EXHIBIT 10.48
THIS NOTE AND THE OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATED IN THE
MANNER AND TO THE EXTENT SET FORTH IN THE SUBORDINATED NOTE AGREEMENT (THE
"NOTE AGREEMENT"), DATED AS OF AUGUST 29, 1997. EACH HOLDER OF THIS NOTE,
BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE NOTE
AGREEMENT.
SUBORDINATED PROMISSORY NOTE
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No. A-1
$345,513,864.31 August 29, 1997
FOR VALUE RECEIVED, the undersigned, Fox Kids Worldwide, Inc., a Delaware
corporation, having an office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Borrower"), hereby promises to pay to the order of News America Holdings
Incorporated, a Delaware corporation (the "Lender"), having an office at ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or registered assigns, in lawful
money of the United States, by wire transfer in immediately available federal
funds, the principal amount of Three Hundred Forty Five Million Five Hundred
Thirteen Thousand Eight Hundred Sixty Four Dollars and Thirty One Cents
($345,513,864.31), loaned by Lender to Borrower pursuant to the Subordinated
Note Agreement dated August 29, 1997, among Borrower, Lender and Citicorp USA,
Inc. (as amended and modified from time to time, the "Note Agreement"), together
with additions to such principal amount and interest thereon as set forth in the
Note Agreement, which interest shall accrue from and after the date hereof on
the outstanding principal amount of this Note, and such principal amount and
interest thereon shall be payable at such times as set forth in the Note
Agreement.
Lender is hereby authorized by Borrower to record on Schedule A to this
Note (or on a supplemental Schedule thereto) the amount of the Loan and the
amount of each payment or prepayment of principal thereof received by Lender, it
being understood, however, that failure to make any such notation shall not
affect the rights of Lender or the obligations of Borrower hereunder in respect
of this Note. At Lender's option, Lender may record such matters in their
internal records rather than recording such matters on such Schedule.
This Note is referred to in, and is issued pursuant to, the Note Agreement
and is entitled to all of the benefits of the Note Agreement and the Loan
Documents. All of the terms, covenants and conditions of the Note Agreement and
all other instruments evidencing the indebtedness hereunder (including, without
limitation, the Loan Documents), are hereby made a part of this Note and are
deemed incorporated herein in full. The Note Agreement, among other things,
provides for the acceleration of the then outstanding indebtedness hereunder
during the existence of an Event of Default, upon the terms and conditions
specified therein. All capitalized terms used herein, unless otherwise
specifically defined in this Note, shall have the meanings ascribed to them in
the Note Agreement. The Loan and all of the Obligations shall be subordinate to
the Senior Obligations, in
the manner and to the extent set forth in the Note Agreement. Each transferee of
this Note (or any Note or Notes issued in exchange or substitution therefor), by
acceptance of this Note (or any Note or Notes issued in exchange or substitution
therefor), agrees to such subordination.
To the fullest extent permitted by applicable law, Borrower, for itself and
its legal representatives, successors and assigns, expressly waives presentment,
demand, protest, notice of dishonor, notice of nonpayment, notice of maturity,
notice of protest, presentment for the purpose of accelerating maturity and
diligence in collection, and consents that Lender may (with the consent of
Borrower) extend the time for payment or otherwise modify the terms of payment
of any part or the whole of the debt evidenced hereby.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York, without regard to conflicts of laws
principles.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of
the date first above written.
FOX KIDS WORLDWIDE, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name:
Title:
Schedule A
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Payments Unpaid Name of
-------------------- Principal Person
Current Balance of Making
Date Amount Principal Interest Note Notation
---- ------ --------- -------- ---------- --------
THE OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATED IN THE MANNER AND TO THE
EXTENT SET FORTH IN SECTION 8 HEREOF. EACH HOLDER OF THIS NOTE, BY ITS
ACCEPTANCE HEREOF, SHALL BE BOUND BY THE SUBORDINATION PROVISIONS OF THIS
AGREEMENT.
SUBORDINATED NOTE AGREEMENT
---------------------------
THIS SUBORDINATED NOTE AGREEMENT is made the 29th day of August, 1997, by
and among NEWS AMERICA HOLDINGS INCORPORATED, a Delaware Corporation ("Lender"),
FOX KIDS WORLDWIDE, INC. (together with any successors or assigns, the
"Borrower"), a Delaware corporation, and CITICORP USA, INC., as administrative
agent under the Senior Loan Agreement (as hereinafter defined).
WHEREAS, Lender has agreed to loan to Borrower, and Borrower has agreed
to borrow from Lender, $345,513,864.31, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE 1. GENERAL DEFINITIONS
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1.1 Defined Terms. When used herein, the following terms shall have the
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following meanings:
Affiliate - when used in reference to any specified Person, any Person
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that directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the specified Person.
Agreement - this Subordinated Note Agreement, as the same may be modified
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or amended from time to time.
Business Day - a day on which the Federal Reserve Bank of New York is
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open for business in New York, New York.
Closing Date - August 31, 1997.
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Code - the Internal Revenue Code of 1986, as amended.
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Dollars and the symbol $ - lawful money of the United States of America.
------- -
Event of Default - as defined in Section 7.1 of this Agreement.
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GAAP - U.S. generally accepted accounting principles, consistently
----
applied.
Indebtedness - as applied to any Person, means: (a) all indebtedness for
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borrowed money; (b) that portion of obligations with respect to capital leases
that is properly classified as a liability on a balance sheet in conformity with
GAAP; (c) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money; (d) any obligation
owed for all or any part of the deferred purchase price of property or services
if the purchase price is due more than six (6) months from the date the
obligation is incurred or is evidenced by a note or similar written instrument;
and (e) all indebtedness secured by any Lien on any property or asset owned or
held by that Person regardless of whether the indebtedness secured thereby shall
have been assumed by that Person or is nonrecourse to the credit of that Person.
Indemnities - as defined in Section 9.1 of this Agreement.
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Interest - as defined in Section 3.1(A) of this Agreement.
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Insolvency Laws - as defined in Section 8.1 of this Agreement.
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Insolvency Proceedings - as defined in Section 8.1 of this Agreement.
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Interest Payment Date - commencing on September 30, 1997, and each
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successive December 31, March 31, June 30 and September 30 on which the Loan is
outstanding.
Lien - any mortgage, deed of trust, pledge, lien, security interest,
----
charge or other encumbrance or security arrangement of any nature whatsoever,
including but not limited to any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security.
Loan - as defined in Section 2.1 of this Agreement.
----
Loan Documents - this Agreement, the Note, and any and all agreements,
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instruments and documents executed therewith.
Maturity Date - as defined in Section 2.2 of this Agreement.
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Note - the subordinated promissory note to be made by Borrower on the
----
Closing Date in favor of Lender to evidence the Loan, which shall be in the form
of Exhibit A annexed hereto, and any note or notes issued in replacement or
substitution therefor, as any such note or notes may be further amended,
modified, or supplemented from time to time after the execution and delivery
hereof.
Obligations - (i) the obligations of Borrower to pay, as and when due and
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payable (by scheduled maturity or otherwise), all amounts from time to time
owing by it in respect of any Loan Document, whether for principal, Interest
(including, without limitation, all Interest that accrues after the commencement
of any case, proceeding or other action relating to any Insolvency Proceeding of
Borrower), fees, indemnification payments, contract causes of action, costs,
expenses or otherwise and (ii) the obligations of Borrower to perform or observe
all of its other obligations from time to time existing under any Loan Document.
Person - an individual, partnership, association, corporation, limited
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liability company, joint stock or other company, entity, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
Prepayment Date - any date upon which the Loan is being prepaid, in whole
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or in part, pursuant to Section 3.2 of this Agreement.
Principal Amount - as defined in Section 2.1 of this Agreement.
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Senior Agent - Citicorp USA, Inc., as administrative agent under the
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Senior Loan Agreement, and any successor or assignee thereof or any authorized
representative of the holders of a majority of the outstanding amount of the
Senior Obligations.
Senior Lenders - any and all lenders that provide financial
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accommodation, advances and/or credit under the Senior Loan Agreement.
Senior Loan Agreement - the Credit Agreement, dated as of August 1, 1997,
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by and among Borrower, FCN Holding, Inc., Fox Kids Merger Corporation and Saban
Entertainment, Inc., as borrowers; Citicorp USA, Inc., as administrative agent;
Citicorp Securities, Inc., as arranger; and the lenders named therein, as
lenders, as the same may be further amended or supplemented, amended and
restated, refinanced or otherwise modified from time to time after the execution
and delivery hereof.
Senior Loan Documents - the Senior Loan Agreement and any and all
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agreements, instruments and documents executed in connection with the Senior
Loan Agreement, as the same may be further modified, amended or supplemented
after the execution and delivery thereof.
Senior Obligations - all of the obligations of Borrower, whether now or
------------------
hereafter existing, under or in respect of: (i) the Senior Loan Agreement and
the other Senior Loan Documents, whether direct or indirect, absolute or
contingent, and whether for principal, interest (including, without limitation,
interest accruing after the filing of a petition initiating any Insolvency
Proceeding, whether or not such interest accrues after the filing of such
petition for purposes of any applicable Insolvency Law, or is an allowed claim
in such Insolvency Proceeding), premium, fees, indemnification payments,
contract causes of action, costs, expenses or otherwise; and (ii) all
extensions, modifications, substitutions, amendments, renewals, refinancings,
replacements and refundings of any or all of the Senior Obligations referred to
in clause (i) of this paragraph, and any instrument or agreement evidencing or
otherwise setting forth the terms of any Indebtedness or other Senior
Obligations incurred in any such extension, modification, substitution,
amendment, renewal, refinancing, replacement or refunding.
