiary, as applicable, shall
have set aside on its books adequate reserves. Schedule 3.14 discloses an audit
of the Company's tax returns currently being conducted by the Internal Revenue
Service.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other written or formally presented
information, report, financial statement, exhibit, schedule or document
furnished by or on behalf of the Parent, the Borrower or the Sponsors to
43
the Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto, in each case as
updated from time to time, contained, contains or will contain at the time it
was or is so furnished any material misstatement of fact or omitted, omits or
will omit at such time to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit, schedule or document was
based upon or constituted a forecast or projection, the Parent and the Borrower
represent only that they and the Sponsors acted in good faith and utilized what
such persons believed to be reasonable assumptions at the time it was prepared
and due care in the preparation of such information, report, financial
statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. Each of the Parent, the Borrower and
their ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of the Parent, the
Borrower or any of their ERISA Affiliates. The present value of all benefit
liabilities under each Plan (based on those assumptions used to fund such Plan)
did not, as of the last annual valuation date applicable thereto, exceed the
fair market value of the assets of such Plan, and the present value of all
benefit liabilities of all underfunded Plans (based on those assumptions used to
fund each such Plan) did not, as of the last annual valuation dates applicable
thereto, exceed the fair market value of the assets of all such underfunded
Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule 3.17,
to the knowledge of the Borrower, the Parent and the Subsidiaries:
(a) The properties owned, leased or operated by the Parent, the Borrower
and the Subsidiaries (the "Properties") do not contain any Hazardous Materials
in amounts or concentrations which (i) constitute, or constituted a violation
of, (ii) require Remedial Action under, or (iii) could reasonably be expected to
give rise to liability under, Environmental Laws, which violations, Remedial
Actions and liabilities, in the aggregate, could result in a Material Adverse
Effect;
(b) The Properties and all operations of the Parent, the Borrower and the
Subsidiaries are in compliance, and in the last five years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such non-
compliance or failure to obtain any necessary permits, in the aggregate, could
not result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at, from, under or
proximate to the Properties or otherwise in connection with the operations of
the Parent, the Borrower or the Subsidiaries, which Releases or threatened
Releases, in the aggregate, could result in a Material Adverse Effect;
(d) None of the Parent, the Borrower or any of the Subsidiaries has
received any notice of an Environmental Claim in connection with the Properties
or the operations of the Parent, the Borrower or the Subsidiaries or with regard
to any person whose liabilities for environmental matters the Parent, the
Borrower or the Subsidiaries has retained or assumed, in whole or in part,
contractually, by operation of law or otherwise, which, in the aggregate, could
result in a Material Adverse Effect, nor do the Parent, the Borrower or the
Subsidiaries have reason to believe that any such Environmental Claim is being
threatened; and
(e) Hazardous Materials have not been transported from the Properties, and
have not been generated, treated, stored or disposed of at, on or under any of
the Properties, in any case in a manner that could give rise to liability under
any Environmental Law, nor have the Parent, the Borrower or the Subsidiaries
retained or assumed any liability, contractually, by operation of law or
otherwise, with respect to the generation, treatment, storage or disposal of
Hazardous Materials, which transportation, generation, treatment, storage or
disposal, or retained or assumed liabilities, in the aggregate, could result in
a Material Adverse Effect.
44
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Parent, the Borrower or
the Subsidiaries as of the date hereof and, as updated to the Closing Date, as
of the Closing Date. As of each such date, such insurance is in full force and
effect and all premiums have been duly paid. The Parent, the Borrower and the
Subsidiaries have insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement), and when the Collateral is delivered to the
Collateral Agent the Pledge Agreement will constitute a fully perfected first
priority Lien on and security interest in all right, title and interest of each
pledgor thereunder in such Collateral, in each case prior and superior in right
to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement), and when financing statements in appropriate form are filed in the
offices specified on Schedule 6 to the Perfection Certificate, the Security
Agreement will constitute a fully perfected (to the extent perfection may be
achieved by filings of financing statements or similar filings in public
offices) Lien on and security interest in all right, title and interest of the
grantors thereunder in such Collateral (other than the Intellectual Property, as
defined in the Security Agreement), in each case prior and superior in right to
any other person, other than with respect to Liens expressly permitted by
Section 6.02.
(c) When the Security Agreement is filed in the United States Patent and
Trademark Office and the United States Copyright Office, the Security Agreement
will constitute a fully perfected (to the extent perfection may be achieved by
filing in such offices) Lien on, and security interest in, all right, title and
interest of the grantors thereunder in the Intellectual Property (as defined in
the Security Agreement), in each case prior and superior in right to any other
person (it being understood that subsequent recordings in the United States
Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks, trademark applications and
copyrights acquired by the grantors after the date hereof).
(d) On the Closing Date, after giving effect to the Closing Date
Transactions, and at all times thereafter, the Collateral Requirement and the
Guarantee Requirement will have been satisfied.
(e) The foregoing provisions of this Section 3.19 are qualified in their
entirety by this Section 3.19(e). An amendment to the certificate of
incorporation (the "Charter Amendment") of the Puerto Rican Subsidiary was filed
with the State Department of the Commonwealth of Puerto Rico on July 9, 1998
(the "Filing Date"). Once the Charter Amendment has been processed by the State
Department of the Commonwealth of Puerto Rico it will be effective as of the
Filing Date. The Puerto Rican Subsidiary has issued, and the Borrower has
pledged to the Collateral Agent pursuant to the Pledge Agreement, sixty-five
percent (65%) of the voting shares of the Puerto Rican Subsidiary and one
hundred percent (100%) of the non-voting shares of the Puerto Rican Subsidiary
under the Charter Amendment. Upon the processing of the Charter Amendment by the
State Department of the Commonwealth of Puerto Rico this Section 3.19(e) shall
be of no effect and the representations and warranties of the Parent and the
Borrower with respect to shares in the Puerto Rican Subsidiary shall be as set
forth in the remainder of Section 3.19.
SECTION 3.20. Intellectual Property. The Borrower and each Subsidiary
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 be licensed to use which could not reasonably be
expected to result in a Material Adverse Effect. 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, and no claim is pending or threatened
challenging the use or the validity of any
45
Intellectual Property of the Borrower or any Subsidiary, except for
infringements and claims that, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.21. Station Licenses. Schedule 3.21 accurately and completely
lists as of the date hereof (after giving effect to the Closing Date
Transactions), for each Station, all Station Licenses held by the Borrower or
any of its subsidiaries, or under which the Borrower or any of its subsidiaries
has the right to operate such Station. As of the Closing Date, the Station
Licenses listed on Schedule 3.21 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
currently conducted or proposed to be conducted. The Station Licenses listed on
Schedule 3.21(except the Station License owned by the Chicago Subsidiary) (a) in
the case of Station Licenses marked with an asterisk on Schedule 3.21, as of the
Closing Date and (b) in the case of Station Licenses not so marked on Schedule
3.21, as of the 90th day after the Closing Date will be issued in the name of,
or validly assigned to the 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 3.21 hereto, all consents to the transfer of control of the principal
broadcasting licenses and any other material Station Licenses in connection with
the Closing Date Transactions shall have been granted by the FCC; provided that
such consents will not be required to have become final orders.
SECTION 3.22. Labor Matters Except as set forth on Schedule 3.22, as of
the date hereof and the Closing Date, there are no strikes, lockouts or
slowdowns against the Parent, the Borrower or any of the Subsidiaries pending
or, to the knowledge of the Parent or the Borrower, threatened. Except for
violations that could not in the aggregate reasonably be expected to result in a
Material Adverse Effect, the hours worked by and payments made to employees of
the Parent, the Borrower and the Subsidiaries have not been in material
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters. All material payments
due from the Parent, the Borrower or any of the Subsidiaries, or for which any
claim may be made against the Parent, the Borrower or any of the Subsidiaries,
on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of the Parent,
the Borrower or the applicable Subsidiary. The consummation of the Transactions
will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which the Parent,
the Borrower or any of the Subsidiaries is bound.
SECTION 3.23. Solvency. Immediately after the consummation of the Closing
Date Transactions, (i) the fair value of the assets of each Loan Party, at a
fair valuation, will exceed its debts and liabilities, subordinated, contingent
or otherwise; (ii) the present fair saleable value of the property of each Loan
Party will be greater than the amount that will be required to pay its probable
liability on its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured;
(iii) each Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) each Loan Party will not have unreasonably small
capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
SECTION 3.24. Merger Agreement. To the best knowledge of the Parent and
the Borrower, the representations and warranties of the Parent, the Borrower and
the Company set forth in the Merger Agreement are true and correct in all
material respects.
