EXHIBIT 4.54
EXECUTION COPY
$205,000,000
CREDIT AGREEMENT
DATED AS OF MARCH 6, 2001
AMONG
GRANITE BROADCASTING CORPORATION
AS BORROWER
AND
THE LENDERS PARTY HERETO
AND
XXXXXXX XXXXX CREDIT PARTNERS L.P.
AS ADMINISTRATIVE AGENT,
AS TRANCHE B COLLATERAL AGENT,
AS SOLE LEAD ARRANGER
AND
AS SOLE BOOKRUNNER
AND
FOOTHILL CAPITAL CORPORATION
AS TRANCHE A COLLATERAL AGENT
WEIL, GOTSHAL & XXXXXX LLP
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS........2
Section 1.1. Defined Terms...........................................2
Section 1.2. Computation of Time Periods............................29
Section 1.3. Accounting Terms and Principles........................29
Section 1.4. Certain Terms..........................................29
ARTICLE II THE FACILITIES.........................................30
Section 2.1. The Commitments........................................30
Section 2.2. Borrowing Procedures...................................30
Section 2.3. Repayment of Loans.....................................31
Section 2.4. Evidence of Debt.......................................31
Section 2.5. Optional Prepayments...................................32
Section 2.6. Mandatory Prepayments..................................32
Section 2.7. Interest...............................................33
Section 2.8. Fees...................................................34
Section 2.9. Payments and Computations..............................34
Section 2.10. Application of Payments................................35
Section 2.11. Payments Following Certain Events......................37
Section 2.12. Special Accounts.......................................38
Section 2.13. Interest Periods Election Option.......................39
Section 2.14. Special Provisions Governing Eurodollar Rate Loans.....40
Section 2.15. Capital Adequacy.......................................41
Section 2.16. Taxes..................................................42
Section 2.17. Substitution of Lenders................................44
Section 2.18. Re-advancement of Tranche B Loans......................44
ARTICLE III CONDITIONS TO LOANS....................................45
Section 3.1. Conditions Precedent to Initial Loans..................45
Section 3.2. Conditions Precedent to the Making of Re-Advanced
Tranche B Loans........................................50
ARTICLE IV REPRESENTATIONS AND WARRANTIES.........................51
Section 4.1. Corporate Existence; Compliance with Law...............51
Section 4.2. Corporate Power; Authorization; Enforceable Obligations52
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.3. Ownership of the Borrower; Subsidiaries................53
Section 4.4. Financial Statements...................................53
Section 4.5. Material Adverse Change................................54
Section 4.6. Solvency...............................................54
Section 4.7. Litigation.............................................54
Section 4.8. Taxes..................................................54
Section 4.9. Full Disclosure........................................55
Section 4.10. Margin Regulations.....................................55
Section 4.11. No Burdensome Restrictions; No Defaults................55
Section 4.12. Investment Company Act; Public Utility Holding Company
Act....................................................56
Section 4.13. Use of Proceeds........................................56
Section 4.14. Insurance..............................................57
Section 4.15. Labor Matters..........................................57
Section 4.16. ERISA..................................................58
Section 4.17. Environmental Matters..................................58
Section 4.18. Intellectual Property Matters..........................59
Section 4.19. Title..................................................59
Section 4.20. Issuance of Stock and Subordinated Indebtedness........60
Section 4.21. Lenders................................................60
Section 4.22. FCC Licenses and Approvals.............................60
Section 4.23. Loans Permitted under Subordinated Debt Documents......61
Section 4.24. Outstanding Loans......................................62
Section 4.25. Network Affiliation Agreements.........................62
Section 4.26. Inactive Subsidiaries..................................62
ARTICLE V FINANCIAL COVENANTS....................................63
Section 5.1. Minimum Net Revenue....................................63
Section 5.2. Minimum Adjusted Broadcast Cash Flow...................63
Section 5.3. Minimum EBITDA.........................................64
Section 5.4. Minimum Fixed Charge Coverage Ratio....................64
Section 5.5. Maximum Leverage Ratio.................................65
Section 5.6. Minimum Working Capital................................65
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.7. Maximum Capital Expenditures...........................65
Section 5.8. Adjustment of Financial Covenants......................66
ARTICLE VI REPORTING COVENANTS....................................66
Section 6.1. Financial Statements...................................66
Section 6.2. Certain Notices........................................68
Section 6.3. Litigation.............................................68
Section 6.4. Asset Sales............................................68
Section 6.5. Notices under Network Affiliation Agreements and Cable
Carriage Agreements....................................68
Section 6.6. SEC Filings; Press Releases............................69
Section 6.7. FCC Licenses, Etc......................................69
Section 6.8. Labor Relations........................................69
Section 6.9. Tax Returns............................................69
Section 6.10. Insurance..............................................69
Section 6.11. ERISA Matters..........................................69
Section 6.12. Environmental Matters..................................70
Section 6.13. Broadcast Ratings......................................71
Section 6.14. Board of Directors.....................................71
Section 6.15. Programming Obligations................................71
Section 6.16. Other Information......................................71
ARTICLE VII AFFIRMATIVE COVENANTS..................................71
Section 7.1. Preservation of Corporate Existence, Etc...............71
Section 7.2. Compliance with Laws, Etc..............................71
Section 7.3. Conduct of Business....................................71
Section 7.4. Payment of Taxes, Etc..................................72
Section 7.5. Maintenance of Insurance...............................72
Section 7.6. Reinvestment of Insurance Proceeds.....................72
Section 7.7. Access.................................................72
Section 7.8. Keeping of Books.......................................73
Section 7.9. Maintenance of Properties, Etc.........................73
Section 7.10. Real Estate Leases.....................................73
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.11. Application of Proceeds................................73
Section 7.12. KNTV Trigger Event.....................................73
Section 7.13. Tranche A Asset Sale Event.............................73
Section 7.14. Environmental..........................................75
Section 7.15. Control Accounts; Blocked Accounts.....................75
Section 7.16. Additional Collateral and Guaranties...................76
Section 7.17. Post Closing Matters...................................77
ARTICLE VIII NEGATIVE COVENANTS.....................................77
Section 8.1. Indebtedness...........................................77
Section 8.2. Liens, Etc.............................................78
Section 8.3. Investments............................................79
Section 8.4. Sale of Assets.........................................80
Section 8.5. Restricted Payments....................................80
Section 8.6. Restriction on Fundamental Changes; International Falls
Acquisition............................................81
Section 8.7. Change in Nature of Business...........................81
Section 8.8. License Co.............................................81
Section 8.9. Transactions with Affiliates...........................81
Section 8.10. Restrictions on Subsidiary Distributions; No New
Negative Pledge........................................82
Section 8.11. Modification of Constituent Documents/Equity
Issuances..............................................82
Section 8.12. Modification of Network Affiliation Agreements;
Material Contracts.....................................83
Section 8.13. Modification of Existing Subordinated Note Documents...83
Section 8.14. Accounting Changes; Fiscal Year........................83
Section 8.15. Margin Regulations.....................................83
Section 8.16. Cancellation of Indebtedness Owed to It................83
Section 8.17. No Speculative Transactions............................84
Section 8.18. Compliance with ERISA..................................84
Section 8.19. Environmental..........................................84
Section 8.20. Inactive Subsidiaries..................................84
ARTICLE IX EVENTS OF DEFAULT......................................84
Section 9.1. Events of Default......................................84
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 9.2. Remedies...............................................87
Section 9.3. Co-operation by Borrower...............................88
ARTICLE X THE AGENTS.............................................89
Section 10.1. Authorization and Action...............................89
Section 10.2. Agent's Reliance, Etc..................................90
Section 10.3. The Agents Individually................................90
Section 10.4. Lender Credit Decision.................................90
Section 10.5. Indemnification........................................90
Section 10.6. Successor Agents.......................................91
Section 10.7. Concerning the Collateral and the Collateral
Documents..............................................91
Section 10.8. Collateral Matters Relating to Related Obligations.....94
ARTICLE XI MISCELLANEOUS..........................................95
Section 11.1. Amendments, Waivers, Etc...............................95
Section 11.2. Assignments and Participations.........................97
Section 11.3. Assignment of Tranche A Loans..........................99
Section 11.4. Costs and Expenses....................................100
Section 11.5. Indemnities...........................................100
Section 11.6. Limitation of Liability...............................102
Section 11.7. Right of Set-off......................................102
Section 11.8. Sharing of Payments, Etc..............................102
Section 11.9. Notices, Etc..........................................103
Section 11.10. No Waiver; Remedies...................................105
Section 11.11. Binding Effect........................................105
Section 11.12. Governing Law.........................................105
Section 11.13. Submission to Jurisdiction; Service of Process........105
Section 11.14. Waiver of Jury Trial..................................105
Section 11.15. Marshaling; Payments Set Aside........................105
Section 11.16. Section Titles........................................106
Section 11.17. Documents Evidence the Same Indebtedness..............106
Section 11.18. Execution in Counterparts.............................106
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 11.19. Entire Agreement......................................106
Section 11.20. Confidentiality.......................................106
SCHEDULES
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Loan Parties
Schedule 4.5 - Material Adverse Change
Schedule 4.7 - Litigation
Schedule 4.8 - Tax Matters
Schedule 4.15 - Labor Matters
Schedule 4.16 - ERISA Matters
Schedule 4.17 - Environmental Matters
Schedule 4.18 - Registered Intellectual Property
Schedule 4.19 - Real Estate
Schedule 4.22 - FCC Licenses
Schedule 4.25 - Network Affiliation Agreements
Schedule 7.17 - Post Closing Items
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
Schedule 8.12 - Certain Agreements
Schedule 8.16 - Material Agreements
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B Form of Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Notice of Interest Period Election
Exhibit E - Form of Opinion of Counsel for the Loan Parties
Exhibit F - Form of Guaranty
Exhibit G - Form of Pledge and Security Agreement
Exhibit H - Form of Warrant
Exhibit I - Form of Blocked Account Letter
Exhibit J - Form of Control Account Letter
vi
CREDIT AGREEMENT, dated as of June 10, 1998 and amended and restated
as of March 6, 2001, among GRANITE BROADCASTING CORPORATION, a Delaware
corporation (the "BORROWER"), the Lenders (as defined below), XXXXXXX SACHS
CREDIT PARTNERS L.P. ("GSCP"), as agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT"), as sole lead arranger and book runner (in such
capacity, the "ARRANGER") and as Tranche B Collateral Agent (as defined below)
and FOOTHILL CAPITAL CORPORATION ("FOOTHILL CAPITAL"), as Tranche A Collateral
Agent (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower and the lenders party thereto are parties to a
Fourth Amended and Restated Credit Agreement dated as of June 10, 1998 (as
amended, the "EXISTING CREDIT AGREEMENT") among the Borrower, the lenders party
thereto, Bankers Trust Company, as administrative agent (the "EXISTING
ADMINISTRATIVE AGENT"), The Bank of New York, as documentation agent (the
"EXISTING DOCUMENTATION AGENT"), GSCP, Union Bank of California, N.A. and ABN
Amro Bank N.V., as co-agents (the "EXISTING CO-AGENTS" and together with the
Existing Administrative Agent and the Existing Documentation Agent,
collectively, the "EXISTING AGENTS");
WHEREAS, (a) the Borrower, the Existing Agents, the lenders party to
the Existing Credit Agreement and GSCP (in such capacity, the "EXISTING LENDER")
have concurrently herewith entered into the Master Assignment and Acceptance
dated as of the date hereof (the "MASTER ASSIGNMENT AGREEMENT") pursuant to
which the lenders party to the Existing Credit Agreement have assigned all their
right, title and interest in, to and under the Existing Credit Agreement and
such other documents and delegated all their respective obligations thereunder
to the Existing Lender and the Existing Lender has accepted such assignment and
assumed such obligations, and (b) the Existing Administrative Agent, Bankers
Trust Company, as collateral agent for the lenders party to the Existing Credit
Agreement (in such capacity, the "EXISTING COLLATERAL AGENT"), the
Administrative Agent, the Collateral Agents (as defined below), and the Borrower
have concurrently herewith entered in to the Assignment and Release Agreement
dated the date hereof (the "ASSIGNMENT AND RELEASE AGREEMENT") pursuant to which
the Existing Administrative Agent and the Existing Collateral Agent have each
resigned from their respective agent capacities under the "LOAN DOCUMENTS" (as
defined in the Existing Credit Agreement) and each has assigned all of its
respective rights, title and interest in, to and under the Existing Credit
Agreement and the "LOAN DOCUMENTS" (as defined in the Existing Credit Agreement)
and delegated all of its respective obligations thereunder to the Administrative
Agent, the Tranche A Collateral Agent or the Tranche B Collateral Agent, as
applicable, and the Administrative Agent or such Collateral Agent, as the case
may be, has accepted such assignment and delegation;
WHEREAS, the Borrower, the Existing Lender, the Administrative Agent
and the Collateral Agents have agreed to amend and restate the Existing Credit
Agreement to provide for certain amendments on the terms set forth in this
Agreement, which Agreement shall become effective upon satisfaction of certain
conditions precedent set forth herein;
WHEREAS, it is the intent of the parties hereto that this Agreement
not constitute a novation of the obligation and liabilities existing under the
Existing Credit Agreement or evidence payment of all or any of such obligations
and liabilities, that this Agreement amends and restates in its entirety the
Existing Credit Agreement, and that from and after the Effective Date the
Existing Credit Agreement be of no further force or effect except as to evidence
the incurrence of the obligations of the Borrower thereunder and the
representations and warranties made thereunder;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ACCOUNT DEBTOR" has the meaning given to it in the UCC.
"ADDITIONAL FEE LETTER" means the letter dated as of the date hereof
and addressed to the Borrower from GSCP and accepted by the Borrower on the date
hereof, with respect to certain fees to be paid from time to time to the
Lenders.
"ADJUSTED BROADCAST CASH FLOW" means, with respect to any Person for
any period, the sum of, in each case, for such period (i) EBITDA, (ii)
Consolidated Corporate Overhead and (iii) Other Expenses.
"ADMINISTRATIVE AGENT" has the meaning specified in the preamble to
this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means Bank: Citibank N.A.,
ABA:000000000, Account No. 00000000, Account Name: Xxxxxxx Xxxxx Credit
Partners L.P., Notify: Xxxx Xxxxxx.
"AFFILIATE" means, with respect to any Person, any other Person
which, directly or indirectly, controls, is controlled by or is under common
control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person who is the beneficial owner of 5%
or more of any class of Voting Stock of such Person. For the purposes of this
definition, "CONTROL" means the possession of the power to direct or cause the
direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENTS" means, collectively, the Administrative Agent, the Tranche
A Collateral Agent, the Tranche B Collateral Agent and the Arranger, and each,
an "AGENT".
"AGREEMENT" means this Credit Agreement.
"ALTERNATE RATE" means the higher of (a) the Base Rate plus 4.5% per
annum and (b) 12% per annum.
"ANNUAL SERVICING FEE" shall have the meaning described in the Fee
Letter.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, its
Domestic Lending Office in the case of an Alternate Rate Loan, and its
Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
2
"APPROVED FUND" means any Fund that is advised or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an entity
that administers or manages a Lender.
"APPROVED SECURITIES INTERMEDIARY" means a Securities Intermediary
or Commodity Intermediary selected or approved by the applicable Collateral
Agent and with respect to which the Borrower or a Subsidiary thereof has
delivered to such Collateral Agent an executed Control Account Letter.
"ARRANGER" has the meaning specified in the preamble to this
Agreement.
"ASSET SALE" has the meaning specified in SECTION 8.4.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of EXHIBIT A.
"ASSIGNMENT AND RELEASE AGREEMENT" has the meaning specified in the
recitals to this Agreement.
"AT&T" means AT&T Broadband Management Corporation.
"AT&T CABLE CARRIAGE AGREEMENT" means the Retransmission Consent
Agreement, dated October 1, 2000, between AT&T Broadband Management Corporation
and the Borrower.
"BASE RATE" means, for any day, a rate per annum equal to the
greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"BLOCKED ACCOUNT" means a deposit account maintained by any Loan
Party with a Blocked Account Bank which account is the subject of an effective
Blocked Account Letter, and includes all monies on deposit therein and all
certificates and instruments, if any, representing or evidencing such Blocked
Account.
"BLOCKED ACCOUNT BANK" means a financial institution selected or
approved by the applicable Collateral Agent and with respect to which a Loan
Party has delivered to such Collateral Agent an executed Blocked Account Letter.
"BLOCKED ACCOUNT LETTER" means a letter agreement, substantially in
the form of EXHIBIT I hereto (with such changes as may be agreed to by the
applicable Collateral Agent), executed by the Loan Party and the applicable
Collateral Agent and acknowledged and agreed to by the relevant Blocked Account
Bank.
"BORROWER" has the meaning specified in the preamble to this
Agreement.
"BORROWER'S CONCENTRATION ACCOUNT" means the deposit account in the
name of the Borrower at Bankers Trust Company, Account No. 00000000.
3
"BORROWING" means a Tranche A Borrowing or Tranche B Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to notices, determinations, fundings and payments in connection with
the Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in
Dollar deposits are also carried on in the London interbank market.
"CABLE CARRIAGE AGREEMENTS" means (i) the AT&T Cable Carriage
Agreement, (ii) the DTV Spectrum Space Agreement, dated July 6, 2000, between
Geocast Network Systems, Inc., the Borrower, KNTV-DT and KBWB-DT and (iii) the
WeB Affiliation Agreement, dated June 30,1999, between WPTA-TV and Comcast
Programming, a division of Comcast Corporation and each other agreement pursuant
to which the Borrower or any Subsidiary thereof grants to another Person the
right to receive and retransmit such Loan Party's broadcast signal.
"CAPITAL EXPENDITURES" means, with respect to any Person for any
period, the sum of (i) the aggregate of all cash expenditures (including that
portion of Capital Leases which is capitalized on the consolidated balance sheet
of such Person and its Subsidiaries) by such Person and its Subsidiaries during
that period that, in conformity with GAAP, are included in "ADDITIONS TO
PROPERTY, PLANT OR EQUIPMENT" or comparable items reflected in the consolidated
statement of cash flows of such Person and its Subsidiaries, PLUS to the extent
not covered by CLAUSE (i) of this definition, (ii) the aggregate of all
expenditures by such Person and its Subsidiaries during such period to acquire
(by purchase or otherwise) the business, property or fixed assets of, or stock
or other evidence of beneficial ownership of, any Person other than such Person
or any of its Subsidiaries and (iii) any cash expenses that would be capitalized
that are not Operating Expenses.
"CAPITAL LEASE" means, with respect to any Person, any lease of
property by such Person as lessee which would be accounted for as a capital
lease on a balance sheet of such Person prepared in conformity with GAAP.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, the
capitalized amount of all obligations of such Person or any of its Subsidiaries
under Capital Leases, as determined on a consolidated basis.
"CASH AVAILABLE FOR DEBT SERVICE" means, with respect to any Person
for any period, EBITDA for such period MINUS (i) cash payments to NBC, WB and
AT&T pursuant to the applicable Network Affiliation Agreement and the AT&T Cable
Carriage Agreement, respectively, which, pursuant to the Projections, were
excluded from Operating Expenses during such period and (ii) Capital
Expenditures made or incurred during such period that were not financed under a
Capital Lease or other financing lease.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within 180 days
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from Xxxxx'x; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of
the
4
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Xxxxx'x; (iv) certificates of deposit or bankers' acceptances maturing within
180 days after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at least "ADEQUATELY
CAPITALIZED" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (v) shares of any money market mutual fund that (a)
has substantially all of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has net assets of not
less than $500,000,000, and (c) has the highest rating obtainable from either
S&P or Xxxxx'x.
"CASH INTEREST EXPENSE" means with respect to any Person for any
period, Consolidated Interest Expense for such period excluding (i) interest
expense not payable in cash (including amortization of original issue discount
and deferred financing costs) during such period, (ii) any non-cash interest
component of Capital Leases during such period, all as determined on a
consolidated basis for such Person and its Subsidiaries and (iii) Deferred
Interest.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(a) any Person or any two or more Persons, other than one or more Permitted
Holders, acting in concert and constituting a "GROUP" (a "GROUP") for purposes
of Section 13(d) of the Exchange Act, together with any Affiliates of any such
Person, shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Exchange Act),
directly or indirectly, of Stock of the Borrower (or other Stock convertible
into such Securities) representing over 49% of the Voting Stock of the Borrower
or (b) any such Person or Group succeeds in having sufficient of its nominees
elected to the Board of Directors of the Borrower such that such nominees, when
added to any existing director remaining on the Board of Directors after such
election who is an Affiliate of such Person or Group, will constitute a majority
of the Board of Directors of the Borrower.
"CODE" means the Internal Revenue Code of 1986 (or any successor
legislation thereto), as amended from time to time.
"COLLATERAL" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any of the Collateral Documents.
"COLLATERAL AGENTS" means, collectively, the Tranche A Collateral
Agent and the Tranche B Collateral Agent and each, a "COLLATERAL AGENT".
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreements, the
Mortgages and any other document executed and delivered by a Loan Party granting
a Lien on any of its property to secure payment of the Secured Obligations.
"COMMITMENT" means, with respect to any Lender, such Lender's
Tranche A Commitment, if any, and Tranche B Commitment, if any, and
"COMMITMENTS" means the aggregate Tranche A Commitments and Tranche B
Commitments of all Lenders.
"COMMODITY ACCOUNT" has the meaning given to it in the UCC.
"COMMODITY INTERMEDIARY" has the meaning given to it in the UCC.
5
"COMMUNICATIONS ACT" means the Communications Act of 1934, as
amended, or any successor statute or statutes thereto, and all rules,
regulations, written policies, orders and decisions of the FCC thereunder, in
each case as from time to time in effect.
"COMMUNICATIONS REGULATORY AUTHORITY" means any communications
regulatory commission, agency, department, board or authority (including,
without limitation, the FCC).
"COMPLIANCE CERTIFICATE" has the meaning specified in SECTION
6.1(D).
"CONSOLIDATED CORPORATE OVERHEAD" means, with respect to any Person
for any period, that portion of overhead expense, including salaries, legal,
audit, accounting and insurance expense, of such Person and its Subsidiaries
that is not directly allocable to the operation of the broadcast systems and
other operating assets of such Person and its Subsidiaries during such period.
"CONSOLIDATED CURRENT ASSETS" means, with respect to any Person, as
at any date of determination, the total consolidated current assets of such
Person and its Subsidiaries at such date.
"CONSOLIDATED CURRENT LIABILITIES" means, with respect to any
Person, as at any date of determination, the total consolidated liabilities of
such Person and its Subsidiaries that may properly be classified as current
liabilities on a consolidated balance sheet of such Person and its Subsidiaries,
excluding all Obligations (other than Cash Interest Expense payable hereunder
and the Annual Servicing Fee), payments to NBC pursuant to Section 4(a) of the
KNTV Affiliation Agreement, trade or barter accounts payable and other non-cash
liabilities.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person
for any period, total interest expense (including that portion attributable to
Capital Leases and capitalized interest) of such Person and its Subsidiaries
during such period on a consolidated basis with respect to all outstanding
Indebtedness of such Person and its Subsidiaries, and including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net costs
under Hedging Contracts, but excluding, however, any amounts payable to the
Administrative Agent and Lenders on or before the Effective Date.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the net income (or loss) of such Person and its Subsidiaries for such
period on a consolidated basis; PROVIDED, HOWEVER, that (a) the net income of
any other Person in which such Person or one of its Subsidiaries has a joint
interest with a third party (which interest does not cause the net income of
such other Person to be consolidated into the net income of such Person in
accordance with GAAP) shall be included only to the extent of the amount of
dividends or distributions paid to such Person or Subsidiary thereof, (b) the
net income of any Subsidiary of such Person that is subject to any restriction
or limitation on the payment of dividends or the making of other distributions
shall be excluded to the extent of such restriction or limitation, (c)(i) the
net income (or loss) of any Person acquired in a pooling of interest transaction
for any period prior to the date of such acquisition and (ii) any net gain or
non-cash loss resulting from an Asset Sale by such Person or any of its
Subsidiaries other than in the ordinary course of business shall be excluded and
(d) extraordinary gains and losses and any one-time increase or decrease to net
income which is required to be recorded because of the adoption of new
accounting policies, practices or standards required by GAAP shall be excluded.
6
"CONSTITUENT DOCUMENTS" means, with respect to any Person, (a) the
articles/certificate of incorporation (or the equivalent organizational
documents) of such Person, (b) the by-laws (or the equivalent governing
documents) of such Person and (c) any document setting forth the manner of
election and duties of the directors or managing members of such Person (if any)
and the designation, amount and/or relative rights, limitations and preferences
of any class or series of such Person's Stock.
"CONTAMINANT" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"CONTRACTUAL OBLIGATION" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its properties is subject.
"CONTROL ACCOUNT" means a Securities Account or Commodity Account
maintained by any Loan Party with an Approved Securities Intermediary which
account is the subject of an effective Control Account Letter, and includes all
Financial Assets (as defined in the UCC) held therein and all certificates and
instruments, if any, representing or evidencing the Financial Assets contained
therein.
"CONTROL ACCOUNT LETTER" means a letter agreement, substantially in
the form of EXHIBIT J hereto (with such changes as may be agreed to by the
Collateral Agent party thereto), executed by a Loan Party and such Collateral
Agent and acknowledged and agreed to by the relevant Approved Securities
Intermediary.
"CUSTOMARY PERMITTED LIENS" means, with respect to any Person, any
of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being
maintained to the extent required by GAAP;
(b) Liens of landlords arising by statute and liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other liens
imposed by law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained to the extent required by
GAAP;
(c) deposits made in the ordinary course of business in connection
with worker's compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids, tenders,
sales, contracts (other than for the repayment of borrowed money) and
surety, appeal, customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar encumbrances on the use
of real property which do not materially
7
detract from the value of such real property or interfere with the
ordinary conduct of the business conducted and proposed to be conducted at
such real property;
(e) encumbrances arising under leases or subleases of real property
which do not in the aggregate materially detract from the value of such
real property or interfere with the ordinary conduct of the business
conducted and proposed to be conducted at such real property;
(f) financing statements of a lessor's rights in and to personal
property leased to such Person in the ordinary course of such Person's
business; and
(g) customary rights of set-off, revocation, refund or chargeback
under deposit agreements or under the Uniform Commercial Code (or the
equivalent thereof in any foreign jurisdiction) of banks or other
financial institutions where Borrower or any of its Subsidiaries maintains
deposits (other than deposits intended as cash collateral) in the ordinary
course of business.
"DEBT ISSUANCE" means the incurrence of Indebtedness of the type
specified in CLAUSE (A) and (B) of the definition of "INDEBTEDNESS" by the
Borrower or any of its Subsidiaries.
"DEFAULT" means any event that with the passing of time or the
giving of notice or both would become an Event of Default.
"DEFERRED INTEREST" has the meaning specified in SECTION 2.7(B).
"DOLLARS" and the sign "$" each mean the lawful money of the United
States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "DOMESTIC LENDING OFFICE" opposite its
name on SCHEDULE II or on the Assignment and Acceptance by which it became a
Lender or such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent.
"EBITDA" means, with respect to any Person for any period, the sum
of the amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) provisions for taxes based on income; (iv) total
depreciation expense, (v) total amortization expense (including, without
duplication, Programming Amortization Expense) and (vi) other non-cash items
reducing Consolidated Net Income LESS actual Programming Cash Payments, all of
the foregoing as determined on a consolidated basis for any Person and its
Subsidiaries.
"EFFECTIVE DATE" means "EFFECTIVE DATE" as defined in SECTION 3.1.
"8-7/8% SUBORDINATED NOTE DOCUMENTS" means the 8-7/8% Subordinated
Note Indenture and the other documents pursuant to which the 8-7/8% Subordinated
Notes were issued.
"8-7/8% SUBORDINATED NOTE INDENTURE" means the Senior Subordinated
Note Indenture dated as of May 11, 1998 between the Borrower and The Bank of New
York, as trustee.
"8-7/8% SUBORDINATED NOTES" means the 8-7/8% Senior Subordinated
Notes due May 15, 2008 issued by the Borrower.
8
"ELIGIBLE ASSIGNEE" means (a) a Lender or any Affiliate or Approved
Fund of such Lender; (b) a commercial bank having total assets in excess of
$5,000,000,000; (c) a finance company, insurance company, other financial
institution or fund reasonably acceptable to the Administrative Agent, which is
regularly engaged in making, purchasing or investing in loans and having a net
worth in excess of $250,000,000 or, to the extent net worth is less than such
amount, a finance company, insurance company, other financial institution or
fund, acceptable to the Administrative Agent in its sole discretion; or (d) a
savings and loan association or savings bank organized under the laws of the
United States or any State thereof that has a net worth, determined in
accordance with GAAP, in excess of $250,000,000.
"ENVIRONMENTAL LAWS" means all applicable Requirements of Law now
or hereafter in effect, as amended or supplemented from time to time,
relating to pollution or the regulation and protection of human health,
safety, the environment or natural resources, including the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
(42 X.X.X.xx. 9601 ET SEQ.); the Hazardous Material Transportation Act, as
amended (49 X.X.X.xx. 180 ET SEQ.); the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended (7 X.X.X.xx. 136 ET SEQ.); the Resource
Conservation and Recovery Act, as amended (42 X.X.X.xx. 6901 ET SEQ.); the
Toxic Substance Control Act, as amended (42 X.X.X.xx. 7401 ET SEQ.); the Clean
Air Act, as amended (42 X.X.X.xx. 740 ET SEQ.); the Federal Water Pollution
Control Act, as amended (33 X.X.X.xx. 1251 ET SEQ.); the Occupational Safety
and Health Act, as amended (29 X.X.X.xx. 651 ET SEQ.); the Safe Drinking Water
Act, as amended (42 X.X.X.xx. 300f ET SEQ.); and their state and local
counterparts or equivalents and any transfer of ownership notification or
approval statute, including the Industrial Site Recovery Act (N.J. Stat. Xxx.
ss. 13:1K-6 ET SEQ.).
"ENVIRONMENTAL LIABILITIES AND COSTS" means, with respect to any
Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel, experts
and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by
any other Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute, including any thereof arising under
any Environmental Law, Permit, order or agreement with any Governmental
Authority or other Person, which relate to any environmental, health or safety
condition or a Release or threatened Release, and result from the past, present
or future operations of, or ownership of property by, such Person or any of its
Subsidiaries.
"ENVIRONMENTAL LIEN" means any Lien in favor of any Person or
Governmental Authority for Environmental Liabilities and Costs.
"EQUITY ISSUANCE" means the issue or sale of any Stock of the
Borrower or any of its Subsidiaries by the Borrower or any of its Subsidiaries
to any Person other than the Borrower or any of such Subsidiaries and other than
directors qualifying shares, pro rata issuances to minority shareholders and
sales of stock pursuant to the exercise of stock options or warrants pursuant to
Company director and employee plans or employee purchase plans.
"ERISA" means the Employee Retirement Income Security Act of 1974
(or any successor legislation thereto), as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Borrower or any of its Subsidiaries within the meaning of Section 414 (b), (c),
(m) or (o) of the Code.
9
"ERISA EVENT" means (a) a reportable event described in Section
4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with respect to a
Title IV Plan or a Multiemployer Plan; (b) the withdrawal of the Borrower, any
of its Subsidiaries or any ERISA Affiliate from a Title IV Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (c) the complete or partial
withdrawal of the Borrower, any of its Subsidiaries or any ERISA Affiliate from
any Multiemployer Plan; (d) notice of reorganization or insolvency of a
Multiemployer Plan; (e) the filing of a notice of intent to terminate a Title IV
Plan or the treatment of a plan amendment as a termination under Section 4041 of
ERISA; (f) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC; (g) the failure to make any required
contribution to a Title IV Plan or Multiemployer Plan; (h) the imposition of a
lien under Section 412 of the Code or Section 302 of ERISA on the Borrower or
any of its Subsidiaries or any ERISA Affiliate; or (i) any other event or
condition which might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"EURODOLLAR BASE RATE" means, with respect to any Interest Period
for any Eurodollar Rate Loan, (a) the rate per annum (rounded to the nearest
1/100 of 1%) equal to the rate determined by GSCP to be the offered rate which
appears on the page of the Telerate Screen which displays an average British
Bankers Association Interest Settlement Rate (such page currently being page
number 3740 or 3750, as applicable) for deposits (for delivery on the first day
of such period) with a term equivalent to such period in Dollars, determined as
of approximately 11:00 a.m. (London, England time) two Business Days prior to
the first day of each Interest Period, or (b) in the event the rate referenced
in the preceding clause (a) does not appear on such page or service or if such
page or service shall cease to be available, the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the rate determined by GSCP to be the offered rate
on such other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first day
of such period) with a term equivalent to such period in Dollars, determined as
of approximately 11:00 a.m. (London, England time) two Business Days prior to
the first day of such Interest Period, or (c) in the event the rates referenced
in the preceding clauses (a) and (b) are not available, the rate per annum
(rounded to the nearest 1/100 of 1%) equal to the offered quotation rate to
first class banks in the London interbank market as determined by GSCP for
deposits (for delivery on the first day of the relevant period) in Dollars of
amounts in same day funds comparable to the principal amount of the applicable
Loan of GSCP, in its capacity as a Lender, for which the Eurodollar Rate is then
being determined with maturities comparable to such period as of approximately
11:00 a.m. (London, England time) two Business Days prior to the first day of
each Interest Period.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "EURODOLLAR LENDING OFFICE" opposite its
name on SCHEDULE II or on the Assignment and Acceptance by which it became a
Lender (or, if no such office is specified, its Domestic Lending Office) or such
other office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
10
"EURODOLLAR RATE" means, with respect to any Interest Period for any
Eurodollar Rate Loan, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the Eurodollar Base Rate by (b) a percentage equal to
100% MINUS the reserve percentage applicable two Business Days before the first
day of such Interest Period under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities which includes deposits by reference to
which the Eurodollar Rate is determined) having a term equal to such Interest
Period.
"EURODOLLAR RATE LOAN" means any Loan that, for an Interest Period,
bears interest based on the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning specified in SECTION 9.1.
"EXCHANGEABLE PREFERRED STOCK" means the Borrower's 12-3/4%
Cumulative Exchangeable Preferred Stock, par value $.01 per share, issued by the
Borrower pursuant to its Third Amended and Restated Certificate of
Incorporation.
"EXISTING ADMINISTRATIVE AGENT" has the meaning specified in the
recitals to this Agreement.
"EXISTING AGENTS" has the meaning specified in the recitals to this
Agreement.
"EXISTING CO-AGENTS" has the meaning specified in the recitals to
this Agreement.
"EXISTING COLLATERAL AGENT" has the meaning specified in the
recitals to this Agreement.
"EXISTING CREDIT AGREEMENT" has the meaning specified in the
recitals to this Agreement.
"EXISTING DOCUMENTATION AGENT" has the meaning specified in the
recitals to this Agreement.
"EXISTING LENDER" has the meaning specified in the recitals to this
Agreement.
"EXISTING SUBORDINATED NOTE DOCUMENTS" means the 10-3/8%
Subordinated Note Documents, the 9-3/8% Subordinated Note Documents and the
8-7/8% Subordinated Note Documents.
"EXISTING SUBORDINATED NOTE INDENTURES" means the 10-3/8%
Subordinated Note Indenture, the 9-3/8% Subordinated Note Indenture and the
8-7/8% Subordinated Note Indenture.
"EXISTING SUBORDINATED NOTES" means, collectively, the 10-3/8%
Subordinated Notes, the 9-3/8% Subordinated Notes and the 8-7/8% Subordinated
Notes.
"FACILITIES" means, collectively, (a) the Tranche A Loan Facility
and (b) the Tranche B Loan Facility.
11
"FAIR MARKET VALUE" means (a) with respect to any asset or group of
assets (other than a marketable Security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset, as reasonably determined by the Board of
Directors of the applicable Borrower, or, if such asset shall have been the
subject of a relatively contemporaneous appraisal by an independent third party
appraiser, the basic assumptions underlying which have not materially changed
since its date, the value set forth in such appraisal, and (b) with respect to
any marketable Security at any date, the closing sale price of such Security one
Business Day prior to such date, as appearing in any published list of any
national securities exchange or the Nasdaq Stock Market or, if there is no such
closing sale price of such Security, the final price for the purchase of such
Security at face value quoted on such business day by a financial institution of
recognized standing which regularly deals in securities of such type selected by
the Administrative Agent.