Subsidiary - with respect to any Person, any other Person of which such
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Person owns or controls the voting of, directly or indirectly through one or
more intermediaries, more than fifty percent (50%) of the voting stock or other
ownership interests representing more than fifty percent (50%) of the ordinary
voting power of such entity at the time of determination.
Tax - any tax, levy, impost, duty, withholding, assessment, fee or other
---
charge which is assessed, levied or imposed or calculated for any government,
governmental, semi-governmental administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity
(including without limitation any penalty, addition to tax or interest payable
in connection or with any failure to pay or any delay in paying any of the
same).
Voided Payment - as defined in Section 8.5 of this Agreement.
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1.2 Certain Matters of Construction. Terms defined herein in the
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singular shall have the correlative meaning when used in the plural and vice
versa. The terms "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used shall be deemed to refer to the
masculine, feminine and neuter genders. The Section titles, table of contents
and list of exhibits appear as a matter of convenience only and shall not affect
the interpretation of this Agreement. All references to the knowledge of
Borrower (and phrases of similar import) shall include the knowledge of each of
the Subsidiaries of Borrower.
1.3 Time References. Unless otherwise indicated herein, all references
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to time of day refer to Pacific standard time or Pacific daylight savings time,
as in effect in Los Angeles, California on such day. For purposes of the
computation of a period of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding"; provided, however, that with respect to a computation
of fees or interest payable to Lender, such period shall in any event consist of
at least one (1) full day.
ARTICLE 2. THE LOAN
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2.1 The Loan. Lender shall make a loan (the "Loan") to Borrower in the
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principal amount of Three Hundred Forty Five Million Five Hundred Thirteen
Thousand Eight Hundred Sixty Four Dollars and Thirty One Cents ($345,513,864.31)
(the "Principal Amount"), which shall be funded in full on the Closing Date.
Lender shall not have any responsibility as to the use of any of the proceeds of
the Loan. The Loan shall be evidenced by the Note in favor of Lender in the form
of Exhibit A annexed hereto.
2.2 Repayment of the Loan. The Principal Amount shall be repaid on
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September 30, 2007 (the "Maturity Date").
ARTICLE 3. INTEREST, FEES, PREPAYMENTS AND REPAYMENT
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3.1 Interest.
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(A) Interest ("Interest") shall accrue from and after the Closing
Date, on the Principal Amount, at the rate of eleven and 56/100 percent (11.56%)
per annum, compounded quarterly, on the basis of a three hundred sixty-five
(365)/three hundred sixty-six (366) day year.
(B) At the option of Borrower, and subject to the subordination
provisions set forth in Article 8 hereof, Borrower may on any Interest Payment
Date elect to (i) pay any portion or all of the accrued and unpaid interest on
the principal amount or (ii) elect to defer such payment until the Maturity Date
as provided in Section 3.1(C).
(C) If, on any Interest Payment Date, Borrower elects to defer the
payment of interest until the Maturity Date as provided in Section 3.1(B) or is
not permitted to pay interest as a result of the subordination provisions set
forth in Article 8 hereof, an amount equal to the Interest which accrued on
the Principal Amount from the immediately preceding Interest Payment Date (or in
the case of the first Interest Payment Date, which accrued from the Closing
Date) through such Interest Payment Date shall be added automatically to the
Principal Amount and become a part thereof (such amount of Interest being
referred to as "Deferred Interest").
3.2 Optional Prepayment.
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(A) After the Senior Obligations have been paid in full, or at any
earlier time to the extent otherwise expressly permitted under the Senior Loan
Agreement, Borrower may prepay the Loan, in whole or in part, at any time, upon
at least five (5) Business Days' prior written notice to Lender. Any partial
prepayment of the Principal Amount shall be in the amount of Five Hundred
Thousand Dollars ($500,000) or in integral multiples of Five Hundred Thousand
Dollars ($500,000). Any prepayment of the Principal Amount on a Prepayment Date
pursuant to this Section 3.2 shall be accompanied by payment of the amount of:
(i) all Obligations (other than principal and Interest) due and payable
on the Prepayment Date; and
(ii) all Interest accrued (and not yet paid and added to the Principal
Amount as Deferred Interest) on the Principal Amount being prepaid from the
Closing Date through the Prepayment Date.
(B) The prepayment of the Loan pursuant to this Section 3.2 shall
be without premium or penalty.
3.3 Payments. The Obligations shall be payable as set forth in this
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Section 3.3.
(A) The Principal Amount shall be due and payable as provided in
Sections 2.2, 3.2 or 7.1 hereof, as applicable.
(B) Interest accrued on the Principal Amount shall be due and
payable in arrears on the earliest of (i) each successive Interest Payment Date,
(ii) the occurrence of an Event of Default in consequence of which Lender elects
to accelerate the maturity and payment of the Obligations, (iii) the Prepayment
Date (but only with respect to the amount of principal being prepaid at such
date) or (iv) the Maturity Date. Notwithstanding the foregoing, Borrower may
elect not to pay Interest on any Interest Payment Date and defer such payment as
provided in Section 3.1(C) above.
(C) Except as may be otherwise provided in Section 3.2 hereof,
costs, fees, expenses and any Obligations payable pursuant to this Agreement
other than Principal Amount and Interest shall be due and payable by Borrower to
Lender or to any other Person designated by Lender in writing (i) on demand, or
(ii) whether or not any demand has been made, upon (a) the occurrence of an
Event of Default in consequence of which Lender elects to accelerate the
maturity and payment of the Obligations or (b) the Maturity Date.
3.4 Payment Procedures. Each payment payable by Borrower to Lender
------------------
under this Agreement, the Note or any of the other Loan Documents shall be made
directly to Lender, not later than 11:00 a.m., on the due date of each such
payment, by wire transfer of immediately available federal funds
in United States Dollars. If any sum would, but for the provisions of this
Section 3.4, the Note or any of the other Loan Documents, become due and payable
to Lender on any day which is not a Business Day, then such sum shall become due
and payable on the Business Day next succeeding the day on which such sum would
otherwise have become due and payable hereunder or thereunder.
3.5 Taxes.
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(A) Gross-up and Other Taxes. All payments made by the Borrower
------------------------
hereunder, and under the Note or any other Loan Document shall be made without
setoff, counterclaim, deduction or other defense. All such payments shall be
made free and clear of and without deduction for any present or future income,
franchise, sales, use, excise, stamp or other Taxes, levies, imposts,
deductions, charges, fees, withholdings, restrictions or conditions of any
nature now or hereafter imposed, levied, collected, withheld or assessed by any
jurisdiction (whether pursuant to United States Federal, state, local or foreign
law) or by any political subdivision or taxing authority thereof or therein, and
all interest, penalties or similar liabilities, excluding taxes on the net
income of, and branch profit taxes of, any Lender imposed by the jurisdiction in
which such Lender is organized or any political subdivision thereof or taxing
authority thereof or any jurisdiction in which such Person's principal office or
relevant lending office is located or any political subdivision thereof or
taxing authority thereof (other than any such Taxes with respect to additional
net income arising from the receipt of payments under this Section 3.5) (such
non-excluded taxes being hereinafter collectively referred to as "Non-Excluded
Taxes"). If the Borrower shall be required by law to deduct or to withhold any
Non-Excluded Taxes from or in respect of any amount payable hereunder, (i) the
amount so payable shall be increased to the extent necessary so that after
making all required deductions and withholdings (including Taxes on amounts
payable to Lender pursuant to this sentence) Lender receives an amount equal to
the sum it would have received had no such deductions or withholdings been made,
(ii) the Borrower shall make such deductions or withholdings, and (iii) the
Borrower shall pay the full amount deducted or withheld to the relevant taxation
authority in accordance with applicable law. Whenever any Non-Excluded Taxes
are payable by the Borrower, as promptly as possible thereafter, the Borrower
shall send Lender an official receipt (or, if an official receipt is not
available, such other documentation as shall be reasonably satisfactory to
Lender) showing payment. In addition, the Borrower shall pay any present or
future stamp, documentary, excise, property or similar Taxes, charges or levies
that arise from any payment made under the Loan Documents by Borrower or from
the execution, delivery, performance, release, discharge, amendment,
enforcement, attempted enforcement or registration of, or otherwise with respect
to, this Agreement, any other Loan Document or any transaction contemplated by
this Agreement or any other Loan Document as any and all of the foregoing relate
to Borrower (hereinafter referred to as "Other Taxes").
(B) Tax Indemnity. Borrower shall indemnify Lender for the full
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amount of Non-Excluded Taxes and Other Taxes, including, without limitation, any
Non-Excluded Taxes or Other Taxes imposed by any jurisdiction on amounts payable
under this Section 3.5 (such Taxes being hereinafter referred to as "Gross-Up
Taxes") with respect to which Borrower has made a deduction from any payment
required to be made to Lender or which are paid by Lender in respect of either
the Loan Documents or payments made by Borrower under the Loan Documents (as the
case may be) and any liability (including penalties, additions to tax, interest
and expenses) arising therefrom or with respect thereto, whether or not such
Non-Excluded Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days from the date Lender makes
written demand therefor.
(C) Survival of Obligations. Without prejudice to the survival of
-----------------------
any other agreement of Borrower hereunder, the agreements and obligations of
Borrower contained in this Section 3.5 shall survive the payment in full by
Borrower of all principal and Interest hereunder, until six (6) months after the
expiration of the applicable statute of limitation with respect to any Gross-Up
Taxes, Non-Excluded Taxes and Other Taxes.
(D) Filings by Lender. (i) Borrower shall use reasonable efforts in
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good faith to file (or update the filing of) any certificate or document
provided or requested by Lender or take any reasonable action requested by
Lender if the filing of such certificate or document or the taking of such
action would avoid the need for, reduce the amount of, or assist in the recovery
of any payment of Taxes, or avoid the circumstances giving rise to the need for
such payment, and (ii) in the event Borrower fails to exercise the reasonable
efforts in good faith described in Section 3.5(D)(i) above, the Taxes arising
from such failure shall be considered Non-Excluded Taxes and Borrower shall
indemnify Lender in accordance with Section 3.5(B).