SECTION 3.25. Year 2000. The Parent, the Borrower and the Subsidiaries
have (i) developed plans, utilizing internal resources, to ensure that their
information systems are capable of properly utilizing dates beyond December 31,
1999 (the "Year 2000" issue), (ii) upgraded or replaced many of their accounting
and traffic systems, including the conversion to new software which is Year 2000
compliant and (iii) evaluated their other principal computer systems and
determined that they are
46
substantially Year 2000 compliant. The Parent, the Borrower and the Subsidiaries
are also seeking to work with their relevant customers, suppliers and other
service providers to ensure that their systems are Year 2000 compliant. Based
upon the information available to it, the Borrower does not believe that the
consequences to it and its subsidiaries of the Year 2000 issue will result in a
Default or a Material Adverse Effect.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing and on the
date of each issuance of a Letter of Credit (each such event being called a
"Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance of a
Letter of Credit, the Issuing Bank and the Administrative Agent shall have
received a notice requesting the issuance of such Letter of Credit as required
by Section 2.22(b).
(b) The representations and warranties set forth in Article III shall be
true and correct in all material respects on and as of the date of such Credit
Event with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier date.
(c) The Borrower and each other Loan Party shall be in compliance with all
the terms and provisions set forth herein and in each other Loan Document on its
part to be observed or performed, and at the time of and immediately after such
Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the satisfaction
of the conditions set forth in paragraphs (b) and (c) of this Section 4.01. In
the case of the Credit Events occurring on the Closing Date, the conditions set
forth in paragraphs (b) and (c) of this Section 4.01 shall be construed as
giving effect to the Merger and the other Closing Date Transactions.
SECTION 4.02. Initial Credit Event. On the Closing Date:
(a) The Arrangers and the Administrative Agent shall have received,
on behalf of itself, the Lenders and the Issuing Bank, favorable written
opinions of (i) Xxxxxxx X. Xxxxxx, Esq., General Counsel of the Borrower,
substantially to the effect set forth in Exhibit H-1, (ii) Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P., special counsel for the Parent and the
Borrower, substantially to the effect set forth in Exhibit H-2, (iii)
XxXxxxxxx Xxxxxx, Puerto Rican counsel for the Parent and the Borrower,
substantially to the effect set forth in Exhibit H-3 and (iv) Xxxxxx &
Xxxxxxx, special counsel for the Borrower, substantially to the effect set
forth in Exhibit H-4, in each case dated the Closing Date, addressed to the
Administrative Agent, the Lenders and the Issuing Bank, and covering such
other matters relating to the Loan Documents and the Transactions as the
Arrangers and the Administrative Agent shall reasonably request, and the
Parent and the Borrower hereby request such counsel to deliver such
opinion.
(b) The Arrangers and the Administrative Agent shall have received (i)
a copy of the certificate or articles of incorporation, including all
amendments thereto, of each Loan Party, certified as of a recent date by
the Secretary of State or comparable official of the state or other
47
jurisdiction of its organization, and, except with respect to jurisdictions
that do not issue such certificates for persons organized in the manner of
such Loan Party, a certificate as to the good standing of each Loan Party
as of a recent date, from such Secretary of State or other official; (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party
dated the Closing Date and certifying (A) that attached thereto is a true
and complete copy of the by-laws of such Loan Party as in effect on the
Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the Board of
Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in
the case of the Borrower, the Borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate or articles of incorporation of
such Loan Party have not been amended since the date of the last amendment
thereto shown on the certified copy thereof furnished pursuant to clause
(i) above, and (D) as to the incumbency and specimen signature of each
officer executing any Loan Document or any other document delivered in
connection herewith on behalf of such Loan Party; (iii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to (ii)
above; and (iv) such other documents as the Lenders, the Issuing Bank or
the Arrangers or the Administrative Agent, may reasonably request.
(c) The Arrangers and the Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer of
the Borrower, confirming compliance with the conditions precedent set forth
in paragraphs (b) and (c) of Section 4.01.
(d) The Arrangers and the Administrative Agent shall have received
all Fees and other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all out-of-
pocket expenses required to be reimbursed or paid by the Borrower hereunder
or under any other Loan Document.
(e) The Parent Equity Contribution shall have been or shall
simultaneously be completed; the issued and outstanding Equity Interests of
the Parent shall consist only of common stock of a single class and, if the
Sponsors shall so determine, Rights with respect thereto; Apollo and
Bastion taken together shall own, directly or indirectly, 50.1% of such
common stock (taking into account all Rights on a fully diluted basis), and
Liberty and SPE taken together shall own, directly or indirectly, 49.9% of
such common stock (taking into account all Rights on a fully diluted
basis); and no other person shall own any of such common stock or any
Rights with respect thereto.
(f) The Senior Discount Note Sale shall have been or shall
substantially simultaneously be completed.
(g) The Borrower Equity Contribution shall have been or shall
substantially simultaneously be completed.
(h) The Merger shall have been, or substantially simultaneously with
the initial Credit Event shall be, consummated in accordance with the
Merger Agreement and applicable law, without any amendment to or waiver of
any material terms or conditions of the Merger Agreement not approved by
the Lenders. The Lenders and the Issuing Bank shall have received executed
copies of the Merger Agreement and all certificates, opinions and other
documents delivered in connection therewith, all certified by a Financial
Officer as complete and correct.
(i) The Network Sale shall have been or shall substantially
simultaneously be completed and the Borrower and the Network Company shall
have entered into the Network Affiliation Agreement.
48
(j) The Refinancing shall have been or shall substantially
simultaneously be completed; provided that an aggregate principal amount of
the Company's Senior Notes due 2006 acceptable to the Required Lenders may
remain outstanding if (i) the Company or the Borrower shall have made a
tender offer for the purchase of such Notes but such Notes shall not have
been tendered by the holders thereof for purchase by the Company or the
Borrower, (ii) the indenture under which such Notes are outstanding shall
have been amended as contemplated in the Offer to Purchase, and (iii)
either (A) sufficient cash (which may represent the proceeds of Revolving
Loans made hereunder) shall have been or shall simultaneously with the
initial borrowings hereunder be deposited with the trustee for such Notes,
in accordance with the terms of such indenture, to defease all obligations
of the Company to pay the principal thereof and premium and interest
thereon when and as due or (B) the Borrower shall have given irrevocable
instructions to the Administrative Agent that an amount of the Total
Revolving Credit Commitment sufficient to pay the principal of and premium
and interest on such Notes when and as due shall be restricted and made
available to the Borrower (subject to the conditions set forth in this
Article IV) solely for the purpose of discharging such principal, premium
and interest (and the Borrower shall be deemed to have given such
instructions if, at the time of the initial borrowings hereunder, such
Notes shall not be defeased as contemplated in the preceding clause (A)).
(k) Subject only to the processing by the State Department of the
Commonwealth of Puerto Rico of the Charter Amendment (as defined in Section
3.19(e)) of the Puerto Rican Subsidiary, the Collateral Requirement shall
be satisfied, and the capitalization of the Puerto Rican Subsidiary shall
have been restructured so that substantially all the economic interest
therein is represented by the non-voting capital stock thereof. The
Collateral Agent shall have received a Federal Reserve Form U-1 duly
completed and executed by the Borrower demonstrating compliance with
Regulation U of the Board.
(l) The Collateral Agent shall have received the results of a search
of the Uniform Commercial Code (or equivalent) filings made with respect to
the Loan Parties in the states (or other jurisdictions) in which the chief
executive office of each such person is located, any offices of such
persons in which records have been kept relating to accounts receivable and
the other jurisdictions in which Uniform Commercial Code filings (or
equivalent filings) are to be made pursuant to clause (b) of the definition
of "Collateral Requirement", together with copies of the financing
statements (or similar documents) disclosed by such search, and accompanied
by evidence satisfactory to the Collateral Agent that the Liens indicated
in any such financing statement (or similar document) would be permitted
under Section 6.02 or have been released.
(m) The Collateral Agent shall have received a Perfection Certificate
dated the Closing Date and duly executed by a Responsible Officer of the
Borrower.
(n) The Guarantee Requirement shall be satisfied.
(o) All requisite Governmental Authorities (including the FCC and any
antitrust or banking authorities) and third parties shall have approved or
consented to the Transactions to the extent required, in each case to the
extent failure to obtain such approvals or consents could, individually or
in the aggregate, reasonably be expected to result in a Material Adverse
Effect, and there shall be no action by any Governmental Authority, actual
or threatened, that has a reasonable likelihood of materially restraining,
preventing or imposing burdensome conditions on the Transactions or the
other transactions contemplated hereby (it being understood that FCC
approval shall be deemed to have been obtained upon receipt of an initial
favorable ruling from the FCC unless the Arrangers in good faith believe
that it is reasonably uncertain that such initial ruling will become final
and nonappealable).
(p) The Arrangers and the Administrative Agent shall have received an
opinion (and related going-concern valuation) reasonably satisfactory in
all respects to the Arrangers from
49
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Inc. as to the solvency of the Parent and the
Subsidiaries on a consolidated basis after giving effect to the Closing
Date Transactions.