"FCC" means the Federal Communications Commission and any successor
governmental agency performing functions similar to those performed by the
Federal Communications Commission on the date hereof.
"FCC LICENSES" has the meaning specified in SECTION 4.22.
"FEDERAL FUNDS RATE" means for any day, the rate per annum
(expressed, as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; PROVIDED, HOWEVER, (i) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to the Administrative Agent, in its
capacity as a Lender, on such day on such transactions as determined by
Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"FEE LETTER" means the letter dated as of February 1, 2001 addressed
to the Borrower from GSCP and accepted by the Borrower on February 2, 2001, with
respect to certain fees to be paid from time to time to GSCP.
"FINANCIAL COVENANT DEBT" of any Person means Indebtedness in
respect of the principal amount of the Loans outstanding on any date of
determination.
"FINANCIAL STATEMENTS" means the financial statements of the
Borrower and its Subsidiaries delivered in accordance with SECTIONS 4.4 and 6.1.
"FISCAL QUARTER" means each of the three month periods ending on
March 31, June 30, September 30 and December 31.
"FISCAL YEAR" means the twelve month period ending on December 31.
12
"FIXED CHARGE COVERAGE RATIO" means, with respect to any Person for
any period, the ratio of (i) the Cash Available for Debt Service of such Person
and its Subsidiaries for such period divided by (ii) the Fixed Charges of such
Person and its Subsidiaries for such period.
"FIXED CHARGES" means, with respect to any Person for any period,
the sum of the amounts for such period of (i) Cash Interest Expense, (ii)
scheduled principal payments of all Indebtedness and (iii) the Annual Servicing
Fee, in each case as determined on a consolidated basis for such Person and its
Subsidiaries.
"FOOTHILL CAPITAL" has the meaning specified in the preamble to this
Agreement.
"FUND" means any Person (other than a natural Person) that is or
will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GROSS REVENUES" means, with respect to any Person for any period,
all revenues of such Person and its Subsidiaries on a consolidated basis for
such period.
"GSCP" has the meaning specified in the preamble to this Agreement.
"GUARANTY" means the guaranty, in substantially the form of EXHIBIT
F, executed by each Subsidiary of the Borrower.
"GUARANTY OBLIGATION" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness of another Person, if the purpose or intent of such Person in
incurring the Guaranty Obligation is to provide assurance to the obligee of such
Indebtedness that such Indebtedness will be paid or discharged, or that any
agreement relating thereto will be complied with, or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof including, (a) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of Indebtedness
of another Person and (b) any liability of such Person for Indebtedness of
another Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such Indebtedness or any security therefor, or
to provide funds for the payment or discharge of such Indebtedness (whether in
the form of a loan, advance, stock purchase, capital contribution or otherwise),
(ii) to maintain the solvency or any balance sheet item, level of income or
financial condition of another Person, (iii) to make take-or-pay or similar
payments, if required, regardless of non-performance by any other party or
parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Indebtedness or to assure the holder
13
of such Indebtedness against loss, or (v) to supply funds to or in any other
manner invest in such other Person (including to pay for property or services
irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under subclause (i), (ii),
(iii), (iv) or (v) of clause (b) of this definition the primary purpose or
intent thereof is to provide the assurance described above. The amount of any
Guaranty Obligation shall be equal to the amount of the Indebtedness so
guaranteed or otherwise supported.
"HEDGING CONTRACTS" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements, and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"INACTIVE SUBSIDIARIES" means Granite Response Television Inc and
WLAJ, Inc.
"INDEBTEDNESS" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or which
bear interest, (c) all reimbursement and other obligations with respect to
letters of credit, bankers' acceptances, surety bonds and performance bonds,
whether or not matured, (d) all indebtedness for the deferred purchase price of
property or services, other than the payments to NBC or WB pursuant to the
applicable Network Affiliation Agreements (but not any payments pursuant to any
other Network Affiliation Agreement or any Cable Carriage Agreement), and other
than trade payables incurred in the ordinary course of business which have not
been unpaid for more than 120 days from the due date therefor, (e) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (f) all Capital Lease Obligations of such Person, (g) all Guaranty
Obligations of such Person, (h) all obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for value prior to January 1, 2005
any Stock or Stock Equivalents of such Person, valued, in the case of redeemable
preferred stock, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (i) all payments that such Person
would have to make in the event of an early termination on the date Indebtedness
of such Person is being determined in respect of Hedging Contracts of such
Person and (j) all Indebtedness of the type referred to above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts
and general intangibles) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
"INDEMNIFIED PARTY" has the meaning specified in SECTION 11.5.
"INTEREST EXPENSE" means, for any Person for any period, total
interest expense of such Person and its Subsidiaries for such period determined
on a consolidated basis in conformity with GAAP and including, in any event,
interest capitalized during construction for such period and net costs under
Interest Rate Contracts for such period.
"INTEREST PERIOD" means, in the case of any Eurodollar Rate Loan,
(a) initially, the period commencing on the date such Eurodollar Rate Loan is
made and ending one, two, three or six months thereafter, as selected by the
Borrower in its Notice of Borrowing given to the Administrative Agent pursuant
to SECTION 2.2 or 2.13, and (b) thereafter, a period commencing on the last day
of the immediately preceding Interest Period therefor and ending one, two, three
or
14
six months thereafter, as selected by such Borrower in its Notice of Interest
Period Election given to the Administrative Agent pursuant to SECTION 2.13 or
ending one month thereafter if no Notice of Interest Period Election has been
given to the Administrative Agent pursuant to SECTION 2.13; PROVIDED, HOWEVER,
that all of the foregoing provisions relating to Interest Periods in respect of
Eurodollar Rate Loans are subject to the following:
(i) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to the
immediately following Business Day, unless the result of such extension
would be to extend such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(iii) the Borrower may not select any Interest Period that
ends after the Maturity Date;
(iv) the Borrower may not select any Interest Period in
respect of Loans having an aggregate principal amount of less than
$5,000,000; and
(v) there shall be outstanding at any one time no more than
ten (10) Interest Periods in the aggregate.
"INTEREST RATE CONTRACTS" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.
"INTEREST RESERVE ACCOUNT" has the meaning specified in SECTION
2.12(A).
"INTERNATIONAL FALLS ACQUISITION" means the acquisition by the
Borrower or one of its Subsidiaries, of all of the outstanding shares of Channel
11 License, Inc. (the "TARGET") not currently held by the Borrower or a
Subsidiary thereof, pursuant to the terms of the Settlement and Merger
Agreement, dated as of August 19, 1999 by and between KBJR License, Inc., and
Xxxx Broadcasting Company of Minnesota, Inc., as in effect on the date hereof;
PROVIDED, HOWEVER, that;
(a) the Administrative Agent shall receive at least 10 days'
prior written notice of such proposed acquisition;
(b) the sum of all amounts payable in connection with the
International Falls Acquisition (including all transaction costs and all
Indebtedness, liabilities and Guaranty Obligations incurred or assumed in
connection therewith or otherwise reflected in a consolidated balance
sheet of the Borrower and Target) shall not exceed $225,000;
(c) at or prior to the closing of the International Falls
Acquisition, the Borrower (or the Subsidiary making such acquisition) and
the Target shall have executed such documents and taken such actions as
may be required under SECTION 7.16;
15
(d) on or prior to the date of such acquisition, the Administrative
Agent shall have received, in form and substance satisfactory to the
Administrative Agent, copies of all closing documents and instruments, and
all opinions, certificates, lien search results and other documents
reasonably requested by the Administrative Agent;
(e) all FCC Licenses with respect to any radio or television
broadcast station to be acquired in connection with such acquisition shall
be in full force and effect; and
(f) at the time of such acquisition and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing and
all representations and warranties contained in ARTICLE IV and in the
other Loan Documents shall be true and correct in all material respects.
"INVESTMENT" means, with respect to any Person, (a) any purchase or
other acquisition by that Person of (i) any Security issued by, (ii) a
beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by that Person of all
or a significant part of the assets of a business conducted by another Person,
(c) any loan, advance (other than endorsements for collection or deposits with
financial institutions available for withdrawal on demand, prepaid expenses,
accounts receivable and similar items made or incurred in the ordinary course of
business as presently conducted), or capital contribution by that Person to any
other Person, including all Indebtedness of any other Person to that Person
arising from a sale of property by that Person other than in the ordinary course
of its business, and (d) any Guaranty Obligation incurred by that Person in
respect of Indebtedness of any other Person. The amount of any Investment shall
be the original cost of such Investment PLUS the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment LESS any reductions by
way of cash repayments of principal or cash returns of capital (at the time of
such repayment or return).
"IRS" means the Internal Revenue Service of the United States or any
successor thereto.
"KBWB" means Pacific FM Incorporated, a California corporation, and
a wholly-owned Subsidiary of the Borrower, each Subsidiary thereof and each
License Co. which holds a FCC License relating to any assets owned by Pacific FM
Incorporated or any of its Subsidiaries.
"KBWB LIEN" means a first priority security interest in the Stock
held by the Borrower in, and personal and real property assets of, KBWB, and
includes, without limitation, the proceeds of the related broadcast license,
securing payment of Liquidated Damages (as defined in the KNTV Affiliation
Agreement) excluding any Unpaid Installment (as defined in the KNTV Affiliation
Agreement) by the Borrower to NBC under the KNTV Affiliation Agreement, up to an
amount equal to $34,162,000 plus reasonable fees, costs and expenses incurred by
NBC or the Tranche B Collateral Agent in enforcing NBC's rights under the KBWB
Lien.
"KNTV" means KNTV, Inc., a Virginia corporation, and a
wholly-owned Subsidiary of the Borrower, and each Subsidiary thereof and each
License Co. which holds a FCC License relating to any assets owned by KNTV,
Inc. or any of its Subsidiaries.
"KNTV CALL RIGHT" has the meaning set forth in the NBC Intercreditor
Agreement.
16
"KNTV RESERVE ACCOUNT" has the meaning specified in SECTION 2.12(A).
"KNTV AFFILIATION AGREEMENT" means the network affiliation agreement
entered into among NBC Television Network and the Borrower dated as of May 31,
2000, and amended and restated as of March 6, 2001 and as may be otherwise
amended from time to time in accordance with the conditions set forth herein.
"KNTV AFFILIATION PAYMENT" means the affiliation payment in an
amount equal to $30,500,000 payable on January 1, 2002 by the Borrower to NBC
Television Network pursuant to Section 4(a) of the KNTV Affiliation Agreement.
"KNTV TRIGGER EVENT" means the occurrence of either of the following
events, (a) the failure of KNTV or the Borrower to make any payment under
Section 4(a) of the KNTV Affiliation Agreement when the same becomes due and
payable or (b) the termination, for any reason, of the KNTV Affiliation
Agreement by NBC.
"LANDLORD CONSENT LETTER" means an executed consent, given by the
applicable landlord, to the mortgaging of the leasehold interest in the
applicable demised premises pursuant to the Mortgage Documents and otherwise
containing such terms as required in this Agreement.
"LEASES" means, with respect to any Person, all of those leasehold
estates in real property of such Person, as lessee, as such may be amended,
supplemented or otherwise modified from time to time.
"LENDER" means each financial institution or other entity that (a)
is listed on the signature pages hereof as a "LENDER" or (b) from time to time
becomes a party hereto by execution of an Assignment and Acceptance.
"LEVERAGE RATIO" means, with respect to any Person for any period,
the ratio of (a) Financial Covenant Debt of such Person and its Subsidiaries as
of the last day of such period to (b) EBITDA for such Person and its
Subsidiaries for such period.
"LICENSE CO." means any wholly-owned direct or indirect
Subsidiary of the Borrower established solely for the purpose of holding the
FCC Licenses now or hereafter acquired or owned by the Borrower or any of its
Subsidiaries, including, without limitation, any of KOFY -TV License, Inc.,
KNTV License, Inc., WPTA-TV License, Inc., KBJR License, Inc., WTVH License,
Inc., KSEE License, Inc., WKBW-TV License, Inc., WXON License, Inc., WEEK-TV
License, Inc., Channel 11 License, Inc. and "LICENSE COS." means all such
Subsidiaries collectively.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, including any conditional sale
or other title retention agreement, in the case of Securities, any purchase
option, call or similar right of a third party with respect to such Securities,
the interest of a lessor under a Capital Lease, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction naming the owner of the asset to which such Lien relates as
debtor.
17
"LMA" means any time brokerage, local marketing or similar
arrangement pursuant to which the Borrower or any of its Subsidiaries agrees to
provide television or radio management services, television or radio
programming, or assets related to the provision of television or radio
broadcasting to the licensee of a television or radio broadcast station or to
sell commercial advertising to occupy the airtime of such broadcast station.
"LOAN" means any Tranche A Loan or Tranche B Loan made by any Lender
pursuant to this Agreement.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes (if
any), the Guaranty, the Fee Letter (including any notes issued thereunder), the
Additional Fee Letter, the Collateral Documents and each certificate, agreement
or document executed by a Loan Party and delivered to any Agent or any Lender in
connection with or pursuant to any of the foregoing.
"LOAN PARTY" means each of the Borrower, each Subsidiary Guarantor
and each other Subsidiary of the Borrower that executes and delivers a Loan
Document.
"MARGIN" means, during any Interest Period, a rate that is equal to
the greater of (a) 5.50% per annum and (b) 12% per annum LESS the Eurodollar
Rate (for such Interest Period).
"MASTER ASSIGNMENT AGREEMENT" has the meaning specified in the
Recitals to this Agreement.
"MATERIAL ADVERSE CHANGE" means a material adverse change in any of
(a) the condition (financial or otherwise), business, assets, liabilities
performance, prospects, operations or properties of the Borrower, the Tranche A
Loan Parties (other than the Borrower), taken as a whole, the Tranche B Loan
Parties, taken as a whole, or the Borrower and its Subsidiaries, taken as a
whole, (b) the ability of the Borrower to repay the Obligations or of the
Subsidiary Guarantors, taken as a whole, to perform their obligations under the
Loan Documents, or (c) the rights and remedies of any of the Agents or the
Lenders under the Loan Documents.
"MATERIAL ADVERSE EFFECT" means an effect that results in or causes,
or has a reasonable likelihood of resulting in or causing, a Material Adverse
Change.
"MATERIAL CONTRACT" means all Leases with respect to tower and
antenna sites, all Network Affiliation Agreements, all joint sales agreements,
the Settlement and Merger Agreement, dated as of August 19, 1999 by and between
KBJR License, Inc., and Xxxx Broadcasting Company of Minnesota, Inc., and the
AT&T Cable Carriage Agreement.
"MATURITY DATE" means December 31, 2003.
"MORTGAGE DOCUMENTS" means the mortgages, deeds of trust, other real
estate security documents and each amendment thereto or assignment thereof made
or required herein to be made by any Loan Party.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries or
any ERISA Affiliate has any obligation or liability, contingent or otherwise.
"NBC" means National Broadcasting Company, Inc., NBC Television
Network, or an Affiliate thereof.
18
"NBC AFFILIATION AGREEMENTS" means Affiliation Agreements entered
into from time to time by and between one or more Loan Parties and NBC.
"NBC INTERCREDITOR AGREEMENT" means the intercreditor agreement
entered into as of the date hereof by and between the Tranche B Collateral
Agent, NBC, the Borrower, KNTV and KBWB.
"NBC DOCUMENTS" has the meaning set forth in the NBC Intercreditor
Agreement.
"NET CASH PROCEEDS" means proceeds received by any Loan Party after
the Effective Date in cash or Cash Equivalents from any (a) Asset Sale, other
than an Asset Sale permitted under CLAUSES (A) through (D) of SECTION 8.4, net
of (i) the reasonable cash costs of sale, assignment or other disposition, (ii)
taxes paid or payable as a result thereof, (iii) any amount required to be paid
or prepaid on Indebtedness (other than the Obligations) secured by the assets
subject to such Asset Sale and (iv) amounts required to be provided by Borrower
or any Subsidiary, as the case may be, as a reserve, in accordance with GAAP,
against any liabilities associated with such Asset Sale including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with any such Asset Sale permitted hereunder; PROVIDED,
HOWEVER, that the amount of such reserve MINUS the amounts paid by the Borrower
and its Subsidiaries to satisfy the liabilities reserved against thereunder (to
the extent a positive amount) shall constitute Net Proceeds hereunder at the
time such reserve is no longer required in accordance with GAAP; PROVIDED
FURTHER, HOWEVER, that the evidence of each of (I), (II), (III) AND (IV) are
provided to the Administrative Agent in form and substance reasonably
satisfactory to it; (b) Property Loss Event or (c) (i) Equity Issuance (other
than any such issuance of common Stock of the Borrower occurring in the ordinary
course of business to any director, member of the management or employee of the
Borrower or its Subsidiaries), or (ii) Debt Issuance (other than any Debt
Issuance permitted under SECTION 8.1), in each case net of brokers' and
advisors' fees and other costs incurred in connection with such transaction;
PROVIDED, HOWEVER, that in the case of this clause (c) evidence of such costs is
provided to the Administrative Agent in form and substance satisfactory to it.
"NET REVENUES" means, with respect to any Person for any period,
consolidated Gross Revenues LESS any agency's sales commission or discount,
national sales representatives' fees and any other direct charges to Gross
Revenues.
"NETWORK AFFILIATION AGREEMENTS" means, collectively, the
affiliation agreements between the Borrower or any Subsidiary of the Borrower
and any of the Networks, as the case may be, listed in SCHEDULE 4.25 as any such
agreement may be amended, supplemented or otherwise modified as permitted by the
terms of this Agreement and including any replacement agreement.
"NETWORKS" means one or more of NBC, American Broadcasting Company,
CBS, Inc., WB Television Network, Fox Broadcasting Company, or United Paramount
Network or an Affiliate thereof, as the context requires.
"9-3/8% SUBORDINATED NOTE DOCUMENTS" means the 9-3/8% Subordinated
Note Indenture and other documents pursuant to which the 9-3/8% Subordinated
Notes were issued.
19
"9-3/8% SUBORDINATED NOTE INDENTURE" means the indenture dated as of
February 22, 1996 between the Borrower and The Bank of New York, as trustee.
"9-3/8% SUBORDINATED NOTES" means the 9-3/8% Series A Senior
Subordinated Notes due December 1, 2005 issued by the Borrower and the 9-3/8%
Senior Subordinated Notes due December 1, 2005 issued by the Borrower.
"NON-MATERIAL LEASEHOLDS" means leaseholds which relate to (i) the
Borrower's head office in New York City and (ii) office space and other sites
which are not material to the operations of any television station owned or
operated by the Borrower or any of its Subsidiaries.
"NON-U.S. LENDER" means each Lender or Administrative Agent that is
not a United States person as defined in Section 7701(a)(30) of the Code.
"NOTE" means a promissory note of the Borrower payable to the order
of any Lender in a principal amount equal to the amount of such Lender's Tranche
A Loan or Tranche B Loan, as the case may be, evidencing the Indebtedness of
such Borrower to such Lender resulting from such Loan owing to such Lender.
"NOTICE OF BORROWING" has the meaning specified in SECTION 2.2(A).
"NOTICE OF INTEREST PERIOD ELECTION" has the meaning specified in
SECTION 2.13(A).
"OBLIGATIONS" means the Loans and all other amounts, obligations,
covenants and duties owing by the Borrower to the Administrative Agent, any
Collateral Agent, the Arranger any Lender, any Affiliate of any of them or any
Indemnitee, of every type and description (whether by reason of an extension of
credit, opening or amendment of a letter of credit or payment of any draft drawn
thereunder, loan, guaranty, indemnification, foreign exchange or currency swap
transaction, interest rate hedging transaction or otherwise), present or future,
arising under this Agreement, any other Loan Document, any Hedging Contract, any
agreement for cash management services entered into in connection with this
Agreement or any other Loan Document, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired and whether or not evidenced
by any note, guaranty or other instrument or for the payment of money, and
includes all letter of credit, cash management and other fees, interest
(including interest which, but for the filing of a petition in bankruptcy with
respect to the Borrower, would have accrued on any Obligation, whether or not a
claim is allowed against the Borrower for such interest in the related
bankruptcy proceeding), charges, expenses, fees, attorneys' fees and
disbursements and other sums chargeable to the Borrower under this Agreement,
any other Loan Document, any Hedging Contract or any agreement for cash
management services entered into in connection with this Agreement or any other
Loan Document.
"OPERATING EXPENSES" has the meaning given to "TOTAL EXPENSES" in
the Projections.
"OTHER EXPENSES" means, with respect to any Person for any period,
all cash expenses other than income tax expense, interest expense, operating
expense and Consolidated Corporate Overhead, in each case, for such period.
"OTHER TAXES" has the meaning specified in SECTION 2.16(B).
20
"OWNERSHIP REPORTS" means, with respect to any broadcast radio or
television station owned by the Borrower or any of its Subsidiaries, the reports
and certifications filed with the FCC pursuant to 47 C.F.R. Section 73.3615, or
any comparable reports filed pursuant to any successor regulation thereto.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PERMIT" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"PERMITTED HOLDERS" means (i) W. Xxx Xxxxxxxx and Xxxxxx X. Xxxx,
(ii) the members of the immediate family of either of them, (iii) any trust
created for the benefit of the Persons described in clauses (i) or (ii) or any
of their estates or (iv) any entity that is controlled by any Person described
in clauses (i), (ii) or (iii).
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity, or a Governmental
Authority.
"PLEDGE AND SECURITY AGREEMENTS" means, collectively, the Tranche A
Pledge and Security Agreement and the Tranche B Pledge and Security Agreement.
"PLEDGED NOTES" means all right, title and interest of any Loan
Party in the Instruments (as defined in the Pledge and Security Agreements)
evidencing all Indebtedness owed to such Loan Party, including all Indebtedness
described on SCHEDULE 2 to the applicable Pledge and Security Agreement, issued
by the obligors named therein, and all interest, cash, Instruments and other
property or Proceeds (as defined in the Pledge and Security Agreements) from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Indebtedness.
"PLEDGED STOCK" means the shares of capital stock owned by each Loan
Party, including all shares of capital stock listed on SCHEDULE 2 to the
applicable Pledge and Security Agreement.
"PRIME RATE" means the rate of interest per annum that The Chase
Manhattan Bank announces from time to time as its prime lending rate, as in
effect from time to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
GSCP or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"PROCEEDS" has the meaning given to it in the UCC.
"PRO FORMA BALANCE SHEET" has the meaning specified in SECTION
4.4(D).
"PROGRAM" means any radio or television series or other program
produced or distributed for radio or television release (including any
syndicated series or other program regardless of its medium of initial
exploitation), in each case whether recorded on film, videotape, audiotape,
cassette, cartridge, disc or by any other means, method, process or device,
whether now known or hereafter developed.
21
"PROGRAM CONTRACTS" means all contracts for radio, television, film,
programs, music and related audio rights and syndicated series exhibition rights
acquired under license agreements.
"PROGRAM RIGHTS" means any right whether arising under Program
Contracts or otherwise, to sell, distribute, subdistribute, exhibit, lease,
sublease, license, sublicense or otherwise exploit Programs.
"PROGRAMMING AMORTIZATION EXPENSE" means, as at any date of
determination, total amortization expense of any Person and its Subsidiaries for
the period which is directly attributable to Programs, Program Rights or Program
Contracts, determined on a consolidated basis.
"PROGRAMMING CASH PAYMENTS" means, as at any date of determination,
the aggregate cash payments actually made by any Person and its Subsidiaries for
the period in respect of Programming Obligations, determined on a consolidated
basis in conformity with GAAP.
"PROGRAMMING OBLIGATIONS" means at any date of determination, all
direct or indirect liabilities, contingent or otherwise, with respect to Program
Contracts, Programs or Program Rights of any Person whether or not reflected on
the consolidated balance sheet of such Person prepared in conformity with GAAP.
"PROJECTIONS" means (a) those financial projections dated (i)
December 4, 2000, covering the fiscal years ending in 2000 through 2007,
inclusive, (ii) November 28, 2000 covering each fiscal quarter in the fiscal
years ending in 2000 and 2001 and (iii) November 29, 2000 covering each fiscal
quarter in the fiscal years ending 2002 and (b) the funding analysis dated
December 4, 2000, in each case, as delivered to the Lenders by the Borrower.
"PROPERTY LOSS EVENT" means any loss of or damage to property of any
Loan Party that results in the receipt by such Person of proceeds of insurance
(other than proceeds of business interruption insurance) in excess of $1,000,000
or any taking of property of any Loan Party that results in the receipt by such
Person of a compensation payment in respect thereof in excess of $1,000,000.
"RATABLE PORTION" or "RATABLY" means, with respect to any Lender, on
any date of determination, (a) with respect to the Tranche A Loan Facility, the
percentage obtained by dividing (i) the Tranche A Commitment of such Lender by
(ii) the aggregate Tranche A Commitments of all Lenders (or, at any time after
the Effective Date, the percentage obtained by dividing the principal amount of
such Lender's Tranche A Loans then outstanding by the aggregate Tranche A Loans
then outstanding of all Lenders), (b) with respect to the Tranche B Loan
Facility, the percentage obtained by dividing (i) the Tranche B Commitment of
such Lender by (ii) the aggregate Tranche B Commitments of all Lenders (or, at
any time after the Effective Date, the percentage obtained by dividing the
principal amount of such Lender's Tranche B Loans then outstanding by the
aggregate Tranche B Loans then outstanding of all Lenders) and (c) with respect
to the Facilities, the percentage obtained by dividing (i) the Commitment of
such Lender by (ii) the aggregate Commitments of all Lenders (or, at any time
after the Effective Date, the percentage obtained by dividing the principal
amount of such Lender's Loans then outstanding by the aggregate Loans then
outstanding of all Lenders).
22
"RE-ADVANCE DATE" means the first date on which each of the
conditions set forth in SECTION 3.2 has been satisfied.
"RE-ADVANCED AMOUNT" has the meaning specified in SECTION 2.18.
"RE-ADVANCED TRANCHE B LOAN" has the meaning specified in SECTION
2.18(A).
"REGISTER" has the meaning specified in SECTION 11.2(C).
"REINVESTMENT DEFERRED AMOUNT" means, with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any of its Subsidiaries in connection therewith which are not initially applied
to prepay the Loans pursuant to SECTION 7.6 as a result of the delivery of a
Reinvestment Notice.
"REINVESTMENT EVENT" means any Property Loss Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"REINVESTMENT NOTICE" means a written notice executed by a
Responsible Officer of the Borrower stating that no Default, Event of Default or
KNTV Trigger Event has occurred and is continuing and that the Borrower or the
applicable Subsidiary (directly or indirectly through one of its Subsidiaries)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of a Property Loss Event to acquire replacement assets useful in the Borrower's
or the applicable Subsidiary's businesses or effect repairs.
"REINVESTMENT PREPAYMENT AMOUNT" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended or required to be expended pursuant to a Contractual Obligation
entered into prior to the relevant Reinvestment Prepayment Date to acquire
replacement assets useful in the Borrower's or the applicable Subsidiary's
businesses or to effect repairs.
"REINVESTMENT PREPAYMENT DATE" means, with respect to any
Reinvestment Event, the earlier of (i) the date occurring 180 days after such
Reinvestment Event and (ii) the date five Business Days after the date on which
the Borrower shall have notified the Administrative Agent of a Borrower's
determination not to acquire replacement assets useful in such Borrower's or a
Subsidiary's business or effect repairs (or failure to diligently pursue such
repairs) with all or any portion of the relevant Reinvestment Deferred Amount.
"RELATED OBLIGATIONS" has the meaning specified in SECTION 10.8.
"RELEASE" means, with respect to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration, in each case, of any Contaminant into the indoor or
outdoor environment or into or out of any property owned by such Person,
including the movement of Contaminants through or in the air, soil, surface
water, ground water or property.
"REMEDIAL ACTION" means all actions required to (a) clean up,
remove, treat or in any other way address any Contaminant in the indoor or
outdoor environment, (b) prevent the Release or threat of Release or minimize
the further Release so that a Contaminant does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
23
"REQUIREMENT OF LAW" means, with respect to any Person, the common
law and all federal, state, local and foreign laws, rules and regulations,
orders, judgments, decrees and other legal requirements or determinations of any
Governmental Authority or arbitrator, applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"REQUISITE LENDERS" means, Lenders having at least fifty-one percent
(51%) of the Commitments and, after the Effective Date, fifty-one percent (51%)
of the principal amount of all Loans then outstanding.
"REQUISITE TRANCHE A LENDERS" means Tranche A Lenders having at
least fifty-one percent (51%) of the aggregate outstanding amount of the Tranche
A Commitments and, after the Effective Date, fifty-one percent (51%) of the
aggregate Tranche A Loans then outstanding.
"REQUISITE TRANCHE B LENDERS" means Tranche B Lenders having at
least fifty-one percent (51%) of the aggregate outstanding amount of the Tranche
B Commitments and, after the Effective Date, fifty-one percent (51%) of the
aggregate Tranche B Loans then outstanding.
"RESERVE ACCOUNT" has the meaning specified in SECTION 2.12(A).
"RESPONSIBLE OFFICER" means, with respect to any Person, any of the
principal executive officers of such Person, but in any event, with respect to
financial matters, the chief financial officer, treasurer or controller of such
Person.
"RESTRICTED PAYMENT" means (a) any dividend or other distribution,
direct or indirect, on account of any Stock or Stock Equivalents of the Borrower
or any of its Subsidiaries now or hereafter outstanding, except a dividend
payable solely in Stock or Stock Equivalents or a dividend or distribution
payable solely to the Borrower and/or one or more Subsidiary Guarantors, (b) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any Stock or Stock Equivalents of
the Borrower or any of its Subsidiaries now or hereafter outstanding other than
one payable solely to the Borrower and/or one or more Subsidiary Guarantors, (c)
any prepayment of any amounts due under any Network Affiliation Agreement by the
Borrower or any of its Subsidiaries (other than the KNTV Affiliation Payment) or
(d) any payment or prepayment of principal, premium (if any), interest, fees
(including fees to obtain any waiver or consent in connection with any Security)
or other charges on, or redemption, purchase, retirement, defeasance, sinking
fund or similar payment with respect to, any Indebtedness of the Borrower or any
of its Subsidiaries or any other Loan Party.
"SECURED OBLIGATIONS" means, in the case of the Borrower, the
Obligations, and, in the case of any other Loan Party, the obligations of such
Loan Party under the Guaranty and the other Loan Documents to which it is a
party.
"SECURED PARTIES" means the Lenders, the Arranger, the
Administrative Agent, the Collateral Agents and any other holder of any of the
Obligations.
"SECURITIES ACCOUNT" has the meaning given to it in the UCC.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
(or any successor legislation thereto), as amended from time to time.
24
"SECURITIES INTERMEDIARY" has the meaning given to it in the UCC.
"SECURITY" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness, whether
secured, unsecured, convertible or subordinated, or any certificate of interest,
share or participation in, or any temporary or interim certificate for the
purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing, but shall not include any evidence of the Obligations.
"SHARED COLLATERAL" has the meaning set forth in the NBC
Intercreditor Agreement.
"SOLVENT" means, with respect to any Person, that the value of the
assets of such Person (both at fair value and present fair saleable value) is,
on the date of determination, greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such Person as of such
date and that, as of such date, such Person is able to pay all liabilities of
such Person as such liabilities become absolute and mature taking into account
the timing and the amounts of cash to be received by such Person or its
Subsidiaries from any source and the timing of and amounts of cash to be payable
in respect of or in connection with the debt and liabilities of such Person and
its Subsidiaries and does not have unreasonably small capital taking into
account the particular capital requirements of such Person and its projected
capital requirements and availability. In computing the amount of contingent or
unliquidated liabilities at any time, such liabilities will be computed at the
amount which, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"STOCK" means shares of capital stock (whether denominated as common
stock or preferred stock), beneficial, partnership or membership interests,
participations or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity,
whether voting or non-voting.
"STOCK EQUIVALENTS" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable unless not convertible, exchangeable or exercisable prior to the
Maturity Date.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company or other business entity of which an
aggregate of more than 50% outstanding Voting Stock is, at the time, directly or
indirectly, owned or controlled by such Person and/or one or more Subsidiaries
of such Person.
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Borrower party
to the Guaranty.
"TARGETED ASSET SALE" has the meaning specified in SECTION 7.13.
"TAX AFFILIATE" means, with respect to any Person, (a) any
Subsidiary of such Person, and (b) any Affiliate of such Person with which such
Person files or is eligible to file consolidated, combined or unitary tax
returns.
"TAX RETURN" has the meaning specified in SECTION 4.8.
25
"TAXES" has the meaning specified in SECTION 2.16(A).
"10-3/8% SUBORDINATED NOTE DOCUMENTS" means the 10-3/8% Subordinated
Note Indenture and the other documents pursuant to which the 10-3/8%
Subordinated Notes were issued.
"10-3/8% SUBORDINATED NOTE INDENTURE" means the Senior Subordinated
Note Indenture dated as of May 19, 0000 xxxxxxx xxx Xxxxxxxx xxx Xxxxxx Xxxxxx
Trust Company of New York, as trustee.
"10-3/8% SUBORDINATED NOTES" means the 10-3/8% Series A Senior
Subordinated Notes due May 15, 2005 issued by the Borrower.
"TITLE IV PLAN" means a pension plan, other than a Multiemployer
Plan, which is covered by Title IV of ERISA to which the Borrower or any of its
Subsidiaries or any ERISA Affiliate has any obligation or liability (contingent
or otherwise).
"TOTAL ASSETS" means, with respect to any Person as at any date, the
total assets of such Person and its Subsidiaries at such date determined on a
consolidated basis in conformity with GAAP MINUS (a) any minority interest in
non-wholly-owned Subsidiaries that would be reflected on a consolidated balance
sheet of such Person and its Subsidiaries at such date prepared in conformity
with GAAP and (b) any Securities issued by such Person held as treasury
securities.
"TRANCHE A ASSUMING LENDER" has the meaning specified in SECTION
11.3.
"TRANCHE A ASSET SALE EVENT" has the meaning specified in SECTION
7.13.
"TRANCHE A BORROWING" means Tranche A Loans made on the Effective
Date by the Tranche A Loan Lenders ratably according to their respective Tranche
A Commitments.
"TRANCHE A CASH COLLATERAL ACCOUNT" means the "CASH COLLATERAL
ACCOUNT" as defined in the Tranche A Pledge and Security Agreement.
"TRANCHE A COLLATERAL" means all of the Collateral upon which a Lien
is granted to the Tranche A Collateral Agent.
"TRANCHE A COLLATERAL AGENT" means Foothill Capital, in its capacity
as collateral agent for the Secured Parties with respect to the Tranche A
Collateral.
"TRANCHE A COLLATERAL DOCUMENTS" means all Collateral Documents to
which the Tranche A Collateral Agent is a party.
"TRANCHE A COMMITMENT" means, with respect to each Tranche A Lender,
the commitment of such Lender to make Tranche A Loans to the Borrower in the
aggregate principal amount outstanding not to exceed the amount set forth
opposite such Lender's name on SCHEDULE I under the caption "TRANCHE A
COMMITMENT" or, as the case may be, in the Assignment and Acceptance pursuant to
which such Lender became a party hereto and as such amount may be reduced
pursuant to this Agreement. The aggregate amount of the Tranche A Commitments as
of the Effective Date is $110,000,000.
26
"TRANCHE A LENDER" means each Lender having a Tranche A Commitment
or, after the Effective Date, a Tranche A Loan.
"TRANCHE A LOAN" has the meaning specified in SECTION 2.1(A).
"TRANCHE A LOAN DOCUMENTS" means, collectively, the Notes (if any)
issued to Tranche A Lenders, the Tranche A Collateral Documents and each
certificate, agreement or document executed by a Loan Party and delivered to any
Agent or any Lender in connection with or pursuant to any of the foregoing.
"TRANCHE A LOAN FACILITY" means the Tranche A Commitments and the
provisions herein related to the Tranche A Loans.