3.6 Application of Payments and Collections. Borrower irrevocably
---------------------------------------
waives the right to direct the application of any and all payments and
collections at any time or times hereafter received by Lender from or on behalf
of Borrower, and Borrower does hereby irrevocably agree that Lender shall have
the continuing exclusive right to apply and reapply any and all such payments
and collections received at any time or times hereafter by Lender or any Person
designated by Lender against the Obligations, in such manner as Lender may deem
advisable consistent with the terms of this Agreement, notwithstanding any entry
by Lender upon any of its books and records. Notwithstanding the foregoing
provisions of this Section 3.6, unless otherwise specified by Lender, any
payment or collection in respect of any of the Obligations (other than quarterly
payments of Interest pursuant to Section 3.1 hereof) shall be applied by Lender
(a) first, to the payment of all Obligations (if any) other than the principal
and Interest due and payable at such time, (b) next, to the payment of all
Interest which shall then be due and payable on the Principal Amount and (c)
next, to the payment of the outstanding Principal Amount.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
------------------------------
To induce Lender to enter into this Agreement and to make advances
hereunder, Borrower represents and warrants to Lender, on the Closing Date,
that:
4.1 Organization, Good Standing, Etc. Borrower (i) is a corporation,
---------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and (ii) has all requisite corporate power and authority to
conduct its business as now conducted and to make the borrowings hereunder and
to consummate the transactions contemplated by the Loan Documents to which it is
a party.
4.2 Authorization, Etc. The execution, delivery and performance by
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Borrower of each of the Loan Documents to which it is a party (i) have been duly
authorized by all necessary corporate action on the part of Borrower, (ii) do
not and will not contravene the charter and by-laws of Borrower, or any
applicable law or any contractual restriction binding on or otherwise affecting
it or any of its properties, except where such conflict would not have a
material adverse effect on the business, condition (financial or otherwise)
operations or assets of the Borrower and its Subsidiaries taken as a whole (a
"Material Adverse Effect"), (iii) do not and will not result in the violation,
breach of, conflict with, accelerate the due date of any payments under, or
(without the giving of notice or the passage of time or both) entitle any party
to terminate or call a default under any contract to which the Borrower or any
of its Subsidiaries is
a party, or to which any of their respective assets are subject or otherwise
bound which would not have a Material Adverse Effect, and (iv) do not and will
not result in or require the creation of any Lien, upon or with respect to any
of its properties.
4.3 Governmental Approvals. No authorization or approval or other
----------------------
action by, and no notice to or filing with, any governmental authority or other
regulatory body is required in connection with the due execution, delivery and
performance by each of Borrower or any Subsidiary of each of the Loan Documents
to which it is a party.
4.4 Enforceability of Loan Documents. This Agreement is, and each other
--------------------------------
Loan Document to which each of Borrower or any Subsidiary is a party, when
delivered hereunder, will be, legal, valid and binding obligations of Borrower
and each Subsidiary, as the case may be, enforceable against Borrower and each
Subsidiary in accordance with their respective terms, except to the extent that
the enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
from time to time in effect affecting generally the enforcement of creditors'
rights and remedies and by general principles of equity.
ARTICLE 5. COVENANTS AND CONTINUING AGREEMENTS
-----------------------------------
So long as any amount owing in respect of the Obligations (whether or not
due) shall remain unpaid, Borrower covenants that, unless otherwise consented to
by Lender in writing, it shall:
5.1 Compliance with Laws, Etc. Comply, and cause each of its
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Subsidiaries to comply, with all applicable laws, rules, regulations and orders,
except where such failure to comply would not, either in any case or in the
aggregate, reasonably be likely to result in a Material Adverse Effect.
5.2 Preservation of Existence, Etc. Maintain and preserve, and cause
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each of its Subsidiaries to maintain and preserve, its existence, rights and
privileges, and become or remain duly qualified and in good standing in each
jurisdiction in which the character of the properties owned or leased by them or
in which the transaction of their business makes such qualification necessary,
except (i) where the failure to maintain and preserve the existence, rights and
privileges of Borrower or its Subsidiaries would not, either in any single case
or in the aggregate, reasonably be likely to result in a Material Adverse
Effect, or (ii) where such failure to qualify would not, either in any case or
in the aggregate, reasonably be likely to result in a Material Adverse Effect.
5.3 Keeping of Records and Books of Account. Keep, and cause each of
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its Subsidiaries to keep, adequate records and books of account, with complete
entries made in accordance with GAAP.
5.4 Further Assurances. Shall, and shall cause each Subsidiary to, do,
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execute, acknowledge and deliver, at the sole cost and expense of Borrower or
any such Subsidiary, all such further acts and assurances as Lender may
reasonably require from time to time in order to better assure and confirm unto
Lender the rights now or hereafter intended to be granted to it under this
Agreement, any Loan Document or any other instrument under which Borrower or any
of its Subsidiaries may be or may hereafter become bound for carrying out the
intention or facilitating the performance of the terms of the Agreement.
5.5 Characterization of Note. Lender and Borrower shall at all times
------------------------
characterize the Note as "indebtedness" rather than "stock" for all purposes
whatsoever and will not take any position or action
to the contrary thereto unless required by law. Neither Lender nor Borrower will
disclose treatment of the Note in a manner inconsistent with the
characterization of the Note as "indebtedness" within the meaning of the Code
Section 385(c) in any return, information statement or other filing with the
Internal Revenue Service.
ARTICLE 6. CONDITIONS PRECEDENT
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As a condition precedent to Lender making the Loan hereunder, the
following conditions, as the case may be, shall be fulfilled in a manner
reasonably satisfactory to Lender:
6.1 Delivery of Documents. Lender shall have received the following
---------------------
documents on or prior to the Closing Date:
(A) the Note, duly executed and delivered by Borrower, and any other
instruments, documents or certificates executed by Borrower or any of its
Subsidiaries in respect of the transactions contemplated by this Agreement or
which are reasonably requested by Lender;
(B) evidence that Borrower and its Subsidiaries are in full
compliance with all of their respective representations, warranties, covenants
and agreements set forth in the Senior Loan Documents, that neither Borrower nor
its Subsidiaries are in breach of, or default under, any of the Senior Loan
Documents and that the Senior Loan Documents are in full force and effect in
accordance with their respective terms; and
(C) such other documents, instruments and agreements as Lender shall
reasonably request in connection with the foregoing matters.
6.2 Additional Conditions Precedent. The following conditions shall be
-------------------------------
satisfied on the Closing Date, in the sole discretion, reasonably exercised, of
Lender:
(A) no action, proceeding, investigation, regulation or legislation
shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, or which is related to or arises out of this
Agreement, the other Loan Documents, any Senior Loan Documents or the
consummation of the transactions contemplated hereby or thereby or which, in
Lender's sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents;
and
(B) all legal matters in connection with the transactions
contemplated by the Loan Documents shall be reasonably satisfactory to Lender
and its counsel in their sole discretion.
ARTICLE 7. EVENTS OF DEFAULT: RIGHTS AND REMEDIES ON DEFAULT
-------------------------------------------------
7.1 Events of Default. The existence of any one or more of the
-----------------
following events shall constitute an Event of Default:
(A) Borrower shall fail to pay any (i) principal when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise)
under the Loan Documents and such
failure shall continue unremedied for fifteen (15) days or (ii) any Interest,
any fee, indemnity or other amounts due or other Obligations under any Loan
Document when due (unless deferred pursuant to Section 3.1(C) hereof) and such
failure shall continue unremedied for thirty (30) days;
(B) any representation or warranty made by Borrower or any officer of
Borrower under or in connection with any Loan Document shall have been or shall
be incorrect in any material respect when made;
(C) Borrower shall fail to perform or observe any of its Obligations
under any Loan Document, including but not limited to any covenant contained in
Article 5 hereof (other than occurrences referred to or embodied in other
provisions of this Section 7.1), and such failure shall continue unremedied for
a period of thirty (30) days after the earlier of (i) Borrower's receipt of
notice from Lender or (ii) actual knowledge of such breach by Borrower;
(D) Borrower or any Subsidiary (i) shall institute any proceeding or
voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for such party or for any substantial part
of its property, (ii) shall be generally not paying its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
(iii) shall make a general assignment for the benefit of creditors or (iv) shall
take any action to authorize or effect any of the actions set forth above in
this subsection (D);
(E) any proceeding shall be instituted against Borrower or any
Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, custodian or other similar official for
Borrower or any Subsidiary or for any substantial part of its property, and
either such proceeding shall remain undismissed or unstayed for a period of
seventy (70) days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against it or the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property) shall occur; and
(F) any material provision of any Loan Document shall at any time for
any reason be declared to be null and void, or the validity or enforceability
thereof shall be contested by Borrower, or a proceeding shall be commenced by
Borrower or any governmental authority or other regulatory body having
jurisdiction over Borrower, seeking to establish the invalidity or
unenforceability thereof, or Borrower shall deny in writing that Borrower has
any material liability or obligation purported to be created under any Loan
Document;
then, and in any such event, and except as otherwise provided in the
subordination provisions set forth in Article 8 hereof, Lender may by written
notice to Borrower, (i) declare the Loan, all Interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Loan, all such Interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by Borrower; provided, however,
that upon the occurrence and during the continuance of any Event of Default
described in Section 7.1 (C) or (D), the Loan, all such Interest and all such
amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are expressly waived by Borrower, and (ii) exercise any and
all of its other rights under applicable law, hereunder and under the other Loan
Documents.