(q) The Arrangers and the Administrative Agent shall have received
pro forma computations satisfactory to them indicating that the
Consolidated Leverage Ratio at the end of the most recently ended period of
four fiscal quarters prior to the Closing Date for which financial
statements are available, giving pro forma effect to the Closing Date
Transactions as if they had occurred at the beginning of such period (and
reflecting such adjustments resulting from the Network Sale and the Network
Affiliation Agreement as shall have been reflected in the Pro Forma
Financial Information), shall have been not greater than 7.0 to 1.0.
(r) The Arrangers shall be satisfied that, after giving effect to the
Closing Date Transactions, the Borrower will have not less than $25,000,000
(subject to reduction by the amount of any outstanding principal balance
under the Existing Credit Facility on the Closing Date) of available
Revolving Credit Commitments to provide for its working capital needs.
(s) The terms on which the Closing Date Transactions shall have been
completed and the capitalization (including Indebtedness) of the Parent and
the Borrower after giving effect to the Closing Date Transactions shall be
consistent in all material respects with the pro forma financial statements
and projections provided to the Lenders prior to the date hereof
(including all updates of such projections provided to the Lenders prior to
the date hereof), giving effect to the assumptions on which such
projections are based.
ARTICLE V
Affirmative Covenants
Each of the Borrower and the Parent covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, it will, and will cause
each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties, Insurance. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses (including
FCC licenses), permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; maintain and
operate such business in substantially the manner in which it is presently
conducted and operated; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, Environmental Law,
ordinance, code or approval) and decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted; at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times; and
maintain, with financially sound and reputable insurance companies, insurance in
such amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations.
SECTION 5.02. Obligations and Taxes. Pay its material Indebtedness and
other material obligations promptly and in accordance with their terms and pay
and discharge promptly when due all
50
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that (a) such
payment and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and
(b) in the event the Borrower shall fail to make any payment required to be made
by it under this Section solely as a result of the blockage by the Collateral
Agent pursuant to Section 5(b) of the Pledge Agreement of dividends that would
otherwise have been paid by Subsidiaries, no further Event of Default shall
result from such failure.
SECTION 5.03. Financial Statements, Reports, etc. In the case of the Parent
and the Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, consolidated
balance sheets and related statements of operations, cash flows and
stockholders' equity showing the financial condition of the Parent and the
Borrower and their consolidated subsidiaries as of the close of such fiscal
year and the results of their operations and the operations of such
subsidiaries during such year and (with the exception of fiscal years prior
to 1999) the immediately preceding year, all audited by Deloitte & Touche
LLP or other independent public accountants of recognized national standing
acceptable to the Required Lenders and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to the
effect that such consolidated financial statements fairly present in all
material respects the financial condition and results of operations of the
Parent and the Borrower and their consolidated subsidiaries on a
consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, consolidated balance sheets and related
statements of operations, cash flows and stockholders' equity showing the
financial condition of the Parent and the Borrower and their consolidated
subsidiaries as of the close of such fiscal quarter and the results of
their operations and the operations of such subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year and during the
corresponding periods in the immediately preceding fiscal year (with the
exception of fiscal years prior to 1999), all certified by a Financial
Officer of the Borrower as fairly presenting in all material respects the
financial condition and results of operations of the Parent and the
Borrower and their consolidated subsidiaries on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments;
(c) within 60 days after the end of each fiscal quarter of each fiscal
year, a management report in form satisfactory to the Administrative Agent
setting forth the consolidating revenues of the Parent and the Borrower and
their consolidated subsidiaries for such quarter, the operating income
before depreciation and amortization for each Station during such quarter
and a summary report of the most recent Xxxxxxx ratings available for such
Stations;
(d) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of the accounting firm or
Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal interpretations
and, when furnished by a Financial Officer, may be qualified as being to
the knowledge of such Financial Officer) (i) certifying that no Event of
Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the financial covenants contained in
Article VI;
51
(e) concurrently with each delivery of financial statements under
paragraph (a) above, beginning with the financial statements for the fiscal
year ending December 31, 1999, a certificate of a Financial Officer in form
and detail satisfactory to the Administrative Agent setting forth a
calculation of Excess Cash Flow for the fiscal year to which such
statements relate;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Parent, the Borrower or any of the Subsidiaries with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or all
of the functions of said Commission, or with any national securities
exchange;
(g) 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 the Parent or any of the Subsidiaries,
if such reports indicate any material adverse change in the business,
operations or financial condition of the Parent or any of the Subsidiaries
or if copies thereof are requested by any Lender or the Administrative
Agent, and copies of any and all material notices and other material
communications from the FCC or from any other Federal, state or local
Governmental Authority with respect to the Parent or any of the
Subsidiaries or any Station; and
(h) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Parent, the
Borrower or any of the Subsidiaries, or compliance with the terms of any
Loan Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.04. Litigation and Other Notices. Furnish to the Administrative
Agent prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Parent, the Borrower or any Affiliate thereof that
could reasonably be expected to result in a Material Adverse Effect;
(c) the loss, suspension or material impairment of any FCC license
that is a full power station license or low power station license, or any
other material license, approval, certification or authorization granted by
any Governmental Authority; and
(d) any other development that in the judgment of the Borrower is
materially likely to result in a Material Adverse Effect.
SECTION 5.05. Employee Benefits. (a) Comply in all material respects with
the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent as soon as possible after, and in any event within 10 days
after any Responsible Officer of the Borrower or any ERISA Affiliate knows or
has reason to know that, any ERISA Event has occurred that, alone or together
with any other ERISA Events that have occurred could reasonably be expected to
result in liability of the Parent, the Borrower and/or the Subsidiaries in an
aggregate amount exceeding $5,000,000 or requiring payments exceeding
$1,000,000 in any year, a statement of a Financial Officer of the Borrower
setting forth details as to such ERISA Event and the action, if any, that the
Borrower proposes to take with respect thereto.
SECTION 5.06. Maintaining Records; Access to Properties and Inspections.
Keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all requirements of law are made of all dealings and
transactions in relation to its business and activities.
52
Subject to the provisions of Section 10.16, each Loan Party will, and will cause
each of the Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender to visit and inspect the financial records
and the properties of the Parent, the Borrower or any of the Subsidiaries at
reasonable times and as often as reasonably requested and to make extracts from
and copies of such financial records, and permit any representatives designated
by the Administrative Agent or any Lender to discuss the affairs, finances and
condition of the Parent, the Borrower or any of the Subsidiaries with the
officers thereof and independent accountants therefor.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.08. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and properties; obtain and renew all Environmental Permits necessary
for its operations and properties; and conduct any Remedial Action in accordance
with Environmental Laws; provided, however, that none of the Parent, the
Borrower or any of the Subsidiaries shall be required to undertake any
compliance or Remedial Action, nor shall the failure to undertake any such
compliance or Remedial Action constitute a Default, to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such
circumstances.
SECTION 5.09. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements) that may be required under applicable law, or that the Required
Lenders, the Administrative Agent or the Collateral Agent may reasonably
request, in order to cause the Guarantee Requirement and the Collateral
Requirement to be satisfied at all times.
(b) From time to time, at the request of the Administrative Agent or the
Required Lenders, take all such actions as the Collateral Agent shall reasonably
specify (taking into account all relevant factors, including the potential tax
consequences of any proposed action) to create and perfect Liens on any
properties or assets of the Parent, the Borrower or the Subsidiaries (other than
the Chicago Subsidiary and the Puerto Rican Subsidiary) that have substantial
value and are not subject to the Liens created by the Security Documents to
secure the Obligations.
SECTION 5.10. Hedging Arrangements. The Borrower will enter into, not
later than the 45th day following the Closing Date, and will thereafter maintain
in effect for a period of not less than two years, one or more Hedging
Agreements on customary terms the effect of which is to limit the weighted
average effective interest rate applicable to 50% of the initial principal
amount of the Term Loans to a rate not greater than 10% per annum.