"TRANCHE A LOAN PARTIES" means the Borrower together with each of
its Subsidiaries other than KNTV and KBWB.
"TRANCHE A PLEDGE AND SECURITY AGREEMENT" means the Tranche A Pledge
and Security Agreement, in substantially the form of EXHIBIT G, executed by the
Borrower and each of its Subsidiaries (other than the Tranche B Loan Parties) in
favor of the Tranche A Collateral Agent for the benefit of the Secured Parties.
"TRANCHE B BORROWING" means Tranche B Loans made on the Effective
Date, or the Re-Advance Date, as the case may be, by the Tranche B Loans Lenders
ratably according to their respective Tranche B Commitments.
"TRANCHE B CASH COLLATERAL ACCOUNT" has the meaning specified in the
Tranche B Pledge and Security Agreement.
"TRANCHE B COLLATERAL" means all Collateral upon which a Lien is
granted to the Tranche B Collateral Agent.
"TRANCHE B COLLATERAL AGENT" means GSCP, in its capacity as
collateral agent for the Secured Parties with respect to the Tranche B
Collateral.
"TRANCHE B COLLATERAL DOCUMENTS" means all Collateral Documents
relating to the Tranche B Collateral.
"TRANCHE B COMMITMENT" means, with respect to each Tranche B Lender,
the commitment of such Lender to make Tranche B Loans to the Borrower in the
aggregate principal amount outstanding not to exceed the amount set forth
opposite such Lender's name on SCHEDULE I under the caption "TRANCHE B
COMMITMENT" or, as the case may be, in the Assignment and Acceptance pursuant to
which such Lender became a party hereto and as such amount may be reduced
pursuant to this Agreement. The aggregate amount of the Tranche B Commitments as
of the Effective Date is $95,000,000.
"TRANCHE B LENDER" means each Lender having a Tranche B Commitment
or, after the Effective Date, a Tranche B Loan.
"TRANCHE B LOAN" has the meaning specified in SECTION 2.1(B);
PROVIDED, HOWEVER, that if at any time there are outstanding Re-Advanced Tranche
B Loans, "TRANCHE B LOAN" shall also mean each Re-Advanced Tranche B Loan.
27
"TRANCHE B LOAN DOCUMENTS" means, collectively, the Notes (if any)
issued to Tranche B Lenders, the Tranche B Collateral Documents, the Warrants,
the Fee Letter (and any note or other documents issued thereunder) and each
certificate, agreement or document executed by a Loan Party and delivered to any
Agent or any Lender in connection with or pursuant to any of the foregoing.
"TRANCHE B LOAN FACILITY" means the Tranche B Commitments and the
provisions herein related to the Tranche B Loans.
"TRANCHE B LOAN PARTIES" means KNTV and KBWB.
"TRANCHE B PLEDGE AND SECURITY AGREEMENT" means the Tranche B Pledge
and Security Agreement, in substantially the form of EXHIBIT G, executed by the
Borrower and the Tranche B Loan Parties in favor of the Tranche B Collateral
Agent for the benefit of the Secured Parties.
"2003 NBC AFFILIATION PAYMENT" means the affiliation payment payable
on January 1, 2003 by the Borrower to NBC Television Network pursuant to Section
4(a) of the KNTV Affiliation Agreement.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the State of New York; PROVIDED, HOWEVER, that in the event that, by
reason of mandatory provisions of law, any or all of the attachment, perfection
or priority of any Collateral Agent's and the Secured Parties' security interest
in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such attachment, perfection or priority and
for purposes of definitions related to such provisions; PROVIDED, FURTHER, that
if the UCC is amended after the date hereof, such amendment will not be given
effect for the purposes of this Agreement if and to the extent the result of
such amendment would be to limit or eliminate any item of Collateral (as defined
in the Pledge and Security Agreements).
"VOTING STOCK" means Stock of any Person having ordinary power to
vote in the election of members of the board of directors, managers, trustees or
other controlling Persons, of such Person (irrespective of whether, at the time,
Stock of any other class or classes of such entity shall have or might have
voting power by reason of the happening of any contingency).
"WARRANT" means any warrant in substantially the form of EXHIBIT H
hereto, issued by the Borrower in favor of the Tranche B Lenders.
"WB" means the WB Television Network or an Affiliate thereof.
"WITHDRAWAL LIABILITY" means, with respect to the Borrower at any
time, the aggregate liability incurred (whether or not assessed) with respect to
all Multiemployer Plans pursuant to Section 4201 of ERISA or for increases in
contributions required to be made pursuant to Section 4243 of ERISA.
"WORKING CAPITAL" means, on a consolidated basis for the Borrower
and its Subsidiaries, cash on hand (including cash equivalents and marketable
securities, but excluding any amounts held by third parties as deposits), PLUS
the sum of (i) accounts receivable less than
28
120 days old from the date of the original invoice (excluding trade or barter
accounts receivable) and (ii) other cash receivables, MINUS Consolidated Current
Liabilities.
SECTION 1.2. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods 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
mean "TO BUT EXCLUDING" and the word "THROUGH" means "TO AND INCLUDING."
SECTION 1.3. ACCOUNTING TERMS AND PRINCIPLES.
(a) Except as set forth below, all accounting terms not specifically
defined herein shall be construed in conformity with GAAP and all accounting
determinations required to be made pursuant hereto shall, unless expressly
otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in SECTION 6.1
is hereafter required or permitted by the rules, regulations, pronouncements and
opinions of the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or any successors thereto) and such change is
adopted by the Borrower with the agreement of its independent public accountants
and results in a change in any of the calculations required by ARTICLE V or
ARTICLE VIII had such accounting change not occurred, the parties hereto agree
to enter into negotiations in order to amend such provisions so as to equitably
reflect such change with the desired result that the criteria for evaluating
compliance with such covenants by the Borrower shall be the same after such
change as if such change had not been made; PROVIDED, HOWEVER, that no change in
GAAP that would affect a calculation that measures compliance with any covenant
contained in ARTICLE V or ARTICLE VIII shall be given effect until such
provisions are amended to reflect such changes in GAAP.
SECTION 1.4. CERTAIN TERMS.
(a) The words "HEREIN," "HEREOF" and "HEREUNDER" and similar words
refer to this Agreement as a whole, and not to any particular Article, Section,
subsection or clause in, this Agreement.
(b) References in this Agreement to an Exhibit, Schedule, Article,
Section, subsection or clause refer to the appropriate Exhibit or Schedule to,
or Article, Section, subsection or clause in this Agreement.
(c) Each agreement defined in this ARTICLE I shall include all
appendices, exhibits and schedules thereto. If the prior written consent of the
Requisite Lenders, the Requisite Tranche A Lenders or the Requisite Tranche B
Lenders, as the case may be, is required hereunder for an amendment,
restatement, supplement or other modification to any such agreement and such
consent is obtained, references in this Agreement to such agreement shall be to
such agreement as so amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect at the time any such reference is
operative.
(e) The term "INCLUDING" when used in any Loan Document means
"INCLUDING WITHOUT LIMITATION" except when used in the computation of time
periods.
29
(f) The terms "LENDER", "ARRANGER", "ADMINISTRATIVE AGENT", "TRANCHE
A COLLATERAL AGENT" and "TRANCHE B COLLATERAL AGENT", include their respective
successors, including, in the case of the Administrative Agent, Tranche A
Collateral Agent and Tranche B Collateral Agent, any successor to the
Administrative Agent, Tranche A Collateral Agent and Tranche B Collateral Agent,
as the case may be, appointed pursuant to SECTION 10.6.
(g) Upon the appointment of any successor Administrative Agent
pursuant to SECTION 10.6, references to Administrative Agent in SECTION 10.3 and
to Administrative Agent in the definition of Eurodollar Rate shall be deemed to
refer to the financial institution then acting as the Administrative Agent or
one of its Affiliates if it so designates.
ARTICLE II
THE FACILITIES
SECTION 2.1. THE COMMITMENTS.
(a) TRANCHE A COMMITMENTS. On the terms and subject to the
conditions contained in this Agreement, each Tranche A Lender severally agrees
to make a loan (each a "TRANCHE A LOAN") to the Borrower on the Effective Date,
in an amount not to exceed such Lender's Tranche A Commitment. Amounts of
Tranche A Loans prepaid or repaid may not be reborrowed.
(b) TRANCHE B COMMITMENTS. On the terms and subject to the
conditions contained in this Agreement, each Tranche B Lender severally agrees
to make a loan (each a "TRANCHE B LOAN") to the Borrower (i) on the Effective
Date, in an amount not to exceed such Lender's Tranche B Commitment and (ii)
pursuant to the provisions of SECTION 2.18, on the Re-Advance Date, in an amount
equal to its Ratable Portion of the Re-Advanced Amount. Subject to SECTION 2.18,
amounts of Tranche B Loans prepaid or repaid may not be reborrowed.
SECTION 2.2. BORROWING PROCEDURES.
(a) Each Borrowing shall be made upon receipt of a notice given by
the Borrower to the Administrative Agent not later than 11:00 A.M. (New York
City time) (i) one Business Day, prior to the Effective Date, or Re-Advance
Date, as the case may be. Each such notice shall be substantially in the form of
EXHIBIT C (a "NOTICE OF BORROWING") specifying, as applicable, (A) the proposed
Effective Date, or Re-Advance Date, as the case may be, (B) the aggregate amount
of the Tranche A Borrowing, (C) the aggregate amount of the Tranche B Borrowing.
The Loans made on the Effective Date and on the Re-Advance Date shall bear
interest at a rate equal to 12% per annum.
(b) On any Business Day which is not less than three Business Days
prior to the seventh day after the Effective Date, the Borrower shall give to
the Administrative Agent a Notice of Interest Period Election in accordance with
SECTION 2.13(A).
(c) The Administrative Agent shall give to each applicable Lender
prompt notice of the Administrative Agent's receipt of a Notice of Borrowing and
the applicable interest rate determined pursuant to SECTION 2.9(B). Each
applicable Lender shall, before 11:00 A.M. (New York City time) on the Effective
Date, or Re-Advance Date, as the case may be, make available to the
Administrative Agent's Account, in immediately available funds, such Lender's
Ratable Portion of each such proposed Borrowing. After the Administrative
Agent's receipt of such
30
funds and upon fulfillment of the applicable conditions set forth in SECTIONS
3.1 and 3.2, the Administrative Agent will make such funds available to the
Borrower.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to the Effective Date, or Re-Advance Date, as the case may be,
that such Lender will not make available to the Administrative Agent such
Lender's Ratable Portion of such Borrowing, the Administrative Agent may assume
that such Lender has made such Ratable Portion available to the Administrative
Agent on the Effective Date, or Re-Advance Date, as the case may be, in
accordance with this SECTION 2.2 and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such Ratable Portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing (not including an indemnified amount provided for in SECTION 2.14(E))
and (ii) in the case of such Lender, the Federal Funds Rate for the first
Business Day and thereafter at the interest rate applicable at the time to the
Loans comprising such Borrowing. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement. If the Borrower shall repay to the Administrative Agent such
corresponding amount, such payment shall not relieve such Lender of any
obligation it may have hereunder to the Borrower.
(e) The failure of any Lender to make the Loan or any payment
required by it on the date specified, shall not relieve any other Lender of its
obligations to make such Loan or payment on such date but no such other Lender
shall be responsible for the failure of any Lender to make a Loan or payment
required under this Agreement.
SECTION 2.3. REPAYMENT OF LOANS. The Borrower promises to repay the
entire unpaid principal amount of the Loans, together with all other Obligations
then due and owing under the Loan Documents, on the Maturity Date.
SECTION 2.4. EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing Indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(b) The Administrative Agent shall maintain accounts in accordance
with its usual practice in which it will record (i) the amount of each Loan made
and, if a Eurodollar Rate Loan, the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable by the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof, if
applicable.
(c) The entries made in the accounts maintained pursuant to CLAUSES
(A) and (B) of this SECTION 2.4 shall, to the extent permitted by applicable
law, be PRIMA FACIE evidence of the existence and amounts of the obligations
recorded therein; PROVIDED, HOWEVER, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not
31
in any manner affect the obligations of the Borrower to repay the Loans in
accordance with the terms hereof.
(d) Notwithstanding any other provision of the Agreement, in the
event that any Lender requests (no later than two days prior to the Effective
Date, or any time thereafter) that the Borrower execute and deliver a promissory
note or notes payable to such Lender in order to evidence the Indebtedness owing
to such Lender by the Borrower hereunder, the Borrower will promptly execute and
deliver a Note or Notes to such Lender evidencing the Loans, of such Lender,
substantially in the form of EXHIBIT B.
SECTION 2.5. OPTIONAL PREPAYMENTS.
(a) The Borrower may, upon at least 3 Business Days' prior notice to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, prepay, ratably, the outstanding principal amount of
the Loans, in whole or in part, together with (i) accrued interest to the date
of such prepayment on the principal amount prepaid and (ii) if such payment is
made on or prior to the second anniversary of the Effective Date, a premium in
an amount equal to 1% of the amount of principal to be prepaid; PROVIDED,
HOWEVER, that if any prepayment of any Eurodollar Rate Loan is made by the
Borrower other than on the last day of an Interest Period for such Loan, the
Borrower shall also pay any amounts owing pursuant to SECTION 2.14(E); and,
PROVIDED, FURTHER, that each partial prepayment shall be in an aggregate amount
not less than $5,000,000 or integral multiples of $1,000,000 in excess thereof
and that any such partial prepayment shall be applied to reduce ratably the
outstanding principal amount of the Tranche A Loans and the Tranche B Loans.
Upon the giving of such notice of prepayment, the principal amount of the Loans
specified to be prepaid shall become due and payable on the date specified for
such prepayment.
(b) The Borrower shall have no right to optionally prepay the
principal amount of any Loan other than as provided in this SECTION 2.5.
(c) All amounts prepaid in accordance with this SECTION 2.5 shall be
applied, in the case of Tranche A Loans, in accordance with the priority of
payments set forth in SECTION 2.10(A) and, in the case of Tranche B Loans, in
accordance with the priority of payments set forth in SECTION 2.10 (B),
PROVIDED, HOWEVER, no payment shall be applied to pay current interest or fees
until, in the case of a prepayment of Tranche A Loans, after payment of all
other Obligations owing to the Tranche A Lenders, and, in the case of a
prepayment of Tranche B Loans, after payment of all other Obligations owing to
the Tranche B Lenders.
SECTION 2.6. MANDATORY PREPAYMENTS.
(a) Upon receipt by any Loan Party, of Net Cash Proceeds arising
from:
(i) an Asset Sale (other than pursuant to SECTION 7.13);
(ii) an Equity Issuance;
(iii) a Debt Issuance;
(iv) following and during the continuance of an Event of
Default, a Property Loss Event; or
32
(v) payments by NBC pursuant to the KNTV Affiliation
Agreement,
the Borrower shall immediately prepay the Loans PLUS, if such payment is made on
or prior to the second anniversary of the Effective Date, a premium in an amount
equal to 1% of the amount of principal to be prepaid, the total aggregate amount
of which shall be an amount equal to 100% of such Net Cash Proceeds. Any such
mandatory prepayment shall be applied in accordance with CLAUSE (B) below.
(b) Prepayments of the Loans made pursuant to CLAUSE(A) above which
are to be paid from Net Cash Proceeds generated by:
(i) an Asset Sale consummated by or, after an Event of
Default, a Property Loss Event suffered by (x) a Tranche A Loan Party
(other than the sale by the Borrower of the Stock of a Tranche B Loan
Party) or the sale of Tranche A Collateral shall be applied in accordance
with the priority of payments set forth in SECTION 2.10(A) and (y) a
Tranche B Loan Party or the sale of Tranche B Collateral, shall be
applied, subject to the provisions of the NBC Intercreditor Agreement, in
accordance with the priority of payments set forth in SECTION 2.10(B);
(ii) an Equity Issuance or a Debt Issuance shall be applied
FIRST, to any prepayment fee then due and payable, SECOND, to pay all
amounts owing pursuant to any note issued under the Fee Letter, THIRD, to
pay Deferred Interest then owing in respect of the Tranche B Loans, and
FOURTH, PRO RATA amongst the Secured Parties in accordance with the
priority of payments set forth in SECTION 2.10(A) AND (B); and
(iii) any payment by NBC pursuant to the KNTV Affiliation
Agreement, shall be applied in accordance with the priority of payments
set forth in SECTION 2.10(B).
SECTION 2.7. INTEREST.
(a) CURRENT INTEREST. All Loans and the outstanding amount of all
other Obligations shall bear interest, in the case of Loans, on the unpaid
principal amount thereof from the date such Loans are made until paid in full,
except as otherwise provided in SECTION 2.14(D), at a rate per annum equal to
the sum of (x) the Eurodollar Rate determined for the applicable Interest Period
PLUS (y) the Margin and, in the case of such other Obligations, from the date
such other Obligations are due and payable until paid in full, at the Alternate
Rate; PROVIDED, HOWEVER, if, for any reason, a Eurodollar Rate cannot be
provided by the Lenders pursuant to SECTION 2.14(B) or 2.14(D) all Loans and the
outstanding amounts of all other Obligations shall bear interest as provided
above, at the Alternate Rate.
(b) DEFERRED INTEREST. Tranche B Loans shall also bear interest, in
addition to interest under SECTION 2.7(A), at a rate equal to 6.00% per annum,
earned and accrued monthly, payable upon prepayment or repayment or Maturity
(whether by acceleration or otherwise) of the Tranche B Loans ("DEFERRED
INTEREST"); PROVIDED, HOWEVER, other than pursuant to SECTION 2.7(D), no
interest shall accrue on Deferred Interest.
(c) INTEREST PAYMENTS. Other than with respect to Deferred Interest,
(i) interest accrued on each Loan shall be payable in arrears (A) on the last
day of each Interest Period, if any, applicable to such Loan and if such
Interest Period has a duration of more than one month, on the first day of each
calendar month commencing on the first such day following the first day
33
of the Interest Period; (B) upon the payment or prepayment thereof in full or in
part, and (C) if not previously paid in full, at maturity (whether by
acceleration or otherwise) of such Loan; and (ii) interest accrued on the amount
of all other Obligations shall be payable on demand from and after the time such
Obligation becomes due and payable (whether by acceleration or otherwise).
(d) DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default, or, in the case of the Tranche B Loans, a KNTV Trigger
Event, the principal amount of all Loans and, to the extent permitted by
applicable law, any interest payments on the Loans or any other Obligations not
paid when due, in each case whether at stated maturity, by notice of prepayment,
by acceleration or otherwise, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws whether or not allowed in such proceeding) payable on
demand at a rate that is 3.00% per annum in excess of the interest rate
otherwise payable or accruing hereunder with respect to the applicable Loans
(or, in the case of any other Obligations, at a rate which is 3.00% per annum in
excess of the Alternate Rate); PROVIDED, HOWEVER, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is
effective all Loans shall thereupon bear interest at the Alternate Rate and
shall thereafter bear interest payable upon demand at a rate which is 3.00% per
annum in excess of the Alternate Rate. Payment or acceptance of the increased
rates of interest provided for in this SECTION 2.7 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Default,
Event of Default or otherwise prejudice or limit any rights or remedies of any
Agent or any Lender.
SECTION 2.8. FEES.
The Borrower has agreed to pay to the Lenders, the Administrative
Agent and to GSCP, such fees in the amount and at the times embodied in the Fee
Letter and the Additional Fee Letter.
SECTION 2.9. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder (including fees
and expenses) not later than 11:00 A.M. (New York City time) on the day when
due, in Dollars, to the Administrative Agent's Account via wire transfer, in
immediately available funds without set-off or counterclaim. The Administrative
Agent will promptly thereafter cause to be distributed immediately available
funds relating to the payment of principal or interest or fees to the Lenders,
in accordance with the application of payments set forth in CLAUSE (E) of this
SECTION 2.9, SECTION 2.10 OR 2.11, as applicable, for the account of their
respective Applicable Lending Offices; PROVIDED, HOWEVER, that amounts payable
pursuant to SECTION 2.14(C), 2.14(E), 2.15 or 2.16 shall be paid only to the
affected Lender or Lenders. Payments received by the Administrative Agent after
11:00 A.M. (New York City time) shall be deemed to be received on the next
Business Day.
(b) All computations of interest and of fees shall be made by the
Administrative Agent on the basis of a year of 360 days, other than computations
of interest based on CLAUSE (I) of the definition of Base Rate which shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
and fees are payable. Each determination by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
34
(c) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be; PROVIDED,
HOWEVER, that if such extension would cause payment of interest on or principal
of any Eurodollar Rate Loan to be made in the next calendar month, such payment
shall be made on the immediately preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from
the Borrower to the Lenders prior to the date on which any payment is due
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower have made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon at the Federal Funds Rate, for the first Business Day, and,
thereafter, at the rate applicable to Alternate Rate Loans, for each day from
the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent.
(e) Subject to the provisions of SECTION 2.10 AND 2.11, all payments
and any other amounts received by the Administrative Agent from or for the
benefit of the Borrower shall be applied to pay principal of and interest on any
portion of the Loans of the Borrower and all other Obligations then due and
payable. Payments in respect of Tranche A Loans received by the Administrative
Agent shall be distributed to each Tranche A Lender in accordance with such
Lender's Ratable Portion of the Tranche A Loans; payments in respect of the
Tranche B Loans received by the Administrative Agent shall be distributed to
each Tranche B Lender in accordance with such Lender's Ratable Portion of the
Tranche B Loans; and all payments of fees and all other payments in respect of
any other Obligation shall be allocated among such of the Agents and Lenders as
are entitled thereto, and, if to the Lenders, in proportion to their respective
Ratable Portions of the Facilities.
SECTION 2.10. APPLICATION OF PAYMENTS. The Borrower shall have no
right to direct the application of any and all payments in respect of the
Obligations or any proceeds of the Collateral, and agrees as follows:
(a) TRANCHE A COLLATERAL. Subject to SECTION 2.11, the
Administrative Agent shall apply all amounts received by it in respect of any
Obligations in respect of the Tranche A Loans then due and payable or to be
prepaid pursuant to SECTION 2.5, including, upon the acceleration of the
Obligations pursuant to SECTION 9.2, all proceeds of Tranche A Collateral,
including all funds on deposit in the Tranche A Cash Collateral Account, in the
following order:
(i) FIRST, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Administrative Agent and the
Tranche A Collateral Agent;
(ii) SECOND, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Tranche A Lenders;
(iii) THIRD, to pay Obligations in respect of any fees then
due to the Administrative Agent or the Tranche A Lenders;
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(iv) FOURTH, to pay interest then due and payable in respect
of the Tranche A Loans;
(v) FIFTH, to pay any prepayment premium payable in respect
of the Tranche A Loans pursuant to SECTION 2.5;
(vi) SIXTH, to pay or prepay principal on the Tranche A
Loans;
(vii) SEVENTH, to the ratable payment of all other Obligations
in respect of the Tranche A Loans or payable to Tranche A Lenders; and
(viii) EIGHTH, as provided by clauses FIRST through NINTH in
SUBSECTION (B) below;
PROVIDED, FURTHER HOWEVER, that if sufficient funds are not available to fund
all payments to be made in respect of any of the Obligations described in any
one of the foregoing clauses FIRST through SEVENTH, the available funds being
applied with respect to any such Obligation (unless otherwise specified in such
clause) shall be allocated to the payment of such Obligations ratably, based on
the proportion of the applicable Agent's and each applicable Tranche A Lender's
interest in the aggregate outstanding Obligations described in such clause. The
order of priority set forth in clauses FIRST through SEVENTH of SECTION 2.10(A)
and the application of payments pursuant to clause TENTH of SECTION 2.10(B) may
at any time and from time to time be changed by the agreement of the Requisite
Tranche A Lenders without necessity of notice to or consent of or approval by
the Borrower, any Secured Party that is not a Tranche A Lender, or any other
Person. The order of priority set forth in clauses FIRST through THIRD of this
SECTION 2.10(A) may be changed only with the prior written consent of the
Administrative Agent and the Tranche A Collateral Agent in addition to the
Requisite Tranche A Lenders.
(b) TRANCHE B COLLATERAL. Subject to the NBC Intercreditor Agreement
and SECTION 2.11, the Administrative Agent shall apply all amounts received by
it in respect of any Obligations in respect of the Tranche B Loans then due and
payable or to be prepaid pursuant to SECTION 2.5, including, upon the
acceleration of the Obligations pursuant to SECTION 9.2, all proceeds of Tranche
B Collateral, including all funds on deposit in the Tranche B Cash Collateral
Account and the Reserve Accounts, in the following order:
(i) FIRST, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Administrative Agent and the
Tranche B Collateral Agent;
(ii) SECOND, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Tranche B Lenders;
(iii) THIRD, to pay Obligations in respect of any fees then
due to the Administrative Agent, the Tranche B Lenders;
(iv) FOURTH, to pay all amounts then due under the Fee Letter
(or any notes issued pursuant thereto);
(v) FIFTH, to pay current interest then due and payable
pursuant to SECTION 2.7(A) in respect of the Tranche B Loans;
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(vi) SIXTH, to pay Deferred Interest then due in respect of
the Tranche B Loans;
(vii) SEVENTH, to pay any prepayment premium payable in
respect of the Tranche B Loans pursuant to SECTION 2.5;
(viii) EIGHTH, to pay or prepay principal on the Tranche B
Loans ;
(ix) NINTH, to the ratable payment of all other Obligations
in respect of the Tranche B Loans or payable to Tranche B Lenders; and
(x) TENTH, as provided by clauses FIRST through SEVENTH in
CLAUSE (A) above;
PROVIDED, FURTHER HOWEVER, that if sufficient funds are not available to fund
all payments to be made in respect of any of the Obligations described in any
one of the foregoing clauses FIRST through NINTH, the available funds being
applied with respect to any such Obligation (unless otherwise specified in such
clause) shall be allocated to the payment of such Obligations ratably, based on
the proportion of the applicable Agent's and each applicable Tranche B Lender's
interest in the aggregate outstanding Obligations described in such clause. The
order of priority set forth in clauses FIRST through NINTH of SECTION 2.10 (B)
and the application of payments pursuant to clause EIGHTH of SECTION 2.10(A) may
at any time and from time to time be changed by the agreement of the Requisite
Tranche B Lenders without necessity of notice to or consent of or approval by
the Borrower, any Secured Party that is not a Tranche B Lender, or any other
Person. The order of priority set forth in clauses FIRST through FOURTH of this
SECTION 2.10(B) may be changed only with the prior written consent of the
Administrative Agent and the Tranche B Collateral Agent in addition to the
Requisite Tranche B Lenders.
(c) BORROWER'S BLOCKED ACCOUNT. Notwithstanding the order of
application set forth in CLAUSES (A) and (B) of this SECTION 2.10, upon the
acceleration of the Obligations pursuant to SECTION 9.2, the Administrative
Agent shall apply all monies on deposit in any Blocked Account held in the name
of the Borrower (and not any other Loan Party) received by it in respect of any
Obligations ratably, in proportion to the outstanding amount of Obligations in
respect of the Tranche A Loans and outstanding Obligations in respect of the
Tranche B Loans, and thereafter in accordance with the priority of payments set
forth in SECTION 2.10(A) AND (B); all monies on deposit in any Blocked Account
held in the name of any Loan Party other than the Borrower shall be applied in
accordance with SECTION 2.10(A) or 2.10(B), as applicable.
(d) REIMBURSEMENTS, INDEMNITIES AND FEES DUE TO ADMINISTRATIVE
AGENT. Notwithstanding the order of application set forth in each of CLAUSES (A)
and (B) of this SECTION 2.10, if, at any time, the Administrative Agent shall
simultaneously receive amounts that are to be allocated in accordance with
CLAUSES (A) and (B) above, the Administrative Agent shall apply such amounts to
the Obligations in respect of reimbursements, indemnities and fees due to the
Administrative Agent (as set forth in each of CLAUSES FIRST and THIRD in CLAUSES
(A) and (B) above) ratably, in proportion to the outstanding amount of
Obligations in respect of the Tranche A Loans and the outstanding amount of
Obligations in respect of the Tranche B Loans.
SECTION 2.11. PAYMENTS FOLLOWING CERTAIN EVENTS. The Borrower shall
have no right to direct the application of any and all payments in respect of
the Obligations and any proceeds of the Collateral referred to below, and agrees
that following the occurrence of a
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Tranche A Asset Sale Event, subject to SECTION 7.13, the Borrower shall apply
the Net Cash Proceeds arising therefrom in the following order:
(i) FIRST, to pay all Obligations in respect of the Tranche
A Loans or payable to Tranche A Lenders, in the order of priority set
forth IN SECTION 2.10(A) (but excluding CLAUSE EIGHTH thereof);
(ii) SECOND, to pay all amounts owing to the Tranche B
Lenders in respect of any note issued pursuant to the Fee Letter;
(iii) THIRD, if a Notice of Borrowing has been given by the
Borrower requesting a Re-Advanced Tranche B Loan, to pay or prepay
principal on the Tranche B Loans, or if the Borrower has not given a
Notice of Borrowing requesting a Re-Advanced Tranche B Loan, to pay
Deferred Interest then owing in respect of the Tranche B Loans;
(iv) FOURTH, unless previously paid pursuant to clause THIRD,
above, to pay or prepay principal on the Tranche B Loans; and
(v) FIFTH, to the ratable payment of all other Obligations
in respect of the Tranche B Loans or payable to Tranche B Lenders.
The first priority order of clause FIRST of this SECTION 2.11 may be changed
only with the prior written consent of the Requisite Tranche A Lenders without
necessity of notice to or consent of or approval by the Borrower, any Secured
Party that is not a Tranche A Lender, or any other Person. The order of priority
set forth in clauses SECOND through FIFTH of this SECTION 2.11 may be changed
only with the prior written consent of the Requisite Tranche B Lenders without
necessity of notice to or consent of or approval by the Borrower, any Secured
Party that is not a Tranche B Lender, or any other Person.
SECTION 2.12. SPECIAL ACCOUNTS.
(a) The Administrative Agent has established (i) a deposit account
in the name of the Borrower at GSCP designated as "GRANITE BROADCASTING
CORPORATION INTEREST RESERVE ACCOUNT" (the "INTEREST RESERVE ACCOUNT"), and (ii)
a deposit account in the name of the Borrower at GSCP designated as "GRANITE
BROADCASTING CORPORATION KNTV RESERVE ACCOUNT" (the "KNTV RESERVE ACCOUNT" and
together with the Interest Reserve Account, the "RESERVE ACCOUNTS"), which
accounts shall be at all times under the Tranche B Collateral Agent's sole
dominion and control. Without limiting the foregoing, funds on deposit in any
Reserve Account shall bear interest at a rate which is set monthly by the
Administrative Agent and which is equal to the one month Eurodollar Rate in
effect at the time such rate is set, LESS 0.20%; PROVIDED, HOWEVER, that no
Agent shall have any responsibility for, or bear any risk of loss of, any such
investment or income thereon. Neither the Borrower nor any other Loan Party or
Person claiming on behalf of or through the Borrower or any other Loan Party
shall have any right to demand payment of any of the funds held in any Reserve
Account at any time prior to the payment in full of all then outstanding and
payable Obligations except as provided in this SECTION 2.12 with respect to the
application thereof.
(b) (i) On the Effective Date, the Borrower shall direct the
Administrative Agent to deposit proceeds of the Tranche B Loan in an amount
equal to $17,500,000 into the Interest Reserve Account. In addition, the
Interest Reserve Account shall be funded from time to time as required by
SECTION 7.12.
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(ii) At any time that the Obligations have not been
accelerated pursuant to SECTION 9.2, the Borrower shall be entitled to
direct that the Administrative Agent draw from the Interest Reserve
Account in order to make a forthcoming interest payment on the Tranche B
Loans; PROVIDED, that (A) no later than five (5) Business Days prior to
the date an interest payment is due and payable the Borrower shall provide
written notice to the Administrative Agent, the Tranche B Collateral Agent
and each Tranche B Lender stating that it intends to draw on the Interest
Reserve Account to make the forthcoming interest payment, the amount to be
drawn and the amount then on deposit in the Interest Reserve Account,
together with all other information and documents reasonably requested by
the Administrative Agent or any Tranche B Lender and (B) there are
sufficient funds then on deposit in the Interest Reserve Account to allow
such withdrawal to be made. Provided that the foregoing conditions have
been satisfied, no later than two (2) Business Days prior to the date such
interest payment is due and payable, the Tranche B Collateral Agent shall
direct the Administrative Agent to apply funds on deposit in the Interest
Reserve Account, in the amount stated in the foregoing notice, to be paid
ratably to the Tranche B Lenders on the date the next interest payment on
the Tranche B Loans is due, in satisfaction of the interest payment (or
part thereof), as directed by the Borrower.
(c) (i) The KNTV Reserve Account shall be funded pursuant to SECTION
4.13.
(ii) Unless an Event of Default or a KNTV Trigger Event shall
have occurred and be continuing no later than five (5) Business Days prior
to the date the 2003 NBC Affiliation Payment is due and payable, the
Borrower shall provide to the Administrative Agent, the Tranche B
Collateral Agent and each Tranche B Lender written notice of the impending
payment date and payment amount, together with all other information and
documents reasonably requested by the Administrative Agent or any Tranche
B Lender. No later than three (3) Business Days prior to the date the 2003
NBC Affiliation Payment is due and payable, the Tranche B Collateral Agent
shall direct the Administrative Agent to apply funds on deposit in the
KNTV Reserve Account, in an amount equal to the 2003 NBC Affiliation
Payment to be paid directly to NBC in respect of the Borrower's
obligations under Section 4(a) of the KNTV Affiliation Agreement.
(iii) In the event NBC elects to exercise its special
termination right pursuant to Section 21 of the Network Affiliation
Agreement, the Tranche B Collateral Agent shall immediately direct the
Administrative Agent to transfer the balance of funds in the KNTV Reserve
Account into the Interest Reserve Account, to be applied as provided in
CLAUSE (B)(II) above.
(d) For greater certainty, the Borrower acknowledges and agrees that
funds in any Reserve Account, including without limitation any Interest Reserve
Account, are held as collateral for all Obligations, including without
limitation any outstanding principal amount thereof, and shall be applied to the
payment of Obligations as set forth in SECTION 2.10(B).
SECTION 2.13. INTEREST PERIODS ELECTION OPTION.
(a) The Borrower may elect to specify for its Loans or any portion
thereof one or more Interest Periods; PROVIDED, HOWEVER, that the aggregate
amount of all Eurodollar Rate Loans for each Interest Period must be in the
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof;
and PROVIDED, FURTHER, that if no Interest Period is specified, a one
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month Interest Period shall be deemed to have been selected. Each election shall
be allocated among the Tranche A Loans or the Tranche B Loans of each Tranche A
Lender or Tranche B Lender, as the case may be, in accordance with each
applicable Lender's Ratable Portion of such Loans. Each such election shall be
in substantially the form of EXHIBIT D hereto (a "NOTICE OF INTEREST PERIOD
ELECTION") and shall be made by giving the Administrative Agent at least three
Business Days' prior written notice specifying (A) the amount and type of Loan
being continued and (B) the applicable Interest Period.
(b) The Administrative Agent shall promptly notify each Lender of
its receipt of a Notice of Interest Period Election and of the options selected
therein. Notwithstanding the foregoing, no continuation in whole or in part of
Eurodollar Rate Loans upon the expiration of any applicable Interest Period,
shall be permitted at any time at which (i) a Default or an Event of Default
shall have occurred and be continuing or (ii) such continuation would violate
any of the provisions of SECTION 2.14. If an Event of Default has occurred and
is continuing, then, upon the expiration of the applicable Interest Period, such
Loans will be automatically converted to Loans bearing interest at the Alternate
Rate. If any such Event of Default is no longer continuing, upon receipt of a
Notice of Interest Period Election, such loans will be automatically converted
into Loans which bear interest at the rate set forth in SECTION 2.7(A) for the
Interest Period set forth in such notice. Each Notice of Interest Period
Election shall be irrevocable.