7.2 Remedies Cumulative; No Waiver. All covenants, conditions,
------------------------------
provisions, warranties, guaranties, indemnities, and other undertakings of
Borrower contained in this Agreement and the other Loan Documents, or in any
document referred to herein or contained in any agreement supplementary hereto
or thereto or contained in any other agreement between Lender and Borrower,
heretofore, concurrently, or hereafter entered into, shall be deemed cumulative
to, and not in derogation or substitution of, any of the terms, covenants,
conditions, or agreements of Borrower herein contained. The failure or delay of
Lender to exercise or enforce any rights, powers, or remedies hereunder or under
any of the aforesaid agreements or other documents shall not operate as a waiver
of such rights, powers and remedies, but all such rights, powers, and remedies
shall continue in full force and effect until the outstanding Principal Amount,
all Interest and all other Obligations owing or to become owing from Borrower to
Lender shall have been fully satisfied, and all rights, powers, and remedies
herein provided for are cumulative and none are exclusive.
ARTICLE 8. SUBORDINATION
-------------
8.1 In the event of any dissolution, winding up, liquidation,
arrangement, reorganization, adjustment, protection, relief or composition of
Borrower or its debts, whether voluntary or involuntary, in any bankruptcy,
insolvency, arrangement, reorganization, receivership, relief or other similar
action or proceeding under the United States Federal Bankruptcy Code or any
other federal or state bankruptcy or insolvency laws or any similar Requirements
of Law (as such term is defined in the Senior Loan Agreement) of any other
jurisdiction covering the protection of creditors' rights or the relief of
debtors (collectively, the "Insolvency Laws") or upon an assignment for the
benefit of creditors or any other marshalling of the property, assets and
liabilities of Borrower or otherwise (each, an "Insolvency Proceeding"), the
Senior Agent, for the ratable benefit of the Senior Lenders, shall be entitled
to receive payment in full of all of the Senior Obligations before Lender is
entitled to receive any payment or distribution of any kind or character on
account of all or any of the Obligations, and, to that end, any payment or
distribution of any kind or character (whether in cash, property or securities)
that otherwise would be payable or deliverable upon or with respect to the
Obligations in any such Insolvency Proceeding (including, without limitation,
any payment that may be payable by reason of any other Indebtedness of Borrower
being subordinated to payment of the Obligations) shall be paid or delivered
forthwith directly to the Senior Agent, for the account of the Senior Lenders,
in the same form as so received (with any necessary endorsement or assignment)
for application (in the case of cash) to, or to be held as collateral (in the
case of noncash property or securities) for, the payment or prepayment of the
Senior Obligations until all of the Senior Obligations shall have been paid in
full.
8.2 So long as the Senior Obligations shall not have been paid in full,
Lender shall not (a) ask, demand, ▇▇▇ for, take or receive from Borrower (except
as otherwise expressly permitted under the Senior Loan Agreement), directly or
indirectly, in cash or other property or by setoff or in any manner (including,
without limitation, from or by way of collateral), payment of all or any of the
Obligations or (b) commence, or join with any creditor other than the Senior
Agent in commencing, or directly or indirectly cause Borrower to commence, or
assist Borrower in commencing, any Insolvency Proceeding. If Lender, in
contravention hereof, shall commence, prosecute or participate in any Insolvency
Proceeding,
then the Senior Agent may intervene and interpose as a defense or plea the terms
of the Note in its own name or in the name of Lender.
8.3 Until such time as all of the Senior Obligations have been paid in
full, if any Insolvency Proceeding is commenced by or against the Payor:
(A) the Senior Agent is hereby irrevocably authorized and empowered
(in its own name or in the name of Lender or otherwise), but shall have no
obligation, to demand, ▇▇▇ for, collect and receive every payment or
distribution otherwise payable to Lender in respect of the Note and give
acquittance therefor, and to file claims and proofs of claim and take such other
action (including, without limitation, voting the Obligations or enforcing any
security interest or other lien securing payment of the Obligations) as it may
deem necessary or advisable for the exercise or enforcement of any of the rights
or interests of the Senior Agent or any of the other Senior Lenders under the
Note; and
(B) Lender shall duly and promptly take such action as the Senior
Agent may reasonably request (i) to collect the Obligations for the account of
the Senior Agent, for the ratable benefit of the Senior Lenders, and to file
appropriate claims or proofs of claim in respect of the Obligations, (ii) to
execute and deliver to the Senior Agent such powers of attorney, assignments or
other instruments as the Senior Agent may reasonably request in order to enable
the Senior Agent to enforce any and all claims with respect to, and any security
interests and other liens securing payment of, the Obligations and (iii) to
collect and receive any and all payments or distributions that may be payable or
deliverable upon or with respect to the Obligations.
8.4 All payments or distributions upon or with respect to the
Obligations that are received by Lender contrary to the provisions of this
Article 8 shall be received in trust for the benefit of the Senior Agent, shall
be segregated from other property or funds of Lender and shall be paid or
delivered forthwith directly to the Senior Agent, for the account of the Senior
Lenders, in the same form as so received (with any necessary endorsement or
assignment) to be applied (in the case of cash) to, or held as collateral (in
the case of noncash property or securities) for, the payment or prepayment of
the Senior Obligations until all of the Senior Obligations shall have been paid
in full.
8.5 To the extent that Borrower or any of its Subsidiaries or any other
guarantor of or provider of collateral for the Senior Obligations shall make any
payment on the Senior Obligations that is subsequently invalidated, declared to
be fraudulent or preferential or set aside or is required to be repaid to a
trustee, receiver or any other party under any applicable Insolvency Law or
equitable cause (any such payment being a "Voided Payment"), then to the extent
of such Voided Payment, that portion of the Senior Obligations that had been
previously satisfied by such Voided Payment shall be reinstated and continue in
full force and effect as if such Voided Payment had never been made. To the
extent that Lender shall have received any payments subsequent to the date of
the initial receipt of such Voided Payment by the Senior Agent or any of the
Senior Lenders and such payments have not been invalidated, declared to be
fraudulent or preferential or set aside or required to be repaid to a trustee,
receiver, or any other party under any applicable Insolvency Law or equitable
cause, Lender shall be obligated and hereby agrees that any such payment so made
or received shall be deemed to have been received in trust for the benefit of
the Senior Agent, and Lender hereby agrees to pay to the Senior Agent, upon
demand, the full amount so received by Lender during such period of time to the
extent necessary to fully restore to the Senior Lenders the amount of such
Voided Payment, which amount shall be applied as set forth in Section 8.4.
8.6 The Senior Agent is hereby authorized to demand specific performance
of the subordination provisions of this Article 8, whether or not Borrower shall
have complied with any of the provisions hereof applicable to it, at any time
when Lender shall have failed to comply with any of the subordination provisions
of this Article 8. Lender hereby irrevocably waives any defense based on the
adequacy of a remedy at law, which might be asserted as a bar to such remedy of
specific performance.
8.7 Lender will not:
(A) (i) cancel or otherwise discharge any of the Obligations (except
upon payment in full of the Senior Obligations), (ii) convert or exchange any of
the Obligations into or for any other Indebtedness, (iii) convert or exchange
any of the Obligations into or for any equity interest in the Borrower or
otherwise unless such equity interest in pledged to the Senior Agent, on behalf
of the Senior Lenders, under the applicable Senior Loan Documents immediately
following such conversion or exchange or (iv) subordinate any of the Obligations
to any Indebtedness of Borrower other than the Senior Obligations;
(B) sell, assign, pledge, encumber or otherwise dispose of any of
the Obligations; or
(C) permit the terms of any of the Obligations to be amended,
waived, supplemented or otherwise modified in such a manner as could have an
adverse effect upon the rights or interests of the Senior Agent or any of the
other Senior Lenders under this Agreement or any of the Loan Documents.
8.8 No payment or distribution to the Senior Agent or any of the other
Senior Lenders pursuant to the provisions of this Agreement or the Note shall
entitle Lender to exercise any rights of subrogation in respect thereof, nor
shall Lender have any right of reimbursement, restitution, exoneration,
contribution or indemnification whatsoever from any property or assets of
Borrower or any of the other guarantors, sureties or providers of collateral
security for the Senior Obligations, or any right to participate in any claim
or remedy of the Senior Agent or any of the Senior Lenders against Borrower,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law (including, without limitation, the right to take or
receive from Borrower, directly or indirectly, in cash or other property or by
setoff or in any other manner, payment or security on account of such claim,
remedy or right), until all of the Senior Obligations shall have been paid in
full.
8.9 The holders of the Senior Obligations may, at any time and from time
to time, without any consent of or notice to Lender or any other holder of the
Obligations and without impairing or releasing the obligations of Lender
hereunder:
(A) change the manner, place or terms of payment of, or change or
extend the time of payment of, or renew payment or change or extend the time or
payment of, or renew or alter, the Senior Obligations (including any change in
the rate of interest thereon), or amend, supplement or otherwise modify in any
manner any instrument, agreement or other document under which any of the Senior
Obligations is outstanding;
(B) sell, exchange, release, not perfect and otherwise deal with any
of the property or assets of any Person at any time pledged, assigned or
mortgaged to secure the Senior Obligations;
(C) release any Person liable in any manner under or in respect of
the Senior Obligations;
(D) exercise or refrain from exercising any rights against Borrower
any other Person; and
(E) apply to the Senior Obligations any sums from time to time
received by or on behalf of the Senior Agent or any of the Senior Lenders.
8.10 Each of the Borrower and Lender will further ▇▇▇▇ their respective
books of account in such a manner as shall be effective to give proper notice of
the effect of the subordination provisions of this Article 8. Each of Borrower
and Lender will, at its sole expense and at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or that the Senior Agent may reasonably
deem desirable and may request, in order to protect any right or interest
granted or purported to be granted under the subordination provisions of this
Article 8 or to enable the Senior Agent or any of the Senior Lenders to exercise
and enforce its rights and remedies hereunder.