ARTICLE VI
Negative Covenants
Each of the Borrower and the Parent covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn
53
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, it will not, and will not cause or permit any of
the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date hereof and
set forth in Schedule 6.01;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) the Senior Discount Notes;
(d) Indebtedness of the Borrower to any Wholly Owned Subsidiary and of
any Wholly Owned Subsidiary (other than a License Subsidiary) to the
Borrower or any other Wholly Owned Subsidiary;
(e) Guarantees by the Borrower of the Indebtedness of any Wholly Owned
Subsidiary;
(f) Indebtedness consisting of obligations of Telemundo of Chicago,
Inc. and Video 44 Acquisition Corp., Inc., each a Wholly Owned Subsidiary,
existing on the date hereof under the Chicago Subsidiary Partnership
Agreement;
(g) Indebtedness of the Borrower or any of its subsidiaries (other
than a License Subsidiary) consisting of (i) Capital Lease Obligations and
(ii) purchase money obligations in respect of real property or equipment,
in either case incurred in the ordinary course of business after the
Closing Date, and extensions, renewals and replacements of such Capital
Lease Obligations or purchase money obligations; provided that the
aggregate principal amount of the Capital Lease Obligations, purchase money
obligations and extensions, renewals and replacements thereof incurred
pursuant to this clause (g) and outstanding at any time shall not exceed
$15,000,000;
(h) Subordinated Indebtedness of the Borrower or the Parent not
prohibited by any other provision of this Agreement;
(i) Indebtedness of the Borrower created under Hedging Agreements
required under Section 5.10 or entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any Subsidiary
is exposed in the conduct of its business or the management of its
liabilities;
(j) obligations that constitute Indebtedness incurred, assumed or
guaranteed in the ordinary course of business under any Local Marketing
Agreement; provided, that the outstanding principal amount of any
Indebtedness incurred, assumed or guaranteed by the Parent, the Borrower or
any Subsidiary pursuant to any Local Marketing Agreement, together with the
aggregate amount of investments referred to in Section 6.04(g), shall not
exceed $10,000,000 at any time;
(k) Indebtedness of any subsidiary of the Borrower that existed at the
time such person became a subsidiary of the Borrower and that were not
incurred in contemplation of the acquisition by the Borrower or a
Subsidiary of such person;
(l) Indebtedness in respect of bid, performance and surety bonds
furnished by the Borrower and its subsidiaries in the ordinary course of
business;
(m) Extensions, renewals and replacements of Indebtedness permitted
under clauses (a), (c), (f) and (k) above to the extent the principal
amount of such Indebtedness is not increased, the weighted average life to
maturity of such Indebtedness is not decreased, such Indebtedness,
54
if subordinated to the Obligations, remains so subordinated on terms not
less favorable to the Lenders and the original obligors in respect of such
Indebtedness remain the only obligors thereon; and
(n) other unsecured Indebtedness of the Borrower in an aggregate
principal amount not exceeding $20,000,000.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect thereof, or assign or transfer any such income
or revenues or rights in respect thereof except:
(a) Liens on property or assets existing on the date hereof and set
forth in Schedule 6.02, and renewals, extensions and replacements of such
Liens; provided that such Liens and such extensions, renewals and
replacements shall extend only to those assets to which they extend on the
date hereof and shall secure only those obligations which they secure on
the date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any of the Subsidiaries; provided
that (i) such Lien is not created in contemplation of or in connection with
such acquisition and (ii) such Lien does not apply to any other property or
assets of the Parent, the Borrower or any of the Subsidiaries;
(d) Liens for taxes not yet due or which are being contested in
compliance with Section 5.02;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or that are being contested in
compliance with Section 5.02;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount
and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Borrower and the Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any of the Subsidiaries securing
Indebtedness permitted under Section 6.01(g); provided that (i) such
security interests secure Indebtedness permitted by Section 6.01, (ii) such
security interests are incurred, and the Indebtedness secured thereby is
created, within 90 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 90% of the lesser of the cost
or the fair market value of such real property, improvements or equipment
at
55
the time of such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of the Parent, the
Borrower or any of the Subsidiaries;
(j) Liens deemed to exist by virtue of the buyout provisions contained
in Sections 6 and 7 of the Chicago Subsidiary Partnership Agreement;
(k) the interests of lessors under Capital Leases permitted under
Section 6.01; and
(l) Liens inadvertently created by the Borrower or any Subsidiary
attaching to assets, and securing obligations, that in the aggregate for
all such assets and obligations are insignificant; provided that any such
Lien is discharged with reasonable promptness after any Responsible Officer
of the Borrower becomes aware of the same.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement
(other than facility and service sharing agreements entered into in connection
with the Network Sale), directly or indirectly, with any person whereby it shall
sell or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property which it intends to use for substantially the same
purpose or purposes as the property being sold or transferred.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire
any capital stock, evidences of Indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by the Parent and the Borrower existing on the date
hereof and set forth on Schedule 6.04 or resulting from the Merger;
(b) investments by the Borrower or any Subsidiary in, and loans and
advances by the Borrower or any Subsidiary to, the Borrower or any
Subsidiary;
(c) investments in joint ventures formed by the Borrower or a
Subsidiary and one or more other persons, including joint ventures formed
to develop, own and operate towers, antennae and similar structures to be
used in the businesses of the Borrower or a Subsidiary and such other
persons; provided that the aggregate amount of all such investments
existing at any time shall not exceed $20,000,000;
(d) loans and advances to employees in an aggregate amount outstanding
at any time not to exceed $1,000,000;
(e) investments received in settlement of obligations owed to the
Borrower or any Subsidiary in the ordinary course of business;
(f) deferred purchase price receivables arising out of transactions
entered into in the ordinary course of business by the Borrower or any
Subsidiary;
(g) investments in and loans to (i) persons with which the Borrower or
one or more Subsidiaries have entered into, or have entered into an
agreement giving them the right to enter into, Local Marketing Agreements
and (ii) persons organized pursuant to any such Local Marketing Agreement;
provided, that the aggregate amount of investments, loans and advances
permitted to be made or to exist at any time under this clause (g),
together with the aggregate amount of Indebtedness referred to in Section
6.01(j), shall not exceed $10,000,000;
(h) investments by the Borrower and its subsidiaries in Equity
Interests of persons that, upon the making of such investments, become
Wholly Owned Subsidiaries; provided that (i) if the Consolidated Leverage
Ratio at the most recent fiscal quarter end shall have been greater than or
equal to 3.50 to 1.00, the Borrower and its subsidiaries will not make any
such
56
investment that would result in the aggregate amount of such investments
exceeding $50,000,000, (ii) the ownership by the Borrower of such persons
is consistent with the requirements of Section 6.08, (iii) no Default
results from the making of any such investment and (iv) prior to the making
of any such investment the Borrower shall have delivered to the
Administrative Agent calculations demonstrating pro forma compliance with
the covenants contained in Sections 6.14, 6.15 and 6.16 as of the end of
and for the most recent period of four fiscal quarters for which financial
statements shall have been delivered pursuant to Section 5.03(a) or (b),
giving effect to such investment and the incurrence of any related
Indebtedness as if they had occurred at the beginning of such period;
(i) in the case of the Borrower or any Subsidiary, Permitted
Investments; and
(j) investments, loans or advances inadvertently made or agreed
to be made by the Borrower or any Subsidiary that in the aggregate for all
such investments, loans and advances are insignificant; provided that any
such investment, loan or advance is eliminated with reasonable promptness
after any Responsible Officer of the Borrower becomes aware of the same.
SECTION 6.05. Mergers, Consolidation and Sales of Assets. Merge into or
consolidate with any other person, or permit any other person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any substantial part of its
assets (whether now owned or hereafter acquired), or any full power Station or
related broadcast license, or any capital stock of any Subsidiary (other than
any Subsidiary the assets of which are limited to a lower-power Station, the
Station License therefor and assets directly related thereto), or permit any
Subsidiary to issue any shares of its capital stock to any person other than the
Borrower or another Subsidiary, or, except as expressly permitted under Section
6.04, purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person,
except that (a) the Borrower and any Subsidiary may complete the Network Sale,
including any adjustments to the assets transferred as part of the Network Sale
in accordance with the Network Sale Agreement, (b) the Borrower and any of the
Subsidiaries may purchase and sell inventory in the ordinary course of business,
(c) if at the time thereof and immediately after giving effect thereto no Event
of Default or Default shall have occurred and be continuing (i) any Subsidiary
(other than a License Subsidiary) may merge into the Borrower in a transaction
in which the Borrower is the surviving corporation, (ii) any Subsidiary (other
than a License Subsidiary that holds a license to broadcast in the continental
United States) may merge into or consolidate with any other Subsidiary in a
transaction in which the surviving entity is a Subsidiary and no person other
than the Borrower or a Subsidiary receives any consideration and (iii) any
License Subsidiary may merge into a newly formed corporation with no assets or
liabilities if (A) the surviving corporation is a License Subsidiary, (B) prior
to such merger the surviving corporation enters into such agreements as the
Administrative Agent reasonably requires assuming the obligations of the
original License Subsidiary under the Loan Documents and (C) immediately after
such merger the Collateral Requirement continues to be satisfied, and (d) the
Borrower or any Subsidiary may sell, transfer or otherwise dispose of assets
constituting all or a substantial part of its assets (including any full power
Station or related broadcast license, or any capital stock of any Subsidiary)
for cash in one or more arm's length transactions so long as (i) the proceeds of
any such sale are held and applied in accordance with the terms of this
Agreement and (ii) after giving effect to such sale, the aggregate amount of the
asset sales made by the Borrower and the Subsidiaries pursuant to this clause
(d) does not exceed $50,000,000 (or, if the Consolidated Leverage Ratio at the
end of the fiscal quarter most recently ended as of the time of such sale shall
be below 5.0 to 1.0, $150,000,000).