SECTION 2.14. SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
(a) DETERMINATION OF INTEREST RATE. The Eurodollar Rate for each
Interest Period for Eurodollar Rate Loans shall be determined by the
Administrative Agent pursuant to the procedures set forth in the definition of
"EURODOLLAR RATE." The Administrative Agent's determination shall be presumed to
be correct, absent manifest error, and shall be binding on the Borrower.
(b) INTEREST RATE UNASCERTAINABLE, INADEQUATE OR UNFAIR. In the
event that: (i) the Administrative Agent determines that adequate and fair means
do not exist for ascertaining the applicable interest rates by reference to
which the Eurodollar Rate then being determined is to be fixed; or (ii) the
Requisite Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period will not adequately reflect the cost to the Lenders of
making or maintaining such Loans for such Interest Period, the Administrative
Agent shall forthwith so notify the Borrower and the Lenders, whereupon each
Eurodollar Loan will automatically, on the last day of the current Interest
Period for such Loan, convert into a Alternate Rate Loan and the obligations of
the Lenders to make Eurodollar Rate Loans or to convert Alternate Rate Loans
into Eurodollar Rate Loans shall be suspended until the Administrative Agent
shall notify the Borrower that the Requisite Lenders have determined that the
circumstances causing such suspension no longer exist.
(c) INCREASED COSTS. If at any time any Lender shall determine that
the introduction of or any change in or in the interpretation of any law, treaty
or governmental rule, regulation or order (other than any change by way of
imposition or increase of reserve requirements included in determining the
Eurodollar Rate) or the compliance by such Lender with any guideline, request or
directive from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining any Eurodollar Rate Loans,
then the Borrower shall from time to time, upon demand by such Lender (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as
40
to the amount of such increased cost, submitted to the Borrower and the
Administrative Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error. Each Lender agrees that, as promptly as
practicable after it becomes aware of any circumstances referred to above which
would result in any such increased cost, the affected Lender shall, to the
extent not inconsistent with such Lender's internal policies of general
application, use reasonable commercial efforts to minimize costs and expenses
incurred by it and payable to it by Borrower pursuant to this SECTION 2.14(C).
(d) ILLEGALITY. Notwithstanding any other provision of this
Agreement, if any Lender determines that the introduction of or any change in or
in the interpretation of any law, treaty or governmental rule, regulation or
order after the date of this Agreement shall make it unlawful, or any central
bank or other Governmental Authority shall assert that it is unlawful, for any
Lender to make Eurodollar Rate Loans or to continue to fund or maintain
Eurodollar Rate Loans, then, on notice thereof and demand therefor by such
Lender to the Borrower through the Administrative Agent, (i) the obligation of
such Lender to continue Eurodollar Rate Loans shall be suspended, and (ii) if
the affected Eurodollar Rate Loans are then outstanding, the applicable Borrower
shall immediately convert each such Loan into a Alternate Rate Loan. If at any
time after a Lender gives notice under this SECTION 2.14(D) such Lender
determines that it may lawfully make Eurodollar Rate Loans, such Lender shall
promptly give notice of that determination to the Borrower and the
Administrative Agent, and the Administrative Agent shall promptly transmit the
notice to each other Lender. The Borrower's right to request, and such Lender's
obligation, if any, to make Eurodollar Rate Loans shall thereupon be restored.
(e) BREAKAGE COSTS. In addition to all amounts required to be paid
by the Borrower pursuant to SECTION 2.7, the Borrower shall compensate each
Lender, upon demand, for all losses, expenses and liabilities (including any
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain such
Lender's Eurodollar Rate Loans to the Borrower but excluding any loss of the
Margin on the relevant Loans) which that Lender may sustain (i) if for any
reason a proposed Borrowing, or continuation of Eurodollar Rate Loans does not
occur on a date specified therefor in a Notice of Borrowing or a Notice of
Interest Period Election given by a Borrower or in a telephonic request by it
for borrowing or conversion or continuation or a successive Interest Period does
not commence after notice therefor is given pursuant to SECTION 2.13, (ii) if
for any reason any Eurodollar Rate Loan is prepaid (including mandatorily
pursuant to SECTION 2.6) on a date which is not the last day of the applicable
Interest Period, (iii) as a consequence of a required conversion of a Eurodollar
Rate Loan to a Alternate Rate Loan as a result of any of the events indicated in
SECTION 2.14(D), or (iv) as a consequence of any failure by the Borrower to
repay Eurodollar Rate Loans when required by the terms hereof. The Lender making
demand for such compensation shall deliver to the Borrower concurrently with
such demand a written statement as to such losses, expenses and liabilities, and
this statement shall be conclusive as to the amount of compensation due to that
Lender, absent manifest error.
SECTION 2.15. CAPITAL ADEQUACY. If at any time any Lender determines
that (a) the adoption of or any change in or in the interpretation of any law,
treaty or governmental rule, regulation or order after the date of this
Agreement regarding capital adequacy, (b) compliance with any such law, treaty,
rule, regulation, or order, or (c) compliance with any guideline or request or
directive from any central bank or other Governmental Authority (whether or not
having the force of law) shall have the effect of reducing the rate of return on
such Lender's (or any corporation controlling such Lender's) capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change,
compliance or interpretation, then, upon demand from
41
time to time by such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender for such reduction. A certificate as to
such amounts submitted to the Borrower and the Administrative Agent by such
Lender shall be conclusive and binding for all purposes absent manifest error.
SECTION 2.16. TAXES.
(a) Any and all payments by the Borrower under each Loan Document
shall be made free and clear of and (except to the extent required by law)
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) in the case of each Lender and the Administrative Agent (A) taxes
measured by its net income or net profits, and franchise taxes imposed on it, by
the jurisdiction (or any political subdivision thereof) under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof in which its principal office or principal lending
office is located and (B) any United States withholding taxes payable with
respect to payments under the Loan Documents under laws (including any statute,
treaty or regulation) in effect on the Effective Date (or, in the case of an
Eligible Assignee, the date of the Assignment and Acceptance) applicable to such
Lender or the Administrative Agent, as the case may be, but not excluding any
United States withholding payable as a result of any change in such laws
occurring after the Effective Date (or the date of such Assignment and
Acceptance) and (ii) in the case of each Lender, taxes measured by its net
income or net profits, and franchise taxes imposed on it, by the jurisdiction in
which such Lender's Applicable Lending Office or its principal office or
principal lending office is located (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If any Taxes shall be required by law to be deducted
from or in respect of any sum payable under any Loan Document to any Lender or
the Administrative Agent (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this SECTION 2.16) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions, (iii) the Borrower shall pay the full amount
deducted to the relevant taxing authority or other authority in accordance with
applicable law, and (iv) the Borrower shall deliver to the Administrative Agent
evidence of such payment.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies of the United States or any political subdivision thereof or any
applicable foreign jurisdiction, and all liabilities with respect thereto, which
arise from any payment made under any Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, any Loan Document
(collectively, "OTHER TAXES").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this SECTION 2.16)
paid by such Lender or the Administrative Agent (as the case may be) and any
liability (including for penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
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(d) Within 30 days after the date of any payment of Taxes or Other
Taxes, the Borrower will furnish to the Administrative Agent, at its address
referred to in SECTION 11.9, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 2.16 shall survive the payment in full of the Obligations.
(f) Prior to the Effective Date in the case of each Non-U.S. Lender
that is a signatory hereto, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other Non-U.S. Lender
and from time to time thereafter if requested by the Borrower or the
Administrative Agent, each Non-U.S. Lender that is entitled at such time to an
exemption from United States withholding tax, or that is subject to such tax at
a reduced rate under an applicable tax treaty, shall provide the Administrative
Agent and the Borrower with two completed copies of: (i) Form W-8ECI (claiming
exemption from withholding because the income is effectively connected with a
U.S. trade or business) (or any successor form); (ii) Form W-8BEN (claiming
exemption from, or a reduction of, withholding tax under an income tax treaty)
(or any successor form); (iii) in the case of a Non-U.S. Lender claiming
exemption under Sections 871(h) or 881(c) of the Code, a Form W-8BEN (claiming
exemption from withholding under the portfolio interest exemption)(or any
successor form); or (iv) or other applicable form, certificate or document
prescribed by the IRS certifying as to such Non-U.S. Lender's entitlement to
such exemption from United States withholding tax or reduced rate with respect
to all payments to be made to such Non-U.S. Lender under the Loan Documents.
Unless the Borrower and the Administrative Agent have received forms or other
documents satisfactory to them indicating that payments under any Loan Document
to or for a Non-U.S. Lender are not subject to United States withholding tax or
are subject to such tax at a rate reduced by an applicable tax treaty, the
Borrower or the Administrative Agent shall withhold taxes from such payments at
the applicable statutory rate.
(g) Any Lender claiming any additional amounts payable pursuant to
this SECTION 2.16 shall use its reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts which would be payable
or may thereafter accrue and would not, in the sole determination of such
Lender, be otherwise disadvantageous to such Lender.
(h) If any Lender shall become aware that it is entitled to receive
a refund or credit (such credit to include any increase in any foreign tax
credit) as a result of indemnified Taxes (including any penalties or interest
with respect thereto) as to which it has been indemnified by the Borrower
pursuant to this SECTION 2.16, it shall promptly notify the Borrower of the
availability of such refund or credit and shall, within 30 days after receipt of
a request by the Borrower, apply for such refund or credit at the Borrower's
expense, and in the case of any application for such refund or credit by the
Borrower, shall, if legally able to do so, deliver to the Borrower such
certificates, forms or other documentation as may be reasonably necessary to
assist the Borrower in such application. If any Lender receives a refund or
credit (such credit to include any increase in any foreign tax credit) in
respect to any indemnified Taxes as to which it has been indemnified by the
Borrower pursuant to this SECTION 2.16, it shall promptly notify the Borrower of
such refund or credit and shall, within 30 days after receipt of such refund or
the benefit of such credit (such benefit to include any reduction of the taxes
for which any Lender would otherwise be liable due to any increase in any
foreign tax credit available to such Lender), repay the amount of such refund or
benefit of such credit (with respect to the credit, as
43
determined by the Lender in its sole judgment) to the Borrower to the extent of
amounts that have been paid by the Borrower under this SECTION 2.16 with respect
to indemnified Taxes giving rise to such refund or credit), plus any interest
received with respect thereto, net of all reasonable out-of-pocket expenses of
such Lender and without interest (other than interest actually received from the
relevant taxing authority or other Governmental Authority with respect to such
refund or credit); PROVIDED, HOWEVER, that the Borrower, upon the request of
such Lender, agrees to return the amount of such refund or benefit of such
credit (plus interest) to such Lender in the event such Lender is required to
repay the amount of such refund or benefit of such credit to the relevant taxing
authority or other Governmental Authority.
SECTION 2.17. SUBSTITUTION OF LENDERS. In the event that (a) (i) any
Lender makes a claim under SECTION 2.14 (C) or SECTION 2.15, or (ii) it becomes
illegal for any Lender to continue to fund or make any Eurodollar Rate Loan and
such Lender notifies the Borrower pursuant to SECTION 2.14(D), or (iii) the
Borrower is required to make any payment pursuant to SECTION 2.16 that is
attributable to any Lender, (b) in the case of clause (a)(i) above, as a
consequence of increased costs in respect of which such claim is made, the
effective rate of interest payable to such Lender under this Agreement with
respect to its Loans materially exceeds the effective average annual rate of
interest payable to the Requisite Lenders under this Agreement and (c) Lenders
holding at least 51% of the Loans are not subject to such increased costs or
illegality, payment or proceedings (any such Lender, an "AFFECTED LENDER"), the
Borrower may substitute another financial institution for such Affected Lender
hereunder, upon reasonable prior written notice (which written notice must be
given within 90 days following the occurrence of any of the events described in
clauses (a)(i), (ii) or (iii)) by the Borrower to the Administrative Agent and
the Affected Lender that the Borrower intend to make such substitution, which
substitute financial institution must be an Eligible Assignee and, if not a
Lender, reasonably acceptable to the Administrative Agent; PROVIDED, HOWEVER,
that if more than one Lender claims increased costs, illegality or right to
payment arising from the same act or condition and such claims are received by
the Borrower within 30 days of each other then the Borrower may substitute all,
but not (except to the extent the Borrower have already substituted one of such
Affected Lenders before the Borrower's receipt of the other Affected Lenders'
claim) less than all, Lenders making such claims. In the event that the proposed
substitute financial institution or other entity is reasonably acceptable to the
Administrative Agent and the written notice was properly issued under this
SECTION 2.17, the Affected Lender shall sell and the substitute financial
institution or other entity shall purchase, pursuant to an Assignment and
Acceptance, all rights and claims of such Affected Lender under the Loan
Documents and the substitute financial institution or other entity shall assume
and the Affected Lender shall be relieved of all prior unperformed obligations
of the Affected Lender under the Loan Documents (other than in respect of any
damages (other than exemplary or punitive damages, to the extent permitted by
applicable law) in respect of any such unperformed obligations). Upon the
effectiveness of such sale, purchase and assumption (which, in any event shall
be conditioned upon the payment in full by the Borrower to the Affected Lender
in cash of all fees, unreimbursed costs and expenses and indemnities accrued and
unpaid through such effective date), the substitute financial institution or
other entity shall become a "LENDER" hereunder for all purposes of this
Agreement provided that all indemnities under the Loan Documents shall continue
in favor of such Affected Lender.
SECTION 2.18. RE-ADVANCEMENT OF TRANCHE B LOANS.
(a) RE-ADVANCEMENT OF $5,000,000. Subject to CLAUSES (B) and (C)
below, following the occurrence of a Tranche A Asset Sale Event, on the terms
and conditions contained in this Agreement, each Tranche B Lender severally
agrees to re-advance (each a "RE-ADVANCED
44
TRANCHE B LOAN") a portion of its Tranche B Loan in an amount equal to its
Ratable Portion of an amount equal to $5,000,000 to the Borrower on the
Re-Advance Date.
(b) RE-ADVANCEMENT IN EXCESS OF $5,000,000 PRIOR TO 2003 NBC
AFFILIATION PAYMENT. Prior to the payment by the Borrower of the 2003 NBC
Affiliation Payment, if:
(i) the assets sold pursuant to SECTION 7.13 include the Stock
of, or assets relating to, one TV station to be identified and acceptable
to the Administrative Agent; and
(ii) Net Cash Proceeds in excess of $127,500,000 are realized
by the Borrower,
then on the terms and conditions contained in this Agreement each Tranche B
Lender severally agrees to make a Re-Advanced Tranche B Loan in an amount equal
to its Ratable Portion of an amount equal to the excess of such Net Cash
Proceeds over $127,500,000.
(c) RE-ADVANCEMENT IN EXCESS OF $5,000,000 FOLLOWING 2003 NBC
AFFILIATION PAYMENT. Following payment by the Borrower of the 2003 NBC
Affiliation Payment, if:
(i) the assets sold pursuant to SECTION 7.13 include the Stock
of, or assets relating to, one TV station to be identified and acceptable
to the Administrative Agent; and
(ii) Net Cash Proceeds in excess of $127,500,000 are realized
by the Borrower;
then on the terms and conditions contained in this Agreement each Tranche B
Lender severally agrees to make a Re-Advanced Tranche B Loan in an amount equal
to its Ratable Portion of an amount equal to fifty percent (50%) of the excess
of such Net Cash Proceeds over $127,500,000.
(d) Notwithstanding anything herein to the contrary, at no time
shall the aggregate amount of Tranche B Loans (including all Re-Advanced Tranche
B Loans made pursuant to this SECTION 2.18) exceed a principal amount equal to
$95,000,000 (LESS any principal payments previously applied to the Tranche B
Loans other than pursuant to a Tranche A Asset Sale Event).
ARTICLE III
CONDITIONS TO LOANS
SECTION 3.1. CONDITIONS PRECEDENT TO INITIAL LOANS. This Agreement
shall become effective on the date (the "EFFECTIVE DATE") when all of the
following conditions precedent have been satisfied:
(a) CERTAIN DOCUMENTS. The Administrative Agent shall have received
on the Effective Date each of the following, each dated the Effective Date
unless otherwise indicated or agreed to by the Administrative Agent, in form and
substance satisfactory to the Administrative Agent and in sufficient copies for
each applicable Lender:
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(i) this Agreement, duly executed and delivered by the
Borrower and, for the account of each Lender requesting the same, a Note
or Notes of the Borrower conforming to the requirements set forth herein;
(ii) the Guaranty, duly executed by each Subsidiary of the
Borrower;
(iii) the Tranche A Pledge and Security Agreement, duly
executed by the Tranche A Collateral Agent, the Borrower and each
Subsidiary Guarantor (other than the Tranche B Loan Parties) and the
Tranche B Pledge and Security Agreement duly executed by the Tranche B
Collateral Agent, the Borrower and the Tranche B Loan Parties, together
with:
(A) evidence satisfactory to the applicable Collateral
Agent that it (for the benefit of the Secured Parties) has a valid
and perfected first priority security interest in the respective
Collateral subject to Customary Permitted Liens, the KBWB Lien and
the KNTV Call Right, including (x) such documents duly executed by
each Loan Party as the Administrative Agent may request with respect
to the perfection of its security interests in the Collateral
(including evidence satisfactory to the Administrative Agent that
financing statements under the UCC, patent, trademark and copyright
security agreements and other applicable documents under the laws of
any jurisdiction have been appropriately filed with respect to the
perfection of Liens created by the Pledge and Security Agreements)
and (y) copies of UCC search reports as of a recent date listing all
effective financing statements that name any Loan Party as debtor,
together with copies of such financing statements, none of which
shall cover the Collateral except for those which shall be
terminated or assigned on the Effective Date or otherwise permitted
hereunder);
(B) share certificates representing all shares of
certificated Pledged Stock being pledged pursuant to such Pledge and
Security Agreements and stock powers for such share certificates
executed in blank;
(C) all instruments representing Pledged Notes being
pledged pursuant to such Pledge and Security Agreements duly
endorsed in favor of the Administrative Agent or in blank; and
(D) Blocked Account Letter with respect to the
Borrower's Concentration Account; and
(E) Control Account Letters from (A) all securities
intermediaries with respect to all securities accounts and
securities entitlements of each Loan Party, and (B) all futures
commission agents and clearing houses with respect to all
commodities contracts and commodities accounts held by each Loan
Party;
(iv) the Mortgage Documents for all real property owned by the
Loan Parties, whether fee or leasehold (other than any Non-Material
Leasehold), together with, in respect of each such property: (A) title
insurance loan policies, insuring the lien of the Mortgage Document
described therein subject to only those liens permitted in Section 8.2
hereof and otherwise satisfactory in form and substance to the
Administrative Agent, in
46
its reasonable discretion; (B) evidence that counterparts of the Mortgage
Documents have been recorded (or a commitment from the applicable title
insurance companies to cause such recording) in all places to the extent
necessary or desirable, in the judgment of the Administrative Agent, to
create a valid and enforceable first priority lien on property subject to
Customary Permitted Liens and the KBWB Lien and KNTV Call Right described
therein in favor of the applicable Collateral Agent for the benefit of the
Secured Parties (or in favor of such other trustee as may be required or
desired under local law); and (C) an opinion of counsel in each state
listed in clause (ix) below in which any Mortgage Document is recorded in
form and substance and from counsel satisfactory to the Administrative
Agent; (D) evidence that Borrower is using commercially reasonable efforts
to obtain ALTA surveys for the WPTA, WTVH, WEEK, KBJR and WKBW tower
sites, in form reasonably satisfactory to Administrative Agent which
surveys shall be delivered to the Administrative Agent within thirty (30)
days after the Effective Date (or such later date as agreed by the
Administrative Agent); and (E) UCC fixture filings and evidence that said
fixture filings have been filed (or a commitment from the applicable title
insurance companies to cause such filing) in all places to the extent
necessary or desirable, in the judgment of the Administrative Agent, to
create a valid and enforceable first priority security interest in the
fixtures described therein in favor of the applicable Collateral Agent for
the benefit of the Secured Parties (or in favor of such other trustee as
may be required or desired under local law) subject to Customary Permitted
Liens and the KBWB Lien and KNTV Call Right.
(v) from each Loan Party, with respect to each Lease in
respect of such Lease (other than Leases which relate to a Non-Material
Leasehold), as appropriate, (A) a Landlord Consent Letter, providing,
among other things, a landlord estoppel and a landlord waiver or
subordination of rights to tenant collateral equipment located on the
demised premises, and otherwise in form and substance reasonably
satisfactory to Administrative Agent (or, with respect to any Landlord
Consent Letter delivered in connection with the Existing Credit Agreement,
an acknowledgement from such landlord that the existing Landlord Consent
Letter shall be applicable to any new Mortgage Document(s)); (B) a fully
executed landlord estoppel and landlord waiver or subordination of rights
to tenant collateral equipment located on the demised premises, both in
form and substance satisfactory to Administrative Agent; and (C) a duly
executed and recorded memorandum of lease in form and substance
satisfactory to Administrative Agent;
(vi) the Warrants, duly executed by the Borrower;
(vii) the Additional Fee Letter and all items required to be
delivered pursuant to the Fee Letter;
(viii) the NBC Intercreditor Agreement;
(ix) a favorable opinion of (A) Akin, Gump, Strauss, Xxxxx &
Xxxx LLP, counsel to the Loan Parties, in substantially the form of
EXHIBIT E, (B) counsel to the Loan Parties in each of the States of
California, Illinois, Indiana, Michigan, Minnesota, New York and Virginia,
and (c) special FCC counsel to the Borrower, in each case addressed to the
Administrative Agent, the Collateral Agents and the Lenders and addressing
such other matters as any Lender through the Administrative Agent may
reasonably request and (C) counsel to the Administrative Agent as to the
enforceability of this Agreement and the other Loan Documents to be
executed on the Effective Date;
47
(x) a copy of each Network Affiliation Agreement and the AT&T
Cable Carriage Agreement certified as being complete and correct by a
Responsible Officer of the Borrower;
(xi) a copy of the articles or certificate of incorporation
(or equivalent organizational documents) of each Loan Party, certified as
of a recent date by the Secretary of State of the state of incorporation
of such Loan Party, together with certificates of such official attesting
to the good standing of each such Loan Party;
(xii) a certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying (A) the names and true signatures of each
officer of such Loan Party who has been authorized to execute and deliver
any Loan Document or other document required hereunder to be executed and
delivered by or on behalf of such Loan Party, (B) the by-laws (or
equivalent Constituent Document) of such Loan Party as in effect on the
date of such certification, (C) the resolutions of such Loan Party's Board
of Directors (or equivalent governing body) approving and authorizing the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and (D) that there have been no changes
in the certificate of incorporation (or equivalent Constituent Document)
of such Loan Party from the certificate of incorporation (or equivalent
Constituent Document) delivered pursuant to the immediately preceding
clause;
(xiii) a certificate of the Chief Financial Officer of the
Borrower, stating that (A) the Borrower and its Subsidiaries taken as a
whole are, and (B) the Borrower is, Solvent after giving effect to the
Loans, the application of the proceeds thereof in accordance with SECTION
7.11 and the payment of all estimated legal, accounting and other fees
related hereto and thereto;
(xiv) a certificate of the chief financial officer of the
Borrower stating that, as of the Effective Date, the Borrower is able to
incur at least the aggregate amount of Loans continued or borrowed on the
Effective Date without causing an event of default or event or condition
that, after notice or the lapse of time, or both, would become an event of
default under the Existing Subordinated Note Documents, and shall
demonstrate in reasonable detail satisfaction on a pro forma basis, as of
the Effective Date, by the Borrower and its Subsidiaries of the debt
incurrence tests set forth in Section 1008 of the 10-3/8% Subordinated
Note Indenture, Section 1008 of the 9-3/8% Subordinated Note Indenture and
Section 1008 of the 8-7/8% Subordinated Note Indenture.
(xv) a certificate of a Responsible Officer of the Borrower to
the effect that (A) the representations and warranties set forth in
ARTICLE IV and in the other Loan Documents are true and correct on and as
of the Effective Date with the same effect as though made on and as of
such date, except to the extent such representations and warranties
expressly relate to an earlier date; (B) no Default, Event of Default or
Tranche A Asset Sale Event has occurred and is continuing; (C) no
litigation not listed on SCHEDULE 4.7 shall have been commenced against
the Borrower or any of its Subsidiaries which, if adversely determined,
would have a Material Adverse Effect; and (D) other than as disclosed on
SCHEDULE 4.5 there has been no Material Adverse Change since preparation
and filing with the Securities and Exchange Commission of the financial
statements dated as of September 30, 2000 and notes thereto, as delivered
by the Borrower to each of the Lenders.
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(xvi) evidence satisfactory to the Administrative Agent that
the insurance policies required by SECTION 7.5 and any Collateral Document
are in full force and effect, together with endorsements naming the
applicable Collateral Agent, on behalf of the Secured Parties, as an
additional insured and/or loss payee under all insurance policies to be
maintained with respect to the properties of the Borrower and its
Subsidiaries; and
(xvii) such other certificates, documents, agreements and
information respecting any Loan Party as any Lender or Agent through the
Administrative Agent may reasonably request.
(b) REQUEST FOR BORROWING. The Administrative Agent shall have
received a duly executed Notice of Borrowing.
(c) CASH MANAGEMENT. The Administrative Agent shall have received
evidence that, as of the Effective Date, the procedures with respect to cash
management required by the Collateral Documents have been established and are
currently being maintained by each Loan Party, together with copies of all
executed Blocked Account Letters executed by such Loan Party in connection
therewith.
(d) FEE AND EXPENSES PAID. There shall have been paid (a) to the
Existing Administrative Agent, for the account of the Existing Administrative
Agent and all lenders under the Existing Credit Agreement, as applicable, all
accrued by unpaid interest and fees and such other fees and expenses due and
payable to such Persons on or before the Effective Date and (b) to the
Administrative Agent, for the account of the Administrative Agent, the Arranger
and the Lenders, as applicable, all fees due and payable on or before the
Effective Date (including all such fees described in the Fee Letter and the
Additional Fee Letter), and all expenses due and payable on or before the
Effective Date.
(e) NBC AFFILIATION AGREEMENTS. (i) The NBC Affiliation Agreements
shall have been approved by all corporate action of the Borrower and each of the
other parties thereto, shall be in full force and effect and there shall not
have occurred and be continuing any material breach or default thereunder, (ii)
all applicable Requirements of Law and all representations and warranties
contained in the NBC Affiliation Agreements and all other Network Affiliation
Agreements shall be true and correct in all material respects on the Effective
Date, (iii) the terms and conditions of the NBC Affiliation Agreements shall not
have been amended, waived or modified without the prior written approval of the
Administrative Agent, (iv) the NBC Affiliation Agreements shall in all respects
be reasonably satisfactory to the Administrative Agent, (v) the present value of
the KNTV Affiliation Payment, being $27,718,873.07, shall be paid concurrently
with the funding of the Loans and (vi) evidence satisfactory to the
Administrative Agent that all conditions precedent to the effectiveness of each
NBC Affiliation Agreement (other than the payment of the KNTV Affiliation
Payment) have been satisfied.
(f) CONSENTS, ETC. Each Loan Party shall have received all consents
and authorizations required or advisable pursuant to any material Contractual
Obligation with any other Person and shall have obtained all consents and
authorizations of, and effected all notices to and filings with, any
Governmental Authority, in each case, as may be necessary or advisable to allow
each of the Borrower and its Subsidiaries lawfully (A) to execute, deliver and
perform, in all material respects, their respective obligations hereunder, the
Loan Documents and the Network Affiliation Agreements Documents to which each of
them, respectively, is, or shall be, a party and each other agreement or
instrument to be executed and delivered by each of them,
49
respectively, pursuant thereto or in connection therewith, (B) to create and
perfect the Liens on the Collateral to be owned by each of them in the manner
and for the purpose contemplated by the Loan Documents, other than consents
required under any Network Affiliation Agreement.
(g) AUTHORIZATIONS, PERMITS ETC. Each Loan Party shall have obtained
all authorizations, permits and licenses required by the FCC, the Communications
Act, or any other governmental authority for the conduct of the business of each
Loan Party and such authorizations, permits and licenses shall be in full force
and effect and subject to no pending contest, challenge or appeal, subject only
to exceptions that in the aggregate would not cause a Material Adverse Change.
(h) LEASES. The Borrower shall have delivered a Certificate of a
Responsible Officer in form and substance reasonably satisfactory to
Administrative Agent certifying that the copies of all real, personal or mixed
property leases to which the Borrower or any Subsidiary of the Borrower is a
party and which are subject to a Mortgage in effect on the date hereof in favor
of any Collateral Agent (the "LEASES") are true, complete and correct and in
full force and effect in all material respects (in relation to each property).
SECTION 3.2. CONDITIONS PRECEDENT TO THE MAKING OF RE-ADVANCED
TRANCHE B LOANS. The obligation of each Tranche B Lender to make any Re-Advanced
Tranche B Loan requested to be made by it on the Re-Advance Date is subject to
the satisfaction of all of the following conditions precedent:
(a) REQUEST FOR RE-ADVANCED TRANCHE B LOANS. With respect to the
making of any Re-Advanced Tranche B Loan, the Administrative Agent shall have
received a duly executed Notice of Borrowing.
(b) REPRESENTATIONS AND WARRANTIES; NO DEFAULTS. Borrower, as to
itself and each of its Subsidiaries shall represent and warrant that, both
before and after giving effect thereto and, in the case of such Re-Advanced
Tranche B Loan:
(i) since preparation and filing with the Securities and
Exchange Commission of the financial statements dated as of September 30,
2000 and notes thereto, as delivered by the Borrower to each of the
Lenders, other than as disclosed on SCHEDULE 4.5, there has been no
Material Adverse Change and there have been no events or developments that
in the aggregate have had a Material Adverse Effect; and
(ii) No Event of Default has occurred and is continuing.
(c) NON-RATIO DEBT. The Borrower shall have repaid to the Tranche B
Lenders Tranche B Loans in an amount equal to, or greater than, the aggregate
amount of the Re-Advanced Tranche B Loans; PROVIDED, HOWEVER, such repaid Loans
were permitted to be incurred by the Borrower pursuant to Section 1008(i), (ix)
and (x) of each of the Existing Subordinated Note Indentures.
(d) APPLICATIONS OF NET CASH PROCEEDS TRANCHE A LOANS REPAID. The
Borrower shall have applied all Net Cash Proceeds from a Targeted Asset Sale in
accordance with SECTION 2.11 and shall have repaid all Obligations (other than
Obligations in respect of indemnities not due and payable) with respect to the
Tranche A Loans.
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(e) NO LEGAL IMPEDIMENTS. The re-advancement of such Loans on such
date does not violate any Requirement of Law or conflict with the provisions of
the Existing Subordinated Note Documents or any Material Contract to which any
Loan Party is a party, on the date of or immediately following such
re-advancement and is not enjoined, temporarily, preliminarily or permanently.
(f) KNTV AFFILIATION AGREEMENT. (i) The KNTV Affiliation Agreement
shall be in full force and effect and there shall not have occurred and be
continuing any material breach or default thereunder and (ii) the terms and
conditions of the KNTV Affiliation Agreement shall not have been amended, waived
or modified in violation of SECTION 2.18(B).
(g) OFFICER'S CERTIFICATE. The Borrower shall have delivered a
certificate of the chief financial officer of the Borrower stating that, as of
the Re-Advance Date, the Borrower is able to incur at least the aggregate amount
of Loans outstanding and borrowed on the Re-Advance Date without causing an
event of default or event or condition that, after notice or the lapse of time,
or both, would become an event of default under the Existing Subordinated Note
Documents, and shall demonstrate in reasonable detail satisfaction on a pro
forma basis, as of the Effective Date, by the Borrower and its Subsidiaries of
the debt incurrence tests set forth in Section 1008 of the 10-3/8% Subordinated
Note Indenture, Section 1008 of the 9-3/8% Subordinated Note Indenture and
Section 1008 of the 8-7/8% Subordinated Note Indenture.
(h) ADDITIONAL MATTERS. The Administrative Agent shall have
received such additional documents, information and materials as any Tranche
B Lender, through the Administrative Agent, may reasonably request.
Each submission by a Borrower to the Administrative Agent of a Notice of
Borrowing and the acceptance by the Borrower of the proceeds of such Loan
requested therein, shall be deemed to constitute a representation and warranty
by the Borrower as to the matters specified in this SECTION 3.2 on the date of
the re-advancement of such Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, and the Agents to enter into this Agreement,
the Borrower, as to itself and each of its Subsidiaries, represents and warrants
to the Lenders and the Agents that, on and as of the Effective Date, after
giving effect to the making of the Loans and other financial accommodations on
the Effective Date and on and as of the Re-Advance Date, as required by SECTION
3.2:
SECTION 4.1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Borrower
and each of its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation;
(b) is duly qualified as a foreign entity and in good standing under the laws of
each jurisdiction where such qualification is necessary, except where the
failure to be so qualified or in good standing would not have a Material Adverse
Effect; (c) has all requisite power and authority and the legal right to own,
pledge, mortgage and operate its properties, to lease the property it operates
under lease and to conduct its business as now or currently proposed to be
conducted; (d) is in compliance with its Constituent Documents; (e) is in
compliance with all applicable Requirements of Law except where the failure to
be in compliance would not in the aggregate have a Material Adverse Effect; and
(f) has all necessary licenses, permits, consents or approvals from or by, has
made all necessary filings with, and has
51
given all necessary notices to, each Governmental Authority having jurisdiction,
to the extent required for such ownership, operation and conduct, except for
licenses, permits, consents, approvals or filings which can be obtained or made
by the taking of ministerial action to secure the grant or transfer thereof or
the failure to obtain or make would not in the aggregate have a Material Adverse
Effect.
SECTION 4.2. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS.
(a) The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is a party and the consummation of the
transactions contemplated thereby:
(i) are within such Loan Party's corporate, limited liability
company, partnership or other powers;
(ii) have been or, at the time of delivery thereof pursuant to
Section 3.1 will have been duly authorized by all necessary corporate
action, including the consent of shareholders where required;
(iii) do not and will not (A) contravene any Loan Party's
Constituent Documents, (B) violate any other Requirement of Law applicable
to any Loan Party (including Regulations T, U and X of the Federal Reserve
Board), or any order or decree of any Governmental Authority or arbitrator
applicable to any Loan Party, (C) conflict with or result in the breach
of, or constitute a default under, or result in or permit the termination
or acceleration of, any Contractual Obligation of any Loan Party, or (D)
result in the creation or imposition of any Lien upon any of the property
of any Loan Party, other than those in favor of the Secured Parties
pursuant to the Collateral Documents; and
(iv) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental Authority
or any other Person, other than those listed on SCHEDULE 4.2 and which
have been or will be, prior to the Effective Date, obtained or made,
copies of which have been or will be delivered to the Administrative Agent
pursuant to SECTION 3.1, and each of which, if so required, will, on the
Effective Date, be in full force and effect and, with respect to the
Collateral, filings required to perfect the Liens created by the
Collateral Documents.
(b) This Agreement has been, and each of the other Loan Documents
will have been upon delivery thereof pursuant to the terms of this Agreement,
duly executed and delivered by each Loan Party thereto. This Agreement is, and
the other Loan Documents will be, when delivered hereunder, the legal, valid and
binding obligation of each Loan Party thereto, enforceable against such Loan
Party in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer or conveyance, reorganization,
moratorium or other similar laws affecting creditors' rights generally, by
general equitable principles or by principles of good faith and fair dealing and
except to the extent that availability of the remedy of specific performance or
injunctive relief is sought to the discretion of the court before which any
proceeding therefor may be brought.
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SECTION 4.3. OWNERSHIP OF THE BORROWER; SUBSIDIARIES. Set forth on
SCHEDULE 4.3 hereto is a complete and accurate list showing, as of the Effective
Date, the Borrower and all Subsidiaries of the Borrower and, as to each, the
jurisdiction of its incorporation, the number of shares of each class of Stock
authorized (if applicable), the number of such shares outstanding on the
Effective Date and the number and percentage of the outstanding shares of each
such class owned (directly or indirectly) by a Permitted Holder or a Loan Party,
as the case may be. No Stock of any Subsidiary of any Loan Party is subject to
any outstanding option, warrant, right of conversion or purchase or any similar
right other than the KNTV Call Right. All of the outstanding Stock of each
Subsidiary of the Borrower owned (directly or indirectly) by the Borrower has
been validly issued, is fully paid and non-assessable and is owned by such
Persons, free and clear of all Liens (other than the Lien in favor of the
Secured Parties created pursuant to the Pledge and Security Agreements and the
KBWB Lien). No Loan Party is a party to, or has knowledge of, any agreement
restricting the transfer or hypothecation of any Stock of any Subsidiary of the
Borrower (other than Target), other than the Loan Documents, the Existing
Subordinated Note Indentures and, in respect of KNTV and KBWB, the NBC
Documents. No Loan Party owns or holds, directly or indirectly, any Stock of any
Person other than the Subsidiaries and Investments permitted by SECTION 8.3.