8.11 The subordination provisions of this Article 8 are and are intended
solely for the purpose of defining the relative rights of the Senior Lenders, on
the one hand, and Lender, on the other hand. Such provisions are for the
benefit of the Senior Lenders and shall inure to the benefit of, and shall be
enforceable by, the Senior Agent, on behalf of itself and the Senior Lenders,
directly against Lender, and no Senior Lender shall be prejudiced in its right
to enforce subordination of any of the Obligations by any act or failure to act
by Borrower or any Person in custody of its property or assets.
8.12 Nothing contained in this Article 8 is intended to or shall impair,
as between the Borrower and Lender, the obligations of Borrower to Lender.
8.13 For all purposes of this Agreement, the Senior Obligations shall not
be deemed to have been paid in full until the latest of (i) payment in full in
cash of the aggregate principal amount of all outstanding Advances (as such term
is defined in the Senior Loan Agreement), all accrued and unpaid interest
thereon, all fees and expenses owing to the Senior Agent or any of the Senior
Lenders in connection therewith and all other amounts comprising part of the
Senior Obligations, (ii) the expiration or termination of all of the Bank Hedge
Agreements (as such term is defined in the Senior Loan Agreement) and (iii) the
Termination Date (as such term is defined in the Senior Loan Agreement).
ARTICLE 9. MISCELLANEOUS
-------------
9.1 Indemnification. In addition to all of Borrower's other Obligations
---------------
under this Agreement, Borrower agrees to defend, protect, indemnify and hold
harmless Lender and all of its officers, directors, employees, attorneys,
consultants and agents (collectively called the "Indemnities") from and against
any and all losses, damages, liabilities, obligations, penalties, fees,
reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees, costs and expenses) incurred by such Indemnities, whether prior
to or from and after the Closing Date, whether direct, indirect or
consequential, as a result of or arising from or relating to or in connection
with any of the following: (i) the negotiation, preparation, execution or
performance or enforcement of this Agreement or of any document executed in
connection with the transactions contemplated by this Agreement; (ii) the
furnishing of funds to Borrower under this
Agreement; (iii) any document executed in connection with the transactions
contemplated by this Agreement or (iv) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto (collectively, the "Indemnified Matters"); provided, however, that
Borrower shall not have any obligation to any Indemnitee hereunder for any
Indemnified Matter caused by or resulting from the gross negligence or willful
misconduct of such Indemnitee, as determined by a final judgment of a court of
competent jurisdiction. To the extent that the undertaking to indemnify, pay and
hold harmless set forth in this Section 9.1 may be unenforceable because it is
violative of any law or public policy, Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnities.
The foregoing indemnity shall survive the repayment of the Obligations.
9.2 Amendments, Etc. No amendment or waiver of any provision of this
----------------
Agreement or the other Loan Documents, and no consent to any departure therefrom
by Borrower, shall in any event be effective unless the same shall be in writing
and signed by Borrower and Lender, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by Lender, (i) reduce the principal of, or interest on, the
Loan or Obligations, (ii) postpone any date fixed for any payment of principal
of, or interest or fees on, the Loan or the amount of any other Obligations,
(iii) change the percentage of the aggregate unpaid principal amount of the
Note, which shall be required for Lender to take any action hereunder or (iv)
amend, modify or waive this Section 9.2; and provided further that no such
amendment or waiver or consent to any departure therefrom of Article 8 or any
other provision that could adversely affect the rights and interests of the
Senior Agent or any of the Senior Lenders (under or in respect of the Loan
Documents or any of the Senior Loan Documents) in any manner shall be effective
without the written consent of the Senior Agent.
9.3 Expenses; Attorneys' Fees. Borrower agrees to pay or cause to be
-------------------------
paid, on demand, and to save Lender harmless against liability for the payment
of, all reasonable out-of-pocket expenses, including but not limited to
reasonable fees and expenses of counsel for Lender, periodic field audits, from
time to time arising from or relating to (other than when arising from the gross
negligence or willful misconduct of Lender, as the case may be): (i) any
amendments, waivers or consents to this Agreement or the other Loan Documents
requested by Borrower whether or not such documents become effective or are
given; (ii) upon the occurrence and during the continuance of any Event of
Default, the preservation and protection of any of Lender's rights under this
Agreement or the other Loan Documents; (iii) the defense of any claim or action
asserted or brought against Lender by any Person that arises from this
Agreement, any other Loan Document, Lender's claims against Borrower, or any and
all matters in connection therewith; (iv) the commencement (other than by
Lender, except upon the occurrence and during the continuance of any Event of
Default) or defense of, or intervention in, any court proceeding arising from or
related to this Agreement or any other Loan Document; (v) upon the occurrence
and during the continuance of any Event of Default, the filing of a petition,
complaint, answer, motion or other pleading by Lender, or the taking of any
action in connection with this Agreement or any other Loan Document; (vi) upon
the occurrence and during the continuance of any Event of Default, any attempt
to collect from Borrower; and (vii) the receipt of any advice with respect to
any of the foregoing.
9.4 Indulgences Not Waivers. The failure, at any time or times
-----------------------
hereafter, to require strict performance by Borrower of any provision of this
Agreement shall not waive, affect or diminish any right of Lender thereafter to
demand strict compliance and performance therewith. Any suspension or waiver of
an Event of Default under this Agreement or any of the other Loan Documents
shall not suspend, waive
or affect any other Event of Default under this Agreement or any of the other
Loan Documents, whether the same is prior or subsequent thereto and whether of
the same or of a different type. None of the undertakings, agreements,
warranties, covenants and representations of Borrower contained in this
Agreement or any of the other Loan Documents and no Event of Default under this
Agreement or any of the other Loan Documents shall be deemed to have been
suspended or waived by Lender, unless such suspension or waiver is by an
instrument in writing specifying such suspension or waiver and is signed by a
duly authorized representative of Lender and directed to Borrower.
9.5 Severability. Wherever possible, each provision of this Agreement
------------
or any other Loan Document shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
or any other Loan Document shall be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of such agreement.
9.6 Cumulative Effect; Conflict of Terms. The provisions of the other
------------------------------------
Loan Documents are hereby made cumulative with the provisions of this Agreement.
Except as specifically otherwise provided in this Agreement or in any of the
other Loan Documents by specific reference to the applicable provision of this
Agreement, if any provision contained in this Agreement is in direct conflict
with, or inconsistent with, any provision in any of the other Loan Documents,
the provision contained in this Agreement shall govern and control.
9.7 Execution in Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the
same instrument.
9.8 Notices. Except as otherwise provided herein, all notices, requests
-------
and demands to or upon a party hereto to be effective shall be in writing, shall
be sent by certified or registered mail, return receipt requested), or by
telecopier or delivered by hand or by a recognized overnight courier service
and, unless otherwise expressly provided herein, shall be deemed to have been
validly served, given or delivered when delivered against receipt or, in the
case of telecopy notice, when sent, or, in the case of telex, when the
appropriate answerback received, addressed as follows:
(A) If to Lender:
News America Holdings Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
With a copy to:
Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(B) If to Borrower, at:
Fox Kids Worldwide, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
With a copy to:
Troop ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C.N. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, Esq.
(C) If to Senior Agent, at:
Citicorp USA, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
With a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 9.8.
9.9 Demand. Nothing in this Agreement shall affect or abrogate the
------
demand nature of any portion of the Obligations expressly made payable on demand
by this Agreement or by any instrument evidencing same, and the occurrence of an
Event of Default shall not be a prerequisite for requiring payment of such
Obligations, except as provided for in this Agreement.
9.10 Entire Agreement; Headings. This Agreement, and the other Loan
--------------------------
Documents, together with all other instruments, agreements and certificates
executed by the parties in connection therewith or with reference thereto,
embody the entire understanding and agreement between the parties hereto and
thereto with respect to the subject matter hereof and thereof and supersede all
prior agreements,
understandings and inducements, whether express or implied, oral or written.
Section headings herein are included for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose.
9.11 Governing Law; Consent To Forum. This Agreement, the Note and the
-------------------------------
other Loan Documents shall be governed by, and construed in accordance with, the
law of the State of New York applicable to contracts made and to be performed in
the State of New York without regard to conflicts of law principles. Any legal
action or proceeding with respect to this Agreement or any other Loan Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, Borrower hereby irrevocably accepts in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts.
Borrower further irrevocably consents to the service of process out of any of
the aforementioned courts and in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, at its address
for notices contained in Section 9.8, such service to become effective ten (10)
days after such mailing. Nothing herein shall affect the right of Lender to
service of process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against Borrower in any other jurisdiction.
9.12 Right of Set-Off. Upon the occurrence and during the continuance of
----------------
any Event of Default, Lender may, and is hereby authorized to, at any time and
from time to time, without notice to Borrower (any such notice being expressly
waived by Borrower) and to the fullest extent permitted by law, and subject to
the rights of the Senior Agent and the Senior Lenders hereunder, 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 Lender to or
for the credit or the account of Borrower against any and all obligations of
Borrower now or hereafter existing under any Loan Document to the extent such
obligations have become due. Lender agrees to notify Borrower promptly after
any such set-off and application made by such Bank; provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of Lender under this Section 9.12 are in addition to the other rights
and remedies (including, without limitation, other rights of set-off) which
Lender may have.
9.13 No Party Deemed Drafter. Borrower and Lender agree that no party
-----------------------
hereto shall be deemed to be the drafter of this Agreement, and Borrower and
Lender, further agree that, in the event this Agreement is ever construed by a
court of law, such court shall not construe this Agreement or any provision of
this Agreement against any party hereto as the drafter of this Agreement.