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any shares of its capital stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value (or permit any Subsidiary to purchase or
acquire) any shares of any class of its capital stock or set aside any amount
for any such purpose; provided, however, that (i) any Subsidiary may declare and
pay dividends or make other distributions ratably on its Equity Interests, (ii)
the Chicago
57
Subsidiary may make distributions required to be made under the terms of the
Chicago Subsidiary Partnership Agreement as in effect on the date hereof, (iii)
so long as no Default or Event of Default shall have occurred and be continuing
or would result therefrom, the Parent may purchase employee stock options (or
shares of its capital stock issued or to be issued pursuant to employee stock
options) to the extent such options were granted in the ordinary course of
business and (iv) so long as no Default or Event of Default shall have occurred
and be continuing or would result therefrom, the Borrower will be permitted to
pay cash dividends to the Parent in the amounts and at the times required in
order that the Parent may (x) perform its obligations in respect of interest
payable on the Senior Discount Notes (y) pay taxes in respect of the
consolidated group consisting of the Parent and the Subsidiaries and (z) pay
operating expenses in an amount not to exceed $1,000,000 during any period of
four fiscal quarters.
(b) Permit any Subsidiary, directly or indirectly, to create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any such Subsidiary to (i) pay any dividends or make any other
distributions on its capital stock or any other equity interest or (ii) make or
repay any loans or advances to the Borrower or to any other Subsidiary.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any property
or assets to, or purchase or acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates (other than the
Borrower or any Subsidiary), except that the Parent, the Borrower or any
Subsidiary may engage in any of the foregoing transactions at prices and on
terms and conditions not less favorable to the Parent, the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties. Notwithstanding anything in the foregoing sentence to the contrary,
the Borrower and the Subsidiaries may perform the terms of the Network
Affiliation Agreement.
SECTION 6.08. Business of Parent and Subsidiaries. (a) In the case of the
Parent, own any capital stock or other equity interest in any person other than
the Borrower, or engage at any time in any business or business activity other
than the ownership of the capital stock of the Borrower and activities
reasonably related thereto.
(b) In the case of the Borrower and its subsidiaries, engage at any time
in any business or business activity other than the ownership and operation of
Spanish language television stations and business activities reasonably related
thereto; provided, that the Borrower and its subsidiaries may engage in the
ownership and operation of other Spanish language media and business activities
reasonably related thereto so long as the assets employed in or related to all
activities referred to in this proviso account for less than 10% of the
consolidated assets of the Borrower; provided further that the Borrower and its
subsidiaries may continue to own their interest in Conus Communications, L.P., a
Minnesota Limited Partnership.
SECTION 6.09. Amendment of Material Documents. (a) Amend, modify or waive
in any material respect the Stockholders' Agreement, the Network Affiliation
Agreement, the Senior Discount Note Indenture or any instrument or document
governing Indebtedness with an outstanding principal balance in excess of
$25,000,000 if any such amendment, modification or waiver, taken together with
any related amendments, modifications or waivers, could reasonably be expected
to be materially adverse to the Parent or the Borrower or to the rights or
interests of the Lenders.
(b) Cause or permit the termination of any Affiliation Agreement between
the Network Company and any full power Station entered into pursuant to the
Network Affiliation Agreement, which termination could reasonably be expected to
result in a Material Adverse Effect (excluding from clause (b) of the definition
of Material Adverse Effect, however, the validity or enforceability of such
terminated Affiliation Agreement), which determination shall be made by the
Required Lenders.
SECTION 6.10. Prepayments, Redemptions and Repurchases of Debt. (a) Make
any payment, whether in cash, property, securities or a combination thereof in
respect of, or pay, or offer or commit to pay, or otherwise directly or
indirectly redeem, repurchase, retire or otherwise acquire for consideration or
defease, any Indebtedness for borrowed money or Capital Lease Obligation (other
than Indebtedness under the Loan Documents, any of the Company's Senior Notes
due 2006 not acquired by
58
the Company in connection with the Refinancing and intercompany Indebtedness) of
the Parent, the Borrower or any of the Subsidiaries, or set apart any sum for
the aforesaid purposes, except that the Borrower and the Subsidiaries may make
scheduled or mandatory payments of principal, interest or Capital Lease
Obligations as and when due (to the extent not prohibited by applicable
subordination provisions).
(b) Prepay, redeem, repurchase, retire or otherwise acquire for
consideration or defease the Puerto Rican Notes or any principal amount thereof;
provided that the Puerto Rican Notes may be prepaid if the Borrower in good
faith determines such prepayment to be advisable in the conduct of its business.
SECTION 6.11. Collateral and Guarantee Requirements. Take any action that
would result in the Collateral Requirement or the Guarantee Requirement not
being satisfied; provided, that the Borrower may transfer assets used by its
Puerto Rican Station from the Domestic Subsidiary in which they are held at the
Closing Date if (a) such assets shall be transferred to either (i) the Puerto
Rican Subsidiary or (ii) a newly formed Puerto Rican subsidiary of the Borrower,
(b) 65% of the voting capital stock and 100% of the non-voting capital stock of
any such newly formed Puerto Rican subsidiary shall have been pledged to the
Collateral Agent pursuant to the Pledge Agreement and substantially all the
equity interest in such Puerto Rican subsidiary shall be represented by the
shares of its non-voting capital stock and (c) such assets shall be held in a
corporate structure reasonably satisfactory to the Collateral Agent.
SECTION 6.12. Fiscal Year. Change the end of its fiscal year from December
31 to any other date.
SECTION 6.13. Certain Changes in Ownership or Control. Permit any change
to occur in the ownership or control of the Parent that (a) would violate the
foreign ownership provisions of the Federal Communications Act, the FCC's cross-
interest regulations or any other provisions of the Federal Communications Act
or FCC regulations and (b) could reasonably be expected, in the judgment of the
Arrangers or the Required Lenders, to result in (i) the required divestiture of
any Station or any other material assets of the Borrower and its subsidiaries,
(ii) material restrictions on the operation of the business of the Borrower, any
material subsidiary of the Borrower or any full-power Station, (iii) a material
adverse effect on any full-power Station License or (iv) any other consequence
that would materially and adversely affect the Borrower or the rights or
interests of the Lenders.
SECTION 6.14. Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio at any time during any period beginning on a date set forth below
and ending on the day immediately preceding the next such date to be in excess
of the ratio set forth below opposite such initial date:
Date Ratio
---- -----
September 30, 1998 7.00
December 31, 1998 7.00
March 31, 1999 7.00
June 30, 1999 7.00
September 30, 1999 7.00
December 31, 1999 7.00
March 31, 2000 6.75
June 30, 2000 6.50
September 30, 2000 6.25
December 31, 2000 6.00
March 31, 2001 5.50
June 30, 2001 5.00
September 30, 2001 5.00
59
December 31, 2001 4.50
March 31, 2002 4.50
June 30, 2002 4.50
September 30, 2002 4.50
December 31, 2002 4.50
Each quarter end thereafter 4.50
SECTION 6.15. Consolidated Interest Expense Coverage Ratio. Permit the
Consolidated Interest Expense Coverage Ratio for any four-fiscal-quarter period
ending on any date set forth below to be less than the ratio set forth below
opposite such date.
Date Ratio
---- -----
December 31, 1998 1.60
March 31, 1999 1.60
June 30, 1999 1.60
September 30, 1999 1.60
December 31, 1999 1.60
March 31, 2000 1.70
June 30, 2000 1.80
September 30, 2000 1.80
December 31, 2000 1.80
March 31, 2001 2.00
June 30, 2001 2.00
September 30, 2001 2.25
December 31, 2001 2.25
March 31, 2002 2.25
June 30, 2002 2.25
September 30, 2002 2.25
December 31, 2002 2.25
Each quarter end thereafter 2.25
SECTION 6.16. Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any four-fiscal-quarter period
ending on any date set forth below to be less than the ratio set forth below
opposite such date.