SECTION 4.4. FINANCIAL STATEMENTS.
(a) The consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1999, and the related consolidated statements of
income, retained earnings and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, certified by Ernst & Young LLP, and the
consolidated balance sheets of the Borrower and its Subsidiaries as at September
30, 2000, and the related consolidated statements of income, retained earnings
and cash flows of the Borrower and its Subsidiaries for the nine months then
ended, copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheets as at September 30, 2000, and said
statements of income, retained earnings and cash flows for the nine months then
ended, to the absence of footnote disclosure and normal recurring year-end audit
adjustments, the consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the consolidated results of the operations of
the Borrower and its Subsidiaries for the period ended on such dates, all in
conformity with GAAP.
(b) Neither the Borrower nor any of its Subsidiaries has any
material obligation, contingent liability or liability for taxes, long-term
leases or unusual forward or long-term commitment which is not reflected in the
Financial Statements referred to in CLAUSE (A) above or in the notes thereto or
permitted by this Agreement other than the Program Contracts, the Cable Carriage
Agreements and the KNTV Affiliation Agreement.
(c) The Projections have been prepared by the Borrower in light of
the past operations of its business, and reflect projections for the fiscal year
period beginning on January 1, 2001 on a month by month basis for the first year
and on a quarter by quarter basis thereafter. The Projections are based upon
estimates and assumptions stated therein, all of which the Borrower believes to
be reasonable and fair in light of current conditions and current facts known to
the Borrower and, as of the Effective Date, reflect the Borrower's good faith
and reasonable estimates of the future financial performance of the Borrower and
its Subsidiaries and of the other information projected therein for the periods
set forth therein; PROVIDED that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.
53
(d) The unaudited pro forma consolidated balance sheet of the
Borrower and its Subsidiaries (the "PRO FORMA BALANCE SHEET"), a copy of which
has been delivered to each Lender pursuant to SECTION 3.1, has been prepared as
of February 28, 2001 reflects as of such date, on a pro forma basis, the
consolidated financial condition of the Borrower and its Subsidiaries, and the
assumptions expressed therein were reasonable based on the information available
to the Borrower at the time so furnished and on the Effective Date.
SECTION 4.5. MATERIAL ADVERSE CHANGE. Since preparation and filing
with the Securities and Exchange Commission of the financial statements dated as
of September 30, 2000 and notes thereto, as delivered by the Borrower to each of
the Lenders, other than as set forth on SCHEDULE 4.5 there has been no Material
Adverse Change and there have been no events or developments that in the
aggregate have had a Material Adverse Effect.
SECTION 4.6. SOLVENCY. Both immediately before and after giving
effect to (a) the Loans to be made or extended on the Effective Date or such
other date as Loans requested hereunder are made or extended, (b) the
disbursement of the proceeds of such Loans pursuant to the instructions of the
Borrower, (c) the consummation of the other financing transactions contemplated
hereby and (d) the payment and accrual of all transaction costs in connection
with the foregoing, each Loan Party is Solvent.
SECTION 4.7. LITIGATION.
(a) Except as set forth on Schedule 4.7, there are no pending or, to
the knowledge of the Borrower, threatened actions, investigations or proceedings
affecting the Borrower or any of its Subsidiaries before any court, Governmental
Authority or arbitrator other than those that in the aggregate have no
reasonable risk of being determined adversely to any Loan Party and, if so
determined, would not have a Material Adverse Effect. The performance of any
action by the Borrower or any of its Subsidiaries required or contemplated by
any of the Loan Documents or the Network Affiliation Agreements is not
restrained or enjoined (either temporarily, preliminarily or permanently).
SCHEDULE 4.7 lists all litigation pending against any Loan Party at the date
hereof and describes which of such litigation proceedings, if adversely
determined, would have a Material Adverse Effect.
(b) No Loan Party is the subject of any outstanding citation order
or investigation by any Communications Regulatory Authority which could
reasonably be expected to have a Material Adverse Effect, and no such citation,
order or investigation (excluding any rule making proceeding of general
applicability) which could reasonably be expected to have a Material Adverse
Effect, to the knowledge of the Borrower, is contemplated by any Communications
Regulatory Authority.
SECTION 4.8. TAXES.
(a) Except as set forth on SCHEDULE 4.8, all federal, state, local
and foreign income and franchise and other material tax returns, reports and
statements (collectively, the "TAX RETURNS") required to be filed by the
Borrower or any of its Tax Affiliates have been filed with the appropriate
Governmental Authorities in all jurisdictions in which such Tax Returns are
required to be filed, all such Tax Returns are true and correct in all material
respects, and all taxes, charges and other impositions reflected therein or
otherwise due and payable have been paid prior to the date on which any fine,
penalty, interest, late charge or loss may be added thereto for non-payment
thereof except where contested in good faith and by appropriate proceedings if
adequate reserves therefor have been established on the books of the Borrower or
such Tax
54
Affiliate in conformity with GAAP. Except as set forth on SCHEDULE 4.8, no Tax
Return is under audit or examination by any Governmental Authority and no notice
of such an audit or examination or any assertion of any claim for Taxes has been
given or made by any Governmental Authority. Proper and accurate amounts have
been withheld by the Borrower and each of its Tax Affiliates from their
respective employees for all periods in compliance in all material respects with
the tax, social security and unemployment withholding provisions of applicable
Requirements of Law and such withholdings have been timely paid to the
respective Governmental Authorities.
(b) Except as set forth on SCHEDULE 4.8, neither the Borrower nor
any of its Tax Affiliates has (i) executed or filed with the IRS or any other
Governmental Authority any agreement or other document extending, or having the
effect of extending, the period for the filing of any Tax Return or the
assessment or collection of any charges; (ii) any obligation under any tax
sharing agreement or arrangement other than that to which the Administrative
Agent has a copy prior to the date hereof; or (iii) in the last five years, been
a member of an affiliated, combined or unitary group other than the group of
which the Borrower (or its Tax Affiliate) is the common parent.
(c) The Borrower has projected that it will receive a tax refund in
amount not less than $18,000,000 in the Fiscal Year ending December 31, 2001.
SECTION 4.9. FULL DISCLOSURE. The information prepared or furnished
by or on behalf of each Loan Party in connection with this Agreement or the
consummation of the financing taken as a whole does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements contained therein or herein not misleading. All facts known to
any Loan Party which are material to an understanding of the financial
condition, business, properties or prospects of the Borrower and its
Subsidiaries taken as one enterprise have been disclosed to the Lenders;
PROVIDED that, with respect to projected financial information, the Loan Parties
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 4.10. MARGIN REGULATIONS. Neither the Borrower nor any of
its Subsidiaries is engaged in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning of Regulation U of
the Federal Reserve Board), and no proceeds of any Borrowing will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock.
SECTION 4.11. NO BURDENSOME RESTRICTIONS; NO DEFAULTS.
(a) Neither the Borrower nor any of its Subsidiaries (i) is a party
to any Contractual Obligation the compliance with which would have a Material
Adverse Effect or the performance of which by any thereof, either
unconditionally or upon the happening of an event, would result in the creation
of a Lien (other than a Lien permitted under SECTION 8.2) on the property or
assets of any thereof or (ii) is subject to any charter or corporate restriction
which would have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in default
under or with respect to any Contractual Obligation owed by it and, to the
knowledge of the Borrower, no other party is in default under or with respect to
any Contractual Obligation owed to the Borrower or to any of its Subsidiaries,
other than, in either case, those defaults which in the aggregate would not have
a Material Adverse Effect.
55
(c) No Default, Event of Default or Tranche A Asset Sale Event has
occurred and is continuing.
(d) To the best knowledge of the Borrower and each of its
Subsidiaries, there is no Requirement of Law applicable to the Borrower or to
any of its Subsidiaries the compliance with which by such Person would have a
Material Adverse Effect.
SECTION 4.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. Neither the Borrower nor any of its Subsidiaries is (a) an "INVESTMENT
COMPANY" or an "AFFILIATED PERSON" of, or "PROMOTER" or "PRINCIPAL underwriter"
for, an "INVESTMENT COMPANY," as such terms are defined in the Investment
Company Act of 1940, as amended or (b) a "HOLDING COMPANY," or an "AFFILIATE" or
a "HOLDING COMPANY" or a "SUBSIDIARY COMPANY" of a "HOLDING COMPANY," as each
such term is defined and used in the Public Utility Holding Act of 1935, as
amended.
SECTION 4.13. USE OF PROCEEDS.
(a) The proceeds of the Loans (other than the Re-Advanced Tranche B
Loans) are being used by the Borrower solely as follows:
$ 114,410,065.00 To repurchase loans under the Existing Credit
Agreement ($90,000,000 of which shall refinance
existing debt constituting "RATIO DEBT" under
the Existing Subordinated Note Indentures).
$ 29,545,645.26 To be used for general corporate purposes for
the Borrower and its Subsidiaries.
$ 10,000,000.00 To fund a reserve to be held by the Borrower
solely for the purpose of funding capital
expenditures and working capital for KNTV.
$ 17,500,000.00 To be held in the Interest Reserve Account for
the benefit of the Tranche B Lenders on the
Effective Date for the payment of interest on
the Tranche B Loans as such interest becomes
due and payable.
$ 5,825,416.67 To be used to pay fees payable by the Borrower
pursuant to SECTION 2.8.
$ 27,718,873.07 To prepay directly to NBC, on the Effective
Date the KNTV Affiliation Payment due on
January 1, 2002 in full satisfaction of payment
thereof.
$ 205,000,000.00
(b) The Re-Advanced Tranche B Loans made pursuant to the SECTION
2.18(A) shall be applied by the Administrative Agent (on behalf of the Borrower)
as follows:
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(i) if such Re-Advancement Date is prior to the date on which
the Borrower makes the 2003 NBC AFFILIATION PAYMENT, to the KNTV Reserve
Account to be applied in accordance with SECTION 2.12(C), or
(ii) if such Re-Advancement Date is on or after the date on
which the Borrower makes the 2003 NBC Affiliation Payment, to the Borrower
for general corporate purposes.
(c) The Re-Advanced Tranche B Loans made pursuant to the SECTION
2.18(B) above shall be applied by the Administrative Agent (on behalf of the
Borrower) as follows:
(i) fifty percent (50%) to the KNTV Reserve Account to be
applied in accordance with SECTION 2.12(C); PROVIDED, HOWEVER, that any
such proceeds applied to the KNTV Reserve Account in excess of the amount
required for the 2003 NBC Affiliation Payment shall be re-applied to the
Tranche B Loans as if such Re-Advances Tranche B Loan had not been made;
and
(ii) the other fifty percent (50%) to the Borrower for general
corporate purposes.
(d) The Re-Advanced Tranche B Loans made pursuant to SECTION 2.18(C)
shall be available to the Borrower for general corporate purposes.
SECTION 4.14. INSURANCE. All policies of insurance of any kind or
nature of the Borrower or any of its Subsidiaries, including policies of life,
fire, theft, product liability, public liability, property damage, other
casualty, business interruption, employee fidelity, workers' compensation and
employee health and welfare insurance, are in full force and effect and are of a
nature and provide such coverage as is sufficient and as is customarily carried
by businesses of the size and character of such Person. Neither the Borrower or
any of its Subsidiaries has been refused insurance for any material coverage
which it had applied or had any policy of insurance terminated (other than at
its request).
SECTION 4.15. LABOR MATTERS.
(a) There are no strikes, work stoppages, slowdowns or lockouts
pending or threatened against or involving the Borrower or any of its
Subsidiaries, other than those which in the aggregate would not have a Material
Adverse Effect.
(b) There are no unfair labor practices, grievances or complaints
pending, or, to the Borrower's knowledge, threatened against or involving the
Borrower or any of its Subsidiaries nor are there any arbitrations or grievances
threatened involving the Borrower or any of its Subsidiaries, other than those
which, in the aggregate, if resolved adversely to the Borrower or such
Subsidiary, would not have a Material Adverse Effect.
(c) Except as set forth on SCHEDULE 4.15, as of the Effective Date,
there is no collective bargaining agreement covering any of the employees of the
Borrower or any of its Subsidiaries.
(d) SCHEDULE 4.15 sets forth as of the date hereof, all material
consulting agreements, executive employment agreements, executive compensation
plans, deferred
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compensation agreements, employee stock purchase and stock option plans and
severance plans of the Borrower and its Subsidiaries.
SECTION 4.16. ERISA.
(a) SCHEDULE 4.16 separately identifies as of the date hereof all
Title IV Plans, all Multiemployer Plans and all of the employee pension benefit
plans within the meaning of Section 3(2) of ERISA to which the Borrower or any
of its Subsidiaries has any obligation or liability, contingent or otherwise.
(b) Each employee benefit plan of the Borrower or any of its
Subsidiaries which is intended to qualify under Section 401 of the Code does so
qualify, and any trust created thereunder is exempt from tax under the
provisions of Section 501 of the Code, except where such failures in the
aggregate would not have a Material Adverse Effect.
(c) Each Title IV Plan is in compliance in all material respects
with applicable provisions of ERISA, the Code and other Requirements of Law
except for non-compliances that in the aggregate would not have a Material
Adverse Effect.
(d) There has been no, nor is there reasonably expected to occur,
any ERISA Event which would have a Material Adverse Effect.
(e) Except to the extent set forth on SCHEDULE 4.16, neither the
Borrower nor any of its Subsidiaries or any ERISA Affiliate would have any
Withdrawal Liability as a result of a complete withdrawal as of the date hereof
from any Multiemployer Plan.
SECTION 4.17. ENVIRONMENTAL MATTERS.
(a) The operations of the Borrower and each of its Subsidiaries have
been and are in compliance with all Environmental Laws, including obtaining and
complying with all environmental, health and safety Permits required by
Environmental Laws, other than non-compliances that in the aggregate would not
have a reasonable likelihood of the Borrower and its Subsidiaries incurring
Environmental Liabilities and Costs in excess of $1,000,000.
(b) Neither the Borrower nor any of its Subsidiaries or any real
property currently or, to the knowledge of the Borrower, previously owned,
operated or leased by or for the Borrower or any of its Subsidiaries is subject
to any pending or, to the knowledge of the Borrower, threatened, claim, order,
agreement, notice of violation, notice of potential liability or is the subject
of any pending or threatened proceeding or governmental investigation under or
pursuant to Environmental Laws other than those that in the aggregate would not
have a reasonable likelihood of the Borrower and its Subsidiaries incurring
Environmental Liabilities and Costs in excess of $1,000,000.
(c) Neither the Borrower nor any of its Subsidiaries is a treatment,
storage or disposal facility requiring a permit under the Resource Conservation
and Recovery Act, 42 X.X.X.xx. 6901 ET SEQ., the regulations thereunder or any
state analog.
(d) There are no facts, circumstances or conditions arising out of
or relating to the operations or ownership of real property owned, operated or
leased by the Borrower or any of its Subsidiaries, including, but not limited to
a Release of Contaminants, which are not specifically included in the financial
information furnished to the Lenders other than those that in
58
the aggregate would not have a reasonable likelihood of the Borrower and its
Subsidiaries incurring Environmental Liabilities and Costs in excess of
$1,000,000.
(e) As of the date hereof, no Environmental Lien has attached to any
property of the Borrower or any of its Subsidiaries and, to the knowledge of the
Borrower, no facts, circumstance or conditions exist that could reasonably be
expected to result in any such Lien attaching to any such property. SCHEDULE
4.17 sets forth all underground storage tanks ("USTS") located on any real
property owned, operated or leased by Borrower or any of its Subsidiaries and
over which Borrower a Subsidiary has control, and the size, age, and content of
each UST.
(f) The Borrower has provided the Lenders with copies of all
environmental, health or safety audits, studies, assessments, inspections,
investigations or other environmental health and safety reports relating to the
operations of the Borrower or any of its Subsidiaries or any of their real
property (including, but not limited to, tank tightness tests, Phase I
Environmental Site Assessment and Phase II Environmental Site Assessments) that
are in the possession, custody or control of the Borrower or any of its
Subsidiaries.
SECTION 4.18. INTELLECTUAL PROPERTY MATTERS.
(a) Set forth on SCHEDULE 4.18 is a complete and accurate list of
all registered licenses, permits, patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights, copyright
applications, franchises, authorizations and other intellectual property rights
of the Borrower and each of its Subsidiaries, showing, as of the Effective Date
in the case of registered intellectual property, the jurisdiction in which
registered, the registration number and the date of registration.
(b) The Borrower and each of its Subsidiaries own or license or
otherwise have the right to use all licenses, permits, patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, copyright applications, franchises, authorizations and other
intellectual property rights (including all Intellectual Property as defined in
the Pledge and Security Agreements) that are necessary for the operations of
their respective businesses, without any known infringement upon or conflict
with the rights of any other Person with respect thereto, including all trade
names associated with any private label brands of the Borrower or any of its
Subsidiaries.
(c) To the Borrower's knowledge, no slogan or other advertising
device, product, process, method, substance, part or component, or other
material now employed, or now contemplated to be employed, by the Borrower or
any of its Subsidiaries infringes upon or conflicts with any rights owned by any
other Person, and no claim or litigation regarding any of the foregoing is
pending or, to the knowledge of the Borrower, threatened.
SECTION 4.19. TITLE.
(a) The Borrower and each of its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all real property set
forth on SCHEDULE 4.19, and good title to all personal property purported to be
owned by it (other than assets disposed of in the ordinary course of business),
including those reflected on the most recent Financial Statements delivered by
the Borrower, and none of such properties and assets is subject to any Lien,
except Liens permitted under SECTION 8.2. The Borrower and each of its
Subsidiaries has received all deeds, assignments, waivers, consents,
non-disturbance and recognition or similar agreements, bills of sale and other
documents, and have duly effected all recordings, filings and other actions
59
reasonably necessary to establish, protect and perfect the Borrower's and each
of its Subsidiaries' right, title and interest in and to all such property.
(b) All Permits required to have been issued or appropriate to
enable all real property owned or leased by the Borrower or any of its
Subsidiaries to be lawfully occupied and used for all of the purposes for which
they are currently occupied and used have been lawfully issued and are in full
force and effect, other than those which in the aggregate would not have a
Material Adverse Effect.
(c) To the knowledge of the Borrower or any applicable Subsidiary,
none of the facilities used in connection with the Borrower's or any of its
Subsidiaries' television broadcasting operations (including without limitation,
the transmitter and tower sites owned or used by the Borrower or any Subsidiary
thereof) violates in any material respect the provisions of any applicable
building codes, fire regulations, building restrictions or other governmental
ordinances, orders, or regulations and each such facility is zoned so as to
permit the commercial uses intended by the owner or occupier thereof and there
are no outstanding variances or special use permits materially affecting any of
the present uses thereof by the Borrower or its Subsidiaries.
(d) Neither the Borrower nor any of its Subsidiaries has received
any notice, or has any knowledge, of any pending, threatened or contemplated
condemnation proceeding affecting any real property owned or leased by the
Borrower or any of its Subsidiaries or any part thereof, except those which, in
the aggregate, would not have a Material Adverse Effect.
SECTION 4.20. ISSUANCE OF STOCK AND SUBORDINATED INDEBTEDNESS. The
Borrower's common Stock and Exchangeable Preferred Stock have been duly and
validly issued, fully paid and nonassessable. No stockholder of the Borrower has
or will have any preemptive rights to subscribe for any additional Securities of
the Borrower. The Existing Subordinated Note Documents (and all other
Subordinated Indebtedness) are the legally valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability. The subordination
provisions of the Existing Subordinated Note Documents (and all other
Subordinated Indebtedness) will be enforceable against the holders thereof and
the Loans and all other monetary Obligations of the Borrower hereunder are and
will be within the definition of "SENIOR DEBT" included in such provisions. The
issuance and sale of the Borrower's common Stock, Exchangeable Preferred Stock
and the Subordinated Indebtedness either (a) has been registered or qualified
under applicable federal and state securities laws or (b) was exempt therefrom.
SECTION 4.21. LENDERS. None of the Administrative Agent, the
Collateral Agents or any Lender will, by reason of the execution, delivery and
performance (other than the exercise of remedies) of any of the Loan Documents,
be subject to the regulation or control of the FCC or any other Communications
Regulatory Authority.
SECTION 4.22. FCC LICENSES AND APPROVALS.
(a) The Borrower and each of its Subsidiaries has all requisite
power and authority and necessary licenses, authorizations, waivers and permits
(the "FCC LICENSES") required under the Communications Act to own and operate
its properties and to carry on its businesses as now conducted and as proposed
to be conducted.
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(b) Set forth in SCHEDULE 4.22 is a complete list of all FCC
Licenses, and the termination date thereof, of the Borrower and each of its
Subsidiaries.
(c) Each such FCC License which is materially necessary to the
operation of the business of the Borrower or any of its Subsidiaries is validly
issued and in full force and effect, and constitutes in all material respects,
all of the authorization from any Communications Regulatory Authority necessary
for the operation of such Person's business in the same manner as it is
presently conducted and as proposed to be conducted.
(d) The Borrower and each of its Subsidiaries have taken all
material actions and performed all of their material obligations that are
necessary to maintain such FCC Licenses without adverse modification or
impairment, and complete and correct copies of the FCC Licenses of each such
Person have been delivered to Administrative Agent.
(e) No event has occurred which (A) results in, or after notice or
lapse of time or both would result in, revocation, suspension, adverse
modification, non-renewal, impairment or termination of or any order of
forfeiture with respect to, any FCC License or (B) materially and adversely
affects or in the future may (so far as the Borrower can now reasonably foresee)
materially adversely affect any of the rights of the Borrower or any Subsidiary
thereof.
(f) Except as set forth in SCHEDULE 4.22, none of the FCC Licenses
requires that any present stockholder, director, officer or employee of the
Borrower or any Subsidiary thereof remain a stockholder or employee of such
Person, or that any transfer of control of such Person must be approved by any
public or governmental body other than the FCC.
(g) Neither the Borrower nor any of its Subsidiaries is a party to
or has knowledge of any investigation, notice of apparent liability, violation,
forfeiture or other order or complaint issued by or before any court or
regulatory body, including the FCC, or of any other proceedings (other than
proceedings relating to the radio or television industries generally) which
could in any manner threaten or adversely affect the validity or continued
effectiveness of the FCC Licenses of any such Person.
(h) Neither the Borrower nor any of its Subsidiaries has any reason
to believe (other than in connection with there being no legal assurance
thereof) that the FCC Licenses listed and described in SCHEDULE 4.22 will not be
renewed in the ordinary course. The Borrower and each of its Subsidiaries has
filed in a timely manner all material reports, applications, documents,
instruments and information required to be filed by it pursuant to applicable
rules and regulations or requests of every regulatory body having jurisdiction
over any of its FCC Licenses.
(i) Each Ownership Report filed by the Borrower or any of its
Subsidiaries with the FCC was true, correct and complete in all material
respects as of the date of such filing.
SECTION 4.23. LOANS PERMITTED UNDER SUBORDINATED DEBT DOCUMENTS. All
outstanding loans under the Existing Credit Agreement are, and since the date of
borrowing thereof have been, and all Loans requested hereunder will be at the
time of such request, debt permitted under the debt incurrence tests set forth
in Section 1008 of the 10-3/8% Subordinated Note Indenture, Section 1008 of the
9-3/8% Subordinated Note Indenture, Section 1008 of the 8-7/8% Subordinated Note
Indenture or any comparable provision of any documents relating to Additional
Subordinated Indebtedness.
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SECTION 4.24. OUTSTANDING LOANS. None of the mortgages has become
unenforceable as a result of the failure to pay any additional mortgage
recording tax, documentary stamp tax, tax on intangibles, or other similar taxes
due to any state or local governmental authority by reason of the borrowing,
repayment or prepayment, and subsequent reborrowing of any loans under the
Existing Credit Agreement.
SECTION 4.25. NETWORK AFFILIATION AGREEMENTS
(a) Set forth on SCHEDULE 4.25 hereto is a complete and accurate
list of all Network Affiliation Agreements and Cable Carriage Agreements of the
Borrower and each of its Subsidiaries.
(b) The execution, delivery and performance by the Borrower and each
of its Subsidiaries of the Network Affiliation Agreements and Cable Carriage
Agreements to which it is a party and the consummation of the transactions
contemplated thereby by such Person:
(i) do not and will not (A) contravene or violate the
Borrower's or any of its Subsidiaries' respective Constituent Documents,
(B) violate any other Requirement of Law applicable to the Borrower or any
of its Subsidiaries, or any order or decree of any Governmental Authority
or arbitrator, (C) conflict with or result in the breach of, or constitute
a default under, or result in or permit the termination or acceleration
of, any Contractual Obligation of the Borrower or any of its Subsidiaries,
except for those that in the aggregate would not have a Material Adverse
Effect or (D) result in the creation or imposition of any Lien upon any of
the property of the Borrower or any of its Subsidiaries other than the
KBWB Lien and the KNTV Call Right; and
(ii) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental Authority
or any other Person, other than those which will have been obtained at the
Effective Date, each of which will be in full force and effect on the
Effective Date, other than in connection with the exercise by NBC of its
rights and remedies with respect to the KBWB Lien or the KNTV Call Right.
(c) Each of the Network Affiliation Agreements and Cable Carriage
Agreements has been, or at the Effective Date will have been, duly executed and
delivered by the Loan Party that is party thereto and at the Effective Date will
be the legal, valid and binding obligation of such Loan Party, enforceable
against such Loan Party in accordance with its terms.
(d) None of the Network Affiliation Agreements or Cable Carriage
Agreements has been amended or modified in any respect and no provision therein
has been waived, except in each case to the extent permitted by SECTION 8.11,
and each of the representations and warranties therein is true and correct in
all material respects and no default or event which with the giving of notice or
lapse of time or both would be a default has occurred thereunder.
SECTION 4.26. INACTIVE SUBSIDIARIES Each Inactive Subsidiary (i) has
assets with an aggregate fair market value of less than $10,000, (ii) has not
conducted any business or operations since January 1, 2000, other than, in the
case of WLAJ, Inc., its participation in the applicable litigation proceedings
set forth on SCHEDULE 4.7 and (iii) is classified as inactive or dormant by the
Borrower's internal records.
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ARTICLE V
FINANCIAL COVENANTS
As long as any of the Obligations or the Loans remain outstanding,
unless (a) with respect to the Tranche A Loan Parties, the Requisite Tranche A
Lenders, and (b) with respect to the Tranche B Loan Parties, the Requisite
Tranche B Lenders, otherwise consent in writing, the Borrower each agrees with
the Lenders and the Administrative Agent that:
SECTION 5.1. MINIMUM NET REVENUE. The Borrower shall not permit Net
Revenues for Tranche A Loan Parties and Tranche B Loan Parties, to be less than
the amount set forth below with respect to such Loan Parties, for such period,
with such amount being calculated on a cumulative basis beginning January 1,
2001, for the first three Fiscal Quarters of 2001 and for each successive Fiscal
Quarter thereafter, such amount shall be determined with reference to the
twelve-month period ending on such day:
Tranche A Tranche B
Loan Loan
Period Time Measured Parties Parties
-----------------------------------------------------------
03/31/01 3 Months $18,000,000 $ 5,400,000
06/30/01 6 Months $39,600,000 $12,300,000
09/30/01 9 Months $59,400,000 $20,100,000
12/31/01 12 Months $81,100,000 $30,600,000
03/31/02 12 Months $82,900,000 $43,900,000
06/30/02 12 Months $86,200,000 $61,300,000
09/30/02 12 Months $89,900,000 $75,600,000
12/31/02 12 Months $96,300,000 $91,900,000
03/31/03 12 Months $97,800,000 $92,900,000
06/30/03 12 Months $99,400,000 $96,200,000
09/30/03 12 Months $99,900,000 $98,200,000
SECTION 5.2. MINIMUM ADJUSTED BROADCAST CASH FLOW. The Borrower
shall not permit Adjusted Broadcast Cash Flow for Tranche A Loan Parties and the
Tranche B Loan Parties to be less than the amount set forth below with respect
to such Loan Parties for such Fiscal Quarter, with such amount being calculated
on a cumulative basis beginning January 1, 2001 for the first three Fiscal
Quarters of 2001. For each successive Fiscal Quarter thereafter, such amount
shall be determined with reference to the twelve-month period ending on such
day:
Tranche A Tranche B
Loan Loan
Period Time Measured Parties Parties
-----------------------------------------------------------
03/31/01 3 Months $4,300,000 -$6,000,000
06/30/01 6 Months $13,000,000 -$9,000,000
09/30/01 9 Months $22,600,000 -$9,000,000
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Tranche A Tranche B
Loan Loan
Period Time Measured Parties Parties
-----------------------------------------------------------
12/31/01 12 Months $35,700,000 -$9,000,000
03/31/02 12 Months $37,000,000 $6,700,000
06/30/02 12 Months $38,800,000 $23,300,000
09/30/02 12 Months $40,700,000 $35,900,000
12/31/02 12 Months $45,700,000 $50,200,000
03/31/03 12 Months $46,700,000 $49,400,000
06/30/03 12 Months $47,800,000 $51,200,000
09/30/03 12 Months $47,800,000 $51,000,000
SECTION 5.3. MINIMUM EBITDA. The Borrower shall not permit EBITDA
for the Borrower and its Subsidiaries, to be less than the amount set forth
below for such period, with such amount being calculated on a cumulative basis
beginning January 1, 2001 for the first three Fiscal Quarters of 2001. For each
successive Fiscal Quarter thereafter, such amount shall be determined with
reference to the twelve-month period ending on such day.
Period Time Measured Consolidated
----------------------------------------
03/31/01 3 Months -$5,000,000
06/30/01 6 Months -$2,700,000
09/30/01 9 Months $3,600,000
12/31/01 12 Months $13,400,000
03/31/02 12 Months $30,100,000
06/30/02 12 Months $48,500,000
09/30/02 12 Months $62,900,000
12/31/02 12 Months $82,000,000
03/31/03 12 Months $82,100,000
06/30/03 12 Months $84,900,000
09/30/03 12 Months $84,400,000
SECTION 5.4. MINIMUM FIXED CHARGE COVERAGE RATIO.
The Borrower shall not permit its Fixed Charge Coverage Ratio as of
the last day of each Fiscal Quarter occurring during each periods forth below to
fall below the corresponding ratio indicated below (to be determined with
reference to the twelve-month period ending on such last day of each such period
set forth below):
Period Time Measured Consolidated
----------------------------------------
12/31/01 12 Months NA
64
Period Time Measured Consolidated
----------------------------------------
03/31/02 12 Months 0.13 to 1
06/30/02 12 Months 0.49 to 1
09/30/02 12 Months 0.80 to 1
12/31/02 12 Months 1.30 to 1
03/31/03 12 Months 0.61 to 1
06/30/03 12 Months 0.70 to 1
09/30/03 12 Months 0.74 to 1
SECTION 5.5. MAXIMUM LEVERAGE RATIO.
The Borrower shall not permit the Leverage Ratio, as of the last day
of any Fiscal Quarter occurring during any of the periods set forth below, to
exceed the corresponding ratio indicated below (to be determined with reference
to the twelve-month period ending on such last day of each such period set forth
below):
Period Time Measured Consolidated
----------------------------------------
03/31/01 3 Months NA
06/30/01 6 Months NA
09/30/01 9 Months NA
12/31/01 12 Months 15.30 to 1
03/31/02 12 Months 6.81 to 1
06/30/02 12 Months 4.23 to 1
09/30/02 12 Months 3.26 to 1
12/31/02 12 Months 2.50 to 1
03/31/03 12 Months 2.50 to 1
06/30/03 12 Months 2.41 to 1
09/30/03 12 Months 2.43 to 1
SECTION 5.6. MINIMUM WORKING CAPITAL. The Borrower and its
Subsidiaries shall maintain, during each Fiscal Quarter, a minimum Working
Capital balance of not less than $10,000,000, calculated as of the last day of
each Fiscal Quarter.
SECTION 5.7. MAXIMUM CAPITAL EXPENDITURES.
The Borrower shall not permit Capital Expenditures, during the
periods set forth, below to be greater than the amount set forth below for such
period; PROVIDED, HOWEVER, to the
extent such Capital Expenditures allowed in any one Fiscal Quarter are not used,
the unused amount may be carried over up to a maximum of three Fiscal Quarters
only:
65
Period Time Measured Consolidated
----------------------------------------
03/31/01 3 Months $1,250,000
06/30/01 3 Months $2,250,000
09/30/01 3 Months $2,250,000
12/31/01 3 Months $6,000,000
03/31/02 3 Months $8,305,000
06/30/02 3 Months $4,200,000
09/30/02 3 Months $2,550,000
12/31/02 3 Months $2,550,000
03/31/03 3 Months $2,631,000
06/30/03 3 Months $2,631,000
09/30/03 3 Months $2,631,000
SECTION 5.8. ADJUSTMENT OF FINANCIAL COVENANTS. Notwithstanding the
foregoing, upon sale of the Stock, assets or FCC Licenses of any of the Loan
Parties, each of the covenants set forth above in SECTIONS 5.1, 5.2, 5.3, 5.4
and 5.6 shall be adjusted, in the case of the covenants under SECTION 5.1 and
5.2 applicable to the Tranche A Loan Parties, by the Requisite Tranche A
Lenders, in the case of the covenants under SECTION 5.1 and 5.2 applicable to
the Requisite Tranche B Loan Parties, by the Requisite Tranche B Lenders, and in
the case of covenants set forth in SECTION 5.3, the Requisite Lenders, to take
into consideration, on a PRO FORMA basis, such sale and the application of
proceeds therefrom.
ARTICLE VI
REPORTING COVENANTS
As long as any of the Obligations or the Commitments remain
outstanding, unless the Requisite Lenders and the Administrative Agent otherwise
consent in writing, the Borrower agrees with the Lenders and the Administrative
Agent that:
SECTION 6.1. FINANCIAL STATEMENTS. The Borrower shall furnish to the
Administrative Agent and each Lender the following:
(a) MONTHLY REPORTS. Within 30 days after the end of each fiscal
month in each Fiscal Year, financial information regarding the Borrower and its
Subsidiaries consisting of (i) consolidated and consolidating unaudited balance
sheets as of the close of such month, (ii) the related consolidated and
consolidating statements of income for such month and that portion of the
current Fiscal Year ending as of the close of such month, (iii) monthly station
operating statements setting forth revenue, expenses and broadcast cash flow for
each station, (iv) capital expenditure schedules for such month and that portion
of the current Fiscal Year ending as of the close of such month, in each case,
setting forth in comparative form the figures for the corresponding period in
the prior year and the figures contained in the Projections for the current
Fiscal Year, in each case certified by a Responsible Officer of the Borrower as
fairly presenting, where applicable, the consolidated and consolidating
financial position of the Borrower and its
66
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in accordance with GAAP (subject to the
absence of footnote disclosure and normal year-end audit adjustments) and (v) a
sales pacing report prepared by the Borrower closest to the date prior to
delivery of the monthly reports pursuant to this CLAUSE (A).
(b) QUARTERLY REPORTS. Within 45 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year, financial information regarding
the Borrower and its Subsidiaries consisting of (i) consolidated and
consolidating unaudited balance sheets as of the close of such quarter and the
related consolidated and consolidating statements of income and cash flow for
such quarter and that portion of the Fiscal Year ending as of the close of such
quarter, setting forth in comparative form the figures for the corresponding
period in the prior year and the figures contained in the Projections for the
current Fiscal Year, and (ii) reports setting forth the aggregate amount of each
of the accounts receivable by the Borrower and its Subsidiaries and listing such
amounts according to the number of days such accounts are past due, in each case
certified by a Responsible Officer of the Borrower as fairly presenting the
consolidated and consolidating financial position of the Borrower and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in accordance with GAAP (subject to the
absence of footnote disclosure and normal year-end audit adjustments).