9.14 Reinstatement; Certain Payments. If claim is ever made upon Lender
-------------------------------
for repayment or recovery of any amount or amounts received by Lender in payment
or on account of any of the Obligations under this Agreement, Lender shall give
prompt notice of such claim to Borrower, and if Lender repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over Lender or any of its property or
(ii) any good faith settlement or compromise of any such claim effected by
Lender with any such claimant, then and in such event, Borrower agrees that (a)
any such judgment, decree, order, settlement or compromise shall be binding upon
Borrower notwithstanding the cancellation of the Note or other instrument
evidencing the Obligations under this Agreement or the other Loan Documents or
the termination of this Agreement or the other Loan Documents and (b) it shall
be and remain liable to Lender hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by
Lender.
9.15 Assignment. Lender may assign to one or more Persons all or a
----------
portion of its rights and obligations under this Agreement; provided, however,
that, without the prior written consent of Borrower, Lender may not assign its
rights and obligations under this Agreement to any Person who is not (a) an
individual who is a citizen or resident of the United States, (b) a corporation,
partnership or other entity created or organized in or under the laws of the
United States, any State or any political subdivision thereof, (c) an estate the
income of which is subject to United States Federal income taxation regardless
of its source or (d) a trust whose administration is subject to the primary
supervision of a United States court and which has one or more United States
fiduciaries who have the authority to control all substantial decisions of such
trust.
9.16 Confidentiality. Lender agrees to exercise all reasonable efforts
---------------
to keep any information delivered or made available by Borrower to it which has
not been publicly disclosed confidential from anyone other than persons employed
or retained by Lender who are or are expected to become engaged in evaluating,
approving, structuring or administering the Loan; provided, however, that
nothing herein shall prevent Lender from disclosing such information (i) to its
officers, directors, employees, agents, attorneys and accountants who have a
need to know such information in accordance with customary practices and who
receive such information having been made aware of the restrictions set forth in
this Section, (ii) upon the order of any court or administrative agency, (iii)
upon the request or demand of any regulatory agency or authority having
jurisdiction over Lender, (v) to the extent reasonably required in connection
with any litigation to which Lender, Borrower, or any Subsidiary or their
respective affiliates may be a party, (vi) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (vii) to Lender's legal
counsel and independent auditors, and (viii) to any actual or proposed
participant or assignee of all or part of its rights hereunder which has agreed
in writing to be bound by the provisions of this Section 9.15.
IN WITNESS WHEREOF, this Agreement has been duly executed on the day and
year specified at the beginning hereof.
Borrower: FOX KIDS WORLDWIDE, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
_____________________________
Name:________________________
Title:_______________________
Lender: NEWS AMERICA HOLDINGS INCORPORATED
By: /s/ ▇▇▇ ▇▇▇▇▇
_____________________________
Name:________________________
Title:_______________________
Senior Agent: CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
_____________________________
Name:________________________
Title:_______________________
Exhibit A - Form of Note
---------
THIS NOTE AND THE OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATED IN THE
MANNER AND TO THE EXTENT SET FORTH IN THE SUBORDINATED NOTE AGREEMENT
(THE "NOTE AGREEMENT"), DATED AS OF AUGUST 29, 1997. EACH HOLDER OF
THIS NOTE, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS
OF THE NOTE AGREEMENT.
SUBORDINATED PROMISSORY NOTE
----------------------------
No. A-1
$345,513,864.31 August 29, 1997
FOR VALUE RECEIVED, the undersigned, Fox Kids Worldwide, Inc., a Delaware
corporation, having an office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Borrower"), hereby promises to pay to the order of News America Holdings
Incorporated, a Delaware corporation (the "Lender"), having an office at ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or registered assigns, in lawful
money of the United States, by wire transfer in immediately available federal
funds, the principal amount of Three Hundred Forty Five Million Five Hundred
Thirteen Thousand Eight Hundred Sixty Four Dollars and Thirty One Cents
($345,513,864.31), loaned by Lender to Borrower pursuant to the Subordinated
Note Agreement dated August 29, 1997, among Borrower, Lender and Citicorp USA,
Inc. (as amended and modified from time to time, the "Note Agreement"), together
with additions to such principal amount and interest thereon as set forth in the
Note Agreement, which interest shall accrue from and after the date hereof on
the outstanding principal amount of this Note, and such principal amount and
interest thereon shall be payable at such times as set forth in the Note
Agreement.
Lender is hereby authorized by Borrower to record on Schedule A to this
Note (or on a supplemental Schedule thereto) the amount of the Loan and the
amount of each payment or prepayment of principal thereof received by Lender, it
being understood, however, that failure to make any such notation shall not
affect the rights of Lender or the obligations of Borrower hereunder in respect
of this Note. At Lender's option, Lender may record such matters in their
internal records rather than recording such matters on such Schedule.
This Note is referred to in, and is issued pursuant to, the Note Agreement
and is entitled to all of the benefits of the Note Agreement and the Loan
Documents. All of the terms, covenants and conditions of the Note Agreement and
all other instruments evidencing the indebtedness hereunder (including, without
limitation, the Loan Documents), are hereby made a part of this Note and are
deemed incorporated herein in full. The Note Agreement, among other things,
provides for the acceleration of the then outstanding
indebtedness hereunder during the existence of an Event of Default, upon the
terms and conditions specified therein. All capitalized terms used herein,
unless otherwise specifically defined in this Note, shall have the meanings
ascribed to them in the Note Agreement. The Loan and all of the Obligations
shall be subordinate to the Senior Obligations, in the manner and to the extent
set forth in the Note Agreement. Each transferee of this Note (or any Note or
Notes issued in exchange or substitution therefor), by acceptance of this Note
(or any Note or Notes issued in exchange or substitution therefor), agrees to
such subordination.
To the fullest extent permitted by applicable law, Borrower, for itself and
its legal representatives, successors and assigns, expressly waives presentment,
demand, protest, notice of dishonor, notice of nonpayment, notice of maturity,
notice of protest, presentment for the purpose of accelerating maturity and
diligence in collection, and consents that Lender may (with the consent of
Borrower) extend the time for payment or otherwise modify the terms of payment
of any part or the whole of the debt evidenced hereby.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York, without regard to conflicts of laws
principles.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of
the date first above written.
FOX KIDS WORLDWIDE, INC.
By:_______________________
Name:
Title:
Schedule A
----------
Payments Unpaid Name of
-------------------- Principal Person
Current Balance of Making
Date Amount Principal Interest Note Notation
---- ------ --------- -------- ---------- --------
FIRST AMENDMENT TO SUBORDINATED NOTE AGREEMENT
----------------------------------------------
This FIRST AMENDMENT TO SUBORDINATED NOTE AGREEMENT (the "First
Amendment"), is made the 28th day of October, 1997, by and among NEWS AMERICA
HOLDINGS, INCORPORATED, a Delaware Corporation ("Lender"), FOX KIDS WORLDWIDE,
INC. (together with any successors or assigns, the "Borrower"), a Delaware
corporation, and CITICORP USA, INC., as the Senior Representative for the Senior
Creditors (each as hereinafter defined).
WHEREAS, the parties hereto are parties to a certain Subordinated Note
Agreement, dated August 29, 1997 (the "Note Agreement" or the "Subordinated Note
Agreement"); and
WHEREAS, as a condition to the issuance of the Senior Notes (as hereinafter
defined), the Borrower and Lender agreed to also subordinate the obligations
hereunder to the Senior Notes Indebtedness (as hereinafter defined).
WHEREAS, the parties hereto desire to amend the Note Agreement to evidence
such changes and to change the Maturity Date thereunder;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Definitions. a) All capitalized terms used herein which are defined
-----------
in the Note Agreement and not otherwise defined herein shall have their meanings
as defined in the Note Agreement.
b) Section 1.1 is hereby amended by inserting the following sentence
at the beginning of such section. "All capitalized terms used herein which are
defined in the Credit Agreement and not otherwise defined herein shall have
their meanings as defined in the Credit Agreement."
c) The following definitions shall be inserted into Section 1.1 in the
appropriate alphabetical order:
"Administrative Agent - means Citicorp USA, Inc., as the
--------------------
administrative agent and the collateral agent for the Senior Lenders and the
other Secured Parties, together with any successor thereto appointed pursuant to
Article VIII of the Credit Agreement.
Credit Agreement - means the Second Amended and Restated Credit
----------------
Agreement dated as of October 28, 1997 among FCN Holding, Inc., International
Family Entertainment, Inc. and Saban Entertainment, Inc., as the Borrowers
thereunder, Fox Kids Holdings, LLC, as a guarantor thereunder, the Senior
Lenders, Citicorp Securities, Inc., Chase Securities, Inc. and BankBoston,
N.A., as the Co-Arrangers for the Facilities referred to therein, and the
Administrative Agent, as such agreement may be amended, supplemented or
otherwise modified from time to time.
Indentures - means, collectively, (a) the Indenture dated as of
----------
October 28, 1997 between Fox Kids and The Bank of New York, as Trustee, relating
to the 9 1/4% Senior Notes due 2007, and (b) the Indenture dated as of October
28, 1997 between Fox Kids and The Bank of New York, as Trustee, relating to the
10 1/4% Senior Discount Notes due 2007, in each case as such agreement may be
amended, supplemented or otherwise modified from time to time.
Senior Creditors - means, collectively, the Senior Secured
----------------
Creditors, the Senior Notes Creditors and the other holders, if any, of any of
the Senior Indebtedness.
Senior Indebtedness - means, collectively, the Senior Secured
-------------------
Indebtedness and the Senior Notes Indebtedness.
Senior Notes - means, collectively, the 9/1//4% Senior Notes due
------------
2007 and the 10/1//4% Senior Discount Notes due 2007 issued under the
Indentures, in each case as amended, supplemented or otherwise modified from
time to time.
Senior Notes Creditors - means, collectively, the trustees under
----------------------
each of the Indentures and the holders from time to time of Senior Notes
Indebtedness.