Date Ratio
---- -----
December 31, 1998 1.00
March 31, 1999 1.00
June 30, 1999 1.00
September 30, 1999 1.00
December 31, 1999 1.00
March 31, 2000 1.05
June 30, 2000 1.05
60
September 30, 2000 1.05
December 31, 2000 1.05
March 31, 2001 1.10
June 30, 2001 1.10
September 30, 2001 1.15
December 31, 2001 1.15
March 31, 2002 1.15
June 30, 2002 1.15
September 30, 2002 1.15
December 31, 2002 1.15
Each quarter end thereafter 1.15
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the Borrowings or issuances of Letters
of Credit hereunder, or any representation, warranty, statement or
information made, deemed made or furnished in connection with or pursuant
to any Loan Document shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan
or any reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or L/C Disbursement or of any Fee or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied
for a period of three Business Days;
(d) default shall be made in the due observance or performance by the
Parent, the Borrower or any of the Subsidiaries of any covenant, condition
or agreement contained in Section 5.01(a) (insofar as such default relates
to the Parent or the Borrower), 5.04 or 5.07 or in Article VI (and, in the
case of any default under Section 6.02 that results from the imposition of
a non-consensual Lien and does not involve significant assets of the
Parent, the Borrower or any Subsidiary, such default shall continue
unremedied for a period of 30 days after the Parent, the Borrower or any
Subsidiary obtains knowledge thereof);
(e) default shall be made in the due observance or performance by the
Parent, the Borrower or any of the Subsidiaries of any covenant, condition
or agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent or any
Lender to the Borrower;
(f) (i) the Parent, the Borrower or any of the Subsidiaries shall
fail to pay any principal or interest due in respect of any Indebtedness in
a principal amount in excess of $5,000,000, when and as the same shall
become due and payable, or (ii) the Parent, the Borrower or any of the
Subsidiaries shall fail to observe or perform any other term, covenant,
condition or agreement
61
contained in any agreement or instrument evidencing or governing any such
Indebtedness, or any other event or condition shall occur, if the effect of
any failure or other event or condition referred to in this clause (ii) is
to cause, or to permit the holder or holders of such Indebtedness or a
trustee on its or their behalf to cause, such Indebtedness to become due or
to be required to be repurchased or redeemed prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Parent, the Borrower or any of the Subsidiaries,
or of a substantial part of the property or assets of the Parent, the
Borrower or a Subsidiary, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Parent, the Borrower or any of the Subsidiaries or for a
substantial part of the property or assets of the Parent, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of the Parent, the
Borrower or any of the Subsidiaries; and such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(h) the Parent, the Borrower or any of the Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of
any petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Parent, the Borrower or any of the Subsidiaries or
for a substantial part of the property or assets of the Parent, the
Borrower or any of the Subsidiaries, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting
any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 in the aggregate shall be rendered against
the Parent, the Borrower, any of the Subsidiaries or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Parent, the Borrower or any of the Subsidiaries
to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events,
could reasonably be expected to result in liability of the Parent, the
Borrower and its ERISA Affiliates in an aggregate amount exceeding
$5,000,000 or to require payments exceeding $3,000,000 in any year;
(k) any Guarantee purported to be created hereunder or under the
Subsidiary Guarantee Agreement shall cease to be, or shall be asserted by
any Loan Party not to be, a valid and enforceable Guarantee of the
Obligations, or any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by any Loan Party
not to be, a valid, perfected, first priority (except as otherwise
expressly provided in this Agreement or such Security Document) security
interest in the securities, assets or properties covered thereby, except to
the extent that any such loss of perfection or priority results from the
failure of the Collateral Agent to maintain possession of certificates
representing securities pledged under the Pledge Agreement;
(l) any Station License held by the Borrower or any Subsidiary with
respect to any full power Station shall have been terminated, shall not
have been renewed prior to the expiration thereof or shall have been
renewed on terms materially adverse to the holder thereof, or any full
62
power Station shall fail to maintain a substantially continuous broadcast
signal for a period of more than five days (or 10 days if such failure
relates to the conversion of such Station to digital television);
(m) there shall have occurred a Change in Control; or
(n) The group consisting of (i) Liberty and SPE and their respective
Controlled Affiliates taken together, (ii) any person all of the Equity
Interests in which are owned by Liberty and SPE and their respective
Controlled Affiliates taken together, and (iii) any person a majority of
the Equity Interests in which are owned by Liberty and SPE and their
respective wholly owned Controlled Affiliates taken together shall not own,
directly or indirectly, Equity Interests representing at least 50% of the
equity and aggregate ordinary voting power represented by the outstanding
Equity Interests of the Network Company;
then, and in every such event (other than an event with respect to the Parent or
the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to the Parent or the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII. THE AGENTS
In order to expedite the transactions contemplated by this Agreement,
Credit Suisse First Boston is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Bank (for purposes
of this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each
assignee of any such Lender hereby irrevocably authorizes the Agents to take
such actions on behalf of such Lender or assignee or the Issuing Bank and to
exercise such powers as are specifically delegated to the Agents by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Issuing Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Issuing Bank all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender or the Issuing
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Parent, the Borrower or any other Loan Party pursuant to this Agreement or the
other Loan Documents as received by the Administrative Agent. Without limiting
the generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including
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releases) with respect to the Collateral and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Parent, the Borrower or
any other Loan Party on account of the failure of or delay in performance or
breach by any Lender or the Issuing Bank of any of its obligations hereunder or
to any Lender or the Issuing Bank on account of the failure of or delay in
performance or breach by any other Lender or the Issuing Bank or the Parent, the
Borrower or any other Loan Party of any of their respective obligations
hereunder or under any other Loan Document or in connection herewith or
therewith. Each of the Agents may execute any and all duties hereunder by or
through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 10.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any of the
Subsidiaries or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of
its pro rata share (based on the amount of its Loans and available commitments
hereunder) of any expenses incurred for the benefit of the Lenders by the
Agents, including reasonable counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, that shall not
have been reimbursed by the Borrower and (b) to indemnify and hold harmless each
Agent and any of its directors, officers, employees or agents, on demand, in the
amount of such pro rata share, from and against any and all
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liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against it in its capacity as Agent
or any of them relating to or arising out of this Agreement or any other Loan
Document or action taken or omitted by it or any of them under this Agreement or
any other Loan Document, to the extent the same shall not have been reimbursed
by the Borrower or any other Loan Party; provided that no Lender shall be liable
to an Agent or any such other indemnified person for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Agent or any of its directors, officers,
employees or agents. Each Revolving Credit Lender agrees to reimburse each of
the Issuing Bank and its directors, officers, employees and agents, in each
case, to the same extent and subject to the same limitations as provided above
for the Agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
Each Lender acknowledges and agrees that the Documentation Agent will have
no duties or responsibilities hereunder or under the other Loan Documents.
ARTICLE IX. GUARANTEE
To induce the Lenders to make the Loans and the Issuing Bank to issue
Letters of Credit, the Parent hereby unconditionally and irrevocably guarantees,
as a primary obligor and not merely as a surety, the due and punctual payment
and performance of all the Obligations. Each and every default in payment of the
principal of and premium, if any, or interest on any Obligation shall give rise
to a separate cause of action hereunder, and separate suits may be brought
hereunder as each cause of action arises.
The Parent waives presentation to, demand of payment from and protest
to the Borrower of any of the Obligations, and also waives notice of acceptance
of this Guarantee and notice of protest for nonpayment and all other
formalities. The obligations of the Parent hereunder shall not be discharged or
impaired or otherwise affected by (a) the failure or delay of any Secured Party
to assert any claim or demand or to enforce any right or remedy against any Loan
Party under the provisions of any Loan Document or otherwise; (b) any extension
or renewal of any of the Obligations; (c) any rescission, waiver, amendment or
modification of, or any release from, any of the terms or provisions of any Loan
Document, any guarantee or any other agreement or instrument; (d) the release of
(or the failure to perfect a security interest in) any security held by any
Secured Party for the performance of the Obligations or any of them; (e) the
failure or delay of any Secured Party to exercise any right or remedy against
any other guarantor of the Obligations; (f) the failure of any Secured Party to
assert any claim or demand or to enforce any remedy under any Loan Document, any
guarantee or any other agreement or instrument; (g) any default, failure or
delay, wilful or otherwise, in the performance of the Obligations; or (h) any
other act, omission or delay to do any other act which may or might in any
manner or to any extent vary the risk of the Parent or otherwise operate as a
discharge of the Parent as a matter of law or equity or which would impair or
eliminate any right of the Parent to subrogation.
The Parent further agrees that this Guarantee constitutes a guarantee
of payment when due and not of collection, and waives any right to require that
any resort be had by any Secured Party to any security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
any Secured Party in favor of the Borrower or any other person.
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The obligations of the Parent hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise.
The Parent further agrees that this Guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time any payment, or
any part thereof, on any Obligation is rescinded or must otherwise be restored
by any Secured Party upon the bankruptcy or reorganization of the Borrower or
otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Secured Party may have at law or in equity against the Parent by
virtue hereof, upon the failure of the Borrower to pay any Obligation when and
as the same shall become due, whether at maturity, by acceleration, after notice
of prepayment or otherwise, the Parent hereby promises to and will, upon receipt
of written demand by any Lender, forthwith pay, or cause to be paid, to the
Administrative Agent for distribution to the Secured Parties in cash an amount
equal to the sum of (i) the unpaid principal amount of such Obligations then
due, (ii) accrued and unpaid interest and fees on such Obligations and (iii) all
other monetary Obligations then due.