(c) ANNUAL REPORTS. Within 90 days after the end of each Fiscal
Year, financial information regarding the Borrower and its Subsidiaries
consisting of consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as of the end of such year and related statements of income and
cash flows of the Borrower and its Subsidiaries for such Fiscal Year, all
prepared in conformity with GAAP and certified, in the case of such consolidated
financial statements, without qualification as to the scope of the audit or as
to the Borrower being a going concern (other than with respect to the due date
of the Obligations) by Ernst & Young LLP or other independent public accountants
of recognized national standing acceptable to the Administrative Agent, together
with the report of such accounting firm stating that (i) such financial
statements fairly present the consolidated financial position of the Borrower
and its Subsidiaries as at the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years (except for changes with which
such independent certified public accountants shall concur and which shall have
been disclosed in the notes to the financial statements), and (ii) to the extent
permitted by accounting rules and guidelines, the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards, and accompanied
by a certificate stating that in the course of the regular audit of the business
of the Borrower and its Subsidiaries such accounting firm has obtained no
knowledge that a Default or Event of Default or a Tranche A Asset Sale Event in
respect of the financial covenants contained in ARTICLE V has occurred and is
continuing, or, if in the opinion of such accounting firm, a Default or Event of
Default or a Tranche A Asset Sale Event has occurred and is continuing in
respect of such financial covenants, a statement as to the nature thereof;
PROVIDED that such accountants shall not be liable to the Lenders for failure to
obtain knowledge of any Default or Event of Default.
(d) COMPLIANCE CERTIFICATE. Together with each delivery of any
financial statement pursuant to CLAUSES (B) and (C) of this SECTION 6.1, a
certificate of a Responsible Officer of the Borrower (each, a "COMPLIANCE
CERTIFICATE") (i) showing in reasonable detail the calculations used in
demonstrating compliance with each of the financial covenants contained in
ARTICLE V and (ii) stating that no Default, Event of Default or Tranche A Asset
Sale Event has
67
occurred and is continuing or, if a Default or an Event of Default has occurred
and is continuing, stating the nature thereof and the action which the Borrower
proposes to take with respect thereto.
(e) BUSINESS PLAN. Not later than 30 days after the end of each
Fiscal Year, and containing substantially the types of financial information
contained in the Projections, the annual business plan of the Borrower for the
next succeeding Fiscal Year, including (i) forecasts prepared by management of
the Borrower for each fiscal month in the next succeeding Fiscal Year, and (ii)
forecasts prepared by management of the Borrower for each of the succeeding
Fiscal Years through the Fiscal Year in which the Maturity Date is scheduled to
occur, including, in each instance described in CLAUSE (I) and CLAUSE (II)
above, (A) a projected year-end consolidated balance sheet and income statement
and statement of cash flows and (B) a statement of all of the material
assumptions on which such forecasts are based; in addition to the foregoing, not
later than 60 days after the end of each Fiscal Year, the foregoing Business
Plan in the form approved by the Board of Directors, if different from the
Business Plan previously provided.
(f) MANAGEMENT LETTERS, ETC. Within five Business Days after receipt
thereof by any Loan Party, copies of each management letter, exception report or
similar letter or report received by such Loan Party from its independent
certified public accountants;
(g) INTERCOMPANY LOAN BALANCES. Together with each delivery of any
financial statement pursuant to CLAUSE (A) of this SECTION 6.1, a summary of the
outstanding balance of all intercompany Indebtedness as of the last day of the
fiscal month covered by such financial statement, certified by a Responsible
Officer of the Borrower.
SECTION 6.2. CERTAIN NOTICES. As soon as practicable, and in any
event within five Business Days after a Responsible Officer of any Loan Party
has actual knowledge of the existence of any Default, Event of Default or
Tranche A Asset Sale Event, or other event which has had a Material Adverse
Effect or which has any reasonable likelihood of causing or resulting in a
Material Adverse Change, the Borrower shall give the Administrative Agent notice
specifying the nature of such Default or Event of Default or other event,
including the anticipated effect thereof, which notice, if given by telephone,
shall be promptly confirmed in writing on the next Business Day.
SECTION 6.3. LITIGATION. Promptly after the commencement thereof,
the Borrower shall give the Administrative Agent written notice of the
commencement of all actions, suits and proceedings before any domestic or
foreign Governmental Authority or arbitrator, affecting the Borrower or any of
its Subsidiaries, which in the reasonable judgment of the Borrower or such
Subsidiary, expose the Borrower or such Subsidiary to liability in an amount
aggregating $1,000,000 or more or which, if adversely determined, would have a
Material Adverse Effect.
SECTION 6.4. ASSET SALES. No less than 60 days prior to any Asset
Sale anticipated to generate in excess of $1,000,000 in Net Cash Proceeds, the
Borrower shall send the Administrative Agent a notice (a) describing such Asset
Sale or the nature and material terms and conditions of such transaction and (b)
stating the estimated Net Cash Proceeds anticipated to be received by the
applicable the Borrower or any of its Subsidiaries.
SECTION 6.5. NOTICES UNDER NETWORK AFFILIATION AGREEMENTS AND CABLE
CARRIAGE AGREEMENTS. Promptly after the sending or filing thereof, the Borrower
shall send the Administrative Agent copies of all material notices, certificates
or reports delivered pursuant to any Network Affiliation Agreement or any Cable
Carriage Agreement.
68
SECTION 6.6. SEC FILINGS; PRESS RELEASES. Promptly after the sending
or filing thereof, the Borrower shall send the Administrative Agent copies of
(a) all reports which the Borrower sends to its security holders generally, (b)
all reports and registration statements which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any national
securities exchange, (c) all press releases and (d) all other statements
concerning material changes or developments in the business of such Loan Party
made available by any Loan Party to the public, and to the Administrative Agent
only, all Ownership Reports filed with the FCC.
SECTION 6.7. FCC LICENSES, ETC. Promptly upon receipt of notice of
(a) any forfeiture, non-renewal, cancellation, termination, revocation,
suspension, impairment or material modification of any FCC License held by the
Borrower or any of its Subsidiaries, or any notice of default or forfeiture with
respect to any such FCC License, or (b) any refusal by any governmental agency
or authority (including, without limitation, the FCC) to renew or extend any
such FCC License, an Officers' Certificate specifying the nature of such event,
the period of existence thereof, and what action the Borrower and its
Subsidiaries are taking or propose to take with respect thereto.
SECTION 6.8. LABOR RELATIONS. Promptly after becoming aware of the
same, the Borrower shall give the Administrative Agent written notice of (a) any
material labor dispute to which the Borrower of any of its Subsidiaries is or
may become a party, including any strikes, lockouts or other disputes relating
to any of such Person's plants and other facilities, and (b) any Worker
Adjustment and Retraining Notification Act or related liability incurred with
respect to the closing of any plant or other facility of any of such Person, if,
in either case the liability to the Borrower or any Subsidiary in is excess of
$1,000,000.
SECTION 6.9. TAX RETURNS. Upon the request of any Lender, through
the Administrative Agent, the Borrower will provide copies of all federal, state
and local tax returns and reports filed by the Borrower or any of its
Subsidiaries in respect of taxes measured by income (excluding sales, use and
like taxes).
SECTION 6.10. INSURANCE. As soon as is practicable and in any event
within 90 days after the end of each Fiscal Year, the Borrower will furnish the
Administrative Agent (in sufficient copies for each of the Lenders) with (a) a
report in form and substance satisfactory to the Administrative Agent and the
Lenders outlining all material insurance coverage maintained as of the date of
such report by the Borrower and its Subsidiaries and the duration of such
coverage and (b) an insurance broker's statement that all premiums then due and
payable with respect to such coverage have been paid.
SECTION 6.11. ERISA MATTERS. The Borrower shall furnish the
Administrative Agent (with sufficient copies for each of the Lenders):
(a) promptly and in any event within 30 days after the Borrower, any
of its Subsidiaries or any ERISA Affiliate knows or has reason to know that any
ERISA Event has occurred if the amount of all liabilities and deficiencies which
could result therefrom, whether or not assessed, exceeds $1,000,000 in the
aggregate, written notice thereof;
(b) promptly and in any event within 10 days after the Borrower, any
of its Subsidiaries or any ERISA Affiliate knows or has reason to know that a
request for a minimum funding waiver under Section 412 of the Code has been
filed with respect to any Title IV Plan or Multiemployer Plan, a written
statement of a Responsible Officer of the Borrower describing
69
such ERISA Event or waiver request and the action, if any, which the Borrower,
its Subsidiaries and ERISA Affiliates propose to take with respect thereto and a
copy of any notice filed with the PBGC or the IRS pertaining thereto;
(c) simultaneously with the date that the Borrower, any of its
Subsidiaries or any ERISA Affiliate files a notice of intent to terminate any
Title IV Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA, a copy of each notice.
SECTION 6.12. ENVIRONMENTAL MATTERS. The Borrower shall provide the
Administrative Agent promptly and in any event within 10 days of the Borrower or
any of its Subsidiary learning of any of the following, written notice of any of
the following:
(a) that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of a Release or threatened Release which could
reasonably be expected to subject such Loan Party to Environmental Liabilities
and Costs of $1,000,000 or more;
(b) the receipt by the Borrower or any of its Subsidiaries of
notification that any real or personal property of such Loan Party is or is
reasonably likely to be subject to any Environmental Lien;
(c) the receipt by the Borrower or any of its Subsidiaries of any
notice of violation of or potential liability under, or knowledge by such Loan
Party that there exists a condition which could reasonably be expected to result
in a violation of or liability under any Environmental Law, except for
violations and liabilities the consequence of which in the aggregate would have
no reasonable likelihood of subjecting the Borrower and its Subsidiaries
collectively to Environmental Liabilities and Costs of $1,000,000 or more;
(d) the commencement of any judicial or administrative proceeding or
investigation alleging a violation of or liability under any Environmental Law,
which in the aggregate, if adversely determined, would have a reasonable
likelihood of subjecting the Borrower and its Subsidiaries collectively to
Environmental Liabilities and Costs of $1,000,000 or more;
(e) any proposed acquisition of stock, assets or real estate, or any
proposed leasing of property, or any other action by the Borrower or any of its
Subsidiaries other than those the consequences of which in the aggregate have
reasonable likelihood of subjecting the Borrower and its Subsidiaries
collectively to any Environmental Liabilities and Costs in excess of $1,000,000;
(f) any proposed action by the Borrower or any of its Subsidiaries
or any proposed change in Environmental Laws which in the aggregate have a
reasonable likelihood of requiring the Borrower or any of its Subsidiaries to
obtain additional environmental, health or safety Permits or make additional
capital improvements to obtain compliance with Environmental Laws that in the
aggregate would cost $1,000,000 or more or subject the Borrower and its
Subsidiaries collectively to additional Environmental Liabilities and Costs of
$1,000,000 or more; and
(g) upon written request by any Lender through the Administrative
Agent, a report providing an update of the status of any environmental, health
or safety compliance, hazard or liability issue identified in any notice or
report delivered pursuant to this Agreement.
70
SECTION 6.13. BROADCAST RATINGS. Promptly upon request by
Administrative Agent or any Lender, copies of summaries of the most recent
broadcast and rating reports prepared by X.X. Xxxxxxx Company and received by
the Borrower with respect to the Borrower's and its Subsidiaries' broadcast
stations.
SECTION 6.14. BOARD OF DIRECTORS. With reasonable promptness,
written notice of any change in the Board of Directors of the Borrower or any of
its Subsidiaries.
SECTION 6.15. PROGRAMMING OBLIGATIONS. As soon as available or in
any event within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year and within 90 days after the end of each Fiscal
Year, the aggregate amount of Programming Obligations as of the end of each
Fiscal Quarter, at the request of Administrative Agent such information to
identify the Programming Obligations of each broadcast station, and to include,
with respect to each such obligation, without limitation, its amount and the
obligor thereof, all in reasonable detail and certified by the chief financial
officer of the Borrower.
SECTION 6.16. OTHER INFORMATION. The Borrower will provide the
Administrative Agent or any Lender through the Administrative Agent with such
other information respecting the business, properties, condition, financial or
otherwise, or operations of the Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
ARTICLE VII
AFFIRMATIVE COVENANTS
As long as the Obligations or the Commitments remain outstanding,
unless the Requisite Lenders and the Administrative Agent otherwise consent in
writing, the Borrower, with respect to itself and its Subsidiaries, agrees with
the Lenders and the Administrative Agent that:
SECTION 7.1. PRESERVATION OF CORPORATE EXISTENCE, ETC. The Borrower
shall, and shall cause each of its Subsidiaries to, preserve and maintain its
corporate existence, rights (charter and statutory) and franchises (including,
without limitation, all FCC Licenses), except as permitted by SECTIONS 8.4 and
8.6.
SECTION 7.2. COMPLIANCE WITH LAWS, ETC. The Borrower shall, and
shall cause each of its Subsidiaries to, comply with all applicable Requirements
of Law, Contractual Obligations and Permits, except where the failure so to
comply would not in the aggregate have a Material Adverse Effect. The Borrower
shall obtain and maintain, and cause each of its Subsidiaries to obtain and
maintain, all licenses, permits, franchises or other Governmental Authorizations
and approvals (including, without limitation, the FCC Licenses) necessary to
own, acquire or dispose of their respective properties, to conduct their
respective businesses or to comply with the FCC's or any other Communications
Regulatory Authority's construction, operating and reporting requirements, the
violation of which or the failure to obtain or maintain which could reasonably
be expected to have a Material Adverse Effect.
SECTION 7.3. CONDUCT OF BUSINESS. The Borrower shall, and shall
cause each of its Subsidiaries to, (a) conduct its business in the ordinary
course consistent with past practice, (b) use its reasonable efforts, in the
ordinary course and consistent with past practice, to preserve its business and
the goodwill and business of the customers, advertisers, suppliers and others
having business relations with the Borrower or any of its Subsidiaries, except
in each case where
71
the failure to comply with the covenants in each of clauses (a) and (b) above
would not in the aggregate have a Material Adverse Effect.
SECTION 7.4. PAYMENT OF TAXES, ETC. The Borrower shall, and shall
cause each of its Subsidiaries to, pay and discharge before the same shall
become delinquent, all lawful governmental claims, taxes, assessments, charges
and levies, except where contested in good faith, by proper proceedings and
adequate reserves therefor have been established on the books of the Borrower or
the appropriate Subsidiary in conformity with GAAP.
SECTION 7.5. MAINTENANCE OF INSURANCE. The Borrower shall (i)
maintain, and cause to be maintained for each of its Subsidiaries insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates, and such other insurance as may be
reasonably requested by in the case of Tranche A Collateral, the Requisite
Tranche A Lenders and in the case of Tranche B Collateral, the Requisite Tranche
B Lenders, and, in any event, all insurance required by any Collateral Documents
and (ii) cause all such insurance to name the applicable Collateral Agent, on
behalf of the Secured Parties, as additional insured or loss payee, as
appropriate, and to provide that no cancellation, material addition in amount or
material change in coverage shall be effective until after 30 days' written
notice thereof to the Administrative Agent.
SECTION 7.6. REINVESTMENT OF INSURANCE PROCEEDS.
(a) Other than following and during the continuance of an Event of
Default, upon receipt by the Borrower or any Subsidiary of the Borrower of Net
Cash Proceeds arising from a Property Loss Event, the Borrower shall promptly
deliver a Reinvestment Notice to the Administrative Agent and prepay the Loans
in an amount equal to the Reinvestment Prepayment Amount applicable to such
Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to
such Reinvestment Event and, pending application of such proceeds as specified
in the Reinvestment Notice, shall pay the same to the applicable Collateral
Agent to be held in the applicable Cash Collateral Account. Any amounts prepaid
pursuant to this SECTION 7.6 shall be applied in accordance with SECTION 2.6 as
if an Event of Default is continuing.
(b) Following and during the continuance of an Event of Default,
upon receipt by the Borrower or any Subsidiary of the Borrower of Net Cash
Proceeds arising from a Property Loss Event, the Borrower shall immediately
apply such amounts in accordance with SECTION 2.6.
SECTION 7.7. ACCESS. The Borrower shall from time to time, permit
the Administrative Agent and the Lenders, or any agents or representatives
thereof, within two Business Days after written notification of the same (except
that during the continuance of an Event of Default, no such notice shall be
required) to (a) examine and make copies of and abstracts from the records and
books of account of the Borrower and each of its Subsidiaries, (b) visit the
properties of the Borrower and each of its Subsidiaries, (c) discuss the
affairs, finances and accounts of the Borrower and each of its Subsidiaries with
any of their respective officers or directors, and (d) communicate directly with
the Borrower's independent certified public accountants or other advisors. The
Borrower shall authorize its independent certified public accountants to
disclose to the Administrative Agent or any Lender any and all financial
statements and other information of any kind, as the Administrative Agent or any
Lender reasonably requests from the Borrower and which such accountants may have
with respect to the
72
business, financial condition, results of operations or other affairs of the
Borrower or any of its Subsidiaries.
SECTION 7.8. KEEPING OF BOOKS. The Borrower shall, and shall cause
each of its Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made in conformity with GAAP of all financial
transactions and the assets and business of the Borrower and each Subsidiary.
SECTION 7.9. MAINTENANCE OF PROPERTIES, ETC. The Borrower shall, and
shall cause each of its Subsidiaries to, maintain and preserve (a) all of its
properties which are necessary in the conduct of its business in good working
order and condition, (b) all rights, permits, licenses, approvals and privileges
(including all Permits) which are used or useful or necessary in the conduct of
its business, and (c) all registered patents, trademarks, trade names,
copyrights and service marks with respect to its business; except where the
failure to so maintain and preserve would not in the aggregate have a Material
Adverse Effect.
SECTION 7.10. REAL ESTATE LEASES. The Borrower and each of its
Subsidiaries shall keep in full force and effect the material Leases as amended
through the date hereof; provided that Borrower and each of its Subsidiaries
shall be entitled, in the ordinary and prudent course of their business, to
modify, amend, terminate and/or replace any such Leases so long as (i) such
modification, amendment, terminations and/or replacements would not, in the
aggregate, have a Material Adverse Effect, and (ii) to the extent any such
Leases are secured by any Mortgage Document, Borrower or the applicable
Subsidiary deliver a Mortgage Document with respect to the applicable
replacement Lease. The Borrower shall provide Administrative Agent with (i) a
copy of any notice of default under any of such Leases, received by the Borrower
or any of its Subsidiaries and (ii) 10 Business Days prior written notice of any
such modification, amendment, termination and/or replacements.
SECTION 7.11. APPLICATION OF PROCEEDS. The Borrower shall use the
entire amount of the proceeds of the Loans as provided in SECTION 4.13.
SECTION 7.12. KNTV TRIGGER EVENT. Upon, and during the continuance
of, a KNTV Trigger Event, KNTV shall, on the last Business Day of each month
commencing with the first month after the KNTV Trigger Event, deposit in the
Interest Reserve Account 50% of its monthly Adjusted Broadcast Cash Flow until
such time as the balance in the Interest Reserve Account is equal to one year's
interest on the principal amount of the Tranche B Loans outstanding at such time
at the greater of (a) 12% per annum and (b) the Margin plus the Eurodollar Rate
(as of the date of the KNTV Trigger Event, for an Interest Period of three
months).
SECTION 7.13. TRANCHE A ASSET SALE EVENT.
(a) Upon (x) the failure of the Borrower, together with its
Subsidiaries, to maintain, as of the last day of each Fiscal Quarters set forth
below, EBITDA for the four Fiscal Quarters ending on such day of not less than
the following:
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FISCAL QUARTER MINIMUM
ENDING EBITDA
--------------------------------------
03/31/02 $36,400,000
06/30/02 $54,200,000
09/30/02 $68,400,000
12/31/02 $87,700,000
03/31/03 $87,800,000
06/30/03 $90,600,000
09/30/03 $90,300,000
or (y) the failure of the Borrower to receive a tax refund in an amount equal to
at least $16,000,000 prior to December 31, 2001 (each, a "TRANCHE A ASSET SALE
EVENT"), then the Borrower:
(i) shall immediately identify and engage in the sale of
station assets (other than assets which constitute Tranche B Collateral)
which sale shall (x) be for not less than Fair Market Value and (y) result
in the Borrower's Leverage Ratio, on pro forma basis after giving effect
to such transaction, being at least 0.01 less than it was immediately
prior to such sale; PROVIDED, HOWEVER, that in any event, the foregoing
sale of station assets shall generate Net Cash Proceeds in an amount which
is not less than $127,500,000 ("TARGETED ASSET SALE");
(ii) together with the Administrative Agent, shall agree upon
(within 30 days of the occurrence of an Asset Sale Event), and comply
with, a timetable set forth for the sale of the assets including, but not
limited to, engaging a broker, entering into a letter of intent, entering
into a definitive purchase and sale agreement, the filing of transfer
application(s) with the FCC and consummation of the sale transaction not
later than 240 days from (x) in the case of a failure to satisfy the
EBITDA requirement set forth in clause (a) above, the last day of the
first Fiscal Quarter during which the Borrower fails to maintain the
minimum EBITDA requirements set forth above or (y) in the case the Tranche
A Asset Sale Event is triggered by the failure to receive a tax refund as
set forth in clause (a) above, January 1, 2002;
(iii) immediately upon receipt of the Net Cash Proceeds from
the Targeted Asset Sale, the Borrower shall:
(A) subject to CLAUSE (B) below, prepay the Loans and
related Obligations to the Administrative Agent, which prepayment
shall be applied in accordance with SECTION 2.11; and
(B) to the extent permitted pursuant to the Existing
Subordinated Note Documents, retain for general corporate purposes
an amount equal to $5,000,000.
(b) For purposes of this SECTION 7.13, the Borrower must close its
books within 30 days of the last day of each Fiscal Quarter.
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(c) Following the consummation of an Asset Sale permitted elsewhere
by the terms of this Agreement, the minimum amounts set forth in CLAUSE (A)
above shall be adjusted by the Administrative Agent to take into consideration,
on a pro forma basis, such Asset Sale and the application of Net Cash Proceeds
therefrom.
(d) The obligation to comply with all provisions of this SECTION
7.13 will remain notwithstanding the Borrower's ability to comply with the
minimum EBITDA requirements set forth above in any subsequent Fiscal Quarter.
SECTION 7.14. ENVIRONMENTAL.
(a) The Borrower shall, and shall cause each of its Subsidiaries, to
comply in all material respects with Environmental Laws and, without limiting
the foregoing, the Borrower shall, at its sole cost and expense, following and
during the continuance of an Event of Default at the request of the
Administrative Agent, or upon receipt of any notification or otherwise obtaining
knowledge of any Release or other event that has any reasonable likelihood of
the Borrower and its Subsidiaries incurring Environmental Liabilities and Costs
in excess of $1,000,000, (i) conduct or pay for consultants to conduct, tests or
assessments of environmental conditions at such operations or properties,
including the investigation and testing of subsurface conditions and (ii) take
such Remedial Action, investigational or other action as required by
Environmental Laws or as any Governmental Authority requires or as is
appropriate and consistent with good business practice to address the Release or
event.
(b) Following and during the continuance of an Event of Default, or
if the Borrower fails to comply with CLAUSE (A) above within 60 days after
receipt of notice or knowledge of such Release or other event, the
Administrative Agent may, but is under no obligation to, carry out such actions,
and such Borrower shall grant and hereby grants to the Administrative Agent and
its agents access to such real property and specifically grants to the
Administrative Agent an irrevocable non-exclusive license, subject to the rights
of tenants, to undertake such actions, all at the Borrower's sole cost and
expense.
SECTION 7.15. CONTROL ACCOUNTS; BLOCKED ACCOUNTS.
(a) The Tranche A Loan Parties and the Tranche B Loan Parties will
(i) deposit in a Tranche A Blocked Account or a Tranche B Blocked Account,
respectively, all cash and all Proceeds received by such Loan Party, (ii) not
establish or maintain any Securities Account that is not a Control Account and
(iii)not establish or maintain any account with any financial or other
institution in which Proceeds are deposited other than with a Tranche A Blocked
Account Bank or a Tranche B Blocked Account Bank, respectively, a Lender or an
Affiliate of a Lender; PROVIDED, HOWEVER, that the Borrower may maintain
payroll, withholding tax and other fiduciary accounts.
(b) The Borrower and each of its Subsidiaries shall instruct each
Account Debtor or other Person obligated to make a payment to the Borrower or
any of its Subsidiaries to make payment, or to continue to make payment, as the
case may be, to, in the case of a Tranche A Loan Party, a Tranche A Blocked
Account and in the case of a Tranche B Loan Party, a Tranche B Blocked Account,
and will deposit in such Blocked Account all Proceeds received by such Borrower
and each of its Subsidiaries from any other Person immediately upon receipt.
(c) In the event (i) such Borrower and each of its Subsidiaries or
any Approved Securities Intermediary or Blocked Account Bank shall, after the
date hereof, terminate an
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agreement with respect to the maintenance of a Control Account or Blocked
Account for any reason, (ii) the Collateral Agent shall demand such termination
as a result of the failure of an Approved Securities Intermediary or Blocked
Account Bank to comply with the terms of the applicable Control Account Letter
or Blocked Account Letter, or (iii) the Collateral Agent determines in its sole
discretion that the financial condition of an Approved Securities Intermediary
or Blocked Account Bank, as the case may be, has materially deteriorated, such
Borrower and each of its Subsidiaries agrees to notify all of its obligors that
were making payments to such terminated Control Account or Blocked Account, as
the case may be, to make all future payments to another Control Account or
Blocked Account, as the case may be.
(d) Notwithstanding the foregoing, each deposit account, other than
the Borrower's Concentration Account, maintained by a Loan Party that is not
subject to a Blocked Account Letter on the Effective Date may be maintained by
such Loan Party; PROVIDED that the requirements with respect thereto set forth
in SECTION 7.17 are satisfied within the time periods as provided therein;
PROVIDED, HOWEVER, that at no time shall any Loan Party deposit any direct or
indirect proceeds of the Loans into a deposit account that is not subject to an
effective Blocked Account Letter; PROVIDED FURTHER, HOWEVER, that the Borrower
shall, and shall cause each Subsidiary to, on each Business Day, transfer to the
Borrower's Concentration Account good funds in each deposit account maintained
by any Loan Party that is not subject to an effective Blocked Account Letter.
SECTION 7.16. ADDITIONAL COLLATERAL AND GUARANTIES.
(a) At least 15 Business Days prior to (i) entering into any Lease
(other than a renewal of an existing Lease or a Non-Material Leasehold) for the
principal place of business and chief executive office of the Borrower or any of
its Subsidiaries or any other Lease (including any renewal) in which the annual
rental payments are anticipated to equal or exceed $100,000 or (ii) acquiring of
any material owned real property, the Borrower shall, and shall cause each such
Subsidiary to, provide the Administrative Agent written notice thereof. Upon
written request of the Administrative Agent or the applicable Collateral Agent,
the Borrower shall, and shall cause each such Subsidiary to, execute and deliver
to the applicable Collateral Agent, for the benefit of the Secured Parties,
immediately upon the acquisition of any such Lease or owned real property a
mortgage, deed of trust, assignment or other appropriate instrument evidencing a
Lien upon any such Lease or real property, together with such title policies,
certified surveys, and local counsel opinions with respect thereto and such
other agreements, documents and instruments which the Administrative Agent or
the applicable Collateral Agent deems necessary or desirable, the same to be in
form and substance satisfactory to the Administrative Agent and the applicable
Collateral Agent and to be subject only to (i) Liens permitted under SECTION 8.2
and (ii) such other Liens as the Administrative Agent may reasonably approve.
(b) To the extent not delivered to the Administrative Agent on or
before the Effective Date, the Borrower shall, and shall cause each of its
Subsidiaries to, promptly (i) execute and deliver to the Administrative Agent
and the applicable Collateral Agent such amendments to the Collateral Documents
as the Administrative Agent or the applicable Collateral Agent deems necessary
or advisable in order to grant to the applicable Collateral Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in
the Stock and Stock Equivalents and other debt Securities of any Subsidiary of
the Borrower owned by the Borrower or any of its Subsidiaries (subject to
Customary Permitted Liens, the KBWB Lien and KNTV Call Right) and requested to
be pledged by the Administrative Agent or the applicable Collateral Agent; (ii)
deliver to the applicable Collateral Agent the certificates (if any)
representing such Stock and Stock Equivalents and other debt Securities,
together with (A) in the case of such
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certificated Stock and Stock Equivalents, undated stock powers endorsed in
blank, and (B) in the case of such certificated debt Securities, endorsed in
blank, in each case executed and delivered by a Responsible Officer of the
Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary
(A) to become a party to the Guaranty and the applicable Collateral Documents
and (B) to take such actions necessary or advisable to grant to the applicable
Collateral Agent for the benefit of the Secured Parties a perfected security
interest in the Collateral described in the Collateral Documents with respect to
such new Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Collateral Documents
or by law or as may be reasonably requested by the Administrative Agent and (iv)
if requested by the Administrative Agent or the applicable Collateral Agent,
deliver to the Administrative Agent and such Collateral Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative Agent
and such Collateral Agent.
SECTION 7.17. POST CLOSING MATTERS. The Borrower shall, and shall
cause each of the Loan Parties to, satisfy the requirements set forth on
SCHEDULE 7.17 on or before the date set forth opposite such requirement or such
later date as consented to by the Administrative Agent.
ARTICLE VIII
NEGATIVE COVENANTS
As long as any of the Obligations or the Commitments remain
outstanding, without the written consent of the Requisite Lenders and the
Administrative Agent, the Borrower, for itself and each of its Subsidiaries,
agrees with the Lenders and the Administrative Agent that:
SECTION 8.1. INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly create, incur, assume
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness except:
(a) the Secured Obligations;
(b) the Existing Subordinated Notes and other Indebtedness existing
on the date of this Agreement, in each case as disclosed on SCHEDULE 8.1;
(c) Guaranty Obligations incurred by the Borrower or any of its
Subsidiaries in respect of Indebtedness of the Borrower or any of its
Subsidiaries otherwise permitted by this SECTION 8.1;
(d) Capital Lease Obligations and purchase money Indebtedness
incurred by the Borrower or any of its Subsidiaries to finance the acquisition
of property, plant, equipment and motor vehicles in an aggregate outstanding
principal amount for the Borrower and its Subsidiaries not to exceed $4,500,000
at any time; PROVIDED, HOWEVER, that the Capital Expenditure related thereto is
otherwise permitted by SECTION 5.7;
(e) Renewals, extensions, refinancings and refundings of
Indebtedness permitted by clause (d) or (g) of this SECTION 8.1; PROVIDED,
HOWEVER, that any such renewal extension, refinancing or refunding is in an
aggregate principal amount not greater than the principal amount of, and is on
terms no less favorable to the Borrower or such Subsidiary, including as to
weighted average maturity, than the Indebtedness being renewed, extended,
refinanced or refunded;
77
(f) Indebtedness arising from intercompany loans (i) from any Loan
Party to any other Loan Party; PROVIDED, HOWEVER, that the Investment in the
intercompany loan to such Loan Party is permitted under SECTION 8.3;
(g) Indebtedness arising under any performance, appeal or surety
bonds, worker's compensation claims and payment obligations in connection with
self insurance or similar obligations entered into in the ordinary course of
business;
(h) Programming Obligations in the ordinary course of business; and
(i) unsecured Indebtedness not otherwise permitted under this
SECTION 8.1 in an aggregate outstanding principal amount not to exceed $500,000
(exclusive of Programming Obligations) at any time.
SECTION 8.2. LIENS, ETC. The Borrower will not, and will not permit
any of its Subsidiaries to, create or suffer to exist, any Lien upon or with
respect to any of its properties or assets, whether now owned or hereafter
acquired, or assign any right to receive income, except for:
(a) Liens created pursuant to the Loan Documents;
(b) the KBWB Lien and the KNTV Call Right;
(c) Liens existing on the date of this Agreement and disclosed on
SCHEDULE 8.2 and on the Target (as defined in the definition of "INTERNATIONAL
FALLS ACQUISITION") of the International Falls Acquisition;
(d) Customary Permitted Liens of the Borrower and its Subsidiaries;
(e) purchase money Liens granted by the Borrower or any of its
Subsidiaries and the interest of a lessor under a Capital Lease and Liens to
which any property is subject at the time of the Borrower's or such Subsidiary's
acquisition thereof, in each case securing Indebtedness permitted under SECTION
8.1(D) and limited in each case to the property purchased with the proceeds of
such purchase money Indebtedness or subject to such Capital Lease;
(f) any Lien securing the renewal, extension, refinancing or
refunding of any Indebtedness secured by any Lien permitted by CLAUSES (B), (C)
or (E) of this SECTION 8.2 without any change in the assets subject to such
Lien;
(g) Liens in favor of lessors securing operating leases in the
premises (including personal property placed on such premises) or equipment
subject thereto;
(h) Liens securing the fees owed by the Borrower to the trustee
pursuant to the terms of the Existing Subordinated Note Documents; PROVIDED,
HOWEVER, that the obligation of the Borrower to pay such fees is subordinate in
right, time and payment to the payment in full of the Obligations; and
(i) Liens securing one or more undischarged, unvacated, unbonded or
unstayed judgments or orders (or other similar process) rendered against one or
more of the Borrower and its Subsidiaries to the extent the existence of such
judgment or judgments does cause an Event of Default pursuant to SECTION 9.1(I);
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(j) Liens not otherwise permitted by the foregoing clauses of this
SECTION 8.2 securing obligations or other liabilities (other than Indebtedness)
of the Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that the
aggregate outstanding amount of such obligations and liabilities secured by such
Liens shall not exceed $100,000 at any time;
SECTION 8.3. INVESTMENTS. The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly make or maintain any
Investment except:
(a) Investments existing on the date of this Agreement and disclosed
on SCHEDULE 8.3 and the International Falls Acquisition;
(b) Investments in Cash Equivalents held in a Control Account (as
defined in the Pledge and Security Agreements) with respect to which the
applicable Collateral Agent, for the benefit of the Secured Parties, has a first
priority perfected Lien;
(c) Investments in accounts, contract rights and chattel paper (each
as defined in the UCC), notes receivable and similar items arising or acquired
in the ordinary course of business consistent with the past practice of the
Borrower and its Subsidiaries;
(d) Investments received in settlement of amounts due to the
Borrower or any of its Subsidiaries effected in the ordinary course of business
or owing to the Borrower or any of its Subsidiaries as a result of bankruptcy or
insolvency proceedings or upon the foreclosure or enforcement of any lien or
other encumbrance, mortgage, pledge, charge, restriction or other security
interest in favor of the Borrower or any Subsidiary;
(e) Loans and advances by any Loan Party to another Loan Party;
PROVIDED, HOWEVER, that any such Indebtedness in excess of $1,000,000
outstanding at any one time incurred pursuant to a loan or advance made by a
Loan Party shall evidenced by a promissory note in favor of the Loan Party which
makes such loan or advance, in form and substance satisfactory to the
Administrative Agent and pledged, in the case of loans made by a Tranche A Loan
Party, to the Tranche A Collateral Agent and, in the case of loans made by a
Tranche B Loan Party, to the Tranche B Collateral Agent, in each case pursuant
to the applicable Pledge and Security Agreement and for the benefit of the
Secured Parties; PROVIDED FURTHER, HOWEVER, loans and advances made to an
Inactive Subsidiary shall be limited to, in the aggregate, an amount equal to
any Taxes or judgment orders required to be paid by such Inactive Subsidiary;
(f) Investments not otherwise permitted hereby in an aggregate
outstanding amount not to exceed $500,000 at any time.
(g) Investments consisting of loans and advances to employees of the
Borrower and its Subsidiaries for reasonable travel, relocation and business
expenses in the ordinary course of business not exceeding $350,000 at any time
outstanding;
PROVIDED, HOWEVER, following the occurrence of, and during the continuation of,
a KNTV Trigger Event, none of the Tranche A Loan Parties may make an Investment,
in excess of an aggregate of $1,500,000, in any of the Tranche B Loan Parties.