Senior Notes Indebtedness - means (i) all Obligations of Fox Kids,
-------------------------
whether now or hereafter existing, under or in respect of the Indentures and the
Senior Notes, whether direct or indirect, absolute or contingent, and whether
for principal, interest (including, without limitation, interest accruing after
the filing of a petition initiating any Insolvency Proceeding (as hereinafter
defined), whether or not such interest accrues after the filing of such petition
for purposes of any applicable Insolvency Laws (as hereinafter defined), or is
an allowed claim in such Insolvency Proceeding), premium, fees, indemnification
payments, contract causes of action, costs, expenses or otherwise and (ii) any
and all extensions, modifications, substitutions, amendments, renewals,
refinancings, replacements and refundings of any or all of the Obligations
referred to in clause (i) of this definition, and any instrument or agreement
evidencing or otherwise setting forth the terms of any Indebtedness or other
Obligations incurred in any such extension, modification, substitution,
amendment, renewal, refinancing, replacement or refunding.
Senior Representative - means (i) the Administrative Agent or (ii)
---------------------
after the payment in full of all of the Senior Secured Indebtedness and the
termination or expiration of all of the commitments of the Senior Secured
Creditors in respect thereof, either of the trustees for the Senior Notes or the
holders of a majority in aggregate principal amount of the outstanding Senior
Notes of either issue.
Senior Secured Creditors - means, collectively, the Administrative
------------------------
Agent, the Senior Lenders and the other Secured Parties and any other holder of
any of the Senior Secured Indebtedness.
Senior Secured Indebtedness - means (i) all Obligations of Fox Kids,
---------------------------
whether now or hereafter existing, under or in respect of the Credit Agreement,
the Notes (as defined in the Credit Agreement) and the other Loan Documents (as
defined in the Credit Agreement), whether direct or indirect, absolute or
contingent, and whether for principal, interest (including, without limitation,
interest accruing after the filing of a petition initiating any Insolvency
Proceeding, whether or not such interest accrues after the filing of such
petition for purposes of any applicable Insolvency Laws, or is an allowed claim
in such Insolvency Proceeding), premium, fees, indemnification payments,
contract causes of action, costs, expenses or otherwise and (ii) any and all
extensions, modifications, substitutions, amendments, renewals, refinancings,
replacements and refundings of any or all of the Obligations referred to in
clause (i) of this definition, and any instrument or agreement evidencing or
otherwise setting forth the terms of any Indebtedness or other Obligations
incurred in any such extension, modification, substitution, amendment, renewal,
refinancing, replacement or refunding."
c) The definition of "Senior Lenders" is hereby deleted in its
entirety and replaced with the following:
"Senior Lenders - means the banks, financial institutions and other
--------------
institutional lenders from time to time party to the Credit Agreement."
d) The definitions of Senior Agent, Senior Loan Agreement, and Senior
Obligations are hereby deleted in their entirety. All references to Senior
Obligations in the Loan Agreements shall hereafter be deemed to be references to
Senior Indebtedness.
2. Amendment to Section 2.2. Section 2.2 of the Note Agreement is hereby
------------------------
amended to delete the Maturity Date of "September 30, 2007" and to insert in
lieu thereof "May 1, 2008."
3. Amendment of Article 8. Article 8 is hereby amended in its entirety
----------------------
to read as follows:
ARTICLE 8. SUBORDINATION
-------------
8.1 The aggregate principal amount owing to the Lender from time to time
under this Subordinated Note Agreement, the Note and the other Loan Documents
all accrued and unpaid interest thereon, and any other indebtedness evidenced by
or otherwise owing in respect of this Subordinated Note Agreement, the Note and
the other Loan Documents (collectively, the "SUBORDINATED INDEBTEDNESS") is and
shall be subordinate and junior in right of payment and otherwise, to the extent
and in the manner hereinafter set forth, to the prior payment in full of all of
the Senior Indebtedness (an hereinafter defined), whether now or hereafter
existing. For all purposes of this Subordinated Note Agreement, the Senior
Indebtedness shall not be deemed to have been paid in full until the latest of
(A) the payment in full in cash of all of the Senior Indebtedness and the
expiration or termination of all of the commitments of the Secured Parties and
the other holders of any of the Senior Indebtedness thereunder, (B) the
expiration or termination of all of the Bank Hedge Agreements and (C) the
Termination Date.
8.2 In the event of any dissolution, winding up, liquidation, arrangement,
reorganization, adjustment, protection, relief or composition of Borrower or its
debts, whether voluntary or
involuntary, in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or other similar action or proceeding under the United
States Federal Bankruptcy Code or any other federal or state bankruptcy or
insolvency laws or any similar Requirements of Law of any other jurisdiction
covering the protection of creditors' rights or the relief of debtors
(collectively, the "Insolvency Laws"), or upon an assignment for the benefit of
creditors or any other marshaling of the property, assets and liabilities of
Borrower or otherwise (each, an "Insolvency Proceeding"), the Senior Creditors
shall be entitled to receive payment in full of all of the Senior Indebtedness
before the Lender is entitled to receive any payment or distribution of any kind
or character on account of all or any of the Subordinated Indebtedness, and, to
that end, any payment or distribution of any kind or character (whether in cash,
property or securities) that otherwise would be payable or deliverable upon or
with respect to the Subordinated Indebtedness in any such Insolvency Proceeding
(including, without limitation, any payment that may be payable by reason of any
other Indebtedness of Borrower being subordinated to payment of the Subordinated
Indebtedness) shall be paid or delivered forthwith directly to the Senior
Representative, for the ratable account of the Senior Secured Creditors and the
Senior Notes Creditors, in the same form as so received (with any necessary
endorsement or assignment), for application (in the case of cash) to, or to be
held as collateral (in the case of noncash property or securities) for, the
payment or prepayment of the Senior Indebtedness until all of the Senior
Indebtedness shall have been paid in full.
8.3 No payment or distribution of any property or assets of Borrower of
any kind or character (including, without limitation, any payment that may be
payable by reason of any other Indebtedness of Borrower being subordinated to
payment of the Subordinated Indebtedness) shall be made by or on behalf of
Borrower for or on account of any Subordinated Indebtedness, unless and until
all of the Senior Indebtedness shall have been paid in full or unless such
payment is expressly permitted to be made under Section 8(d)(i)(D) of the Fox
Kids Guarantee and Sections 10.8 and 10.9 of the Indentures. Furthermore, so
long as the Senior Indebtedness shall not have been paid in full, the Lender
shall not (a) ask, demand, ▇▇▇ for, take or receive from Borrower, directly or
indirectly, in cash or other property or by setoff or in any manner (including,
without limitation, from or by way of collateral), payment of all or any of the
Subordinated Indebtedness, except to the extent that such payment is expressly
permitted to be made under Section 8(d)(i)(D) of the Fox Kids Guarantee and
Sections 10.8 and 10.9 of the Indentures, (b) commence, or join with any
creditor other than the Senior Representative in commencing, or directly or
indirectly cause Borrower to commence, or assist Borrower in commencing, any
Insolvency Proceeding, or (c) request or accept any collateral or other security
for the Subordinated Indebtedness. If the Subordinated Lender, in contravention
hereof, shall commence, prosecute or participate in any Insolvency Proceeding,
then the Senior Representative may intervene and interpose as a defense or plea
the terms of this Subordinated Note Agreement in its own name or in the name of
the Subordinated Lender.
8.4 Until such time as all of the Senior Indebtedness has been paid in
full, if any Insolvency Proceeding is commenced by or against Borrower:
(A) the Senior Representative is hereby irrevocably authorized and
empowered (in its own name or in the name of the Lender or otherwise), but
shall have no obligation, to demand, ▇▇▇ for, collect and receive every
payment or distribution otherwise payable to the Lender in respect of this
Subordinated Note Agreement and give acquittance therefor, and to file
claims and proofs of claim and take such other actions (including, without
limitation,
voting the Subordinated Indebtedness or enforcing any security interest or
other lien securing payment of the Subordinated Indebtedness) as it may
deem necessary or advisable for the exercise or enforcement of any of the
rights or interests of the Senior Representative or any of the other Senior
Creditors under this Subordinated Note Agreement; and
(B) the Lender shall duly and promptly take such action as the Senior
Representative may reasonably request (i) to collect the Subordinated
Indebtedness for the account of the Senior Representative, for the ratable
benefit of the Senior Secured Creditors and the Senior Notes Creditors, and
to file appropriate claims or proofs of claim in respect of the
Subordinated Indebtedness, (ii) to execute and deliver to the Senior
Representative such powers of attorney, assignments or other instruments as
the Senior Representative may reasonably request in order to enable the
Senior Representative to enforce any and all claims with respect to, and
any security interests and other liens securing payment of, the
Subordinated Indebtedness and (iii) to collect and receive any and all
payments or distributions that may be payable or deliverable upon or with
respect to the Subordinated Indebtedness.
8.5 All payments or distributions upon or with respect to the Subordinated
Indebtedness that are received by the Lender contrary to the provisions of this
Subordinated Note Agreement shall be received in trust for the benefit of the
Senior Representative and the other Senior Creditors, shall be segregated from
other property or funds of the Lender and shall be paid or delivered forthwith
directly to the Senior Representative, for the account of the Senior Secured
Creditors and the Senior Notes Creditors, in the same form as so received (with
any necessary endorsement or assignment), to be applied (in the case of cash)
to, or held as collateral (in the case of noncash property or securities) for,
the payment or prepayment of the Senior Indebtedness until all of the Senior
Indebtedness shall have been paid in full.