Upon payment by the Parent of any sums to the Secured Parties
hereunder, all rights of the Parent against the Borrower arising as a result
thereof shall in all respects be subordinate and junior in right of payment to
the prior indefeasible payment in full of all the Obligations and, if any
payment shall be made to the Parent on account of such rights prior to the
indefeasible payment in full of all the Obligations, such payment shall
forthwith be paid to the Administrative Agent to be credited and applied against
the Obligations to the extent necessary to discharge such Obligations. Upon
payment by the Parent of the sums to the Administrative Agent hereunder, subject
to the indefeasible payment in full of all the Obligations, the Parent shall be
subrogated to the rights of the Secured Parties to receive payments of the
Obligations.
The Parent waives notice of and hereby consents to any agreements or
arrangements whatsoever by the Secured Parties with any other person pertaining
to the Obligations, including agreements and arrangements for payment,
extension, subordination, composition, arrangement, discharge or release of the
whole or any part of the Obligations, or for the discharge or surrender of any
or all security, or for compromise, whether by way of acceptance of part payment
or otherwise, and the same shall in no way impair the Parent's liability
hereunder. Nothing shall discharge or satisfy the liability of the Parent
hereunder except the full performance and payment of the Obligations.
Each reference herein to any Secured Party shall be deemed to include
their or its successors and assigns, in whose favor the provisions of this
Guarantee shall also inure.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other communications provided for
herein and in the other Loan Documents shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at Telemundo Group, Inc., 0000 Xxxx
0xx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx XX, CFO and
Treasurer (Fax No. (000)-000-0000), with a copy to Telemundo Group,
Inc., 0000 Xxxx 0xx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxx X.
Xxxxxx, Vice President, General Counsel and Secretary (Fax No. (305)
889-7980);
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(b) if to the Administrative Agent, to Credit Suisse First Boston,
Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxxxx Xxxxxx
(Fax No. (000) 000-0000); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01; provided, that each notice under Article II will be delivered by
hand or overnight courier service or sent by telecopy.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Parent, the Borrower and the
Subsidiaries herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and the
Issuing Bank and shall survive the making by the Lenders of the Loans and the
issuance of Letters of Credit by the Issuing Bank, regardless of any
investigation made by the Lenders or the Issuing Bank or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount payable under this
Agreement or any other Loan Document is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not been terminated.
The provisions of Sections 2.14, 2.16, 2.20, 10.05 and 10.16 shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank.
SECTION 10.03. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
SECTION 10.04. Successors and Assigns. (a) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Parent, the Borrower, the Administrative
Agent, the Issuing Bank or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of any or all of its Commitments and the Loans at the time owing to it);
provided, however, that (i) except in the case of an assignment to another
Lender or an Affiliate or Related Fund of the assigning Lender or another
Lender, (x) the Borrower, unless an Event of Default shall have occurred and be
continuing, and the Administrative Agent (and, in the case of any assignment of
a Revolving Credit Commitment, the Issuing Bank) must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld)
and (y) the amount of the Revolving Credit Commitment and the Term Loan
Commitment or outstanding Term Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 in the aggregate (or, if less, the entire remaining
amount of such Lender's Revolving Credit Commitment or outstanding Term Loans)
and (ii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon accep-
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tance and recording pursuant to paragraph (e) of this Section 10.04 and payment,
from and after the effective date specified in each Assignment and Acceptance,
which effective date shall be at least five Business Days after the execution
thereof, (A) the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.16, 2.20 and 10.05, as well as to any Fees accrued
for its account and not yet paid, and to be bound by the provisions of Section
10.16).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitments and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Parent, the Borrower or any of the
Subsidiaries or the performance or observance by the Parent, the Borrower or any
of the Subsidiaries of any of its obligations under this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto;
(iii) such assignee represents and warrants that it is legally authorized to
enter into such Assignment and Acceptance; (iv) such assignee confirms that it
has received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) or delivered pursuant to
Section 5.03 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent and the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agent and the Collateral Agent,
respectively, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its offices in The
City of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive and the Parent, the Borrower, the Administrative
Agent, the Issuing Bank, the Collateral Agent and the Lenders may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register and any Assignments and Acceptances delivered to the
Administrative Agent pursuant to this Section 10.04(d) shall be available for
inspection by the Borrower, the Issuing Bank, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), a processing and recordation fee of $3,500 (which shall be
paid by the assigning Lender and such assignee as they may agree) and, if
required, the written consent of the Borrower, the Issuing Bank and the
Administrative Agent to such assignment, the
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Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower, Lenders and the Issuing Bank. No assignment
shall be effective unless it has been recorded in the Register as provided in
this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing Bank
or the Administrative Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.14, 2.16 and 2.20, and shall be bound by the
confidentiality provisions contained in Section 10.16, to the same extent as is
such Lender and (iv) the Borrower, the Administrative Agent, the Issuing Bank
and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans or L/C Disbursements and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans, increasing or extending the Commitments or
releasing all or substantially all the Guarantors or the Collateral). All
amounts payable by the Borrower to any Lender hereunder in respect of any Loan
and the applicability of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 shall be determined as if such Lender had not sold or agreed
to sell any participation in such Loan, and as if such Lender were funding the
participated portion of such Loan in the same way that it is funding the portion
of such Loan in which no participation has been sold.
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Parent, Borrower or the Sponsors; provided that, prior to
any such disclosure of information designated by the Borrower as confidential,
each such assignee or participant or proposed assignee or participant shall
execute an agreement whereby such assignee or participant shall agree (subject
to customary exceptions) to preserve the confidentiality of such confidential
information on terms no less restrictive than those applicable to the Lenders
pursuant to Section 10.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to the Borrower by the assigning Lender
hereunder.
(i) The Borrower shall not assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, the
Issuing Bank and each Lender, and any attempted assignment without such consent
shall be null and void.
(j) In the event that S&P, Xxxxx'x and Xxxxxxxx'x BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender
becomes a Revolving Credit Lender, downgrade the long-term certificate deposit
ratings of such Lender, and the resulting ratings shall be below BBB-, Baa3 and
C (or BB, in the case of a Lender that is an insurance company (or B, in the
case of an insurance company not rated by InsuranceWatch Ratings Service)), then
the Issuing Bank shall have the right, but not the obligation, at its own
expense, upon notice to such Lender and the Administrative Agent, to replace (or
to request the Borrower to use its
69
reasonable efforts to replace) such Lender with an assignee (in accordance with
and subject to the restrictions contained in paragraph (b) above), and such
Lender hereby agrees to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in paragraph (b) above) all its
interests, rights and obligations in respect of its Revolving Credit Commitment
to such assignee; provided, however, that (i) no such assignment shall conflict
with any law, rule and regulation or order of any Governmental Authority and
(ii) the Issuing Bank or such assignee, as the case may be, shall pay to such
Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay upon
request all out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent and the Issuing Bank in connection with the syndication of the
credit facilities provided for herein and the preparation and administration of
this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby or thereby contemplated shall be
consummated) or incurred by the Administrative Agent, the Collateral Agent or
any Lender in connection with the enforcement (including in connection with the
negotiation of any restructuring or "work out" (whether or not consummated) of
the Obligations) or protection of its rights in connection with this Agreement
and the other Loan Documents or in connection with the Loans made or Letters of
Credit issued hereunder, including the fees, charges and disbursements of
Cravath, Swaine & Xxxxx, counsel for the Administrative Agent and the Collateral
Agent and, in connection with any such enforcement or protection, the fees,
charges and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender and the Issuing Bank, each Affiliate of any of the
foregoing persons and each of their respective directors, officers, employees,
agents and controlling persons (each such person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated thereby, (ii) the use of the proceeds of the
Loans or issuance of Letters of Credit, (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release
of Hazardous Materials on any property owned, leased or operated by the Borrower
or any of the Subsidiaries, or any Environmental Claim related in any way to the
Borrower or the Subsidiaries; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee. In connection with any
claim, litigation, investigation or proceeding referred to in the preceding
sentence, the Indemnitees will endeavor to avoid duplication of effort and
expense by employing common counsel (including special or local counsel, where
required), which shall be nominated by the Administrative Agent (or, if the
Administrative Agent shall not be a party or prospective party to such claim,
litigation, investigation or proceeding, by the Lender party thereto with the
largest credit exposure or potential credit exposure hereunder), it being
understood that an Indemnitee will in any event be entitled to separate counsel
(i) if such Indemnitee may have defenses available to it that are different from
or potentially inconsistent with defenses that may be asserted by other
Indemnitees, (ii) if the representation by a single counsel of such Indemnitee
and other Indemnitees would otherwise be inappropriate due to actual or
potential differences in the interests of the Indemnitees or (iii) if the
Borrower shall agree to the retention of separate counsel.