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SECTION 8.4. SALE OF ASSETS. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, convey, transfer, lease or otherwise
dispose of, any of its assets (including FCC Licenses) or any interest therein
(including the sale or factoring at maturity or collection of any accounts) to
any Person, or permit or suffer any other Person to acquire any interest in any
of its assets or, in the case of any Subsidiary, issue or sell any shares of
such Subsidiary's Stock or Stock Equivalent (other than directors' qualifying
shares, if required by applicable law) (any such disposition being an "ASSET
SALE"), except:
(a) the sale or disposition of advertising time, programs or movies
in the ordinary course of business;
(b) the sale or disposition of equipment which have become obsolete,
are no longer used or are useful in the Borrower's or Subsidiary's business or
are replaced in the ordinary course of business; PROVIDED, HOWEVER, that the
aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year
shall not exceed $1,000,000;
(c) the lease or sublease of real property not constituting a sale
and leaseback, to the extent not otherwise prohibited by this Agreement,
PROVIDED that the relevant Loan Party's interest in any such lease or sublease
is pledged to the relevant Collateral Agent to the extent required under SECTION
7.16;
(d) assignments and licenses of intellectual property of the
Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale permitted pursuant to SECTION 7.13;
(f) the sale of KNTV to NBC pursuant to the KNTV Call Right;
PROVIDED, that (i) the total consideration paid by NBC for the purchase of KNTV
is an amount that is greater than or equal to the Fair Market Value (as defined
in the NBC Affiliation Agreement) LESS reasonable costs and expenses of NBC
consented to by the Tranche B Collateral Agent, (ii) 100% of the Net Cash
Proceeds is paid in cash by NBC directly to the Administrative Agent, for the
benefit of the Tranche B Lenders to be applied in accordance with the priority
of payments set forth in SECTION 2.10(B), (iii) all of the provisions of (x)
Section 4(d) the NBC Network Affiliation and (y) the NBC Intercreditor Agreement
are complied with and (iv) copies of each agreement to be entered into by and
between NBC and the Borrower or any of its Subsidiaries in connection with the
exercise of the KNTV Call Right by NBC, shall have been provided to the Tranche
B Collateral Agent no less than 3 Business Days prior to execution and delivery
thereof;
(g) any Asset Sale not otherwise permitted hereunder if consented to
in writing by, in the case of Tranche A Collateral, the Requisite Tranche A
Lenders and, in the case of Tranche B Collateral, the Requisite Tranche B
Lenders;
(h) Cash and Cash Equivalents if otherwise permitted elsewhere in
this Agreement; and
(i) any sale, conveyance, transfer, lease or other disposition of
equipment from any Tranche A Loan Party to another Tranche A Loan Party and any
sale of equipment from any Tranche B Loan Party to another Tranche B Loan Party.
SECTION 8.5. RESTRICTED PAYMENTS. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart any
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sum for any Restricted Payment, other than any required redemptions, retirement,
purchases or other payments, in each case to the extent permitted to be made by
the terms of any Indebtedness of the Borrower or any of its Subsidiaries after
giving effect to any applicable subordination provisions.
SECTION 8.6. RESTRICTION ON FUNDAMENTAL CHANGES; INTERNATIONAL FALLS
ACQUISITION. Except in connection with the International Falls Acquisition, the
Borrower will not, and will not permit any of its Subsidiaries to (a) merge with
any Person (other than the merger of any Subsidiary not incorporated in Delaware
on the Effective Date with a wholly owned Subsidiary of the Borrower for the
purposes of reincorporating the former Subsidiary in Delaware; provided such
merger is consummated in accordance with the provisions of SECTION 7.1. and
7.16), (b) consolidate with any Person, (c) acquire all or substantially all of
the Stock or Stock Equivalents of any Person, (d) acquire all or substantially
all of the assets of any Person or all or substantially all of the assets
constituting the business of a division, branch or other unit operation of any
Person, (e) enter into any joint venture or partnership with any Person or (f)
acquire or create any Subsidiary unless, after giving effect thereto, the
Borrower is in compliance with SECTION 7.16 or (g) enter into any Contractual
Obligation relating to the foregoing; PROVIDED, HOWEVER, notwithstanding the
provisions in this SECTION 8.6 or elsewhere in this Agreement, no Tranche A Loan
Party may enter into any of the foregoing transactions with a Tranche B Loan
Party.
SECTION 8.7. CHANGE IN NATURE OF BUSINESS. The Borrower shall not,
and shall not permit any of its Subsidiaries to, engage in any business other
than, primarily, the business of owning and operating television stations or FCC
Licenses, and, as an auxiliary business activity, the sale of advertising on
related internet sites and the ancillary or supplementary utilization of their
FCC Licenses; and the Borrower shall not, and shall not permit any of its
Subsidiaries to, make any material change in the nature or conduct of its
business as carried on at the date hereof.
SECTION 8.8. LICENSE CO.
(a) No License Co. shall engage in any business other than the
holding of the FCC Licenses and the performance of its obligations under any of
the Loan Documents to which it is a party and, except as set forth on SCHEDULE
4.22 annexed hereto, no Subsidiary, other than a License Co., shall own any FCC
License;
(b) Notwithstanding any provisions elsewhere in this Agreement, (i)
no License Co. will directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness
or other material liabilities, or create or suffer to exist, any Lien (other
than the KBWB Lien and the KNTV Call Right) upon or with respect to any of its
properties or assets, whether now owned or hereafter acquired and (ii) neither
the Borrower nor any of its Subsidiaries shall create or suffer to exist, any
Lien (other than the KBWB Lien and the KNTV Call Right) on the Stock of any
License Co., in each case, other than with respect to the Obligations.
SECTION 8.9. TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any of its Subsidiaries to, except as otherwise expressly
permitted herein, do any of the following: (a) make any Investment in an
Affiliate of the Borrower which is not a Subsidiary of the Borrower; (b)
transfer, sell, lease, assign or otherwise dispose of any asset to any Affiliate
of the Borrower which is not a Subsidiary of the Borrower; (c) merge into or
consolidate with or purchase or acquire assets from any Affiliate of the
Borrower which is not a Subsidiary of the
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Borrower; (d) repay any Indebtedness to any Affiliate of the Borrower which is
not a Subsidiary of the Borrower; or (e) enter into any other transaction
directly or indirectly with or for the benefit of any Affiliate of the Borrower
which is not a Subsidiary of the Borrower (including guaranties and assumptions
of obligations of any such Affiliate), except in each instance for (i)
transactions in the ordinary course of business on a basis no less favorable to
the Borrower or such Subsidiary thereof as would be obtained in a comparable
arm's length transaction with a Person not an Affiliate and (ii) salaries,
expense reimbursements and other employee compensation to officers or directors
of such the Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that
following the occurrence of, and during the continuation of, a KNTV Trigger
Event, neither the Borrower nor any Subsidiary thereof (other than a Tranche B
Loan Party) shall enter into any of the foregoing transactions with a Tranche B
Loan Party; PROVIDED FURTHER, HOWEVER, that the Loan Parties may make
Investments in the Tranche B Loan Parties in an aggregate amount not to exceed
$1,500,000.
SECTION 8.10. RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS; NO NEW
NEGATIVE PLEDGE. Other than pursuant to the Loan Documents, the Existing
Subordinated Note Documents, the Existing Subordinated Indentures, the KNTV
Affiliation Agreement and any agreements governing any purchase money
Indebtedness or Capital Lease Obligations permitted by clause (B), (D), or (E)
of SECTION 8.1 (in which latter case, any prohibition or limitation shall only
be effective against the assets financed thereby), the Borrower will not, and
will not permit any of its Subsidiaries to, (a) agree to enter into or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of such Subsidiary to pay dividends or make any other
distribution or transfer of funds or assets or make loans or advances to or
other Investments in, or pay any Indebtedness owed to, the Borrower or any other
Subsidiary of the Borrower or (b) enter into or suffer to exist or become
effective any agreement which prohibits or limits the ability of the Borrower or
such Subsidiary to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, to
secure the Obligations, including any agreement which requires other
Indebtedness or Contractual Obligation to be equally and ratably secured with
the Obligations.
SECTION 8.11. MODIFICATION OF CONSTITUENT DOCUMENTS/EQUITY
ISSUANCES.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, change its capital structure (including in the terms of its
outstanding Stock) or otherwise amend its Constituent Documents, except for
changes and amendments which do not materially affect the rights and privileges
of the Borrower or any of its Subsidiaries, or the interests of the Secured
Parties under the Loan Documents or in the Collateral.
(b) The Borrower shall not sell and shall not permit any of its
Subsidiaries to sell (other than as permitted elsewhere in this Agreement) any
of the Stock of the Borrower's Subsidiaries and the Borrower shall not permit
any of its Subsidiaries to issue any of its Stock, in each case without the
prior written consent of, in the case of the Stock of a Tranche A Loan Party,
the Requisite Tranche A Lenders, with respect to the Stock of the Tranche B Loan
Parties, the Requisite Tranche B Lenders.
(c) The Borrower shall not issue any Stock which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
exchangeable for Indebtedness of such Person, or is redeemable at the option of
the holder thereof, in whole or in part, prior to twelve months after the
Maturity Date, without the prior written consent of the Requisite Lenders.
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SECTION 8.12. MODIFICATION OF NETWORK AFFILIATION AGREEMENTS;
MATERIAL CONTRACTS.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to (a) other than as specifically permitted elsewhere in this
Agreement, enter into any asset purchase agreements with respect to Investments,
stock purchase agreements, local management agreements, local marketing
agreements, joint sales agreements, time brokerage agreements or any like
agreements (excluding lease or license agreements relating to tower sites or
sub-carrier agreements, as long as none of such agreements adversely effect the
FCC Authorizations), except those agreements listed on SCHEDULE 8.12, (b) alter,
rescind, terminate, amend, supplement, waive or otherwise modify any provision
of a Material Contract (other than the KNTV Affiliation Agreement which may only
be amended pursuant to CLAUSE (B) below) if the effect of such alteration,
rescission, termination, amendment, supplement, waiver or other modification is
to increase the financial burden to any Loan Party under such agreement, shorten
the term of such agreement, accelerate the payment of any obligations by any
Loan Party under such agreement or extend the time for payment of any
obligations owed to the Loan Parties under such agreement; or (c) permit any
breach or default to exist under any Network Affiliation Agreement or a Material
Contract or take or fail to take any action thereunder, if to do so would have a
Material Adverse Effect.
(b) Neither the Company nor KNTV will alter, rescind, terminate,
amend, supplement, waive or otherwise modify Sections 1, 4 (other than 4(b)),
20, 21, 22, 23 or 24 of the KNTV Affiliation Agreement or any other provision of
any NBC Document if such modification materially and adversely affects the
interests of the Secured Parties under the Loan Documents or in the Shared
Collateral), without the prior written consent of the Tranche B Collateral
Agent.
SECTION 8.13. MODIFICATION OF EXISTING SUBORDINATED NOTE DOCUMENTS.
The Borrower will not, and will not permit any of its Subsidiaries to, change or
amend the terms of the Existing Subordinated Note Documents if the effect of
such amendment is to: (a) increase the interest rate on the Existing
Subordinated Notes; (b) change the dates upon which payments of principal or
interest are due on the Existing Subordinated Notes other than to extend such
dates; (c) change any default or event of default other than to delete or make
less restrictive any default provision therein, or add any covenant with respect
to Existing Subordinated Notes; (d) change the redemption or prepayment
provisions of the Existing Subordinated Notes other than to extend the dates
therefor or to reduce the premiums payable in connection therewith; or (e)
change or amend any other term if such change or amendment would materially
increase the obligations of the obligor or confer additional material rights to
the holder of the Existing Subordinated Notes in a manner adverse to the
Borrower, any of its Subsidiaries, the Administrative Agent or any Lender.
SECTION 8.14. ACCOUNTING CHANGES; FISCAL YEAR. The Borrower will
not, and will not permit any of its Subsidiaries to, change its (a) accounting
treatment and reporting practices or tax reporting treatment, except as required
by GAAP or any Requirement of Law and disclosed to the Lenders and the
Administrative Agent or (b) Fiscal Year.
SECTION 8.15. MARGIN REGULATIONS. The Borrower will not, and will
not permit any of its Subsidiaries to, use all or any portion of the proceeds of
any credit extended hereunder to purchase or carry Margin Stock.
SECTION 8.16. CANCELLATION OF INDEBTEDNESS OWED TO IT. The Borrower
will not, and will not permit any of its Subsidiaries to, cancel any claim or
Indebtedness owed to it
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except in the ordinary course of business consistent with past practice, other
than with respect to loans to employees or in the context of any Indebtedness of
directors or employees agents of the Borrower and/or its Subsidiaries.
SECTION 8.17. NO SPECULATIVE TRANSACTIONS. The Borrower will not,
and will not permit any of its Subsidiaries to, engage in any speculative
transaction or in any transaction involving Hedging Contracts or for the sole
purpose of hedging in the normal course of business and consistent with industry
practices.
SECTION 8.18. COMPLIANCE WITH ERISA.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, or cause or permit any ERISA Affiliate to, cause or permit to
occur (i) an event which could result in the imposition of a Lien under Section
412 of the Code or Section 302 or 4068 of ERISA or (ii) an ERISA Event that
would have a Material Adverse Effect.
(b) None of Borrower, its Subsidiaries, or its ERISA Affiliates will
establish a Title IV Plan or contribute to a Multiemployer Plan without 30 days
prior written notice to the Administrative Agent. No such plan will be
established or contributed to if such establishment or contribution obligation
could result in a Material Adverse Effect.
SECTION 8.19. ENVIRONMENTAL. The Borrower will not, and will not
permit any of its Subsidiaries to, allow a Release of any Contaminant in
violation of any Environmental Law; PROVIDED, HOWEVER, that the Borrower shall
not be deemed in violation of this SECTION 8.19 if, as the consequence of all
such Releases, the Borrower, together with its Subsidiaries, would not incur
Environmental Liabilities and Costs in excess of $1,000,000 in the aggregate.
SECTION 8.20. INACTIVE SUBSIDIARIES. The Borrower will not permit
any Inactive Subsidiary to conduct any business or operations or acquire or hold
any assets with an aggregate fair market value of $10,000 or more.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. EVENTS OF DEFAULT. Each of the following events shall
be an Event of Default:
(a) the Borrower shall fail to pay any principal of any Loan when
the same becomes due and payable; or
(b) the Borrower shall fail to pay any interest on any Loan, any fee
under any of the Loan Documents or any other Obligation (other than the one
referred to in clause (a) above) and such non-payment continues for a period of
three Business Days after the due date therefor; or
(c) any representation or warranty made or deemed made by any Loan
Party in any Loan Document or by any Loan Party (or any of its officers) in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or
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(d) any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in ARTICLE V, SECTION 6.2, 7.1, 7.7, 7.11, 7.12,
7.13, 7.15 (A)(II), 7.15 (A)(III), 7.16, or ARTICLE VIII (OTHER THAN SECTION
8.20); or
(e) (i) any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement or in any other Loan Document,
other than any term, covenant or agreement referred to in any other clause of
this SECTION 9.1, if such failure under this CLAUSE (E) shall remain unremedied
for 30 days (or, in the case of SECTION 6.1, 15 days) after the earlier of the
date on which (A) a Responsible Officer of the Borrower becomes aware of such
failure or (B) written notice thereof shall have been given to the Borrower by
the Administrative Agent or any Lender or (ii) a Tranche A Loan Party or a
Tranche B Loan Party shall fail to deposit into a Tranche A Blocked Account or a
Tranche B Blocked Account, respectively, any cash or Proceeds received by such
Loan Party, as required by CLAUSE 7.15(A), and such failure shall remain
unremedied for 2 days after a Responsible Officer of the Borrower becomes aware
of such failure; PROVIDED, HOWEVER, any failure of a Loan Party to deposit into
a Blocked Account any cash or Proceeds received by such Loan Party as required
by SECTION 7.15(A), shall immediately give rise to an Event of Default; or
(f) (i) the Borrower or any of its Subsidiaries shall fail to make
any payment on any Indebtedness (other than the Obligations) of the Borrower or
any of its Subsidiaries (or any Guaranty Obligation in respect of Indebtedness
of any other Person) having a principal amount of $1,000,000 or more, when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); or (ii) any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Indebtedness, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Indebtedness; or (iii) any
such Indebtedness shall become or be declared to be due and payable, or required
to be prepaid or repurchased (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(g) the Borrower or any of its Subsidiaries shall:
(i) fail to make a payment in excess of $3,000,000 under any
Network Affiliation Agreement;
(ii) receive notice of termination of any Network Affiliation
Agreement; or
(iii) default under any Network Affiliation Agreement and
which default, if not remedied within the applicable grace period under
such Network Affiliation Agreement, would have a Material Adverse Effect;
or
(h) the Borrower or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors, or any proceeding shall be instituted by or against the Borrower or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a custodian, receiver,
trustee or other similar official for it or for any substantial part of its
property and, in the case of any such proceedings instituted against the
Borrower or any of its Subsidiaries (but not instituted by it), either such
proceedings shall remain undismissed or unstayed for a period of 30
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days or any of the actions sought in such proceedings shall occur; or the
Borrower or any of its Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this SUBSECTION (H); or
(i) one or more judgments or orders (or other similar process)
involving, in any single case or in the aggregate, an amount in excess of
$1,000,000 in the case of a money judgment, shall remain undischarged,
unvacated, unbonded or unstayed for a period of 30 days, to the extent not
covered by insurance, shall be rendered against one or more of the Borrower and
its Subsidiaries; or
(j) an ERISA Event shall occur and the amount of all liabilities and
deficiencies resulting therefrom, whether or not assessed, exceeds $1,000,000 in
the aggregate; or
(k) any material provision of any Loan Document shall for any reason
cease to be in force and effective (or any Loan Party shall challenge the
enforceability of any Loan Document or shall assert in writing, or engage in any
action or inaction based on any such assertion, that any provision of any of the
Loan Documents has ceased to be or otherwise is not valid, binding and
enforceable in accordance with its terms), or any security interest created
under any Loan Document shall cease to be a valid and perfected first priority
security interest Lien (except as otherwise permitted herein or therein) in any
of the Collateral purported to be covered thereby; or
(l) any Collateral Document shall for any reason cease to create a
valid Lien on any of the Collateral purported to be covered thereby or, except
as permitted by the Loan Documents, such Lien shall cease to be a perfected and
first priority Lien or any Loan Party shall so state in writing; or
(m) there shall occur any Change of Control; or
(n) there shall occur a Material Adverse Change or any event or
circumstances which would have a Material Adverse Effect; or
(o) one or more of the Borrower and its Subsidiaries shall have
entered into one or more consent or settlement decrees or agreements or similar
arrangements with a Governmental Authority or one or more judgments, orders,
decrees or similar actions shall have been entered against one or more of the
Borrower and its Subsidiaries based on or arising from the violation of or
pursuant to any Environmental Law, or the generation, storage, transportation,
treatment, disposal or Release of any Contaminant and, in connection with all
the foregoing, the Borrower and its Subsidiaries are likely to incur
Environmental Liabilities and Costs in excess of $1,000,000 in the aggregate; or
(p) either W. Xxx Xxxxxxxx or Xxxxxx Xxxx shall cease for any reason
whatsoever, including, without limitation, death or disability (as such
disability shall be determined in the sole and absolute judgment of
Administrative Agent) to be and continuously perform their present duties as
executive officers of the Borrower, or, if such cessation shall occur as a
result of death or such disability, no successor satisfactory to the
Administrative Agent and the Requisite Lenders in their sole discretion shall
have become and shall have commenced to perform the duties of such executive
officer of the Borrower within sixty (60) days after such cessation; provided,
HOWEVER, that if any satisfactory successor shall have been so elected and shall
have commenced performance of such duties within such period, the name of such
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successor or successors shall be deemed to have been inserted in place of W. Xxx
Xxxxxxxx or Xxxxxx Xxxx, respectively, in this CLAUSE (P); or
(q) any FCC License owned or held by the Borrower or any of its
Subsidiaries or any other FCC License required for the lawful ownership, lease,
control, use, operation, management or maintenance of any broadcast station or
other broadcasting property of the Borrower or any of its Subsidiaries shall be
cancelled, terminated, rescinded, revoked, suspended, impaired, otherwise
finally denied renewal, or otherwise modified in any material adverse respect,
or shall be renewed on terms that materially and adversely affect the economic
or commercial value or usefulness thereof, the result of any of the foregoing
which would have a Material Adverse Effect; or any such FCC License, the loss of
which would have a Material Adverse Effect, shall no longer be in full force and
effect; or the grant of any such FCC License, the loss of which would have a
Material Adverse Effect, shall have been stayed, vacated or reversed, or
modified in any material adverse respect, by judicial or administrative
proceedings; or any administrative law judge of the FCC shall have issued an
initial decision in any non-comparative license renewal, license revocation or
any comparative (multiple applicant) proceeding to the effect that any such FCC
License, the loss of which would have a Material Adverse Effect, should be
revoked or not be renewed; or any other proceeding shall have been instituted by
or shall have been commenced before any court, the FCC or any other regulatory
body that more likely than not will result in such cancellation, termination,
rescission, revocation, impairment or suspension of any such FCC License or
result in such modification of any such FCC License that would more likely than
not have a Material Adverse Effect; or
(r) any Loan Party, for any reason other than a natural disaster or
act of war, ceases to broadcast in the normal and usual manner at its fully
licensed parameters for any period of 72 consecutive hours or longer or for 72
hours or more in any fifteen (15) day period; PROVIDED, HOWEVER, any such
failure to broadcast shall not constitute an Event of Default if any Loan
Party's business interruption insurance covers substantially all losses incurred
by the failure to broadcast; or
(s) any Lease, to which a Loan Party is party, which relates to a
site on which a broadcast tower is situated, lapses without renewal on terms and
conditions reasonably satisfactory to the Administrative Agent or any such Lease
is otherwise terminated for any reason and such lapse or termination continues
without a replacement reasonably acceptable to Administrative Agent for a period
of thirty (30) days.
SECTION 9.2. REMEDIES.
(a) During the continuance of any Event of Default or, in the case
of (ii) below, a KNTV Trigger Event, the Administrative Agent may and shall, (i)
in the case of the Tranche A Loans, at the request of the Requisite Tranche A
Lenders, and, (ii) in the case of the Tranche B Loans, at the request of the
Requisite Tranche B Lenders, by notice to the Borrower, declare such Loans, all
interest thereon and all other amounts and related Obligations payable under
this Agreement to be forthwith due and payable, whereupon such Loans, all such
interest and all such amounts and Obligations 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 the Borrower; PROVIDED, HOWEVER,
that upon the occurrence of the Event of Default specified in SECTION 9.1(H),
the Loans, all such interest and all such amounts and Obligations shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower. In addition to the remedies set forth above, subject to SECTION
11.3, the Collateral Agents may exercise any
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remedies provided for by the Collateral Documents in accordance with the terms
thereof or any other remedies provided by applicable law.
SECTION 9.3. CO-OPERATION BY BORROWER.
(a) If an Event of Default shall have occurred and be continuing,
the Borrower shall, and shall cause each of its Subsidiaries to, take any action
which any Collateral Agent may request in the exercise of its rights and
remedies under any Loan Document in order to transfer or assign the Tranche A
Collateral to the Tranche A Collateral Agent, the Tranche B Collateral to the
Tranche B Collateral Agent or any Collateral to such one or more third parties
as any Collateral Agent may designate, or to a combination of the foregoing.
(b) To enforce the provisions of this SECTION 9.3, each Collateral
Agent is empowered to seek from the FCC and any other Communications Regulatory
Authority, to the extent required, consent to or approval of any involuntary
transfer of control of any entity whose Collateral is subject to any Loan
Document for the purpose of seeking a BONA FIDE purchaser to whom control
ultimately will be transferred. The Borrower agrees to, and agrees to cause each
of its Subsidiaries to agree to, cooperate with any such purchaser and with any
Collateral Agent in the preparation, execution and filing of any forms and
providing any information that may be necessary or helpful in obtaining the
consent of the FCC or any other Communications Regulatory Authority to the
assignment to such purchaser of the Collateral. The Borrower hereby agrees to,
and agrees to cause each of its Subsidiaries to, consent to any such voluntary
or involuntary transfer after and during the continuation of an Event of Default
and, without limiting any rights of any Collateral Agent under any Loan
Document, to authorize any Collateral Agent to nominate a trustee or receiver to
assume control of the Collateral, subject only to required judicial, FCC or
other consents required by any Governmental Authority or Communications
Regulatory Authority, in order to effectuate the transactions contemplated by
this SECTION 9.3. Such trustee or receiver shall have all the rights and powers
as provided to it by law or court order, or to any Collateral Agent under any
Loan Document. The Borrower shall, and shall cause each of its Subsidiaries to,
cooperate fully in obtaining the consent of the FCC and the approval or consent
of each other Governmental Authority or Communications Regulatory Authority
required to effectuate the foregoing. The Borrower shall, and shall cause each
of its Subsidiaries to take all actions reasonably necessary to obtain the
Required Authorizations to transfer ownership and control of the FCC Licenses
and other Regulatory Authorizations to any trustee, receiver or bona fide
purchaser on behalf of the Secured Parties, including (i) the immediate filing
of all applications with the FCC or any other applicable Communications
Regulatory Authority and (ii) assist in obtaining Required Authorizations for
the transactions contemplated by the Loan Documents.
(c) Without limiting the obligations of the Borrower hereunder in
any respect, the Borrower further agrees that if it, or any of its Subsidiaries,
upon or after the occurrence of an Event of Default, should fail or refuse for
any reason whatsoever, without limitation, including any refusal to execute any
application necessary or appropriate to obtain any governmental consent
necessary or appropriate for the exercise of any right of any Collateral Agent
hereunder, the Borrower agrees that such application may be executed on such
Loan Party's behalf by the clerk of any court of competent jurisdiction without
notice to such Loan Party pursuant to court order.
(d) In connection with this SECTION 9.3, any Collateral Agent shall
be entitled to rely in good faith upon an opinion of outside FCC counsel of any
Collateral Agent's choice with
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respect to any such assignment or transfer, whether or not such advice rendered
is ultimately determined to have been accurate.
ARTICLE X
THE AGENTS
SECTION 10.1. AUTHORIZATION AND ACTION.
(a) Each Lender hereby appoints GSCP as the Administrative Agent
hereunder and each Lender authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to the Administrative Agent under
such agreements and to exercise such powers as are reasonably incidental
thereto. Without limitation of the foregoing, each Lender hereby authorizes the
Administrative Agent to execute and deliver, and to perform its obligations
under, each of the Loan Documents to which the Administrative Agent is a party
and to exercise all rights, powers and remedies that the Administrative Agent
may have under such Loan Documents.
(b) Each Lender hereby appoints Foothill Capital as the Tranche A
Collateral Agent and GSCP as the Tranche B Collateral Agent hereunder and each
Lender authorizes each Collateral Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the such Collateral Agent under such agreements
and to exercise such powers as are reasonably incidental thereto. Without
limitation of the foregoing, each Lender hereby authorizes each Collateral Agent
to execute and deliver, and to perform its obligations under, each of the Loan
Documents to which such Collateral Agent is a party and to exercise all rights,
powers and remedies that such Collateral Agent may have under such Loan
Documents and agrees that under the Collateral Documents such Collateral Agent
is acting as collateral agent for the Lenders and the other Secured Parties.
(c) As to any matters not expressly provided for by this Agreement
and the other Loan Documents (including enforcement or collection), the Agents
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of, in the case of the
Tranche A Collateral Agent, the Requisite Tranche A Lenders, in the case of the
Tranche B Collateral Agent, the Requisite Tranche B Lenders, and such
instructions shall be binding upon all Lenders; PROVIDED, HOWEVER, that no Agent
shall be required to take any action which (i) such Agent in good faith believes
exposes it to personal liability unless such Agent receives an indemnification
satisfactory to it from the Lenders with respect to such action or (ii) is
contrary to this Agreement or applicable law. Each Agent agrees to give to each
Lender prompt notice of each notice given to it by any Loan Party pursuant to
the terms of this Agreement or the other Loan Documents.
(d) In performing its functions and duties hereunder and under the
other Loan Documents, each Agent is acting solely on behalf of the Lenders and
its duties are entirely administrative in nature. No Agent assumes and shall not
be deemed to have assumed any obligation other than as expressly set forth
herein and in the other Loan Documents or any other relationship as the agent,
fiduciary or trustee of or for any Lender or holder of any other Obligation. Any
Agent may perform any of its duties under any of the Loan Documents by or
through its agents or employees.
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SECTION 10.2. AGENT'S RELIANCE, ETC. Neither the Agents nor any of
their respective Affiliates or any of the respective directors, partners,
officers, agents or employees of any Agent or any such Affiliate shall be liable
for any action taken or omitted to be taken by it, him, her or them under or in
connection with this Agreement or the other Loan Documents, except for its, his,
her or their own gross negligence or willful misconduct. Without limiting the
foregoing, each Agent, as is applicable, (a) may treat the payee of any Note as
its holder until such Note has been assigned in accordance with SECTION 11.2;
(b) may rely on the Register to the extent set forth in SECTION 11.2(C); (c) may
consult with legal counsel (including counsel to the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (d) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations made by or on behalf of the Borrower
or any of its Subsidiaries in or in connection with this Agreement or any of the
other Loan Documents; (e) shall not have any duty to ascertain or to inquire
either as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or any of the other Loan Documents or the financial
condition of any Loan Party, or the existence or possible existence of any
Default, Event of Default or KNTV Trigger Event; (f) shall not be responsible to
any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the attachment, perfection or priority
of any Lien created or purported to be created under or in connection with, this
Agreement or any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; and (g) shall incur no liability under or
in respect of this Agreement or any of the other Loan Documents by acting upon
any notice, consent, certificate or other instrument or writing (which may be by
telecopy) or any telephone message believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 10.3. THE AGENTS INDIVIDUALLY. With respect to its Ratable
Portion, each of GSCP and Foothill Capital shall have and may exercise the same
rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "LENDERS" or "REQUISITE LENDERS" or any similar terms shall, unless the
context clearly otherwise indicates, include each Agent in its individual
capacity as a Lender or as one of the Requisite Lenders. GSCP, Foothill Capital
and each of their respective Affiliates may accept deposits from, lend money to,
and generally engage in any kind of banking, trust or other business with any
Loan Party as if it were not acting as an Agent.
SECTION 10.4. LENDER CREDIT DECISION. Each Lender acknowledges that
it shall, independently and without reliance upon the Arranger, the
Administrative Agent or any other Lender conduct its own independent
investigation of the financial condition and affairs of the Borrower and each
other Loan Party in connection with the making and continuance of the Loans.
Each Lender also acknowledges that it will, independently and without reliance
upon the Arranger, the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and other Loan Documents.
SECTION 10.5. INDEMNIFICATION. Each Lender agrees to indemnify each
Agent and each of its Affiliates, and each of their respective directors,
partners, officers, employees, agents and advisors (to the extent not reimbursed
by the Borrower), from and against such Lender's aggregate Ratable Portion of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements (including fees and
disbursements of legal counsel or other advisors) of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against, such Agent
or any of its Affiliates, directors, partners, officers, employees, agents and
advisors in any way relating to or arising out of this
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Agreement or the other Loan Documents or any action taken or omitted by such
Agent under this Agreement or the other Loan Documents; PROVIDED, HOWEVER, that
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's or such Affiliate's gross negligence
or willful misconduct. Without limiting the foregoing, each Lender agrees to
reimburse each Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including fees and disbursements of legal counsel or
other advisors) incurred by such Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of its rights or responsibilities under, this Agreement or the
other Loan Documents, to the extent that such Agent is not reimbursed for such
expenses by the Borrower or another Loan Party.
SECTION 10.6. SUCCESSOR AGENTS. Any Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower. Upon any such
resignation, in the case of the Tranche A Collateral Agent, the Requisite
Tranche A Lenders, in the case of the Tranche B Collateral Agent, the Tranche B
Lenders, and, in the case of the Administrative Agent, the Requisite Lenders,
shall have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by, in the case of the Tranche A Collateral Agent, the
Requisite Tranche A Lenders, in the case of the Tranche B Collateral Agent, the
Tranche B Lenders, and in the case of the Administrative Agent, the Requisite
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent, selected from among the
Lenders then entitled to instruct such Agent. Upon the acceptance of any
appointment as Administrative Agent, Tranche A Collateral Agent or Tranche B
Collateral Agent, as the case may be, by a successor Agent, such successor Agent
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement and the other Loan Documents.
Prior to any retiring Agent's resignation hereunder as Administrative Agent,
Tranche A Collateral Agent or Tranche B Collateral Agent, as the case may be,
the retiring Agent shall take such action as may be reasonably necessary to
assign to the successor Agent its rights as Administrative Agent, Tranche A
Collateral Agent or Tranche B Collateral Agent, as the case may be, under the
Loan Documents. After such resignation, the retiring Agent shall continue to
have the benefit of this ARTICLE X as to any actions taken or omitted to be
taken by it while it was Administrative Agent, Tranche A Collateral Agent or
Tranche B Collateral Agent, as the case may be, under this Agreement and the
other Loan Documents.
SECTION 10.7. CONCERNING THE COLLATERAL AND THE COLLATERAL
DOCUMENTS.
(a) TRANCHE A COLLATERAL. (i) Each Lender agrees that any action
taken by the Tranche A Collateral Agent or the Requisite Tranche A Lenders (or,
where required by the express terms of this Agreement, a greater proportion of
the Lenders) in accordance with the provisions of this Agreement or of the other
Loan Documents, and the exercise by the Tranche A Collateral Agent or the
Requisite Tranche A Lenders (or, where so required, such greater proportion) of
the powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders and other Secured Parties. Without limiting the generality of the
foregoing, the Tranche A Collateral Agent shall have the sole and exclusive
right and authority to (A) act as the disbursing and collecting agent for the
Lenders with respect to all payments and collections arising in connection
herewith and with the Tranche A Collateral Documents in connection with the
Tranche A Collateral; (B) execute and deliver each Tranche A Collateral Document
and accept delivery of each such agreement delivered by the Borrower or any of
its Subsidiaries; (C) act as collateral agent for the
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Lenders and the other Secured Parties for purposes of the perfection of all
security interests and Liens created by such agreements and all other purposes
stated therein; PROVIDED, HOWEVER, that the Tranche A Collateral Agent hereby
appoints, authorizes and directs each Lender to act as collateral sub-agent for
the Tranche A Collateral Agent and the Lenders for purposes of the perfection of
all security interests and Liens with respect to the Borrower's and its
Subsidiaries' respective deposit accounts maintained with, and cash and Cash
Equivalents held by, such Lender; (D) manage, supervise and otherwise deal with
the Tranche A Collateral; (E) take such action as is necessary or desirable to
maintain the perfection and priority of the security interests and Liens created
or purported to be created by the Tranche A Collateral Documents; and (F) except
as may be otherwise specifically restricted by the terms hereof or of any other
Loan Document, exercise all remedies given to such Collateral Agent, the Lenders
and the other Secured Parties with respect to the Tranche A Collateral under the
Loan Documents relating thereto, applicable law or otherwise.
(ii) Each of the Lenders hereby directs, in accordance with
the terms hereof, the Tranche A Collateral Agent to release (or, in the
case of clause (ii) below, release or subordinate) any Lien held by such
Collateral Agent for the benefit of the Lenders:
(A) against all of the Tranche A Collateral, upon
payment and satisfaction in full of all Loans and related
Obligations which have matured and which the Administrative Agent
has been notified in writing are then due and payable;
(B) against any assets that are subject to a Lien
permitted by SECTION 8.2(E) or (F); and
(C) against any part of the Tranche A Collateral sold or
disposed of by a Loan Party if such sale or disposition is permitted
by this Agreement (or permitted pursuant to a waiver or consent of a
transaction otherwise prohibited by this Agreement), against any
Inactive Subsidiary upon dissolution thereof, or, if not pursuant to
such sale or disposition, against Tranche A Collateral with a fair
market value of up to $500,000, if such release is consented to by
the Requisite Tranche A Lenders, or any part of the Tranche A
Collateral in excess of such amount, if such release is consented to
by the Lenders.