8.6 To the extent that Borrower, the Lender or any of their respective
Subsidiaries or any other guarantor of or provider of collateral for the Senior
Indebtedness shall make any payment on the Senior Indebtedness that is
subsequently invalidated, declared to be fraudulent or preferential or set aside
or is required to be repaid to a trustee, receiver or any other party under any
applicable Insolvency Law or equitable cause (any such payment being a "Voided
Payment"), then to the extent of such Voided Payment, that portion of the Senior
Indebtedness that had been previously satisfied by such Voided Payment shall be
reinstated and continue in full force and effect as if such Voided Payment had
never been made. To the extent that the Lender shall have received any payments
subsequent to the date of the initial receipt of such Voided Payment by the
Senior Representative or any of the other Senior Creditors and such payments
have not been invalidated, declared to be fraudulent or preferential or set
aside or required to be repaid to a trustee, receiver or any other party under
any applicable Insolvency Law or equitable cause, the Lender shall be obligated
and hereby agrees that any such payment so made or received shall be deemed to
have been received in trust for the benefit of the Senior Representative and the
other Senior Creditors, and the Lender hereby agrees to pay to the Senior
Representative, upon demand, the full amount so received by the Lender during
such period of time to the extent necessary to fully restore to the Senior
Representative and the other Senior Creditors the amount of such Voided Payment,
which amount shall be applied as set forth in Section 8.5.
8.7 The Senior Representative is hereby authorized to demand specific
performance of the subordination provisions of this Subordinated Note Agreement,
whether or not Borrower shall have complied with any of the provisions hereof
applicable to it, at any time when the Lender shall have failed to comply with
any of the subordination provisions of this Subordinated Note Agreement. The
Lender hereby irrevocably waives any defense based on the adequacy of a remedy
at law which might be asserted as a bar to such remedy of specific performance.
8.8 The Lender will not:
(A) (i) Cancel or otherwise discharge any of the Subordinated
Indebtedness (except upon payment in full of all of the Senior Indebtedness
or, at any time and from time to time prior thereto, to the extent that
such payment is expressly permitted to be made under Section 8(d)(i)(D) of
the Fox Kids Guarantee and under Sections 10.8 and 10.9 of the Indentures),
(ii) convert or exchange any of the Subordinated Indebtedness into or for
any other Indebtedness (except to the extent expressly permitted by the
Indentures), (iii) convert or exchange any of the Subordinated Indebtedness
into or for any Equity Interest in Borrower or otherwise (except to the
extent expressly permitted by the Indentures) or (iv) subordinate any of
the Subordinated Indebtedness to any Indebtedness of Borrower other than
the Senior Indebtedness (except that no consent of the holders of the
Senior Notes or either of the trustees for the Senior Notes shall be
required to subordinate any of the Subordinated Indebtedness to any other
Indebtedness of Borrower (although nothing herein shall limit the
obligation of any holder of Indebtedness of Borrower to turn over or
otherwise subordinate itself to any or all of the Senior Creditors in
accordance with any subordination provisions applicable to such
Indebtedness);
(B) Sell, assign, pledge, encumber or otherwise dispose of any of
the Subordinated Indebtedness; or
(C) Permit the terms of any of the Subordinated Indebtedness to be
amended, waived, supplemented or otherwise modified in such a manner as
could have an adverse effect upon the rights or interests of the Senior
Representative or any of the other Senior Creditors under this Subordinated
Note Agreement, any of the Loan Documents (as defined in the Credit
Agreement), either of the Indentures or any of the other agreements,
instruments or other documents evidencing or otherwise setting forth the
terms of any of the Senior Indebtedness.
8.9 No payment or distribution to the Senior Representative or any of the
other Senior Creditors pursuant to the provisions of this Subordinated Note
Agreement shall entitle the Lender to exercise any rights of subrogation in
respect thereof, nor shall the Lender have any right of reimbursement,
restitution, exoneration, contribution or indemnification whatsoever from any
property or assets of Borrower or any of the other guarantors, sureties or
providers of collateral security for the Senior Indebtedness, or any right to
participate in any claim or remedy of the Senior Representative or any of the
other Senior Creditors against Borrower or any of the Collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law (including, without limitation, the right to take or receive from
Borrower, directly or indirectly, in cash or other property or by setoff or in
any other manner, payment or security on account of such
claim, remedy or right), until (i) all of the Senior Indebtedness shall have
been paid in full and all of the commitments of the Secured Parties and the
other holders thereof shall have expired or been terminated, (ii) all of the
Bank Hedge Agreements shall have expired or been terminated and (iii) the
Termination Date shall have occurred.
8.10 The holders of the Senior Indebtedness may, at any time and from time
to time, without any consent of or notice to the Lender or any other holder of
the Subordinated Indebtedness and without impairing or releasing the obligations
of the Lender hereunder:
(A) change the manner, place or terms of payment of, or change or
extend the time of payment of, or renew payment or change or extend the
time or payment of, or renew or alter, the Senior Indebtedness (including
any change in the rate of interest thereon), or amend, supplement or
otherwise modify in any manner any instrument, agreement or other document
under which any of the Senior Indebtedness is outstanding;
(B) sell, exchange, release, not perfect and otherwise deal with any
of the property or assets of any Person at any time pledged, assigned or
mortgaged to secure the Senior Indebtedness;
(C) release any Person liable in any manner under or in respect of
the Senior Indebtedness;
(D) exercise or refrain from exercising any rights against Borrower,
any of the other Loan Parties or any of their respective Subsidiaries or
any other Person;
(E) apply to the Senior Indebtedness any sums from time to time
received by or on behalf of the Senior Representative or any of the other
Senior Creditors; and
(F) sell, assign, transfer or exchange any of the Senior
Indebtedness.
8.11 Each of Borrower and the Lender will, if reasonably requested by the
Senior Representative or either of the trustees for the Senior Notes, further
▇▇▇▇ their respective books of account in such a manner as shall be effective to
give proper notice of the effect of the subordination provisions of this
Subordinated Note Agreement. Each of Borrower and the Lender will, at its sole
expense and at any time and from time to time, promptly execute and deliver all
further instruments and documents, and take all further actions, that may be
necessary or that the Senior Representative or either of the trustees for the
Senior Notes may reasonably deem desirable and may request in order to protect
any right or interest granted or purported to be granted under the subordination
provisions of this Subordinated Note Agreement or to enable the Senior
Representative or any of the other Senior Creditors to exercise and enforce its
rights and remedies hereunder.
8.12 The foregoing provisions regarding subordination are and are
intended solely for the purpose of defining the relative rights of the holders
of the Senior Indebtedness, on the one hand, and the holders of the Subordinated
Indebtedness, on the other hand. Such provisions are for the benefit of the
holders of the Senior Indebtedness and shall inure to the benefit of, and shall
be enforceable by, the Senior Representative, on behalf of itself and the other
Senior Creditors, directly against the
holders of the Subordinated Indebtedness, and no holder of the Senior
Indebtedness shall be prejudiced in its right to enforce the subordination of
any of the Subordinated Indebtedness by any act or failure to act by Borrower or
any Person in custody of its property or assets. The subordination provisions
herein shall constitute a continuing offer to each and every holder of Senior
Indebtedness from time to time and such holders are intended third party
beneficiaries hereof. Nothing contained in the foregoing provisions is intended
to or shall impair, as between Borrower and the holders of the Subordinated
Indebtedness, the obligations of Borrower to such holders.
8.13 (A) Borrower agrees to pay, upon demand therefor, all of the
reasonable and properly documented out-of-pocket costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Senior Representative or any of the other Senior Creditors in enforcing the
provisions of this Subordinated Note Agreement.
(B) Borrower hereby waives promptness, diligence, presentment
for payment, demand, notice of dishonor and protest and any other notice with
respect to this Subordinated Note Agreement.
(C) None of the rights or interests of the Lender in this
Subordinated Note Agreement may be assigned or otherwise transferred thereby to
any Person other than a member of the TNCL Group or the Saban Group without the
prior written consent of Borrower and the Senior Representative.
(D) No amendment, waiver or modification of this Subordinated
Note Agreement (including, without limitation, the subordination provisions
hereof), and no consent to any departure herefrom, shall be effective unless the
same shall be in writing and signed by the Lender and, if any such amendment,
waiver or modification of this Subordinated Note Agreement (including, without
limitation, the subordination provisions hereof) could adversely affect the
rights or interests of the Senior Representative or any of the other Senior
Creditors under or in respect of this Subordinated Note Agreement, any of the
Loan Documents (as defined in the Credit Agreement), either of these Indentures
or any of the other agreements, instruments or other documents evidencing or
otherwise setting forth the terms of any of the Senior Indebtedness in any
manner, signed by the Senior Representative and/or each of the trustees for the
Senior Notes, and then, in each case, such waiver, modification or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided that neither of the trustees for the Senior Notes shall be
required to consent to any such amendment, waiver or modification that would not
adversely affect the rights or interests of any of the Senior Notes Creditors.
(E) No failure on the part of the Lender or the Senior
Representative or any of the other Senior Creditors to exercise, and no delay in
exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or a consent thereto; nor shall a single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies provided herein
are cumulative and are not exclusive of any remedies provided by applicable
law."
4. Miscellaneous.
-------------
4.1 On and after the date hereof, each reference in the Note
Agreement to the terms "this Agreement," "hereunder," "hereof," "hereby,"
"herein" or other similar terms shall be deemed to be a reference to the Note
Agreement as further amended by this First Amendment.
4.2 Except as hereby amended, the Note Agreement shall continue in
full force and effect.
4.3 This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts taken together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, this First Amendment has been duly executed on the day
and year specified at the beginning hereof.
Borrower: FOX KIDS WORLDWIDE, INC.
By: /s/ Signed by duly authorized officer
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Name:
--------------------------------
Title:
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Lender: NEWS AMERICA HOLDINGS, INCORPORATED
By: /s/ Signed by duly authorized officer
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Name:
--------------------------------
Title:
--------------------------------
Senior Representative: CITICORP USA, INC.
By: /s/ Signed by duly authorized officer
--------------------------------------
Name:
--------------------------------
Title:
--------------------------------