(c) The provisions of this Section 10.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this
70
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, any Lender or the Issuing
Bank. All amounts due under this Section 10.05 shall be payable on written
demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Parent or the Borrower against any of and all the
obligations of the Parent and the Borrower now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of
each Lender under this Section 10.06 are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the Parent,
the Borrower, the Administrative Agent, the Collateral Agent, any Lender or the
Issuing Bank in exercising any power or right hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Parent, the Borrower, the Administrative Agent, the Collateral Agent, the
Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Parent, the Borrower or any other
Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Parent or the Borrower in any case shall entitle the
Parent or the Borrower to any other or further notice or demand in similar or
other circumstances.
(b) None of this Agreement or any other Loan Document or any provision
hereof or thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Parent, the Borrower and
the Required Lenders (and, in the case of any other Loan Document, any other
person whose consent is required thereunder); provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Loan or any fees or any date for reimbursement of an L/C Disbursement, or
waive or excuse any such payment or any part thereof, amend or modify the
provisions of Section 2.09(c) or 2.13 (a), amend or modify the definition of the
term "Revolving Credit Reduction Date" or the term "Revolving Credit Maturity
Date",or decrease the rate of interest on any Loan or L/C Disbursement or any
fees, without the prior written consent of each Lender affected thereby, (ii)
change or extend the Commitment or decrease or extend the date for payment of
the Commitment Fees of any Lender without the prior written consent of such
Lender, (iii) amend or modify the provisions of Section 2.17, 2.18 or 10.04(i),
the provisions of this Section or the definition of the term "Required Lenders"
or release any Guarantors (other than pursuant to a permitted sale or
liquidation of such Guarantor) or all or any substantial part of the Collateral
without the prior written
71
consent of each Lender, (iv) except as provided in Section 2.13(i), waive or
change the allocation between Tranche A Term Loans and Tranche B Term Loans of
any prepayment pursuant to Section 2.12 or 2.13 without the prior written
consent of Lenders holding more than 50% of the aggregate outstanding principal
amount of the Tranche A Term Loans and more than 50% of the aggregate
outstanding principal amount of the Tranche B Term Loans or (v) amend Section
2.13(i) without the prior written consent of the Lenders holding a majority of
the aggregate outstanding principal amount of the Tranche B Term Loans; provided
further that (i) no such agreement that by its terms adversely affects the
rights of the Revolving Credit Lenders, the Tranche A Lenders or the Tranche B
Lenders in a manner different from its effect on the other classes of Lenders
shall become effective unless approved by a majority in interest of each class
of Lenders so adversely affected and (ii) no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, the
Collateral Agent or the Issuing Bank hereunder or under any other Loan Document
without the prior written consent of the Administrative Agent, the Collateral
Agent or the Issuing Bank. Notwithstanding the foregoing, if the Borrower shall
request the release of any Collateral (i) to be sold as part of any Asset Sale
and shall deliver to the Collateral Agent a certificate to the effect that such
Asset Sale and the disposition of the proceeds thereof will comply with the
terms of this Agreement, (ii) for transfer to the Network Company by reason of
an adjustment to the assets transferred as part of the Network Sale in
accordance with the Network Sale Agreement and shall deliver to the Collateral
Agent a certificate to the effect that such transfer will comply with the terms
of this Agreement and the Network Sale Agreement or (iii) in connection with the
transfer of assets to or the merger of any Subsidiary into a Foreign Subsidiary
in accordance with this Agreement and shall deliver to the Collateral Agent a
certificate to the effect that such transfer or merger will comply with the
terms of this Agreement, the Collateral Agent, if satisfied that the applicable
certificate is correct, shall, without the consent of any Lender, execute and
deliver all such instruments as may be required to effect the release of such
Collateral.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
10.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 10.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any other previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement and the
other Loan Documents. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the
parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS
72
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11.
SECTION 10.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 10.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 10.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) Each of
the Parent and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Parent, the Borrower or their
properties in the courts of any jurisdiction.
(b) Each of the Parent and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 10.16. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its best efforts to cause its respective agents and representatives to
keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information in connection with the performance of their duties
related to the Loan Documents and the transactions contemplated thereby or the
legal and regulatory compliance requirements of the Administrative Agent, the
Collateral Agent, the Issuing Bank or such
73
Lender, as the case may be, (b) to the extent requested by any regulatory
authority, including the National Association of Insurance Commissioners or any
successor entity thereto, (c) to the extent otherwise required by applicable
laws and regulations or by any subpoena or similar legal process, (d) in
connection with any suit, action or proceeding (i) relating to the enforcement
of its rights hereunder or under the other Loan Documents or (ii) for purposes
of establishing a "due diligence" defense, (e) 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 provisions of
this Section 10.16) or (f) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 10.16 or (ii)
becomes available to the Administrative Agent, the Issuing Bank, any Lender or
the Collateral Agent on a nonconfidential basis from a source other than the
Borrower; provided, however, that the Administrative Agent, the Collateral
Agent, the Issuing Bank and/or any Lender, as the case may be, shall (to the
extent it may lawfully do so) provide the Borrower, to the extent practicable,
with advance notice of any disclosure of information referred to in clauses (c)
and (d) above. For the purposes of this Section, "Information" shall mean all
financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by the Administrative
Agent, the Collateral Agent, the Issuing Bank or any Lender based on any of the
foregoing and including any budget, programming and program scheduling
information) that are received from the Parent, the Borrower, any Subsidiary or
the Network Company and related to the Parent, the Borrower, any Subsidiary or
the Network Company, other than any of the foregoing that were available to the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Parent, the
Borrower or any Subsidiary, and that are in the case of Information provided
after the date hereof, clearly identified at the time of delivery as
confidential or of such a nature that a prudent person would expect such
Information to be confidential. The provisions of this Section 10.16 shall
remain operative and in full force and effect regardless of the expiration and
term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TLMD ACQUISITION CO.,
by
/s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
TELEMUNDO HOLDINGS, INC.,
by
/s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
74
CREDIT SUISSE FIRST BOSTON, individually and as
Administrative Agent, Collateral Agent and Issuing Bank,
by
/s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name:Xxxxxx X. Xxxxx
Title:Director
by
/s/ Xxxxx X. Xxxxxx
--------------------------------------------------
Name:Xxxxx X. Xxxxxx
Title:Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
individually and as Documentation Agent,
by
/s/ Xxxxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: CIBC Xxxxxxxxxxx Corp., AS AGENT
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Xxxx X. Judge
-----------------------------------------------------
Name: Xxxx X. Judge
Title: Vice President
CREDIT AGRICOLE INDOSUEZ,
by
/s/ Xxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxx
Title: First Vice President
by
/s/ Xxxx XxXxxxxxx
--------------------------------------------------
Name: Xxxx XxXxxxxxx
Title: Vice President, Team Leader
BANKBOSTON, N.A.,
by
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
SOCIETE GENERALE,
by
/s/ Xxxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ Xxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatorie
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE,
by
/s/ Xxxxx X'Xxxxx
---------------------------------------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
by
/s/ Xxxxxxx Xxxx
------------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
THE FUJI BANK LIMITED, LOS ANGELES AGENCY,
by
/s/ Xxxxxxxxx Xxxxx
---------------------------------------------------
Name :Xxxxxxxxx Xxxxx
Title: Joint General Manager
THE LONG-TERM CREDIT BANK OF JAPAN, LTD. LOS
ANGELES AGENCY,
by
/s/ Koh Xxxxxxxx
---------------------------------------------------
Name: Koh Xxxxxxxx
Title: General Manager
76
NATEXIS BANQUE, BFCE
by
/s/ Xxxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
by
/s/ Xxxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: VP-Group Manager
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST,
by
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice Pres. & Director
KZH-ING-2 CORPORATION,
by
/s/ Xxxxxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH-SOLEIL CORPORATION,
by
/s/ Xxxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Agent
PILGRIM AMERICA PRIME RATE TRUST,
by Pilgrim America Investments, Inc. as its Investment
Manager
by
/s/ Xxxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
KZH HOLDING CORPORATION III,
by
/s/ Xxxxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
77
GCB INVESTMENT PORTFOLIO,
by Citibank, N.A.
by
/s/ Xxxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
ORIX USA CORPORATION,
by
/s/ Xxxxxxxx Xxxxxxxx
---------------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Executive Vice President
KZH-CYPRESSTREE-1 CORPORATION,
by
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
CYPRESSTREE INVESTMENT FUND, LLC,
by CypressTree Investment Management Company, Inc., its
Managing Member
by
/s/ Xxxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.,
as Attorney-in-Fact and on behalf of First Allmerica
Financial Life Insurance Company as Portforlio Manager
by
/s/ Xxxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