(iii) Each of the Lenders hereby directs the Tranche A
Collateral Agent to execute and deliver or file such termination and
partial release statements and do such other things as are necessary to
release Liens to be released pursuant to this SECTION 10.7 promptly upon
the effectiveness of any such release.
(iv) Following satisfaction in full of all Tranche A Loans and
all related Obligations which have matured, the Lenders hereby agree that
(i) the Tranche A Lenders shall have no further rights under this SECTION
10.7(A), (ii) all rights in favor of the Tranche A Lenders provided for
hereunder shall be assigned to, and assumed by, the Tranche B Lenders and
(iii) all references in this SECTION 10.7(A) to "TRANCHE A LENDERS" shall
be deemed to be to "TRANCHE B LENDERS".
(b) TRANCHE B COLLATERAL. (i) Each Lender agrees that any action
taken by the Tranche B Collateral Agent or the Requisite Tranche B Lenders (or,
where required by the
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express terms of this Agreement, a greater proportion of the Lenders) in
accordance with the provisions of this Agreement or of the other Loan Documents,
and the exercise by the Tranche B Collateral Agent or the Requisite Tranche B
Lenders (or, where so required, such greater proportion) of the powers set forth
herein or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all of the Lenders and other
Secured Parties. Without limiting the generality of the foregoing, the Tranche B
Collateral Agent shall have the sole and exclusive right and authority to (A)
act as the disbursing and collecting agent for the Lenders with respect to all
payments and collections arising in connection herewith and with the Tranche B
Collateral Documents in connection with the Tranche B Collateral; (B) execute
and deliver each Tranche B Collateral Document and accept delivery of each such
agreement delivered by the Borrower or any of its Subsidiaries; (C) act as
collateral agent for the Lenders and the other Secured Parties for purposes of
the perfection of all security interests and Liens created by such agreements
and all other purposes stated therein; PROVIDED, HOWEVER, that the Tranche B
Collateral Agent hereby appoints, authorizes and directs each Lender to act as
collateral sub-agent for the Tranche B Collateral Agent and the Lenders for
purposes of the perfection of all security interests and Liens with respect to
the Borrower's and its Subsidiaries' respective deposit accounts maintained
with, and cash and Cash Equivalents held by, such Lender; (D) manage, supervise
and otherwise deal with the Tranche B Collateral; (E) take such action as is
necessary or desirable to maintain the perfection and priority of the security
interests and Liens created or purported to be created by the Tranche B
Collateral Documents; and (F) except as may be otherwise specifically restricted
by the terms hereof or of any other Loan Document, exercise all remedies given
to such Collateral Agent, the Lenders and the other Secured Parties with respect
to the Tranche B Collateral under the Loan Documents relating thereto,
applicable law or otherwise.
(ii) Each of the Lenders hereby directs, in accordance with
the terms hereof, the Tranche B Collateral Agent to release (or, in the
case of clause (ii) below, release or subordinate) any Lien held by such
Collateral Agent for the benefit of the Lenders:
(A) against all of the Tranche B Collateral, upon
payment and satisfaction in full of all Loans and all Obligations
which have matured and which the Administrative Agent has been
notified in writing are then due and payable;
(B) against any assets that are subject to a Lien
permitted by SECTION 8.2(E) or (F); and
(C) against any part of the Tranche B Collateral sold or
disposed of by a Loan Party if such sale or disposition is permitted
by this Agreement (or permitted pursuant to a waiver or consent of a
transaction otherwise prohibited by this Agreement), against any
Inactive Subsidiary upon dissolution thereof, or, if not pursuant to
such sale or disposition, against Tranche B Collateral with a fair
market value of up to $500,000, if such release is consented to by
the Requisite Tranche B Lenders, or any part of the Tranche B
Collateral in excess of such amount, if such release is consented to
by the Lenders.
(iii) Each of the Lenders hereby directs the Tranche B
Collateral Agent to execute and deliver or file such termination and
partial release statements and
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do such other things as are necessary to release Liens to be released
pursuant to this SECTION 10.7 promptly upon the effectiveness of any such
release.
(iv) Following satisfaction in full of all Tranche B Loans and
all related Obligations which have matured, the Lenders hereby agree that
(i) the Tranche B Lenders shall have no further rights under this SECTION
10.7(B), (ii) all rights in favor of the Tranche B Lenders provided for
hereunder shall be assigned to, and assumed by, the Tranche A Lenders and
(iii) all references in this SECTION 10.7(B) to "TRANCHE B LENDERS" shall
be deemed to be to "TRANCHE A LENDERS".
(c) APPLICATION OF PROCEEDS OF COLLATERAL. Upon receipt of any
proceeds of Collateral, each Collateral Agent shall promptly pay such proceeds
over to the Administrative Agent for application as set forth in SECTION 2.10.
SECTION 10.8. COLLATERAL MATTERS RELATING TO RELATED OBLIGATIONS.
The benefit of the Loan Documents and of the provisions of this Agreement
relating to the Collateral shall extend to and be available in respect of any
Secured Obligation which arises under any Hedging Contract, cash management
agreement entered into by a Loan Party and a Lender in connection with this
Agreement, or which is otherwise owed to an Affiliate of a Lender (collectively,
"RELATED OBLIGATIONS") solely on the condition and understanding, as among the
Agents and all Secured Parties, that (i) the Related Obligations shall be
entitled to the benefit of the Loan Documents and the Collateral to the extent
expressly set forth in this Agreement and the other Loan Documents and to such
extent the Agent party to the applicable Loan Document shall hold, and have the
right and power to act with respect to, the Guaranty and the Collateral on
behalf of and as agent for the holders of the Related Obligations, but the
applicable Agent is otherwise acting solely as agent for the Lenders and shall
have no fiduciary duty, duty of loyalty, duty of care, duty of disclosure or
other obligation whatsoever to any holder of Related Obligations; (ii) all
matters, acts and omissions relating in any manner to the Guaranty, the
Collateral, or the omission, creation, perfection, priority, abandonment or
release of any Lien, shall be governed solely by the provisions of this
Agreement and the other Loan Documents and no separate Lien, right, power or
remedy shall arise or exist in favor of any Secured Party under any separate
instrument or agreement or in respect of any Related Obligation; and (iii) each
Secured Party shall be bound by all actions taken or omitted, in accordance with
the provisions of this Agreement and the other Loan Documents, by the applicable
Agent and the Requisite Lenders, the Requisite Tranche A Lenders or the
Requisite Tranche B Lenders, as the case may be, each of whom shall be entitled
to act at its sole discretion and exclusively in its own interest given its own
interest in the Loans and other Obligations to it arising under this Agreement
or the other Loan Documents, without any duty or liability to any other Secured
Party or as to any Related Obligation and without regard to whether any Related
Obligation remains outstanding or is deprived of the benefit of the Collateral
or becomes unsecured or is otherwise affected or put in jeopardy thereby; and
(iv) no holder of Related Obligations and no other Secured Party (except the
Agents and the Lenders, to the extent set forth in this Agreement) shall have
any right to be notified of, or to direct, require or be heard with respect to,
any action taken or omitted in respect of the Collateral or under this Agreement
or the Loan Documents; and (v) no holder of any Related Obligation shall
exercise any right of setoff, banker's lien or similar right except as expressly
provided in SECTION 11.7.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. AMENDMENTS, WAIVERS, ETC.
(a) CONSENT OF REQUISITE LENDERS. Subject to the specific voting
provisions set forth in CLAUSE (B) below, no amendment or waiver of any
provision of (x) this Agreement or any other Loan Document (other than the
Tranche A Loan Documents or the Tranche B Loan Documents) nor consent to any
departure by any Loan Party therefrom shall in any event be effective unless the
same shall be signed by the Administrative Agent and by the Requisite Lenders,
(y) the Tranche A Loan Documents or the Tranche B Loan Documents nor consent to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be signed by the Administrative Agent and by the Requisite
Tranche A Lenders or the Requisite Tranche B Lenders, respectively, and then any
such waiver or consent pursuant to CLAUSE (X) or (Y) above, shall be effective
only in the specific instance and for the specific purpose for which given or
(z) SECTIONS 2.9 (with respect to payments to Tranche A Lenders), 2.10(A) and
2.11(I) shall in any event be effective unless the same shall be signed by the
Requisite Tranche A Lenders or SECTIONS 2.9 (with respect to payments to Tranche
B Lenders), 2.10(B) and 2.11 (II) THROUGH (V) shall in any event be effective
unless the same shall be signed by the Requisite Tranche B Lenders;
(b) CONSENT OF ALL AFFECTED LENDERS. Prior to the effectiveness
thereof, each Lender affected thereby shall have signed any amendment or waiver
of any provision of this Agreement or any other Loan Document or consent to any
departure by any Loan Party therefrom that:
(i) waives any of the conditions specified in SECTION 3.1 OR
3.2, as applicable, except with respect to a condition based upon another
provision hereof, the waiver of which requires only the concurrence of the
Requisite Lenders, the Requisite Tranche A Lenders or the Requisite
Tranche B Lenders, as the case may be;
(ii) increases the Commitments of such Lender or subjects such
Lender to any additional obligations; PROVIDED, HOWEVER, that any such
increase resulting in the increase in the aggregate amount of Tranche A
Loans or Tranche A Commitments shall also require the consent of all
Lenders and any such increase resulting in the increase in the aggregate
amount of Tranche B Loans or Tranche B Commitments shall also require the
consent of the Requisite Tranche B Lenders;
(iii) extends the scheduled final maturity of any Loan, or
waive, reduce or postpone any scheduled date fixed for the payment or
reduction of principal (it being understood that SECTION 2.6 does not
provide for scheduled dates fixed for payment) or of the Commitments;
(iv) reduces the principal amount of any Loan (other than by
the payment or prepayment thereof); PROVIDED FURTHER, HOWEVER, any
reduction of the Obligations payable by the Borrower pursuant to the Fee
Letter (or any notes issued thereunder) or any amendment to the Warrants
shall require the consent of the Tranche B Lenders;
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(v) reduces the rate of interest on any Loan or any fee
payable hereunder;
(vi) postpones any scheduled date fixed for payment of such
interest or fees;
(vii) changes the aggregate Ratable Portions of the Lenders
which shall be required for the Lenders or any of them to take any action
hereunder (it being understood that any such change in the Ratable
Portions of the Tranche A Lenders or the ratable portion of the Tranche B
Lenders required for such Lenders or any of them to take any action
hereunder, shall require the consent of all the Tranche A Lenders or all
the Tranche B Lenders, respectively);
(viii) release Collateral except as provided in SECTION
10.7(A)(II) AND (B)(II) or release any Subsidiary Guarantor from its
obligations under the Guaranty (other than an Inactive Subsidiary upon the
dissolution thereof which shall not require the consent of any Lender) or
the Borrower from its obligations hereunder except in connection with sale
or other disposition of such Loan Party permitted by this Agreement (or
permitted pursuant to a waiver or consent of a transaction otherwise
prohibited by this Agreement); or
(ix) (A) amends SECTION 10.7(A)(II) or those clauses of this
SECTION 11.1 not applicable to Tranche B Lenders, or the definition of the
term "REQUISITE TRANCHE A LENDERS," without the additional of all the
Tranche A Lenders or (B) amends SECTION 10.7(B)(II) or those clauses of
this SECTION 11.1 not applicable to Tranche A Lenders, or the definition
of the term "REQUISITE TRANCHE B LENDERS," without the consent of all the
Tranche B Lenders, or (C) amends those clauses of this SECTION 11.1
applicable to both Tranche A Lenders and Tranche B Lenders or the
definition of the terms "REQUISITE LENDERS" or "RATABLE PORTION" without
the consent of all the Lenders; and
PROVIDED FURTHER, HOWEVER, that no amendment, waiver or consent shall, unless in
writing and signed by the applicable Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Administrative
Agent, the Arranger, the Tranche A Collateral Agent or the Tranche B Collateral
Agent under this Agreement or the other Loan Documents.
(c) The Administrative Agent may, but shall have no obligation to,
with the written concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
(d) No amendment or waiver of any provision of this Agreement or any
other Loan Document nor consent to any departure by any Loan Party therefrom
shall in any event be effective unless the same shall be in writing.
(e) In connection with any proposed amendment, modification, waiver
or termination (a "PROPOSED CHANGE") requiring the consent of all affected
Lenders, the consent of Requisite Lenders (or, as applicable, the Requisite
Tranche A Lenders or the Requisite Tranche B Lenders) is obtained, but the
consent of other Lenders whose consent is required is not obtained (any such
Lender whose consent is not obtained as described in this SECTION 11.1 being
referred to
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as a "NON-CONSENTING LENDER"), then, so long as the Lender that is acting as the
Administrative Agent is not a Non-Consenting Lender, the Administrative Agent or
an Eligible Assignee that is acceptable to the Administrative Agent shall have
the right with the Administrative Agent's consent and in the Administrative
Agent's sole discretion (but shall have no obligation) to purchase from such
Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon
the Administrative Agent's request, sell and assign to the Lender that is acting
as the Administrative Agent or such Eligible Assignee, all of the Loans of such
Non-Consenting Lender for an amount equal to the principal balance of all Loans
held by the Non-Consenting Lender and all accrued interest and fees with respect
thereto through the date of sale, such purchase and sale to be consummated
pursuant to an executed Assignment and Acceptance.
SECTION 11.2. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may sell, transfer, negotiate or assign to one or
more Eligible Assignees all or a portion of its rights and obligations hereunder
(including all of its rights and obligations with respect to the Tranche A Loans
and the Tranche B Loans); PROVIDED, HOWEVER, that (i) the aggregate amount being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event (if
less than the Assignor's entire interest) be less than $1,000,000 or an integral
multiple of $1,000,000 in excess thereof, except, in either case, (A) with the
consent of the Administrative Agent or (B) if such assignment is being made to a
Lender or an Affiliate or Approved Fund of such Lender, and (ii) if such
Eligible Assignee is not, prior to the date of such assignment, a Lender or an
Affiliate or Approved Fund of a Lender, such assignment shall be subject to the
prior consent of the Administrative Agent.
(b) The parties to each assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording, an Assignment and
Acceptance, together with any Note (if the assigning Lender's Loans are
evidenced by a Note) subject to such assignment. Upon such execution, delivery,
acceptance and recording from and after the effective date specified in such
Assignment and Acceptance, (i) the assignee thereunder shall become a party
hereto and, to the extent that rights and obligations under the Loan Documents
have been assigned to such assignee pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender, and (ii) the assignor thereunder
shall, to the extent that rights and obligations under this Agreement have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(except those which survive the payment in full of the Obligations) and be
released from its obligations under the Loan Documents, other than those
relating to events or circumstances occurring prior to such assignment (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under the Loan Documents, such
Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred
to in SECTION 11.9 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recording of the names and addresses of
the Lenders and principal amount of the Loans owing to each Lender from time to
time (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Loan Parties, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender for all purposes of this Agreement. Solely
for the purposes of maintaining the Register, the Administrative Agent shall be
deemed to be the Borrower's agent, in addition to agent for the Lenders.
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(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall, if
requested by such assignee, execute and deliver to the Administrative Agent, new
Notes to the order of such assignee in an amount equal to the Loans assumed by
it pursuant to such Assignment and Acceptance and, if the assigning Lender has
surrendered any Note for exchange in connection with the assignment and has
retained Loans hereunder, new Notes to the order of the assigning Lender in an
amount equal to the Loans retained by it hereunder. Such new Notes shall be
dated the same date as the surrendered Notes and be in substantially the form of
EXHIBIT B hereto.
(e) In addition to the other assignment rights provided in this
SECTION 11.2, each Lender may pledge or assign a security interest in any of its
rights under this Agreement (including rights to payments of principal or
interest on the Loans) to secure obligations to (i) any Federal Reserve Bank
pursuant to Regulation A of the Federal Reserve Board and (ii) in the case of
any Lender that is a Fund, any holders of obligations owed or Securities issued
by such Lender as security for such obligations or Securities, or any trustee
for, or any other representative of, such holders, and this Section shall not
apply to any such pledge or assignment of a security interest; PROVIDED,
HOWEVER, that no such assignment shall release the assigning Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(f) Each Lender may sell participations to one or more Persons in or
to all or a portion of its rights and obligations under the Loan Documents
(including all its rights and obligations with respect to the Loans). The terms
of such participation shall not, in any event, require the participant's consent
to any amendments, waivers or other modifications of any provision of any Loan
Documents, the consent to any departure by any Loan Party therefrom, or to the
exercising or refraining from exercising any powers or rights which such Lender
may have under or in respect of the Loan Documents (including the right to
enforce the obligations of the Loan Parties), except if any such amendment,
waiver or other modification or consent would (i) reduce the amount, or postpone
any date fixed for, any amount (whether of principal, interest or fees) payable
to such participant under the Loan Documents, to which such participant would
otherwise be entitled under such participation or (ii) result in the release of
all or substantially all of the Collateral other than in accordance with SECTION
10.7(A) OR (B), as applicable. In the event of the sale of any participation by
any Lender, (A) such Lender's obligations under the Loan Documents shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
for the performance of such obligations, (C) such Lender shall remain the holder
of such Obligations for all purposes of this Agreement, and (D) the Borrower,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Each participant shall be entitled to the
benefits of SECTIONS 2.14, 2.15 and 2.16 as if it were a Lender; PROVIDED,
HOWEVER, that anything herein to the contrary notwithstanding, the Borrower
shall not, at any time, be obligated to pay to any participant of any interest
of any Lender, under SECTION 2.14, 2.15 or 2.16, any sum in excess of the sum
which the Borrower would have been obligated to pay to such Lender in respect of
such interest had such participation not been sold.
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SECTION 11.3. ASSIGNMENT OF TRANCHE A LOANS.
(a) The Tranche B Lenders shall have the option, in their sole
discretion, to purchase the Tranche A Loans from the Tranche A Lenders pursuant
to the provisions set forth in SECTION 11.2 upon the occurrence of the following
events:
(i) if, pursuant to SECTION 8.4(G), the Requisite Tranche A
Lenders are requested by the Borrower to consent to a proposed Asset Sale;
or
(ii) if the Requisite Tranche A Lenders give notice to the
Administrative Agent that such Lenders wish to accelerate payment of the
Tranche A Loans, or seek any other remedies in respect of an Event of
Default, pursuant to SECTION 9.2.
(b) Within 3 Business Days of the occurrence of either of the events
set forth in CLAUSE (A) above, the Administrative Agent shall give written
notice thereof to each of the Lenders.
(c) Within 7 Business Days of receipt of notice from the
Administrative Agent pursuant to CLAUSE (B) above, the Tranche B Lenders shall
give notice to each other Lender and the Administrative Agent, of the amount of
the Tranche A Loans, if any, for which it is willing to accept an assignment,
pursuant to the provisions of SECTION 11.2(A) (each such Tranche B Lender, a
"TRANCHE A ASSUMING LENDER").
(d) If the aggregate amount of the Tranche A Loans that the Tranche
A Assuming Lenders are willing to take an assignment of is less than the
aggregate outstanding amount of the Tranche A Loans, there shall be no
assignment of any Tranche A Loans to any Tranche B Lender pursuant to this
SECTION 11.3 and the Administrative Agent shall proceed promptly to advise each
Lender and the Borrower that the Tranche A Lenders have declined to consent to
the Asset Sale or are accelerating the Loans and seeking certain remedies, as
the case may be.
(e) If the Tranche A Assuming Lenders notify the Agent that they are
willing to accept assignments of Tranche A Loans in an aggregate amount that is
equal to or exceeds the aggregate outstanding amount of the Tranche A Loans,
within 5 Business Days thereof, (i) the Tranche A Lenders shall assign their
Tranche A Loans, and the Tranche B Assuming Lenders shall assume the Tranche A
Loans, each in accordance with SECTION 11.2 above and CLAUSE (II) below and (ii)
the Tranche A Loans shall be allocated among the Tranche A Assuming Lenders on a
PRO RATA basis in accordance with the amount of Tranche A Loans such Tranche A
Assuming Lender is willing to take an assignment of.
(f) Upon the effectiveness of each of the assignments provided for
above, each Tranche A Assuming Lender shall be a "TRANCHE A LENDER" for all
purposes of this Agreement and each other Loan Document.
(g) During the period commencing on the date of occurrence of the
events set forth in CLAUSE (A)(II) above and ending on the tenth Business Day
thereafter, the Tranche A Lenders agree to forebear from exercising any remedies
under the Credit Agreement other than as necessary to preserve their position
hereunder, as long as the Tranche B Lenders do not accelerate any Obligations
hereunder or commence exercising any remedies under the Loan Documents.
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SECTION 11.4. COSTS AND EXPENSES.
(a) The Borrower agrees upon demand to pay, or reimburse each Agent
all of such Agent's reasonable internal and external audit, legal, appraisal,
valuation, filing, document duplication and reproduction and investigation
expenses and for all other reasonable out-of-pocket costs and expenses of every
type and nature (including, without limitation, the reasonable fees, expenses
and disbursements of the Administrative Agent's and the Arranger's counsel,
Weil, Gotshal & Xxxxxx LLP, local legal counsel, auditors, accountants,
appraisers, printers, insurance and environmental advisers, and other
consultants and agents) incurred by such party in connection with (i) such
Agent's audit and investigation of the Borrower and its Subsidiaries in
connection with the preparation, negotiation and execution of the Loan Documents
and the Administrative Agent's periodic audits of the Borrower and its
Subsidiaries, as the case may be; (ii) the preparation, negotiation, execution
and interpretation of this Agreement (including, without limitation, the
satisfaction or attempted satisfaction of any of the conditions set forth in
SECTION 3.1 and SECTION 3.2), the Loan Documents and any proposal letter or
commitment letter issued in connection therewith and the making of the Loans
hereunder; (iii) the creation, perfection or protection of the Liens under the
Loan Documents (including, without limitation, any reasonable fees and expenses
for local counsel in various jurisdictions); (iv) the ongoing administration of
this Agreement and the Loans, including consultation with attorneys in
connection therewith and with respect to each Agent's rights and
responsibilities hereunder and under the other Loan Documents; (v) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (vi) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, any
Loan Party, any of the Borrower's Subsidiaries, the Network Affiliation
Agreements, the Cable Carriage Agreements, this Agreement or any of the other
Loan Documents; (vii) the response to, and preparation for, any subpoena or
request for document production with which each Agent is served or deposition or
other proceeding in which the Agent is called to testify, in each case, relating
in any way to the Obligations, any Loan Party the Network Affiliation
Agreements, this Agreement or any of the other Loan Documents and Network
Affiliation Agreements; and (viii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same.
(b) The Borrower further agrees to pay or reimburse each Agent and
each of the Lenders upon demand for all out-of-pocket costs and expenses,
including, without limitation, reasonable attorneys' fees (including allocated
costs of internal counsel and costs of settlement) and fees of other advisors,
incurred by such Agent or such Lenders (i) in enforcing any Loan Document or
Obligation or any security therefor or exercising or enforcing any other right
or remedy available by reason of an Event of Default or a KNTV Trigger Event;
(ii) in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a "WORK-OUT" or in any
insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, any Loan
Party, and related to or arising out of the transactions contemplated hereby or
by any of the other Loan Documents; and (iv) in taking any other action in or
with respect to any suit or proceeding (bankruptcy or otherwise) described in
CLAUSES (I) through (III) above.
SECTION 11.5. INDEMNITIES.
(a) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Arranger, each Collateral Agent, each Lender and each
of their respective affiliates
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and each of the respective partners, officers, directors, employees, agents,
advisors, attorneys and representatives of each (each, an "INDEMNIFIED PARTY")
from and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and disbursements of counsel),
joint or several, that may be incurred by or asserted or awarded against any
Indemnified Party (including, without limitation, in connection with or relating
to any investigation, litigation or proceeding or the preparation of any defense
in connection therewith), in each case arising out of or in connection with or
by reason of any Loan Document, any Obligation, the NBC Affiliation Agreements,
or any of the transactions contemplated thereby, or any actual or proposed use
of the proceeds of the Loans, except to the extent such claim, damage, loss,
liability or expense is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this paragraph applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by a Borrower, any of its directors, securityholders or
creditors, an Indemnified Party or any other person, or an Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Borrower further agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in contract, tort or
otherwise) to any Loan Party or any of their respective securityholders or
creditors for or in connection with the transactions contemplated hereby, except
for direct damages (as opposed to special, indirect, consequential or punitive
damages (including, without limitation, any loss of profits, business or
anticipated savings)) determined in a final non-appealable judgment by a court
of competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. Without limiting the foregoing, Indemnified
Matters include (i) all Environmental Liabilities and Costs arising from or
connected with the past, present or future operations of the Borrower or any of
its Subsidiaries involving any property subject to a Collateral Document, or
damage to real or personal property or natural resources or harm or injury
alleged to have resulted from any Release of Contaminants on, upon or into such
property or any contiguous real estate; (ii) any costs or liabilities incurred
in connection with any Remedial Action concerning the Borrower or any of its
Subsidiaries; (iii) any costs or liabilities incurred in connection with any
Environmental Lien; (iv) any costs or liabilities incurred in connection with
any other matter under any Environmental Law, including CERCLA and applicable
state property transfer laws, whether, with respect to any of such matters, such
Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in
possession, the successor in interest to the Borrower or any of its
Subsidiaries, or the owner, lessee or operator of any property of the Borrower
or any of its Subsidiaries by virtue of foreclosure, except, with respect to
those matters referred to in CLAUSES (I), (II), (III) and (IV) above, to the
extent incurred following (A) foreclosure by the applicable Collateral Agent or
any Lender, or the applicable Collateral Agent or any Lender having become the
successor in interest to the Borrower or any of its Subsidiaries, and (B)
attributable solely to acts of the applicable Collateral Agent, such Lender or
any agent on behalf of the Administrative Agent or such Lender.
(b) The Borrower shall indemnify each Agent, and the Lenders for,
and hold each Agent and the Lenders harmless from and against, any and all
claims for brokerage commissions, fees and other compensation made against any
Agent, the Lenders for any broker, finder or consultant with respect to any
agreement, arrangement or understanding made by or on behalf of any Loan Party
or any of its Subsidiaries in connection with the transactions contemplated by
this Agreement.
(c) The Borrower agrees that any indemnification or other protection
provided to any Indemnitee pursuant to this Agreement (including pursuant to
this SECTION 11.5) or any other Loan Document shall (i) survive payment in full
of the Obligations and (ii) inure to
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the benefit of any Person who was at any time an Indemnitee under this Agreement
or any other Loan Document.
SECTION 11.6. LIMITATION OF LIABILITY. The Borrower agrees that no
Indemnitee shall have any liability (whether direct or indirect, in contract,
tort or otherwise) to any Loan Party or any of their respective Subsidiaries or
any of their equity holders or creditors for or in connection with the
transactions contemplated hereby and in the other Loan Documents, except to the
extent such liability is found in a final judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In no event, however, shall any Indemnified Party be liable
on any theory of liability for any special, indirect, consequential or punitive
damages and the Borrower hereby waives, releases and agrees (for itself and on
behalf of its Subsidiaries) not to xxx upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
SECTION 11.7. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default each Lender and each Affiliate of a Lender
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or its Affiliates to or for the credit or the
account of the Borrower against any and all of the Obligations now or hereafter
existing whether or not such Lender shall have made any demand under this
Agreement or any other Loan Document and although such Obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender or its Affiliates; PROVIDED,
HOWEVER, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this SECTION 11.7
are in addition to the other rights and remedies (including other rights of
set-off) which such Lender may have.
SECTION 11.8. SHARING OF PAYMENTS, ETC.
(a) If any Tranche A Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off or
otherwise) on account of the Tranche A Loans made by it and generated by a
Tranche A Loan Party or derived from Tranche A Collateral (other than pursuant
to SECTIONS 2.10, 2.11, 2.14, 2.15 or 2.16) in excess of its Ratable Portion of
payments obtained by all the Tranche A Lenders on account of such Obligations,
such Tranche A Lender (each, a "PURCHASING LENDER") shall forthwith purchase
from the other Tranche A Lenders (each, a "SELLING LENDER") such participations
in their Loans or other Obligations as shall be necessary to cause such
Purchasing Lender to share the excess payment ratably with each of them.
(b) If any Tranche B Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off or
otherwise) on account of the Tranche B Loans made by it and generated by a
Tranche B Loan Party or derived from Tranche B Collateral (other than pursuant
to SECTIONS 2.14, 2.15 or 2.16) in excess of its Ratable Portion of payments
obtained by all the Tranche B Lenders on account of such Obligations, such
Tranche B Lender (each, a "PURCHASING LENDER") shall forthwith purchase from the
other Tranche B Lenders (each, a "SELLING LENDER") such participations in their
Loans or other Obligations as shall be necessary to cause such Purchasing Lender
to share the excess payment ratably with each of them.
(i) If any Tranche A Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off or
otherwise) on account of the Tranche A Loans made by it and generated by a
Tranche B Loan Party or
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derived from Tranche B Collateral (other than pursuant to SECTIONS 2.14,
2.15 or 2.16), or if any Tranche A Lender shall, after the sharing of
payments as set forth in CLAUSE (A) above, hold payments in excess of its
Loans, such Tranche A Lender shall pay such amounts to the Administrative
Agent for application pursuant to SECTION 2.10(B).
(ii) If any Tranche B Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off or
otherwise) on account of the Tranche B Loans made by it and generated by a
Tranche A Loan Party or derived from Tranche A Collateral (other than
pursuant to SECTIONS 2.14, 2.15 or 2.16), or if any Tranche B Lender
shall, after the sharing of payments as set forth in CLAUSE (A) above,
hold payments in excess of its Loans, such Tranche B Lender shall pay such
amounts to the Administrative Agent for application pursuant to SECTION
2.10(A).
(c) If all or any portion of any payment received by a Purchasing
Lender is thereafter recovered from such Purchasing Lender, such purchase from
each applicable Selling Lender shall be rescinded and such Selling Lender shall
repay to such Purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Selling Lender's ratable share
(according to the proportion of (i) the amount of such Selling Lender's required
repayment to (ii) the total amount so recovered from such Purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered.
(d) The Borrower agrees that any Purchasing Lender so purchasing a
participation from a Selling Lender pursuant to this SECTION 11.8 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 11.9. NOTICES, ETC. All notices, demands, requests and other
communications provided for in this Agreement shall be given in writing, or by
any telecommunication device or electronic communications capable of creating a
written record, and addressed to the party to be notified as follows:
(a) if to the Borrower:
c/o Granite Broadcasting Corporation
000 Xxxxx Xxxxxx - 34th Floor
New York, New York 10017
Attention: Xxxxx XxXxxxx Haime
Telecopy no: (000) 000 0000
Email: xxxxx@xxxxxxxxx.xxx
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telecopy no: (000) 000-0000
Email: xxxxxx@xxxxxxxx.xxx
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(b) if to any Lender, at its Domestic Lending Office specified
opposite its name on SCHEDULE II or on the signature page of any applicable
Assignment and Acceptance;
(c) if to the Administrative Agent or the Tranche B Collateral
Agent:
Xxxxxxx Sachs Credit Partners L.P.85 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy no: (000) 000 0000
Email: xxxxx.xxxxxxxxxx@xx.xxx
and
RTV Ventures LLC
000 X. Xxx Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxx.xxx
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Telecopy no: (000) 000-0000
Email: xxxxxx.xxxxx@xxxx.xxx
(d) if to the Tranche A Collateral Agent:
Foothill Capital Corporation - Structured Finance Group
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Group Credit Manager
Telecopy: (000) 000-0000
Email:
or at such other address as shall be notified in writing (i) in the case of the
Borrower and the Administrative Agent, to the other parties and (ii) in the case
of all other parties, to the Borrower and the Administrative Agent. All such
notices and communications shall be effective upon personal delivery (if
delivered by hand, including any overnight courier service), when deposited in
the mails (if sent by mail), or when properly transmitted (if sent by a
telecommunications device or through the Internet); PROVIDED, HOWEVER, that
notices and communications to the
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Administrative Agent pursuant to Article II or X shall not be effective until
received by the Administrative Agent.
SECTION 11.10. NO WAIVER; REMEDIES. No failure on the part of any
Lender, or any Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 11.11. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Borrower and each Agent and when the
Administrative Agent shall have been notified by each Lender that such Lender
has executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Agents and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 11.12. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
SECTION 11.13. SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.
(a) 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 of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. The parties hereto hereby irrevocably waive any
objection, including any objection to the laying of venue or based on the
grounds of FORUM NON CONVENIENS, which any of them may now or hereafter have to
the bringing of any such action or proceeding in such respective jurisdictions.
(b) The Borrower hereby irrevocably consents to the service of any
and all legal process, summons, notices and documents in any suit, action or
proceeding brought in the United States of America arising out of or in
connection with this Agreement or any of the other Loan Documents by the mailing
(by registered or certified mail, postage prepaid) or delivering of a copy of
such process to the Borrower at its address specified in SECTION 11.9. The
Borrower agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(c) Nothing contained in this SECTION 11.13 shall affect the right
of the Administrative Agent or any Lender to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against the
Borrower or any other Loan Party in any other jurisdiction.
SECTION 11.14. WAIVER OF JURY TRIAL. EACH OF THE ARRANGER, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENTS, THE LENDERS AND THE BORROWER
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 11.15. MARSHALING; PAYMENTS SET ASIDE. None of the Agents or
any Lender shall be under any obligation to marshal any assets in favor of the
Borrower or any other
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party or against or in payment of any or all of the Obligations. To the extent
that the Borrower makes a payment or payments to any Agent, the Lenders or any
of such Persons receives payment from the proceeds of the Collateral or exercise
their rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
SECTION 11.16. SECTION TITLES. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 11.17. DOCUMENTS EVIDENCE THE SAME INDEBTEDNESS. Upon its
effectiveness, this Agreement amends and restates in its entirety the Existing
Credit Agreement and the Notes issued under this Agreement, if any, amend and
restate the "NOTES" (as defined in the Existing Credit Agreement) issued under
the Existing Credit Agreement. This Agreement and the Notes, if any, do not
constitute and shall not be construed to evidence a novation of or a payment and
readvance of the loan principal, interest and other sums, if any, heretofore
outstanding under the Existing Credit Agreement, it being the intention of the
Borrowers, and by their signature hereto, the Administrative Agent and Lenders,
that this Agreement provide for the terms and conditions of, and the Notes
evidence, upon the effectiveness of this Agreement, the same Indebtedness as was
then outstanding under the Existing Credit Agreement. Each Lender shall
surrender the original "NOTES" (as defined in the Existing Credit Agreement)
outstanding on the Effective Date issued to it under the Existing Credit
Agreement.
SECTION 11.18. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are attached to the same
document.
SECTION 11.19. ENTIRE AGREEMENT. This Agreement, together with all
of the other Loan Documents and all certificates and documents delivered
hereunder or thereunder, embodies the entire agreement of the parties and
supersedes all prior agreements and understandings relating to the subject
matter hereof. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all parties
shall be lodged with the Borrower and the Administrative Agent.
SECTION 11.20. CONFIDENTIALITY. Each Lender and each Agent agree to
keep non-public information obtained by it pursuant hereto and the other Loan
Documents confidential in accordance with such Lender's or such Agent's, as the
case may be, customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's or such
Agent's, as the case may be, employees, representatives and agents who are or
are expected to be involved in the evaluation of such information in connection
with the transactions contemplated by this Agreement and who are advised of the
confidential nature of such information, (b) to the extent such information
presently is or hereafter becomes available to such Lender or such Agent,
106
as the case may be, on a non-confidential basis from a source other than the
Borrower, (c) to the extent disclosure is required by law, regulation or
judicial order or requested or required by bank regulators or auditors or (d) to
assignees or participants or potential assignees or participants who agree to be
bound by the provisions of this SECTION 11.20.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
GRANITE BROADCASTING CORPORATION,
as Borrower
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Title: S.V.P., Chief Financial Officer
XXXXXXX XXXXX CREDIT PARTNERS, L.P.,
as Administrative Agent, Tranche B
Collateral Agent and as Arranger
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Authorized Signatory
FOOTHILL CAPITAL CORPORATION,
as Tranche A Collateral Agent
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Title: S.V.P.
108
